IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 1082 of 1994 WITH SPECIAL CRIMINAL APPLICATION No 1164 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE M.R.CALLA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SPL. CRIMINAL APPLICATION NO. 1082/1994 LATIF CHHMTUMIYA SHAIKH Versus STATE OF GUJARAT SPL. CRIMINAL APPLICATION NO. 1164 OF 1994 SABIRHUSEIN R MALEK Versus DISTRICT COLLECTOR, VADODARA & ORS. -------------------------------------------------------------- Appearance: SCR.A.1082/94 MR SANJAY M DOSHI for Petitioner SCR.A. NO.1164/94 MR MM TIRMIZI for petitioner MR. D.N. PATEL, ADDL. PUBLIC PROSECUTOR for State -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE M.R.CALLA Date of decision: 21/07/2000 C.A.V. JUDGEMENT (Per B.C. Patel, J., and per R.K. Abichandani, J. & M.R. Calla, J., both concurring) PER B.C. PATEL, J. 1. The Hon'ble the Chief Justice Mr. B.N.Kirpal, (as he then was) of this Court sitting with Mr. R.K. Abichandani, J., on 18th August 1994, considering the rival submissions, referred four questions to the Larger Bench which are as under :- [1] Whether the High Court can grant bail, parole or furlough to an accused convicted of an offence under Narcotics Drugs & Psychotropic Substances Act, during pendency of an appeal against the conviction and sentence or thereafter ? [2] Whether High Court in exercise of its writ jurisdiction under Article 226 and 227 of the Constitution of India, can suspend the sentence by granting parole, furlough or bail to an accused convicted of an offence under TADA? [3] Whether the High Court can exercise its writ jurisdiction and suspend the sentence of an accused convicted under TADA and whether such exercise should be undertaken in view of the observations made by the Supreme Court in the case of Kartarsingh, reported in 1994[2] J.T. p.423 and in the case of Usman Daud reported in AIR 1988 SC p. 922? [4] Can High Court direct release on parole a convict undergoing sentence imposed by the competent court when an appeal arising out of said judgement of conviction and sentence is pending? 2. The applicant of Special Criminal Application No.1164/94 who was convicted by a competent court u/s 3[3] and 5 of the Terrorists & Disruptive Activities Act, [hereinafter referred as `TADA Act'] preferred an application for parole for a period of 10 days on a humanitarian ground, namely the marriage of his son. It is averred in the petition that on 5/8/94, applications were forwarded to the respondents but respondents have not replied to the petitioner. It is further averred that at last moment if application is rejected, it would not be possible to approach the Court thereafter for obtaining relief as by the time the Additional Public Prosecutor obtains instructions, the petition would become infructuous. 3. The petitioner has no where mentioned in the application that the applicant has preferred an appeal against the order of conviction or not, and if preferred, what is the stage of the appeal. This aspect being a very relevant aspect, the petitioner ought to have mentioned about it. The petitioner has mentioned in para [7] of the petition about the fact of not filing an application or appeal before any Court in the subject matter - meaning thereby in the matter of parole. 4. The applicant of Special Criminal Application No.1082/94 who was convicted for offences punishable under the Narcotics Drugs & Psychotropic Substances Act [hereinafter referred to as `the NDPS Act'], has preferred this application for parole on humanitarian ground, namely to perform the ceremony which is observed by the Muslims after the death of a deceased. The applicant has stated in his application that on 11/7/94, he preferred an application, however, Collector orally informed that the applicant will have to move I.G. Prison and hence, on 17/4/94, an application was forwarded to I.G.P. but there was no reply from I.G.P. As there was no reply, the applicant moved this Court inter alia stating that his father expired on 9/7/1994 and for performing the after death ceremony, he should be released on parole. It is also relevant to note that the petitioner has no where stated in the application whether he has preferred an appeal against the order of conviction and sentence recorded against him for offences punishable under the NDPS Act or not? 5. The Division Bench in Special Criminal Application No.1082/94 referred the matter to a Larger Bench and for that purpose, directed the office to place the matter before the Hon'ble the Chief Justice for passing appropriate orders. The said Special Criminal Application was placed before the Bench. In view of the observations made by the Division Bench of this Court on 8th May 1991 in Criminal Misc. Application No.971/90 [Coram : N.B.Patel & V.H.Bhairavia, JJ.], the court hearing the application referred the matter to the Larger Bench. Question No.1 : Re: Suspension of sentence of a convict undergoing sentence punishable under N.D.P.S. Act. 6. So far as the accused undergoing sentence for breach of provisions contained in the NDPS Act is concerned, the question was raised before the Division Bench, whether a convict can be released either on parole or furlough by the concerned authority under Parole & Furlough Rules after addition of section 32-A in the NDPS Act. The said section reads as under :- 32-A :: No suspension, remission or commutation in any sentence awarded under this Act :- "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 [2 of 1974] or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under this Act [other than section 27] shall be suspended or remitted or commuted." 7. The Division Bench in case of Ishwarsinh Rajput v/s State of Gujarat reported in 1990[2] GLR 1365 to which one of us (B.C. Patel, J.) was a party, considered the statement, objects and reasons of the N.D.P.S. Act, as also the provisions contained in Article 14 and 21 of the Constitution of India. The Court's attention was also drawn to the human rights proclamation made by General Assembly of United Nations and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom stated in universal declaration. The Court also considered that section 433-A of the Criminal Procedure Code, 1973 [hereinafter referred as `the Code'], which directs that the sentence in case covered by section 433-A shall not be less than 14 years. Sentencing is a judicial function, but the execution of sentence after the pronouncement of a judgement is ordinarily a matter for the executive wing under the Prisons Act or under the Code or other statute. Considering various aspects, the Division Bench held that the convicts under the NDPS Act are not entitled to be released on parole or furlough and dismissed the petition. 8. So far as the question No.1 which pertains to release of a convict on parole or furlough, who is undergoing the sentence for offences punishable under the NDPS Act during pendency of the appeal against the conviction and sentence or thereafter is concerned, in view of language of section 32-A of the NDPS Act, the convict cannot be released on parole or furlough. The mandate of the legislature is that no sentence awarded under the NDPS Act shall be suspended, remitted or commuted and therefore, there is no question of releasing the convict on parole or furlough which would amount to suspension of sentence temporarily. 9. So far as the question with regard to grant of bail to an accused convicted of an offence under the NDPS Act, during the pendency of the appeal against the conviction and sentence is concerned, the Division Bench [Coram : N.B.Patel & V.H.Bhairavia, JJ.] in Misc. Criminal Application No.971/90 etc. on 8th May 1991, considered the applicability of section 32-A of the NDPS Act. The Court expressed the opinion that "the power conferred by section 389 of the Criminal Procedure Code is only to suspend the execution of the sentence and not to suspend the sentence itself". The Court expressed an opinion that, "it would not be correct to say that the special power conferred by section 389 of the Criminal Procedure Code is done away by the provision of section 32-A of the NDPS Act. We are therefore clearly of the opinion that the only power which is taken away by section 32-A of the NDPS Act is the executive power of the appropriate Government to grant suspension, remission or commutation of sentence referred to in Chapter 32 of the Criminal Procedure Code", and the Court rejected the contention raised by the public prosecutor that the powers u/s 389 of the Cr.P.C. are also affected or destroyed by section 32-A of the NDPS Act. The Court on merits however allowed the applications for bail in some cases and passed an order releasing the convict on bail and rejected the application in some cases. 10. In case of Maktool Singh v/s State of Punjab, reported in [1999] 3 SCC 321, the Apex Court held that section 32-A of the NDPS Act has taken away the powers of the Court to suspend the sentence passed on persons convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 [except the section 27] and sentence could not be suspended during the pendency of the appeal of such a convict. 11. In view of this decision, the question No.1 must be answered in negative, by stating that the High Court has no power to suspend the sentence by grant of bail, parole or furlough to an accused convicted of an offence under the NDPS Act during pendency of the appeal against conviction and sentence or thereafter. Question No.2 & 3 :: Can High Court suspend the sentence of a convict undergoing sentence under TADA Act by issuance of writ under Article 226 and 227 or can release the convict in view of the Supreme Court judgement? 12. So far as the question No.2 with regard to exercise of writ jurisdiction under Articles 226 and 227 for suspending the sentence by granting parole, furlough or bail to a convict of an offence under the TADA Act is concerned, as the High Court has no jurisdiction to hear the appeal under the provisions of the TADA Act, ordinarily the High Court should not exercise its writ jurisdiction under Articles 226 and 227 of the Constitution of India to suspend the sentence of a convict under TADA Act. It is also required to be noted that the appeal of a convict under TADA Act against the order of conviction and sentence is to be lodged before the Apex Court and therefore, powers under section 389[1] of the Criminal Procedure Code cannot be exercised by the High Court. Therefore, during the pendency of the appeal preferred by convict before the Apex Court, the High Court will have no jurisdiction to entertain the application for suspension of sentence. 13. Constitution of India is not a statute. Besides the prerogative Writs, Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases to any Government. 14. The power vested with the High Courts to exercise judicial superintendence over the decision of all Courts and Tribunals within the respective jurisdiction is also a part of the basic structure of the Constitution. The distinction between the Act, enacted by the legislature and the Constitution of India is required to be borne in mind. Powers conferred on High Courts under Article 226 cannot be taken away or curtailed by any legislation. The subordinate judiciary or Tribunal created under ordinary legislation cannot exercise the power of judicial review of the legislative action to the exclusion of the High Courts and the Supreme Court. So far as the basic structure of the Constitution of India is concerned, the Apex Court in case of L. Chandrakumar v/s Union of India reported in AIR 1997 SC 1125 pointed out that the constitutional safeguards which ensure the independence of the Judges of the superior judiciary are not available to the Judges of the subordinate courts or to those who man Tribunals created by ordinary legislations. Consequently, the Judges of the latter category can never be considered as full and effective substitutes for the superior judiciary in discharging the functions of the constitutional interpretation. Therefore, the power of judicial review over legislative action vested in the High Court under Article 226 and in Supreme Court under Article 32 is an essential feature of the Constitution of India constituting part of its basic structure. Ordinarily therefore, the power of the High Courts and the Supreme Court to test the constitutional validity of legislation can never be ousted or excluded. 15. When in respect of a convict under TADA Act, the authority exercising powers under the provisions contained in the Bombay [Furlough and Parole] Rules, 1959, refuses to exercise the powers vested in it or exercise the powers on a ground which is not germane or is deciding the application of parole or furlough on the ground which is non est, the High Court can interfere. It is required to be borne in mind that the High Court in exercise of its jurisdiction under Article 226 and 227 of the Constitution of India, is not sitting in appeal over the decision of the competent court or authority. Therefore, when the decision is perverse or is such which no reasonable person could have arrived at, only then the High Court may intervene. 16. In case of Ayubkhan Kalandarkhan Pathan v/s State of Gujarat, reported in 1990[1] GLR VOL. XXXI[1] 473, [Coram : S.B.Majmudar & B.S.Kapadia, JJ], this Court considered the 42nd amendment to the Constitution of India which introduced Part XIV-A relating to Tribunals. Before the High Court, the case was pertaining to the provisions contained in the TADA Act. There is no specific provision which takes away the constitutional rights of the person and there is also no provision under the TADA Act to take away the powers of the High Court to decide the matter under Article 226 of the Constitution of India. The Division Bench held that, in absence of any provision in the Constitution of India taking away the power of the High Court under Article 226 of the Constitution for entertaining any such petition when there is real fear of infringement of fundamental rights, it cannot be taken away by the Act of Parliament and in fact no such provision is made in the TADA Act. Before the Division Bench, the Court's jurisdiction was invoked under Article 226 of the Constitution of India for a writ of mandamus directing to quash the First Information Report, and seeking certain directions in connection with the offence registered under the TADA Act and for interim relief restraining the respondents No.1 and 2 [police officers] from arresting him. The Court pointed out that if the Court is moved for challenging unauthorised detention order before actual detention, on the ground that the order is nullity because it is passed [a] by an incompetent person or [b] it is a mala fide order or [c] it is contrary to the legal procedure prescribed for passing such an order, or [d] it is otherwise a nullity for any other reason, for example, passed against a wrong person, it cannot be said that such challenge would be per se not maintainable. 17. The Supreme Court in case of Usmanbhai Dawoodbhai Memon v/s State of Gujarat reported in AIR 1988 SC 922 observed as under :- "12. At the very outset, Shri Poti, learned counsel appearing for the State Government with his usual fairness, unequivocally accepted that the provisions of the Act do not take away the constitutional remedies available to a citizen to approach the High Court under Article 226 or Article 227 or move this Court by a petition under Article 32 for the grant of an appropriate writ, direction or order. It must necessarily follow that a citizen can always move the High Court under Article 226 or Article 227 or this Court under Article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend Articles 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State Government u/s 9[1] of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification was a fraud on powers and thus constitutionally invalid." 18. The writ jurisdiction under Article 226 exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the fountain source of law and the basis for its exercise may be put at different pedestal even on wider footing to prevent injustice. This jurisdiction is exercised on source of powers. However, the Court cannot ignore a substantive rights of a litigant. The Court has to exercise the jurisdiction keeping in mind various principles laid down by the Apex Court as well as High Courts. Surely, the High Court has no jurisdiction while exercising powers under Article 226 and 227 of the Constitution of India, alike the jurisdiction of the Apex Court under Article 142 of the Constitution of India. The Apex Court has also pointed out with regard to the powers to be exercised under Article 142 of the Constitution of India is with a view to do justice between the parties. The Court cannot lose sight of the relevant statutory provisions. The Court also pointed out that the Court would be bound by the relevant provisions of the procedure. The High Court while exercising the powers under Article 226 of the Constitution of India, will not pass an order inconsistent with the provisions of law. However, the Court can declare the provisions as ultra vires, but so long as the provision is not declared ultra vires, the Court will have to decide the matter in accordance with the statutory provision. 19. It is required to be noted that so far as an ouster of jurisdiction of the ordinary court is concerned, the Apex Court in case of Usmanbhai Daudbhai and others v/s State, reported in 1988[2] GLR 859, after considering the provisions contained in section 439 of Criminal Procedure Code and in section 20 of the Terrorist & Disruptive Activities [Prevention] Act, 1987 and considering the views expressed by the Apex court in case of Balchand Jain v/s State reported in 1977 [2] SCR 52 [AIR 1977 SC 366], upheld the views expressed by the Division Bench of this Court that the High Court had no jurisdiction to entertain an application for bail u/s 439 or u/s 482 of the Code. The Court pointed out that the Apex Court in case of Balchand Jain [supra] proceeded on the well recognized principle that an ouster of jurisdiction of the ordinary court is not to be readily inferred except by express provisions or by necessary implications. It all depends on the scheme of a particular Act as to whether the power of the High Court and the Court of Sessions to grant bail u/s 438 and 439 of the Code exists. Therefore, the High Court will not be in a position to entertain the application for bail, meaning thereby the High Court cannot suspend the sentence of a convict under the TADA Act. 20. Before the High court, the jurisdiction of the Court was invoked with the aid of section 439 read with section 482 of the Code. If the legislature has intended to exclude the jurisdiction of the High Court in so far as the bail is concerned for the offences punishable under the TADA Act, can by another mode the jurisdiction of the Court be invoked? And if yes, what would be the limitation in exercise of the powers ? 21. After completion of the trial as per the procedure laid down under the provisions, if the accused is convicted under the TADA Act, so far as the bail pending hearing of an appeal is concerned, the High Court has no power to entertain the application in view of the pronouncement by the Apex Court. It is also required to be noted that, on appreciation of evidence, the Court has convicted the accused and how to manage and regulate the jail administration is essentially and entirely, the concern and the look out of the jail authorities and as long as the orders passed by them are just, fair and proper, the court has no right to interfere with such orders passed by the authority concerned and to insert its own reason for releasing the convict on parole. 22. The Division Bench in case of Ishwarsinh Rajput [supra] considered the provisions contained in Prisons Act, 1894 and the provisions contained in Bombay Jail Manual and held that the convicts under the provisions of the N.D.P.S. Act are class by themselves. The convicts under TADA Act are a separate class by themselves. The Court has held in case of Ishwarsinh Rajput [supra] that the classification of prisoners convicted under the NDPS Act and those convicted under other law is a reasonable, rational and on the same principle, the classification would be justified. They are not the convicts to be treated at par with the convicts undergoing sentence under penal code or undergoing sentence for committing offences under the other Acts. The convicts undergoing sentence under the TADA Act are the prisoners convicted of gravest offence. They should not be permitted to move freely in the society. 23. In view of the terrorism created by the offenders which raise the special criminal problems compelled the legislature to create special courts. In view of the special problems for which they can be said to be responsible, a special procedure for trial has been prescribed. Disruptive activities are defined in section 3 and 4 of the TADA Act. The offenders for whom the special courts were required to be created and a separate procedure was required to be prescribed, are not held entitled to invoke the jurisdiction of the High Court u/s 439 read with section 482 of the Criminal Procedure Code. Therefore, merely an application for furlough / parole is rejected, would not be a ground to entertain the application. Under the set up created under the Prisons Act, 1894 and Prisoners [Bombay Furlough and Parole] Rules, 1959, in absence of violation of the constitutional right, question of entertaining the application does not arise. 24. Before us, it was submitted that the decision in case of Usmanbhai Daudbhai [supra] refers to section 439 and section 482 of the Criminal Procedure Code. No where it has laid down that powers under Article 226 / 227 of the Constitution of India cannot be exercised by the Court. 25. The Apex Court in case of Kartar Singh v/s State of Punjab reported in 1994 [2] JT 423 pointed out as under :- "388. Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not being an