Criminal Writ Petition No.2084 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition No.2084 of 2010 Date of Decision: 31.03.2011. Kuldip Singh ..Petitioner Versus State of Punjab and another ..Respondents CORAM: HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. V.K. Jindal, Advocate, for the petitioner. Mr. Kirat Singh Sidhu, D.A.G. Punjab, for the respondents – State. NAWAB SINGH.J (ORAL) By judgment dated February 13th, 1998 passed by Judge, Special Court, Hoshiarpur, Kuldip Singh-petitioner was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'N.D.P.S. Act') and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1,00,000/- with default stipulation, in case bearing First Information Report No.29 dated May 27th, 1994, Police Station Balachaur, District Nawan Shahar. 2. In reply filed by the State, it has been stated that the petitioner has already undergone actual sentence of 9 years, 6 months and 20 days as on January 27th, 2011. 3. By filing this petition, petitioner has pleaded that he be granted benefit of remissions which have been granted by the State under Article 161 of Constitution of India as well as provisions of Punjab Jail Manual, during the period, he remained confined in jail after conviction, that is, from February 13th, 1998 to March 2nd, 2001 and February 17th, 2006 to January 27th, 2011. 4. Learned counsel for the petitioner has urged that Criminal Writ Petition No.2084 of 2010 2 State Government is not considering the case of the petitioner for grant of remissions, in view of Section 32A of the N.D.P.S. Act, whereby, no sentence awarded under N.D.P.S. Act shall be suspended, remitted or commuted. 5. In Dadu @ Tulsidas vs. State of Maharashtra, 2000(4) RCR (Criminal) 275, Hon'ble Supreme Court has given the interpretation to the provisions of Section 32-A of N.D.P.S. Act and its constitutional validity in respect of Sections 432 and 433 of the Code of Criminal Procedure and upheld the distinction between convicts under the N.D.P.S. Act and those under other statutes in the following terms: - “There is, therefore, no voice of unconstitutionality in the Section in so far as it takes away the powers of the Executive conferred upon it under Sections 432 and 433 of the Code, to suspend, remit or commute the sentence of a convict under the Act.” 6. In Ekka Ram vs. State of Punjab (Criminal Writ Petition No.839 of 2004 decided on September 14th, 2005), it was observed as under by this Court: - “On due consideration of rival submissions, it appears that Hon'ble the Apex Court in a three judge Bench judgment JT 2000(Suppl.1) SC 449 (Dadu alias Tulsidas etc. versus State of Maharashtra etc.) in para No.15 has discussed the powers of the President and Governor of the State under Articles 72 and 161 of the Constitution, respectively. From the ratio of the discussion, it appears that the embargo under Section 32-A of the Act is applicable only to executive decisions under Section 432 Cr.P.C. and it would not apply for the purpose of imposing any restriction on the powers of the President and Governors. As the impugned circular (Annexure P-2) has been issued also in exercise of the powers of the Governor, Punjab under Article 161 of the Constitution, the Criminal Writ Petition No.2084 of 2010 3 aforesaid submissions of learned counsel for the petitioner appear to carry force and deserve consideration.” 7. Above being the legal and factual position, this Court directs the State Government to consider the case of the petitioner with regard to the remissions granted by the State during the period, he remained in custody after conviction, that is, from February 13th, 1998 to March 2nd, 2001 and February 17th, 2006 to January 27th, 2011 and in case, he is found to be covered under special remissions granted by the State under Article 161 of the Constitution as well as Punjab Jail Manual or any circular issued during that period, within two months from the date on receipt of this order. 8. Disposed of accordingly. (NAWAB SINGH) JUDGE 31.03.2011 neetu