- (1.) S. H. A. Raza, J. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners of both the above writ petitions have challenged the vires of the provisions of Section 32-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) which reads as under: "32-A. No suspension, remission or commutation in any sentence awarded under this Act.- Not withstanding 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. "
(2.) BY means of the aforesaid provision which was substituted in the aforesaid Act by Act No. 2 of 1989 on 6th January, 1989 after conviction of an accused, under any of the provisions of the Act during pendency of appeal, the power of the Court to suspend, remit or commute the sentence was taken away. The petitioners of both the writ petitions after conviction preferred appeals before this Court which was admitted and the same are still pending, but their bail applications were rejected for the reason that Section 32-A of the Act does not provide provision, for grant of bail. Thereafter petitioners have filed the present writ petitions challenging the vires of the act on the ground that the aforesaid provisions are arbitrary and deprive the petitioners of their lives or personal liberty without due procedure established by law. The main thrust of the argument of the learned Counsel for the petitioners is that by the aforesaid provision, various provisions of the Cr. P. C. including Sections 360, 389, 432,436, 437 and 438 have been rendered ineffective. It was further submitted that while a person alleged to have committed a murder or any other heinous offence even after conviction may be granted bail, during the pendency of his appeal by the appellate Court and the sentence awarded may be suspended, remitted or commuted by the Court or the Government as the case may be, a person involved for committing an offence under the aforesaid Act, which is less heinous and grave in comparison of culpable homicide and other heinous offences cannot be granted bail by the Court and his sentence cannot be suspended, remitted or commuted either by the Court or the Government, as
(3.) AS in the aforesaid writ petition the vires of Section 2-A was challenged, notice was issued to Attorney General of India. A counter-affidavit has been filed in one of the writ petitions and Mr. D. S. Randhawa, Chief Standing Counsel, submitted that the counter-af fidavit filed in one writ petition be also treated as counter-affidavit in the other writ petition. Although Section 32-A puts an embargo to suspend, remit or commute the sen tence after conviction of an accused, during the pendency of an appeal, it has been averred in the counter-affidavit that there is distinction between the suspension of sentence and grant of bail and order to suspend a sentence, cannot be said to be an order for grant of bail. Further the bar against suspension, remission or commution of sentence has been made subject to the provisions of Section 33, which provides for application of Section 360 of the Code of Criminal Procedure 1973, and of the Probation of Offenders' Act, 1958. Even under Section 389, the powers of the High Court, during the pendency of appeal, to suspend sentence and also to grant bail are the two distinct powers independent of each other power to grant bail has not been taken away from higher Courts (emphasis ours) as alleged in this paragraph and even now the High Court can exercise this power subject to the limitations of Section 37. power of High Court has not been taken away regarding the grant of bail. However, the facts remains that the Act has been brought into force for the purpose of making drug offences more cognizable and Section 32-A has been inserted with a view to ensure that the drug offenders do not escape with lesser punishments. In paragraph 12 of the counter-affidavit it was further alleged that a person cannot claim bail as of right. The question of release on bail is entirely a matter of discretion with the Court. While rejecting the bail of the petitioner the Hon'ble Judge of this Court had not held that it had been refused as there existed a statutory bar in the Act itself.;