B.C. PATEL,

(1) IN these petitions the question which requires determination is whether a person convicted under the Provisions of Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as the Narcotics Act) con be released either on parole or furlough by the concerned authority under Parole and Furlough Rules after addition of Sec. 32a in the Act Section 32a reads as under:

32 No suspension remission or commutation in any sentence awarded order this Act : notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974)on any other law for the time being in force but subject to the provisions of Sec. 33 no sentence awarded under this Act (other than Sec. 27) shall be suspended or remitted or commuted. This Section came into force with effect from 29/05/1989 It is mandate of the aforesaid section that notwithstanding anything contained in the Code of Criminal Procedure 1973 or any law for the time being is force no sentence under this Act shall be suspended remitted or commuted otherwise that is provided under Sec. 26 or Sec. 33 of the Act. The language of Sec. 32a is clear and admits of no ambiguity. Therefore once a person is convicted under the Narcotics Act his sentence cannot be suspended or remitted.

(2) BY granting parole or furlough the prisoner is released from the jail for a short time. It is granted for various reasons such as to enable the prisoner to return to the outside world to enable continuity with his family life and to deal with family material etc. If the prisoner is released on parole his sentence is suspended for the time being for the period for which he is released on parole. If he is released on furlough him sentence is suspended and remitted. However grant of percale or furlough is a concession given to the prisoner under the system known as Parole and Furlough Rules which are framed under the provisions of the Prisons Act 1894 The purpose and object of granting parole or furlough is to some extent considered by the Full Bench of this Court in the case of Bikhabhai v. State [1987 (2)] 28 GLR 1178. The relevant dissuasion is under. (at page No. 1183 of GLR) The Parole and furlough Rules are part of the penal and prison reform with a view to humanise the person system. These rules enable the prisoner to obtain his released to return no the outside world for a short prescribed period. the objects of such release prisoner can be read from para 101 of the report submitted by the All India Jail Manual Committee as also the objects mentioned In the Model Prison Manual. Those objects are :

(1) to enable the inmate to maintain continuity with his family life and deal with family matters. (ii) to save the inmate form the evil effects of certificate prison life. (iii) to enable the Inmate to maintain constructive hope and active Interests in life 14 In the Statement of Objects and Reasons for Bombay (Prison Amendment) set No 27 of 1953 the Jail Reforms Committee had recommended and the Government accepted the recommendation that: There should be the system of release of prisoners on furlough under which well behind prisoners of certain categories should as a matter of right have a spell of freedom occasionally after any undergo a specified period of imprisonment so that they may maintain contact with their near relative and towards and may not feel uprooted from society Government accepted these recommendations and able deluded that the furlough period should count toward the prisoners sentence. xxx xxx xxx The experience has shown that the system has worked satisfactorily who Persons Act 18 does not specifically provide for the grant of furlough and the remission of sentence consequent upon it In order to place the same in on a permanent footing and to enable the Government to delegate its powers to the same now General of persons It Is necessary that the persons Act 1854 should be amended. In its application to the State of Bombay

(3) IN furtherance of the aforesaid objects necessary amendments were made in the Prisons Act 1894 Bombay Act 27 of 1951 and Bombay Act 23 of 1959 substituted clause (5) of Section 3 of the Prisons Act 1894 as under:

3 Definitions : In this Act - xxx xxx xxx (5) remission system means the system of regulating the award of marks to and the consequent heartening of sentences of prisoners in Jail in accordance with the rules for the time being in force; (5a) furlough system means the system of releasing prisoners In Jail on furlough In accordance with the rules for the time being in force; Bombay Act 27 of 1951) (5b) parole system means the system of releasing prisoners firm Jail on parole by suspension of their sentences in according with the time for of time being in force; (Bombay Act 23 of 1959)

Bombay Act 23 of 1959 further substituted clause (5) of Sec. 59 of the Prisons Act 1894 as under:59 Power to make rules - The State Government may make rules consistent with this Act - xxx xxx xxx (5) for the award of marks the suspension or remission and consequent shortening of sentences and the grant of release on parole or furlough and determining the conditions on which and the authority by which sentence say be suspended or remitted and the prisoners may be released person or furlough. The Bombay Jail Manual inter alia provided types of remission and how it is to be granted. It provides for ordinary remission annual good conduct remission special remission blood donation remission conservancy work remission physical training remission and sports remission. Rule 1444 provides that if a prisoner is convicted of an offence committed after admission to jail under Secs. 147 148 152 224 302 304 304 306 307 308 323 325 326 327 332 333 352 553 and 377 of the India Penal Code or of an consult committed after admission to jail on a jail guard or other officer all the ordinary and special remission of whatever kind earned by him under than Rules upto the date of said conviction may be cancelled with the sanction of the Inspector General. Review or suspension of sentence is Chapter 42 Part-II and it begins from Rule 1487 For our purpose important Rule is Rule 1500 which would provide the system how and to whom and to what extent furlough is to be granted to the prisoner. It specifically provided that habitual criminals and prisoners convicted of offences relating to robbery dictate under Secs. 392 to 402 of IPC or Prisoners convicted under Prohibition Act either singly or together writ offence or such convicts whose presence is considered dangerous or prejudicial so pubic peace and tranquillity by the District Magistrate concerned or the Commissioner of Police Greater Bombay as the case may be or prisoners whose conduct in fact is in the opinion of the Superintendent not satisfactory shall not be eligible for release on furlough.

Rules 1509 and 1510 read as under :1509 The furlough period shall each case be counted as a remission of sentence; Provided that where any furlough period been extended under Rule 1546 the period of extension shall not be counted as a remission of sentence. 1510 A prisoner may be remission people for such a period as Government may order in eyes of period unless or death of any member of the prisoner a family or his nearest relative or to any of the sufficient cause The period spent under period will not count a pert of sentence.

(4) SAME is provided in the Prisons (Bombay Furlough and Parole) Rules 1959 Rule 16 provides that Furlough period shall be counted as remission of sentence Rule 20 provides that period spent on parole shall not count as remission of sentence Rule 29 provides for Form of Order of release on furlough or parole - every order of release on furlough or parole shall be made in Form E. Form E inter alia provides that the period when the prisoner released on parole his sentence is suspended.

(5) FROM the definitions of the words parole and furlough given in the Prisons Act and the Rules it is abundantly clear that once a prisoner is released on furlough his sentence is suspended for the time being and is remitted. When the prisoner is released on parole his sentence is suspended for the time being for no remission is given for that period.

(6) ONCE it is held that by releasing the Prisoner on furlough his sentence is suspended and is remitted and by releasing the prisoner on parole his sentence is suspended for the time being then there is a specific bar or prohibition under Sec. 32a of the Narcotics Act to the suspension or remission of the sentence awarded under the Narcotics Act. Hence the prisoners convicted for the offences under the Narcotics Act cannot be released on parole or furlough.

(7) THIS Section is added with a definite object by the Parliament after due deliberation. The Parliament considered the shocking escalation of serious crime of traffic in illicit drug and its serious adverse effects on the society It has not only provided deterrent punishment but has also provided the no sentence awarded under the Act shall be suspended remitted or commentate. This will be clear from the Statement of Objects and Reasons of Act 2 of 1989. The statement of Objects and Reasons for amendment of the Narcotics Act are as under STATEMENT OF OBJECTS AND REASONS

Is recent years India has been facing a problem of transit traffic in illicit drugs. The spill-over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and psychotropic Substances Act 1985 provides different punishments for drug trafficking offences. Even though the major offences are non- bailable by virtue of the leave of punishments on technical grounds drug were being released on bail. In the light of certain difficulties issued in the enforcement of the Narcotic. Drugs and Paychotropic Substances Act 1985 the need to amend the law to further strengthen it has been felt.

2 A Cabinet Sun-Committee which was constituted for combating drug traffic and preventing drug abuse also made a number of recommendations for strengthening the existing law. In the light of the recommendations of the Cabinet Sub-Committee and the working of the Narcotic Drugs and Paychotropic Substanecs Act in the last three years it is proposed to amend the said Act. These amendments inter alia provides for the following : (i) to constitute National Fund for Control of Drugs Abuse to meet the expenditure incurred in concoction with the measures for combating illicit traffic and preventing drug abuse; (ii) to being certain controlled substances which are used for manufacture of Narcotic Drugs gad Paychotropic Substances under the ambit of Narcotic Drugs and Paychotropic Substances sot and to proofed different punishment for violation thereof; (iii) to provide that no sentence awarded under the Act shall be suspended admitted or commend; (iv) to Provide for pre-trial disposal of seized drugs; (v) to provide death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs; (vi) to Provide fog forfeiture of property and a detailed proceed to relating to the same and (vii) to provide that two offences shall be congnizable and non-bailable

3 The Bill seeks to achieve the above objectives. From the Statement objections and Reasons for introducing the amendment in the Narcotics Act it is abundantly clear that Sec. 32a and other Sections are added inter alia to provide that the drug offenders may not be released on bail punishment to the offenders is deterrent ant to make provision that no sentence a awarded under the Act shall be suspended remitted or committed. This object of Parliament will be frustrated or the prisoners convicted under the Narcotics Act are released on parole or furlough.

(8) IN view of the aforesaid legislative mandate learned Counsel Mr. Mehta appearing. In two matters made an application for amending the petition as to challenge the vires of Sec. 32a of the Narcotics Act on the ground that it violates Arts. 14 and 21 of the Constitution and that it select to amens the Constitutional precessions of Art. 72 and Art. 161 of the Constitution and therefore it is sold At the time of hearing of this matter he submitted that Sec. 32a discriminations between a prisoner who is convicted under the Narcotics Act and prisoner who are convicted under any other law because prisoners convicted under any other law are entitled to have parole or furlough with prisoners convicted under the Narcotics Act are not to be released on parole or furlough in view of Sec. 32a. He further submitted that it is in violation of Art. 21 of the Constitution as it is inhumane treatment to the prisoners convicted under the Narcotics Act Lastly he submitted that the mandatory direction given under Sec. 32a without be read down by construing the word shall as may so that in appropriate case an authority can release the prisoner convicted under the Narcotics Act for few days on parole or furlough.

(9) AS against this Miss Doshit learned Additional Public prosecutor submitted that it cannot be said that classification between the prisoner who are convicted under the Narcotics Act and the prisoners the are convicted under the provisions of I. P. C. Customs Act of any other law for the time being in force is in any way unreasonable. Classification is on the nature of the offence committed by the prisoners and with a specific object to curb illicit traffic and/or preventing drug abuse the submitted that parole and furlough system is introduced for the benefit of the prisoners no that they may maintain contact with their near relatives and friends and may not be uprooted from the society. But it does not give an absolute relief to the prisoner to be released on parole or furlough If the Legislature provides that the said benefit shall not be given to the prisoners convicted for a Particular type of offences then it cannot be said that the said restriction is illegal or ultra vires Art 14 or Art. 21 of the Constitution of India.

(10) MR. Mehta learned Counsel on behalf of the petitioners submitted that by not releasing the prisoners who are convicted for the offences under the Narcotics Act on parole or furlough it would mean that the right to live as a human being is violated For this purpose he placed reliance on the decision of the Supreme Court in the case of until ultra v. Delhi Administration AIR 1980 SC 1579 [LQ/SC/1979/502] . He referred to various paragraphs of the judgment and submitted that if any inhumane treatment is given to the prisoner this Court should issue writ and compel the concerned authority to act in a reasonable manner Mr. Mehta relied mainly on the following observations made by the Supreme Court in paragraphs 31 51 and 61 :

No iron curtain can be drawn between the prisoner and the Constitution. It Is therefore the Courts concern implicit in the power to deprive the sentence of his personal liberty to ensure that no more and no less is warranted by the sentence happens If the prisons breaks data because of mental torture paycheck processor or physical inflict beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary if an influential convict is able to but advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of Court sentence by executive palliation if unwarranted by law. xxx To give effect to the circumstances that it is illegal to exceed it and so it follows that a prison official who goes beyond mere imprisonment of deprivation of locomotion and assaults or otherwise compels the doing of things not covered by the sentence acts in violation of Art 19 Punishments or rigorous imprisonment oblige the inmates to do hard labour not harsh labour and so a vindictive Officer victimising a prisoner by fording on him particularly harsh and degrading jobs violated the laws mandate. Form example a prisoner if forced to carry night soil may seek a habeas writ. Hard labour in Sec. 53 has to receive a meaning. A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably the assigned congenial jobs. Sense and sympathy are not enemies of penal asylums.

61 The treatment of prisoner should emphasise not their exclusion from the community but their continuing part in it. Community agencies should therefore be entitled wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners. There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social agencies. Steps should be taken to safeguard to the minimum extent compatible with the law and the sentence the rights relating to Civil interests social security rights and other social benefits of prisoners. In our view this judgment nowhere states that prisoners convicted of graves offence who are a menace to the social order should be let loose in the society by suspending the sentence. It should not be lost that in murder case the accused commits murder of one or tow persons while those persons who are convicted under the Narcotics Act are causing the death or are inflicting death blow to a number of innocent young victims who are vulnerable and are causing deleterious effects and deadly impact on the society. As such they were hazard to the society. Even if they are release temporarily in all probability they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The aforesaid judgment upon which heavy reliance is place by the learned Advocate to urge that inhumane treatment should be the given to the prisoner nowhere lays down that by not releasing the prisoner on parole or furlough it would amount to inhumane treatment or to released on parole or furlough. Before prisoners nefarious activities for which the prisoner is convicted after anti-social element create havoc if Legislature with an object to curb it incorporates sec. 32a it cannot be said that it is in violation of Art. 21 Personal liberty of persons who are convicted under the Narcotics Act is curtailed by due process of law. If a person commits a criminal offence and punishment has been given to him by a procedure established by law which is free and fair where the accused has been fully heard no question of violation of Art. 21 arises by implementing the judgment and conviction order passed by the Court To prisoners convicted of other offences under the parole and furlough system some benefits are given but Parliament in its wisdom thought that such benefits should not be given to the prisoners convicted under the Narcotics Act. That cannot be said to be in say way inhumane.

(11) MR. Mehta learned Advocate appearing for the petitioners submitted that prisons have a drastic effect on the family lifo of the prisoner and it would be inhumane not to release prisoners convicted for the offence punishable under the Narcotics Drugs and Psychotropic Substances Act. 1985 on parole or furlough. However he failed to point out any Article even in Human Rights Proclamation by the General Assembly of United Nations to substantiate his contention. He fairly pointed out that even in the Moderns Legal students of Human Rights and Europe. Second Edition by Ralph Beddard it has been stated that prisons have a drastic effect of course on family lifo but since the prisoner is usually there following hie own misdemeanors there seems little claim that the State is responsible for violation of Art. 8. The relevant passage is as under:

The welfare of the change is also of prime importance to justifying restriction on children visiting one of their parents in goal. Prisons have a drastic effect of course on family life but since the prisoner is evening there following him own misdemeanors there seems little claim that the State is responsible for violations of Art. 8. The question always unless however of bow for a prisoners freedom could be restricted by a person sentence. In of 8 the Commission noted that a majority of States parties to the Convention bed no staff whereby Petitioners had the opportunity of consigning married life and only in two States were there provisions for home leave and conjugal visits. Article 8 of the European Convention for the protection of Human Rights and Fundamental Freedoms stated in Universal Declaration is as under (1) Everyone has the sight to reject for his private and family life for and his correspondence. (2) These shall be no Interference by a public authority with the exercise of the right except such as is in accordance with the is and is necessary in a democratic society in the interests of original security public safety in the exercise we being of the country for the prevention of disorder or clime for the protection of with or morals. or for the protection of the rights and freedoms of other. Considering the aforesaid position it cannot be said by any stretch of imagination that not releasing the prisoner convicted under the Narcotics Act on parole or furlough would be in any way inhumane. It would be necessary and the Parliament had thought it so in the interest of democratic society for the prevention of disorder and for the protection of health of numerous adolescents of this country.

(12) IT should also be kept in mind that prisoners have no absolute right of being released on parole or furlough. It is the privilege given to them defending upon facts and circumstances of each case. The Prison Rule at stated above specifically provide that certain prisoners convicted for the offences punishable under Secs. 394 to 398 and others shall out be released on furlough. Releasing a prisoner on parole is a discretion of competent authority to be exercised on the basis of certain guidelines.

(13) FURTHER the contentions raised by the learned Advocate Mr. Mehta are dealt with by the Supreme Court in the case of Maru Ram v. Union of India AIR 1980 SC 2147 [LQ/SC/1980/449] . In that case validity of Sec. 433a of the Criminal Procedure Code which was inserted in 1978 was challenged. Section 433a reads as under:

433 Notwithstanding anything contained in Sec. 432 where a sentence of Imprisonment for life Is Imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where a sentence of death Imposed on a person has been commuted under Sec. 433 into one of Imprisonment for life. Such person shall not be released from prison unless he had served at least fourteen years of Imprisonment. Similar contentions were raised before that Court and the Court had negatived the same.

(14) ONE of the catenations raised in the aforesaid case was to the effect that it was the duty of the Court to uphold the human rights sod the prisoners reformat freedom should not be curtailed. Dealing with this contention the Court observed as under:

xxx In the Province of into partition Industry and dextral of counsel can support any meaning what with lexical plurality case-law proceeding and profusion of canons to support any provision. We had better base ours upon the plain purpose and obvious decree of the statute which is a sure a mantic navigator before turning to erudite alternatives. Oliver Wendel Homeless has wisely said. It Is sometimes more important to emphasise the obvious than candidate the obscure. Another age counsel is Frankfurters therefore advise: H. Friendly Benchmarks 2021 (1967): (1) Read the statute; (2) read the statue; (3) read the statute. If we read Sec. 32a of the Narcotics Act there is no escape as it is clear and unambiguous. It Specifically prohibits grant of remission or suspension of sentence. The Court further held that Secs. 432 433 and 433 make it clear that while the Code does confer wide powers of remission and commutation of sentence. it emphatically intends to carve out an extreme category from the board generosity of such executive power. Section 433a directs that commutation in chases covered by Sec. 433a shall not be less than actual duration of imprisonment below 14 years. Sentencing is judicial function but the execution of sentence after the Courts pronouncements is of ordinarys matter for the Executive under the Criminal Procedure Code. No release by reduction or remission of sentence is possible under the corpus juris as it stands in any other way except under the provisions of Secs. 432 and 433a. Court relied upon the decision of the Supreme Court in the case of Rabha 1961 (2) SCR 133 at pp 137 138 (AIR 1961 SC 334 [LQ/SC/1960/247] ) and relied upon the following observation in that case: A reprieve as a to more than suspension of the punishment fixed by law. A pardon is the remission of such imprisonment. Both are the exercise of more than functions and should be distinguished from the exercise of judicial power over sentences. The judicial power and the executive power over sentences are readily distinguishable observed Justice Sutherland. To render a judgment of judicial function. To carry the judgment Into effect is an executive function. To cut short a sentence by an Act of claimant is an exercise of executive power which abridges the enforcement of the judgment but does not alter is quo judgment. Though therefore the effect of an order of emission is to wipe out that part of the sentence of Imprisonment which has not been served out and thus in practice to reduce the sentence to the period already undergone In law the order of remission merely means that the rest of the sentence need not be under so no leaving the order of convection by the Court and the sentence passed by It untouched. The Court further relied upon the following observations of the Supreme Court in Godses case 1961 (3) SCR 440 [LQ/SC/1961/11 ;] ">1961 (3) SCR 440 [LQ/SC/1961/11 ;] [LQ/SC/1961/11 ;] : (AIR 1961 SC 600 [LQ/SC/1961/11 ;] ">AIR 1961 SC 600 [LQ/SC/1961/11 ;] [LQ/SC/1961/11 ;] );: Unless the said sentence is commuted or permitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure a prisoner sentenced to life imprisonment Is bound in law to serve the life time in prison. The Rules framed under the Prisons Act enable such a prisoner to earn remissions ordinary special and State and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life Is ordinarily equated with a definite period but it is only for that particular purpose end rot for any other purpose. As the sentence of transportation for life or its prison equivalent the life imprisonment in one of Indefinite duration the remissions so canted do not In practice help such a convict as it is not possible to predict the time of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under Sec. 101 of the Code of Criminal Procedure on a consideration of the relevant factors including the period remissions carried. The question of remission is exclusive within the province of the appropriate Government; and in this case it is admitted that though the appropriate Government made certain remissions under Sec. 401 of the Code of Criminal Procedure It did not remit the entire sentence. We there- fore hold that the petitioner has not yet acquired any right to release. The Court thereafter considered whether Sec. 433a suffers from extreme vices of arbitrariness or irrationality. This aspect was considered by the Supreme Court after observing that: We must remember that Parliament as legislative instrumentality with the representatives of the people contributing their wisdom to Its decisions has title to an Initial permeation of constitutionality. Unless one reaches far beyond unwisdom to absurdity irrationality colourability and the like the Court must keep its bands off. The Court further relied upon the following paragraph from the decision in the case of Charles Sobraj 1978 (4) SCC 104 [LQ/SC/1978/227] : (AIR 1978 SC 1514 [LQ/SC/1978/227] ) : It is now well settled as a stream of ruling of Courts proves that deterrence both specific and general rehabilitation and institutional security are with considerations. Compassion wherefore possible and cruelty only where inevitable Is their of correctional confinement. When prison policy dress such a valid goal the court will not intervene officiously. In paragraph 46 the Court held as under: Basic to the submissions of counsel for the petitioners Is the human assumption that the object of sentencing is not deterrent to time simplicitor but mainly the rehabilitation of the prisoner. Human dignity emphasised in the preamble compassion implicit in the prescription of fair procedure in Art. 31 and the irrationality or bitterer incarcerator carried for a reformatory component in jail regimen with the status of a constitutional requirement. We need not prolong the judgment in substantiation of this proposition because the Collector General with sweet reasonableness and regard ton the presidents of this Court has not disputed that reform of the prisoner is one of the major purposes of punishment. The Court dealt with the argument that 14 Years in prison is an inordinate spell which is not only an unrewarding torment but a negation of reformation indeed the promotion of submitted hostility to society and hardening of brutality counter-productive of hopeful submission. The Court held that : Even though reformation of prisoner was a necessary measure of minimum incarceration of 14 years for the greats class of like murder cannot be considered shocking having regard to the escalation of horrendous crime in the country. The time has not perhaps aggrieved to exclude deuterons and even public denunciation altogether Secondly even for correctional thereby a long hospitalisation in prison may sometimes be needed Thereafter the Court held that: Personal opinions apart a very long term for a murders in prison cannot be castigated as so outrageous as to be water arbitrary and violative of sentinel classification between liners and lifter and a to blatantly barbarous as to be irrational enough to be struck down as ultra vires. Even the submission that no penal alibi justifies a prisoner being kept wants off from the good earth if by us conduct attainments and proven normalization he has become fit to be a free citizen cannot spell unconstitutionality.

(15) THE Supreme Court has also negatived the contention than Sec. 433a the invalid on the ground that it was indirectly violative of Arts 72 and 161 of the Constitution Mr. Mehta learned Counsel fore the petitioners has not pressed the said contention in view of the aforesaid decision and therefore it in not necessary to decide it further in concluding paragraph the Supreme Court formulated it conclusion. The relevant paragraph are under :

We conclude by formulating for findings: (1) We repulse all the custom the vires of Sec. 433a May be penologically the prologued term prescribed by the section is supererogative. If we had our durthers we would have negatived the need for a fourteen year gestation for information But ours is to counter not construct to decide not to make a code (2) We affirm the current supremacy of Sec. 433a over the Remission Rules and short-sentencing statutes made by various States. xxx xxx xxx (4) We hold that Sec. 432 and Sec. 433 are not manifestation of Arts. 72 and 161 of the Constitution but a separate though similar power and Sec. 433a by nullifying wholly of porthole those prior provisions does not violate or detract from the full operation of the Constitutional power to pardon cannot and the like. (5) We neglect the plea that Sec. 433a contravenes Art 20 (1) of the Constitution (6) We follow Godses case (AIR 1961 SC 600 [LQ/SC/1961/11 ;] ">AIR 1961 SC 600 [LQ/SC/1961/11 ;] [LQ/SC/1961/11 ;] ) (Supra) to hold that imprisonment for life lasts until the last breath and what over the length of remissions part the prisoner can same release only if the remaining sentence is remitted by the Government. xxx xxx xxx (14) Section 433a does not forbid parole or other release within 14 years span. so to interpret the Section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty

In the concurring judgment Fazal Ali J. has observed in paragraphs 83 85 and 88 as under:83 The dominant purpose and the awarded object of the legislature in interdicting Sec. 433a in the code of Criminal Prosecutor unmistakably seems to be to secure a deterrent punishment for heinous offences committed in a dastardly burial or cruel fashion or offences committed against the defence or securest of the country It is free that there appears to be a modern trend of giving punishment a colour of reformation of the criminal rather than his confinement in jail which is an ideal objective At the same time It cannot be said ton that such an objective cannot be achieved without mustering the necessary fact its the required education and the appropriate climate which most be create to foster a sense of repentance and performance in a criminal so that he may undergo such a mental or psychological revolution that be releasing the consequences of planting human lives In the would of today and particularly in not country this Ideal as yet to be achieved and an fact with all our efforts It will take us a longtime to reach this sacred goal xxx xxx xxx

85 The question therefore. is should the country take the dash of Innocent lives being lost at the hands of criminals committing heinous climes in the holy hope or wishful thinking that not day or the other a criminal however dangerous or callous he may be will reform himself Valmikis are not born everyday and to expect that nor present generation would the prevailing social and economic environment would produce Valmikis day after day is to hope for the impossible. xxx xxx xxx

88 Crime has rightly been described as an act of warfare against the community touching new depths of lawlessness the object of imposing defendant sentences is three fold : (1) to protect the Community against callous criminals for a long time (2) to administer as clearly as possible to others tempted to follow them into lawlessness on a war seal a if they are brought to and convicted deterrent punishment will follow and (3) to Clear criminals who are forced to undergo long term imprisonment from reporting their criminal acts in future even from the point of view of affirmative form of punishment prolonged and indefinite detention is justified not only In the namo of prevention but core. The offender has been regarded In one sense as a patient to be discharged only when he responds to three tenant and can be regarded as safe The growth of crime be Sir Loon Radzinowicz) for the society.

With regard to deterrent punishment the Court observed in paragraphs 94 and 97 as under :94 While I agree that the deterrent form of Punishment may not be a most suitable or ideal form of Punishment yet the fact remains that the deterrent punishment prevents occurrence of offences by : (i) making it impossible or difficult for an offender to break the law again. (ii) by deterring not only the offenders by also others form committing offences and (ii) punishment or for that mater a punishment in the form of long term imprisonment may be a means to changing a persons character or personality to that out of some motivation or reasons of a personal or general nature the offender might obey the law.

The Honderich in his book punishment while dealing with the deterrent form of punishment observes as follows :It is also to be noticed that the conditions have other consequence as well. Penalties must be sufficiently serve to deter effectively.

Bentham has also pointed out that a penalty may be justified when the distress it caused to the offender and others is not greater than the distress that will result if the and others undeterred offended in the future. Ted Honderich after highlighting various aspect of the deterrent form of punishment concludes as follows :There are classes of offenders who are not deterred by the prospect of punishment. It cannot be acceptable that a society should attempt to prevent all offences by punishment alone in anticipation of the discussion to come of compromise both economically deterrent and also deserved. xxx xxx xxx xxx

97 In most parts of our country particularly in the north cases are not uncommon where even a person sentenced to imprisonment for life and having. come back after earning a number of remission has committed repeated offences The mere fact that a long term sentence or for that matter a sentence of death has not produced useful results cannot support the argument either for abolition of death sentence or for reducing the sentence of life imprisonment form 14 years to something less. The question is not what has happened because of the provision of the penal code but what would have happened if deterrent punishments were not given. In the present deterrent and disturbed atmosphere we feel that if deterrent punishment is not resorted to there will be complete choas in the entire country and criminals will be let loose endangering the lives of thousands of innocent people of our country. In spit of all the resources at its hands it will be difficult for the State to protect or guarantee the life and liberty of all the citizens if criminal are let loose and deterrent punishment is either suffering which are caused to them as a result of the offences committed by the criminal his factor which seem to have been completely overlooked while defending the cause of criminal for abolishing deterrent sentences. Where one person commits three murders it is illogical to plead for the criminal and to argue that his life should be spared without at all considering what has happened to the victims and their family. A person who has deprived another person completely of his liberty for ever has endangered the liberty of his family has no right to as the Court to uphold his liberty. Liberty is not a considered concept nor does Art. 21 of the Constitution contemplate such a concept. If a person commits a criminal offence and punishment has been given to him by a procedure established by law which is free and fair and where the accused the been fully heard no question of violation of Art. 21 arises when the question of punishments is being considered.

(16) FROM the aforesaid judgment it is clear that the contentions which are similar to the contentions raised by the learned Advocate Mr. Metha are dealt with and are negatived by the Supreme Court There is no substances in the contention that Sec. 32a is violative of Arts. 72 and 161 of the Constitution. Articles 72 and 161 operate altogether in a different filed. The Constitutional prerogative under Arts. 72 and 161 of the Constitution is altogether different. As observed by the Supreme Court it cannot be equated with a statutory provision. The Supreme Court has specifically observed that superficially viewed the tow powers one Constitutional and the other statutory are of extensive. But two things may be similar but not the same. The Constitutional power is un-touchable and unapproachable. It cannot be awarded by introduction of Sec. 32a.

16. 1 It also cannot be said that by not releasing the prisoner on parole or furlough it would amount to inhumane treatment. In any case whether it is a humane treatment or is human treatment is a relative concept which various from society to society. The Parliament after due deliberation has arrived at the negative conclusion. If the will of the people as enacted in the law is to prevail then it would not be open to this Court to take a contrary view. The Parliament does not want that the persons convicted under the Narcotics Act should be let loose in the society in the present disturbed and distressed atmosphere. Hence the contention of the learned Advocate Mr. Mehta that Sec. 32t is violative of Art. 14 and/or Art. 21 on the ground that it amounts to inhuman treatment to the prisoners convicted under the Narcotics Act. cannot be accepted.

16. 2 Further the classification between the prisoners convicted under the Narcotics Act and the prisoners convicted under any other law including the Indian Penal Code is a reasonable one. It is with specific object to curb different habit forming booming ant paying (beyond imagination) serious on illegal activity in drug trafficking. prisoners convicted under the Narcotics Act are class by themselves. Their activities effect the entire society and may in same cases be a death-blow to the persons. who become addicts. It is much mote paving as it brings unimaginable easy riches. In this view of the matter the temptation to the prisoner is too great to repeat himself from indulging is same type of activity during the period when he is temporarily released. To most of the cases it would be difficult for him to leave that activity as it would not be easy for the prisoner to come out of the clutches of the gang which operator in nefarious illegal activities. Hence it cannot be said that Sec. 32a violates Art. 14 of the Constitution on the ground that it makes unreasonable distinction between a prisoner convicted under the Narcotics Act and the prisoner convicted for any other offences.

16. 3 Considering the objects and reasons and the aforesaid discussion it would he further difficult to accept the contention of the learned Advocate Mr. Mehta that the word shall used in Sec. 32a should be read as may so that in some cases it may be open to the authority no release the parson convicted under the Narcotics Act on parole of furlough.

(17) FURTHER. validity of Rule 4 (1) of the Furlough and Parole Rules 1959 which provides that prisoners undergoing sentence for some of the offences mentioned therein shall not be released on furlough was challenged before this Court of the ground that it violates Art. 14 as it discriminates between two sets of prisoners undergoing sentence. A Division Bench of this Court in the case of Juvansingh Lakhubhai Jadeja v. State of Gujarat XIV GLR 104 has negatived the said contention. The Court has held that classification between prisoners on the basis of offences committed by them is reasonable and it is made with an object of safeguarding legitimate rights of the citizens in regard to their security in the matter or life and liberty. The Court has specifically observed that while meting out humane treatment to the convicts care is required to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Consideration of sympathy cannot be permitted to over- shadow the consideration regarding security of the society. The Court has also negative the contention that in the case of more serious crime like murder prisoner is released and offenders of robbery and dacoity are not released on furlough and therefore it is violative and Art. 14 of the Constitution. It would be worthwhile to quote the relevant discussion which is as under :

xxx 9. Section 392 to 402 occur in Chapter XVII of the Indian Penal Code and relate to offences of robbery and dacoity. The question is : is there any rational basis for selecting this class of offences for being include in the list of the offences for which convicts should not be enlarged on furlough Now in robbery an element of violence is present along with theft or extortion. Violence is either actually used or attempted to be used either form carrying away of the property of fro making the victim part with the property. And when five or more persons conjointly commit or attempt to commit robbery the offence falls within the description of decoity. It is obvious that in dacoity five or more persons come together with the award object of obtaining property unlawfully by resort to violent means. When so many persons enter upon a life of crime and form a group which is likely to become an organized gang. It is clear that there is great danger in letting them loose. In order tom maintain themselves they take to robbery in an organized fashion and it tends to become a habit or a way of life from which it is difficult to make a break. If one who has been found guilty of such an offence is released on furlough there is no guarantee that he will not indulge ment of imprisonment would then be served. Neither would he be reformed nor would the society remain immunized from his criminal activity for the specified period. It would be dangerous to the society to release him on furlough merely out of consideration of penal reform and humane treatment. Ad observed earlier consideration of sympathy for him cannot be permitted to over-shadow the consideration regarding security of the society. Similarly with regard to the lesser offence of robbery it would be extremely hazardous to let the prisoners loose before the expiry of the term of imprisonment. it would be hazardous to do so because when one abandons hones labour for the career of theft or intimidation coupled with violence (which brings easy money though at some risk) it tends to become a way of life and the termination is too great to resist when the prisoners is at large. The offence of robbery and dacoity therefore fall within a class by themselves. The classification is based on the danger inherent in releasing on furlough those two are proved to have unhesitatingly committed crimes against person as well as property and such crimes by their very nature are habit forming and repetitive. It is therefore not possible to say that the classification is irrelevant or that it has no nexus with the objective sought to be achieve it will be release that the object is two-fold (1) to enable the convict to break the shackles of his habit and (2) to immunize the society at least for a specified period. It was however argued by counsel that if more serious crime like murder was not included in the list there was no rational basis for including the offences relating to robbery and dacoity within the fold. Here again the argument ignores the fact that by and large an offence of murder is committed by a person under some real or imagined provocation or in a moment of passion and the perpetrator of the crime usually has a motive or animus against a particular individual or individual and not against the society at large. There is therefore less danger of his committing a similar crime when he is on leave on furlough. Robbery and dacoity are offences which exposed to the danger emanating form them. In case of murder only that person against whom the perpetrator has a motive or animus alone is exposed to danger form him and not others. So far as robbery and dacoity ar concerned any victim is a good victim and the entire society is exposed to the risk. It is therefore clear that offences of robbery and dacoity fall in a different category. Whether or not the offence is more serious is not the relevant consideration for withholding furlough. The relevant consideration is whether his release will hamper his reform or expose the society to the very danger to shield form which the criminal is imprisoned. Therefore the fact that murder may be by and large considered to be more serious crime is not a circumstances which in any way impairs the reasoning underlying the selection of the offences falling under the specified class viz. the offences relating of robbery and dacoity Again the mere fact that some other offences also deserve to be included in the list of offences in respect of which furlough should hot be granted (even if the argument it valid) is not a good ground for not including the offences or robbery and dacoity. By experimentation and by gaining experience the list may be enlarged or modified from time to time. A classification which is otherwise rational and purposeful and bears nexus with the underlying object of the legislation cannot be branded as obnoxious merely because another class also ought to be brought within the seep of the legislation it is not true to say that the list will not render the class which is actually include devoid of rational legislate in respect of all evils or none. Legislation can be implemented by stages. The more circumstance that other class of possible to uphold devoid of rational the list will not render the class with is actually included devoid of rational basis. Under the circumstances it is not possible to uphold the contention that Rule 4 (2) is discriminatory in character and is violative of Art. 14 of the Constitution of India. We are of the opinion that the classification has a rational basis and has a distinct nexus with the underlying object of the legislation and that it does not introduce any element of hostile discrimination. Considering the reasons given in the aforesaid judgment if the Parliament says that sentence of prisoners convicted for the offences under the Narcotics Act shall not be suspended or remitted it cannot be said that the classification between the prisoner convicted for the offences punishable under the Narcotics Act and the prisoners convicted under the Indian Penal Code Customs Act or under any other law for the time being in force is in any way unreasonable. The object of introducing the said Section is to see that drugs abuse is controlled and minimised. To check the menace of dangerous drugs flooding the market if the Parliament wants that punishment should be deterrent the Court should implement the law as it is. The problem of drug trafficking is of gave national importance affecting the lives of number of young persons. It is a menace that must be fettered and curbed by all concerned with all seriousness. We should not fail to realise that adverse effect of the drugs is tremendous and is concerned with the life and death situation of numerous persons and in that set of circumstance the Court should not resort to the so-called theory of reformation of prisoners and interfere with the decision of the Parliament which is based upon reports of various Committees and to give a set-basis to the move directed at prohibiting the trade of dangerous drugs. Instead of attempting to take a holiest view of the harmful socio-economic consequences and health hazards that would accompany trafficking illegally in the dangerous drugs the Court should implement the law to the spirit with which the Parliament after due deliberation has amended.

(18) IT would be worth while to reproduce the observations made by the Supreme Court in the ease of Durand Didier v. Chief Secretary Union Territory of Goa AIR 1989 SC 1966 [LQ/SC/1989/427] Dealing with the contention that less minimum imprisonment and fine should be imposed under the Narcotics Act the Court has observed that the organised activities of the under world and the underlying smuggling of narrate drawn and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a seizable section of the public particularly the adolescents and students of both sexes and the means has assumed serious and alumni proportions in the recent year. The relevant observations of the Supreme Court are as under: The trial Court observations the punishment has expressed its view about the drugs menace spreading in Goa as follows :

The spreading of the drugs in Goa is becoming day by day a terrible manse which has completely destroyed the we fiber of our society being also instrumental In subverting the tender would of our young generation which is being badly contaminated by such danger in a very having provisions calling for serve punishment. In case of illegal opinion and transportation of drugs meant for personal consumption and eventual trade.

24 with deep concern we may point not that the organised activities of the under would and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking In such drum and substances have be to drug addiction among a liable section of the public particularly the adolescents and students of both was and the means has assumed serious and alarming proportions in the recent years therefore in order to effectively control and entire to this proliferating and becoming devastating fence causing deleterious effects and deadly impact on the society ar a whole the parliament in Its wisdom has made affective provisions by interdicting this Act. 81 of 1985 specifying mandatory minimum imprisonment and fine.

(19) IN view of the aforesaid discussion there is no substance in the contention raised by the learned Advocate Mr. Mehta that Sec. 32a of the Narcotics Act is violative of Art 14 and/or Art. 21 of the Constitution of India or that the word shall should be read as may. In the result considering Sec. 32a of the Narcotic Drugs and Psychotropic Substances Act 1985 as it is prisoners who are convicted under the said Act are not outside to be released on parole or furlough. Hence these petitions are dismissed. (KMV) Petition dismissed.