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1. By this writ petition the provisions of Section 32A, of the Narcotics Drugs and Psychotropic Substances Act, 1985 have been challenged.

2. The petitioner is the wife of Satya Narain who was convicted under Section 22 of the Act for 10 years Rigorous Imprisonment and a fine of Rs. one lac for the offence under NDPS Act. The appeal against the conviction has also been dismissed. Satya Narain was undergoing the sentence in Central Jail Sabarmati, Ahmedabad and thereafter he was transferred to Central Jail, Bikaner. He was kept in open air camp till 1996 and thereafter was sent back to Central Jail, Jodhpur. The grievance is that the provisions of Section 32A of the Act prohibits remission of sentence. It is ultra vires the provisions of Articles 14 and 21 of the Constitution of India as in respect of other offences under IPC, where punishment is of 10 years or more, the provisions of remission are applicable. Restricting the provisions by not granted the bail during trial or not to apply the provisions for suspension remission or commutation of sentence is stated to be against the object of the Act.

(vii) to provide that the offences shall be cognizable and non-bailable.

3. The Bill seeks to achieve the above objectives.'

7. Power has been given to the Central Government to take measures for preventing and commuting the accused, of an illicit traffic in Narcotric Drugs to permit, control and regulate and prohibit certain operations.

8. In Chapter IV of the Act, offence and penalties have been provided. The offence with relation to poppy straw, Coca plant and coca leaves, prepared opium, opium poppy and opium and embezzlement of opium by cultivator have been provided. Manufacture of drugs and preparations of psychotropic substances, illegal import into India, export from India or punishment of narcotic drugs and psychotropic substances, external dealings in narcotic drugs and psychotropic substances in contravention of Section 12 and use of the premises for commission of offence under the Act or in contravention of the orders made under Section 9A have been provided with rigorous imprisonment punishment which is not to be less than 10 years and may extend to 20 years and with fine of not less than Rs. one lac which may extend to Rs. 2 lacs and for reasons to be recorded may even exceed to Rs. 2 lacs. The contravention in relation to ganja or cultivation of cannabis plant is subject to imprisonment up to 5 years and fine up to Rs. 50,000/-.

The Division Bench of this Court in the case of Anwar v. State 1994 Cri LR (Raj) 797, rejected the plea for grant of parole in view of the provisions of Section 32A though the validity of the provisions was not examined.

16. The words 'is not guilty of such offence' as a condition for grant of parole under Terrorists and Destruptive Activities (Prevention) Act, 1985 were held not violative of Article 21 of the Constitution in the case of Sanjay Dutt v. State (1994) 5 SCC 410 : 1995 Cri LJ 477.

24. We have considered the judgment in the case of Ram Charan, referred to above, in detail and the reasoning which has been given in our view is not the correct appreciation of law. Persons dealing with Narcotics Drugs and Psychotropic Substances constitute a distinct class than those charged with commission of offence under the Penal Act. Most of the offences under the Penal Act are against individuals while the offences under the NDPS Act are against the society as a whole and are preventive also it was only in this light that Section 32A was enacted by Act No, 2 of 1989. Under law, provision of a statute is presumed to be constitutionally valid unless a hostile discrimination is established. The provision of Section 32A cannot be considered to, be discriminatory. Position to grant bail during trial cannot be considered similar after the person is convicted for an offence and for that analogy the provisions also cannot be declared ultra vires the Constitution.