Punjab-Haryana High Court
Gajjan Singh vs State Of Punjab And Ors on 26 February, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
Cr.W.P. 1922 of 2012 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH.
Cr.W.P. 1922 of 2012
Date of decision:26.2.2013
Gajjan Singh
.. petitioner
vs
State of Punjab and ors
... respondent
Present Mr. CS Rana, Advocate.
Mr. AS Jattana, Addl.A.G.Punjab
M.M.S. BEDI,J.
Parole has been declined to the petitioner vide order dated 6.7.2012 (Annexure P-1) on the ground that in view of the Memo issued by ADGP, Intelligence, Punjab, Chandigarh dated 20.3.2012, there are chances of petitioner again indulging in the business of smuggling in case released on parole, hampering the efforts of the Govt. to control drug menace in the society.
In the reply filed, it has been informed that during the pendency of this petition, the wife of the petitioner had again submitted an application for release of the petitioner on parole. SSP, Fatehagar Sahib, Respondent No. 3, recommended for four weeks parole to her husband. The wife of the petitioner had also given an assurance that her husband would live peacefully and that he wanted to meet her and get his mother treated. SHO, Mulepur, under whose territorial jurisdiction the village of the petitioner falls, carried out an inquiry by visiting the village of the petitioner. He got the statements of the respectables recorded. He also recorded the joint statements of the inhabitants of the village including the Sarpanch. A Cr.W.P. 1922 of 2012 2 copy of the same has been placed on record as Annexure R-5/T. The SHO gave a favourable report on 10.2.2013 to SSP, Fatehgarh Sahib. The SSP, Fatehgarh Sahib also recommended vide letter dated 12.2.2013 to District Magistrate, Fatehgarh Sahib that the police does not have any objection in case the petitioner is released on parole. A copy of the report, sent by SSP Fatehgarh Sahib has been placed on record as Annexure R-7 but on the basis of a general Memo dated 23.3.2012, issued by ADGP, Intelligence, Punjab, the inquiry reports were ignored and parole was declined to the petitioner.
I have considered all the above circumstances. Memo dated 23.3.2012 issued by ADGP, Intelligence regarding parole to all the inmates in NDPS cases, reads as follows:-
"As you are aware that the drug smuggling activities in the border areas have been a spurt in the recent past. It has been observed that smugglers lodged in various jails come on parole on one pretext or the other to indulge in drugs smuggling during harvesting season. They easily move across the border fence on fake identity on the pretext of harvesting crop. Moreover, the long standing crops which help them in taking shelter and hiding the consignments make their task further easier.
There is need to keep a track of the activities of drug smugglers lodged in various jails. Due consideration is required to be given during harvesting season on the parole applicants, especially of those lodged in drug smuggling cases. It should be ensured that the police clearance has been given only to the genuine applicants."
A perusal of the above said memo shows that it does not Cr.W.P. 1922 of 2012 3 absolutely bar the release of all the convicts under the NDPS Act cases, but it imposes a limited bar on the convicts and a note of caution has been issued that it should be ensured that police clearance is given only to the genuine applications. The Memo dated 23.3.2012 though having been issued to achieve noble objectives to curb drug smuggling but the said Memo cannot supersede the statutory provisions enabling the convicts to avail the parole/ emergency parole in accordance with the rules and instructions issued from time to time. Memo Annexure R-3 issued by ADGP, Intelligence, Punjab, Chandigarh cannot be arbitrarily used to infringe the right of a convict to avail the statutory remedy of parole. In the present case, the spirit of Annexure R-3 has been misinterpreted and a genuine claim of the petitioner seems to have been ignored.
It is not out of place to observe here that the provisions regarding temporary release of a convict have been made as a step of reformative approach on the basis of various studies in Sunil Batra Vs. Delhi Administration, AIR 1980 SC 1579. The Apex Court has ruled that fundamental rights of a convict do not cease to exist the moment he enters the prison although he may suffer shrinkage necessitated by incarceration. Convicts are not, by mere reason of the conviction, denuded of all the Fundamental Rights which they otherwise possess. Whether inside prison or outside, a person is not deprived of his guaranteed freedoms save by methods right, just and fair. The problem of law, when it is called upon to protect and defend persons placed behind the bars, is to evolve a positive culture, higher consciousness and preventive mechanisms against any assault on such rights, one of the most important amongst which is the preservation of the integrity of the physical person and mental personality of the prisoner.
Cr.W.P. 1922 of 2012 4
It was observed in Sunil Batra's case (supra) that an infliction which snaps visits or society of friends or relatives to a prisoner is regarded as an infraction of liberty or life in its wider sense and is held unsustainable unless Article 21 of the Constitution is satisfied by prescribing in respect thereof by law a procedure which is right, just, fair, reasonable and effective. Subject to reasonable restrictions, the right to the visit and to the society of spouse, off springs, parents and other family members and fellowmen cannot be denied in light of Article 19 of the Constitution. Article 19 is, therefore, held to be attracted in case any infraction of such right is found to be irremediable and unappealable. Such infliction is also regarded as violative of Article 14 of the Constitution if it is dependent upon unguided discretion or if the exercise of discretion is vitiated by the vice of arbitrariness, irrationality and inequality. The considerations on which these judicial dicta are based are that visits to prisoners by family members and close friends are a solace in isolation. Only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject to considerations of security and discipline, liberal visits by family members, close friends and legitimate callers are, therefore, declared to be a part of the prisoner's kit of rights which must be respected.
The objective of temporary release of the prisoners on parole is primarily to serve a purpose i.e. a man behind the bars is still member of his family and society and that he has got similar human wants, urges, duties and obligations and that the rehabilitative purpose of sentencing would be promoted by permitting him to fulfill those basic human needs and social duties by occasionally permitting him to live for short periods in his home as well as in the community where he has his roots. The concession of parole is subject to the conduct of a prisoner in jail and subject to certain limitations and conditions. The power to release a Cr.W.P. 1922 of 2012 5 prisoner on parole is an administrative function governed by the relevant provisions of Act and rules and the administration is under a duty to bear in mind certain cardinal and guiding factors but the releasing authority exercising the discretion is required to follow the rules and procedure governing the temporary release on parole keeping in mind that the provisions of parole are intended to subserve and not to subrogate the substantive provisions. The various rules prescribing the procedure for temporary release should be implemented keeping in mind the said principle. In cases involving problems of law and order, the proper course to be adopted is to give an opinion that request for release be rejected but to advice that the release be ordered subject to appropriate conditions, such as, that surveillance should be kept over the prisoners during the period of his temporary release and that he should be asked to report to the nearest police station at appropriate intervals. Of course, it depends upon the circumstances of each and every case individually. No hard and fast statute or rule can be framed to debar a prisoner to avail parole. The administrative authority is required to objectively consider the circumstances of every prisoner. Keeping in mind the fact that the reformatory approach of the criminal administration of justice requires that after completion of the conviction, the convict does not cease to be member of Society or that he remains unacceptable on account of his sentence.
The provisions of Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 came up for consideration before a Bench of this Court in Joginder Singh Vs. State of Punjab and another, 1988 (2) RCR (Crl.) 548, wherein it was held as follows:--
"5. The preamble of the Act lays down that the Act Cr.W.P. 1922 of 2012 6 was enacted for the temporary release of prisoners for good conduct. The broad aim of the Act, therefore, is to provided an incentive to prisoners to be of good conduct while undergoing sentence of imprisonment. Section 3 of the Act lays down certain grounds such as serious illness, or death of a member of the family of the prisoner, marriage of prisoner's son or daughter, for agricultural operations of the land of the prisoner, where there is no other member of the family or a friend of the prisoner to help him in this behalf and for any other sufficient cause. Section 4 relates to temporary release of prisoners on furlough. Section 6 places an embargo upon such release under section 3 or section 4 where on the report of the District Magistrate, the State Government, or its delegate is satisfied that the release of the prisoner was likely to endanger the security of the State or the maintenance of public order. Section 8 deals with liability of the prisoners to surrender on the expiry of the release period and consequences of overstaying. Section 9 make it an offence to over stay, which is punishable with upto 2 years' imprisonment or with fine or both. Section 10 empowers the State Government to frame rules for carrying out the purposes of Act. In pursuance of Section 10, the State Government framed the Punjab Good Conduct Prisoners (Temporary Release) Rules, 1969. Rule 3 lays down the procedure for temporary release. Sub Section (2) of rule 3 lays down that the District Magistrate before Cr.W.P. 1922 of 2012 7 making any recommendation shall verify the facts and grounds on which release has been requested and shall also give his opinion whether the temporary release on parole or furlough is opposed on grounds of prisoner's presence being dangerous to the security of State or prejudicial to maintenance of public order. Sub-rule (6) ibid, requires the Superintendent of Jail to forward to the Officer Incharge of the Police Station, within whose jurisdiction the place or places to be visited by the prisoner is or are situated, a copy of the warrant and the release certificate in the prescribed form. The sub-rule further lays down that the Officer Incharge of the Police Station shall keep a watch on the conduct and activities of the prisoners and shall submit a report relating thereto to the Superintendent of Jail, who shall forward the same to the Inspector-General of Prisons. Rule 4 provides that if the person commits any offence during the period of his temporary release, the Officer Incharge of the Police Station shall forthwith send a report thereof to the Superintendent of Jail through the Superintendent of Police of the District. On such report the release warrant is liable to be cancelled by the releasing authority under sub-rule (2) of rule 4.
6. Learned counsel, appearing for the State, contended that use of the word "may in section 3 as well as section 4 indicated that it was the discretion of the State Government in consultation with the District Magistrate to grant temporary release or a release on Cr.W.P. 1922 of 2012 8 furlough and it could not be claimed as a matter of right.
Dealing with a similar argument, a Division Bench in Kesar Singh v. State of Himachal Pradesh, 1985(2) Recent C.R. 512, held............. such discretionary power is coupled with the legal duty to exercise the same once the conditions for its exercise are shown to exist. It is settled law that where a power is deposited with a public officer for the benefit of persons who are specifically pointed out and with regard to whom a definition is supplied by the statute of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, that the Court will require it to be exercised. See : Julius v. Bishop of Oxford, 1880 SAC 214. According to this celebrated dictum, if the existence of the purpose is established and the conditions of the discretion are fulfilled, the competent Authority will be under an obligation to exercise the discretion in furtherance of such purpose (See : In re :
Kerala Education Bill, 1958, AIR 1958 Supreme Court 956 at page 975). The exercise of power of releasing a prisoner on parole or furlough must not, therefore, be looked upon as an act of charity, compassion or clemency but as an act in the discharge of a legal duty required to be performed upon the fulfilment of the prescribed conditions to effectuate a salutary purpose.....
7. A key to the scheme of the Act is provided by Cr.W.P. 1922 of 2012 9 section 6, where satisfaction of the State Government or the releasing authority is expressly limited to endangering security of the State and maintenance of public order. The expressions "Security or State" and "Public order" occur in Article 19(2) of the constitution.
These expressions have been the subject matter of Judicial Consideration and they have acquired a precise meaning. Thus, security of the State is endangered by crimes of violence, intended to over throw the Government, waging of war and rebellion against the government, external aggression or war, but not by minor breaches of public peace or tranquility, such as unlawful assembly, not, affray, rash driving promoting enmity between classes and the like (vide Ramesh Thappar v. State of Madras (1950 S.C.R. 594). The concept of 'public order' must be distinguished from the popular concept of law and order and of security of the State. They refer to three 'concentric circles. law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of the State (Vide Ram Manohar v. State of Bihar (1966(1) S.C.R. 706 at (746). Hence, an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily endanger security of the State. The twin grounds of endangering security of State and public Cr.W.P. 1922 of 2012 10 order may or may not be exhaustive of the grounds for refusing temporary release, but these grounds go a long way to suggest that grounds for refusal must be these and like grounds. The apprehension that the prisoner may indulge in violence especially directed towards the members of the opposite party or the witnesses on whose testimony he was sentenced to imprisonment, does not broadly speaking justify refusal of the benefit of release envisaged under the Act. This conclusion is justified because the Act and the Rules framed thereunder contain a larger number of in-built safe guards. To mention a few of such safe-guards, the temporary release is subject to such conditions as may be imposed before the release. The release is for a limited period of 4 to 6 weeks under section 3 and 3 weeks during the first year and 2 weeks during each successive year under section 4. The temporary release under section 4 is available only to prisoners, who have been sentenced to long terms of imprisonment of not less than 5 years. A condition precedent under section 4 is that the prisoner must have earned at least three annual good conduct remissions, An habitual offender, as defined in clause (3) of section 2 of the Punjab Habitual Offenders (Control and Reform) Act, 1952, or a person convicted of robbery or dacoity or such other offences as the State Government may by notification specify is not entitled to be released. Under sub-section (2) of section 8 of the Act, if a prisoner fails to surrender Cr.W.P. 1922 of 2012 11 himself within a period of 10 days from the date on which he should have surrendered he is liable to be arrested by the police without a warrant in order to undergo the unexpired portion of the sentence. If he surrenders within the said period of 10 days before the Superintendent of Jail. the prisoner is liable to be awarded any of the jail sentences mentioned in clause
(a) to (e) of sub-section (3) of section 8. Section 9"
makes it an offence for the prisoner if he fails to surrender within the time aforesaid and he is liable to sentence upto 2 years' imprisonment. Elaborate provision have been made for constant watch on the prisoner by the local police at the places where the prisoner spends his period of parole or furlough. If the prisoner while on parole or furlough commits any offence, his release order is liable to be cancelled forthwith. These provisions have been intended to provide adequate safe-guards to ensure that the released prisoner surrenders to the jail custody to undergo the remaining sentence, besides ensuring that during his release, he commits no offence. The aim of a sentence of imprisonment especially a long term imprisonment is to reform the prisoner besides being a deterrent to him as well as others. The aim is not to make him more hardened, more brutal, more cunning and dangerous to society. (See Rakesh Kaushik v. B.L. Vig. Superintendent, Central Jail, New Delhi Cr.W.P. 1922 of 2012 12 and others, AIR 1981 Supreme Court 1767). Prisoner or detenu is not stripped of his fundamental or other legal rights; save, those which are inconsistent with his incarceration, and if any of those rights is violated, the Court which is to use the words of Krishna Iyer J. (as his Lordship then was) "not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope" will immediately spring into action and run to his rescue. (Vide Francis Coralie Mullin v. Administration of Union Territory of Delhi and others, AIR 1981 Supreme Court 746). One of these rights is of personal liberty. Personal liberty would include the right to socialise with members of the family and friends, subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary, If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21 of the Constitution of India (Francis Corolai Mullin, supra). A long period of incarceration where a person is cut off from the establishing confluence of the family tends to brustalise the prisoner and blunt his finer sensibilities so that the end product may perhaps be mare criminal than the one at the point of entry in the jail. The aforesaid observations made by Cr.W.P. 1922 of 2012 13 the highest Court of the country apply with equal force to the case under consideration. This then is the philosophy underlying the Act."
In the present case, the reason for turning down the request of the petitioner is a general instruction issued vide letter dated March 23, 2012 by ADGP (Intelligence) Punjab, without fairly scrutinizing the reports that petitioner is not likely to indulge in any smuggling activities in case temporarily released on parole. The memo dated March 23, 2012 cannot thus be used illegally and arbitrarily to infringe the rights of convicts under NDPS Act. This will not only tentamount to unreasonable classification of the prisoners for the purpose of grant of parole thus violates article 14 of the Constitution of India and would also be violative of Article 21 of the Constitution of India.
In view of the above circumstances, the petition is allowed and a direction is issued that the District Magistrate, Fatehagarh Sahib will reconsider the case of the petitioner within a period of one week after receipt of a copy of this order and grant parole to the petitioner, in accordance with law. It is made clear that in case the petitioner is found indulging in any illegal activity, it will be open to the concerned authorities to cancel the parole.
February 26, 2013 ( M.M.S. BEDI ) TSM JUDGE