Himachal Pradesh High Court
Diwan Chand vs State Of H.P. And Others on 28 October, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:10359 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Civil Writ Petition No.9633 of 2024
Decided on : October 28, 2024
Diwan Chand .....Petitioner
Versus
State of H.P. and others ....Respondents
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
The Hon'ble Mr. Justice Rakesh Kainthla, Judge
Whether approved for reporting?
For the Petitioner : Mr. Sunil Kumar, Advocate.
For the respondents/ : Mr. Sanjay Dutt Vasudeva, Deputy
Advocate General.
State
Vivek Singh Thakur, Judge (Oral)
Petitioner has been convicted in case FIR No.108 of 2020, dated 12.10.2020, under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), registered in Police Station Kumarsain, District Shimla, H.P., and has been sentenced to undergo 10 years rigorous imprisonment and to pay a fine of `1,00,000/- and in default of payment of fine to further undergo 2 years imprisonment.
2. Petitioner has approached this Court against rejection of his parole request communicated to him vide letter dated 21.08.2024 (Annexure P-2) issued on behalf of the Director General, Prisons and Correctional Services, H.P. ...2... ( 2024:HHC:10359 )
3. In response to the petition, status report alongwith certificate of period of detention, communications dated 30.04.2024 received from Additional District Magistrate, Kullu, Superintendent of Police, Kullu, dated 30.03.2024, SHO Police Station, Anni, dated 27.03.2024 certificate issued by Up- Pradhan, Gram Panchayat, Muhan and statement of Sonu Devi, wife of the petitioner and Rajesh Thakur, local resident of Village of the petitioner, have also been placed on record.
4. As per certificate of period of detention, dated 25.09.2024, (Annexure A) petitioner after conviction has undergone sentence for about more than 1 year 5 months and 25 days. Though he has also undergone detention as an undertrial prisoner for 2 years 4 months and 5 days. After conviction and awarding sentence, he has undergone imprisonment for more than 1 year 5 months and 27 days.
5. In the reports of Additional District Magistrate, Superintendent of Police and SHO Kullu, it has come on record that residents of the Gram Panchayat have no objection for extending benefit of parole to the petitioner. However, it has been stated on behalf of the Administration and the police that petitioner has committed an offence under NDPS Act and there is a possibility that he can again repeat commission of the same offence.
6. Though, there is submission on behalf of the State that on extension of benefit of parole to the petitioner, he may ...3... ( 2024:HHC:10359 ) indulge in commission of the same offence again, but nothing material has been placed on record to substantiate the said contention.
7. Learned counsel for the petitioner has submitted that though petitioner has applied for parole on agricultural purpose, however, in addition, during pendency of the petition, marriage of Nephew of the petitioner has also been fixed from 01.11.2024 to 04.11.2024 and in order to achieve purpose of continuation of social ties with the society and to avoid isolation from his society, it is necessary to enlarge him on parole at this stage alongwith parole for agricultural purpose.
8. Learned Deputy Advocate General has submitted that parole cannot be claimed as a matter of right as it is the privilege available to the prisoner on fulfilling certain conditions and no objection of the police/District Authority of the concerned area is also necessary, as the Competent Authority has exercised its discretionary power under the relevant rules in accordance with law. Therefore, petitioner cannot claim his entitlement for releasing him on parole.
9. Dealing with a case of parole under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act), the Apex Court, in Poonam Lata v. M.L. Wadhawan & another, (1987) 3 SCC 347, has held that the Court has no power to substitute its opinion to the administrative functions, like abridging or ...4... ( 2024:HHC:10359 ) enlarging the detention and it would not be open to the Court to reduce the period of detention by admitting a detenu on parole, rather the only power which is available to the Court is, to quash the order in case it is found to be illegal and the Court would have no jurisdiction either under the Act or under general principle of law or in exercise of extraordinary jurisdiction, whether it is under Article 226 or Article 32 of the Constitution to deal with the duration of period of detention. The same principle will be applicable with respect to the question of determining the period of parole which is governed by specific Act.
10. In another case of parole under the COFEPOSA Act itself, in Sunil Fulchand Shah v. Union of India & others, (2000) 3 SCC 409 (hereinafter referred to as), the Apex Court has held that parole, stricto sensu, may be granted by way of a temporary release as contemplated under the COFEPOSA Act by the Government of its functionaries, in accordance with the parole rules or administrative instructions framed by the Government and this function is administrative in character and shall be subject to the terms of the rules or the instructions, as the case may be, and, therefore, for securing release on parole, a detenu has, therefore, to approach the concerned authorities or the jail authorities for grant of parole which shall be subject to terms and conditions imposed by the concerned authority as per law. It is further held that Courts cannot, generally ...5... ( 2024:HHC:10359 ) speaking, exercise the power to grant temporary release to detenus, on parole, and temporary release of a detenu can only be ordered by the Government or an officer subordinate to the Government, whether Central or State. It is also clarified by the Supreme Court that bar of judicial intervention to direct temporary release of detenu would not affect the jurisdiction of High Court under Article 226 of the Constitution or of the Supreme Court under Article 32, 136 or 142 of the Constitution to direct temporary release of detenu, where request of detenu to be released on parole for a specified reason and/or for a specified period, has been, in opinion of the Court, unjustifiably refused or where in the interest of justice such an order of temporary release is required to be made, but it has been observed that such jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that Court leave it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu.
11. In Asfaq v. State of Rajasthan & others, (2017) 15 SCC 55, explaining object of release on parole, it has been observed that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to come out for some time so that he is able to maintain his family and social contact, with objective of reformation of the convict. It has further been ...6... ( 2024:HHC:10359 ) observed that provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails, and the main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society, and even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. The Court also observed that those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, have a significantly higher chance of failure, and that when offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens and furloughs or parole can help prepare offenders for success in merger in the society, and the public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, alongwith other competing public interests, has also to be kept in mind while taking decision of granting or refusing parole or furlough and further that all prisoners are not appropriate for grant of furlough or parole as the society must isolate those who show patterns of preying upon victims. It is also observed that formulation of guidelines/enactment of law on parole by various State Governments is in order to bring out objectivity in the decision making and to decide appropriately as to whether ...7... ( 2024:HHC:10359 ) parole needs to be granted in a particular case or not and such a decision should be taken in accordance with guidelines framed or statute enacted.
12. Where there is statute providing provision of release of convict on parole, the scope of intervention by the Court is limited to judicial review of grant or refusal of parole under Article 226 or 32 of the Constitution, as the case may be. It is obvious for the reason that grant or refusal of parole or furlough is an administrative function of Government or the competent authority prescribed under relevant Act, Rules, Regulations or Guidelines and, normally, the Court should not enter in shoes of such authority to perform administrative function. However, at the same time, the Courts are there for judicial review of omission and/or commission of the authority, warranting judicial interference of the Court on various valid grounds, like failure in performing duty; arbitrary exercise of power or acting beyond legal powers, etc.
13. Record reveals that nothing adverse exists against the petitioner particularly with respect to the plea taken by the Administration/Police about possibility of involvement of the petitioner in commission of the same offence, and in any case petitioner is found involved in commission of the same offence or any other offence, during his parole, he shall be liable to face the consequences, including forfeiture of his bonds required to be furnished before his enlargement on parole.
...8... ( 2024:HHC:10359 )
14. Petitioner has also placed reliance upon judgment dated 10.11.2021, passed by a Division Bench of this High Court in CWP No.5158 of 2021, titled as Bihari Lal v. State of H.P. & others, whereby, in similar circumstances, where police/District Authority had not recommended the parole case of the petitioner therein, the Court had issued direction to extend the benefit of parole to the petitioner, subject to furnishing personal and surety bonds.
15. We have gone through the judgment relied upon by the petitioner, wherein, after taking into consideration pronouncement of the Apex Court, benefit of parole was directed to be extended. We are in agreement with the reasoning given in the said judgment.
16. In the peculiar facts and circumstances, we are persuaded to allow the present petition filed by the petitioner by setting aside the order dated 21.08.2024 (Annexure P-2) and extending the benefit of parole for a period of four weeks from the date of his release, on his furnishing personal bond in the sum of `1,00,000/- with two sureties of `15,000/- each, to the satisfaction of the Superintendent, Model Central Jail Kanda, District Shimla, Himachal Pradesh. The bonds be furnished and attested & accepted, if in order, on or before 31.10.2024. The petitioner shall surrender before the Superintendent Jail, Model Central Jail Kanda, Himachal Pradesh, immediately on expiry of 15 days of parole. However, his parole shall be liable to be ...9... ( 2024:HHC:10359 ) cancelled, in case the petitioner breaches any of the conditions of parole order and/or creates law and order problems, which shall be treated as a negative factor for consideration of his similar prayer in future.
17. Accordingly, the petition is disposed of, so also pending application, if any.
Petitioner is permitted to produce a copy of this judgment downloaded from the Website of the High Court before the Authorities concerned and the said authorities shall not insist for production of a certified copy, but, if required, may verify passing of the order from the Website of the High Court or otherwise.
( Vivek Singh Thakur ) Judge.
(Rakesh Kainthla)
October 28, 2024 Judge.
(Purohit)
Digitally signed by SUBHASH CHAND DHIMAN
DN: C=IN, O=HIGH COURT OF HIMACHAL
SUBHAS PRADESH, OU=HIGH COURT OF HIMACHAL
PRADESH SHIMLA, Phone=
3418061207364d8c002725dfc58ff116f678c3d3 9289db29b992cce875905119, PostalCode= H CHAND 171001, S=Himachal Pradesh, SERIALNUMBER= 5ce240fac0e1267843f29509683d09a9912af10e dc4e6cd2ed5d4a8c30134c1b, CN=SUBHASH CHAND DHIMAN DHIMAN Reason: I am the author of this document Location:
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