Rajasthan High Court - Jodhpur
Maha Dev Singh vs State Of Raj on 24 January, 2012
Author: R.S. Chauhan
Bench: R.S. Chauhan
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
[Mahadev Singh Vs. State of Raj. ]
S.B.PAROLE WRIT PETITION.6736/2011
S.B. Parole Writ Petition under
Article 226 of the Constitution of
India.
Date of Judgment: 24.1.2012
HON'BLE MR. JUSTICE R.S. CHAUHAN
Mr. Manish Tak, for the petitioner.
Mr. Anil Upadhyay, PP for the State.
A letter has been received from Mahadev Singh. The letter has been treated as a letter petition by this Court. Vide order dated 17.1.2012, this Court had appointed Mr. Manish Tak, as amicus curiae to argue this case on behalf of the petitioner. Through the letter, he has prayed that directions should be issued to the jail authorities for considering his case for permanent parole. According to learned counsel Mr. Manish Tak, the petitioner had been granted the benefit of three emergent parole. Therefore, he is eligible for being granted the permanent parole. Therefore, according to the learned counsel, the petitioner's case should be considered for permanent parole.
On the other hand, the learned Public Prosecutor has contended that Section 32A of the NDPS Act, contains a 2 bar and prevents the suspension, remission or commutation of a sentence passed under the NDPS Act. Since the grant of permanent parole to the tantamounts to suspension of the sentence, permanent parole cannot be granted according to the bar contained, in Section 32A of NDPS Act. Secondly, according to Rule 9 of the Rajasthan Prisoners (Release on Parole) Rules, 1958, ('the Rules', for short), a convicted prisoner becomes entitled for having this case considered for permanent parole, if and only if, he/she completes the first three regular paroles peacefully. However, in the present case, the petitioner has not even been granted the first regular parole under Rule 9 of the Rules. Hence, he is ineligible for permanent parole.
In rejoinder, Mr. Manish Tak, has relied upon the case of Dadu @ Tulsidas Vs. State of Maharashtra [AIR 2000 SC 3203], in order to argue that according to the Hon'ble Supreme Court, a grant of parole is neither a suspension, nor a remission, nor a commutation of sentence. Therefore, the bar contained in Section 32A of the NDPS ACT is inapplicable to a case of parole. According to the Apex Court, even if, a person were convicted under the NDPS Act, he would be entitled to have his case considered for parole strictly in accordance to the parole rules. He has further relied on the case of State of Rajasthan & Ors. Vs. Mana Singh & Ors., [2002 (1) Cr.L.R. 3 (Raj.) 453], wherein a Division Bench of this Court had also held that a person convicted under the NDPS Act would certainly be entitled to have his case considered for parole under the Rules.
Heard learned counsel for the petitioner and perused the case law sited at the Bar.
Section 32A of the NDPS Act is a under;
No suspension, remission or commutation in any sentence awarded under this Act._ Notwithstanding 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.
The issue whether the bar contained in Section 32A of the NDPS Act, debars a convicted prisoner from seeking a parole under the Parole Rules is no longer res integra. For, the said issue has been settled by the Apex Court in Dadu @ Tulsidas's case (Supra). According to the Hon'ble Supreme Court "parole is not a suspension of sentence. The convict continues to be serving the sentence despite granting of parole under the statute rules, or the Jail Manual or the Government Instructions. "Parole" means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison 4 or other internment after actually being in jail serving part of sentence. Therefore, the Apex Court opined that Section 32A of the NDPS Act does not in any way affect the powers of the authorities to grant parole. Notwithstanding the provisions of the Section 32A, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government instructions."
Therefore, the first contention raised by the learned public prosecutor that the prohibition in Section 32A of NDPS debars the petitioner from having his case considered for permanent parole is without any merit.
However, Rule 9 of the Rules is as under;
"Parole period._ A prisoner, who has completed with remission, if any, [one- fourth] of his sentence and subject to good conduct in the Jail, may be released on 1 st parole for 20 days including days of journey to home and back, and for 30 days on 2nd parole provided his behaviour has been good during the 1st parole and for 40 days on third parole provided his behaviour has been good during the second parole. If during the third parole also the prisoner has behaved well and his character has been exceedingly well as if the prisoner's conduct has been such that he is not likely to relapse into crime, his case may be recommended to the Government through the [State Committee] for permanent release on parole on such conditions as deemed fit by the Superintendent Jail and the District Magistrate concerned: the 5 chief condition among them being that if the prisoner while on parole commits any offence or abets, directly or indirectly, commission of any offence, he has to undergo the unexpired portion of the sentence in addition to any sentence imposed upon him by reason of such an offence. In case the permanent release on parole is rejected, the prisoner will be eligible for release on parole for 40 days every year subject to the same conditions for the remaining period of his sentence:
[Provided that cases of prisoners who have been sentenced to imprisonment for life, for an offence for which death penalty is one of the punishments provided by law or who have been sentenced to death but this sentence has been commuted under Section 433 of Code of Criminal Procedure into one of life imprisonment shall not be placed before the State Committee for permanent release on parole unless he has served 14 years of imprisonment excluding remission, but including the period of detention passed during enquiry, investigation or trial. Such prisoners may be released on parole for 40 days every year for the remaining period of their sentence subject to the conditions stated above.] According to the said rule, a convicted prisoner becomes eligible for being released on permanent parole after he has completed the first parole of twenty days, the second parole of thirty days, and the third parole of forty days, peacefully and without violating any of the parole conditions.
However, in the present case even according to the petitioner, he has never been released on a regular 6 parole under Rule 9 of the Rules. Although he has been granted emergent parole on three occasions, he has been granted these emergent parole under Rule 10A of the Rules. Hence, he is ineligible for being released on permanent parole under Rule 9 of the Rules. At best he is eligible for having his case considered for first parole for twenty days under Rule 9 of the Rules. Therefore, the petition does not deserves to be accepted by this Court. But as the petitioner is eligible for being released on regular first parole of twenty days, as he has completed one-third of his sentence, the respondents are directed to consider his case for being released on first regular parole, provided he submits a required application for the same. In case he were to file the application, his case shall be considered within a period of one month from the date of the submission of the application.
With these observations, the parole writ petition is, hereby, disposed of.
[R.S.CHAUHAN] J arti sr.no.121