Himachal Pradesh High Court
Surinder Lal Alias Bittu vs State Of H.P. & Others on 20 May, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 1316 of 2024
Date of Decision: May 20, 2024
Surinder Lal alias Bittu ...Petitioner.
Versus
State of H.P. & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
The Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Petitioner: Mr.Virender Singh Chauhan, Senior Advocsate,
alongwith M/s Arsh Chauhan & Varshyaj Azad,
Advocates.
For the Respondents: Mr.Sanjay Dutt Vasudeva, Deputy Advocate General.
Vivek Singh Thakur, J.
Petitioner, by invoking the provisions of Article 226 of the Constitution of India, has approached this Court seeking direction to the respondents to release the petitioner on parole for 30 days to meet his family members.
2. Petitioner, being convict is serving his sentence for execution/implementation of judgment/order dated 30.7.2022/1.8.2022 passed by Special Judge (CBI), Shimla, Himachal Pradesh, in Case No.13- 1 Whether reporters of the local papers may be allowed to see the judgment? 2 S/7 of 2019, in Case FIR No.54 of 2019, dated 28.3.2019, registered under Sections 21, 25, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) at Police Station Theog, District Shimla, Himachal Pradesh, whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay fine of `1,00,000/- and in case of default in payment of fine to further undergo rigorous imprisonment for a period of one year, under Section 21(c) and 29 of the NDPS Act; and also to undergo rigorous imprisonment for a period of ten years and to pay fine of `1,00,000/- and in case of default of payment in fine to further undergo rigorous imprisonment for a period of one year, under Section 25 of the NDPS Act. The sentences have been ordered to run concurrently.
3. In response to petition, respondents have placed on record the instructions dated 18.3.2024 alongwith documents. In Custody Certificate, placed on record with instructions, it has been stated that petitioner has undergone total sentence of 04 years 11 months and 01 days.
4. It has been stated in instructions that the applicant had applied for temporary release on parole on 28.7.2023 to meet his family members and his request was forwarded to the District Authorities, i.e. District Magistrate and Superintendent of Police Shimla, Himachal Pradesh, for recommendations/ verification report as required under the provisions of H.P. Good Conduct Prisoners (Temporary Release), Act, 1968 and Rules framed thereunder.
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5. According to respondents, parole case of petitioner, after conducting the necessary inquiry, was not recommended by the District Magistrate, Shimla, on the ground that if the convict is released on parole he can promote or indulge in the drug trade. Therefore, keeping in view the nature of crime committed by petitioner and non-recommendation report of the concerned District Magistrate, parole application of the petitioner was rejected on 30.10.2023 (Annexure-D with instructions).
6. In compliance of order dated 13.5.2024, the State has filed fresh instructions dated 18.05.2024 received from Director General, Prisons & Correctional Services, Himachal Pradesh alongwith communication of Superintendent of Police, Shimla, wherein it has been reiterated that in case the petitioner is released on parole he would resume such offences and would promote drug trafficking. In the instructions, details of various FIRs registered against the petitioner for commission of different offences, with further submission that one Dameshwer Dutt @ Rahul son of Sh.Haria Ram, who is one of the co-convict in case FIR No.54/2019 dated 28.03.2019 under Sections 21, 25 and 29 of ND&PS Act, registered at Police Station Theog, District Shimla, H.P., and was released on parole was again arrested alongwith three other accused, in FIR No.10/2024 dated 17.03.2024. Police Station Nankhari, District Shimla for the offence punishable under Sections 21 and 29 of ND&PS Act for having in conscious and exclusive possession of 204.68 grams of Chitta/Heroin, which shows the bad consequences of parole to a convict of NDPS Act. It has also been 4 stated in the report that there is considerable increase in the registration of cases under the NDPS Act.
7. Learned counsel for the petitioner for allowing the application, has placed reliance on the pronouncements of the Supreme Court as well as coordinate Bench of this High Court in Asfaq Vs. State of Rajasthan and others (2017) 15 SCC 55; judgment dated 16.10.2023 passed in CWP No. 5965 of 2023, titled as Retaish Kumar Vs. State of H.P. & others; judgment dated 9.10.2023 in CWP No. 6562 of 2023, titled as Pushap Raj Vs. State of H.P. & others; judgment dated 23.5.2023 passed in CWP No. 1710 of 2023, titled as Bihari Lal Vs. State of H.P. & others; judgment dated 23.7.2021 passed in CWP No. 3516 of 2021, titled as Virender Kumar @ Bindu Vs. State of H.P. and others; and submitted that for similar circumstances petitioner is also entitled for release on parole and rejection of his application on the alleged apprehension of the State is not sustainable in absence of any material to substantiate the same.
8. Learned counsel for the petitioner has further submitted that alleged commission of offence by co-convict during his release on parole cannot be a basis to construe that in case of release of petitioner on parole, petitioner will also be involving himself in commission of similar/another offence. He has further submitted that there is no material indicating possibility of commission of offence by the petitioner during his release on parole. Further that repetition of commission of offence by co-convict cannot be a ground to deny parole to the petitioner and, in any case, if petitioner would involve in commission of any offence 5 or breach of terms of parole he shall be liable to face consequences for that.
9. It has also been submitted by learned counsel for the petitioner that details of previous cases registered against the petitioner clearly indicate that all those cases are not recent but old one and further that none of those cases are with respect to commission of offence under NDPS Act. It has been further stated submitted that increase in commission of offence under the NDPS Act cannot be a valid ground for denying parole to the petitioner in view of the provisions of H.P. Good Conduct Prisoners (Temporary Release), Act, 1968 and Rules framed thereunder
10. Learned Additional Advocate General on the basis of instructions placed on record, has failed to point out any material to substantiate the plea for which parole application of the petitioner has been rejected.
11. Parole application was preferred by petitioner for meeting his family members as provided under Section 3 (d) of the Act, for which maximum period for release on parole is available for four weeks.
12. Taking into consideration material placed before us and pronouncements referred hereinabove, in peculiar facts and circumstances of the present case, we are of the view that parole application filed by the petitioner has been rejected wrongly and erroneously.
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13. Therefore, we set aside the rejection of the parole application filed by the petitioner referred in present matter, which was communicated to the petitioner vide communication dated 30.10.2023.
14. Accordingly, respondents are directed to extend benefits of parole to the petitioner for a period 15 days on his furnishing personal bond in the sum of Rs.1,00,000/- with two sureties in the sum of Rs.50,000/- each to the satisfaction of Superintendent Jail, Model Central Jail, Kanda, District Shimla, H.P. The petitioner shall surrender before Superintendent of Jail, Model Central Jail, Kanda, District Shimla, H.P., immediately on expiry of 15 days of parole.
15. For extending benefit of parole, requisite appropriate order shall be issued by competent authority in accordance with law within 10 days from today. However, the petitioner's parole shall be liable to be cancelled in case he breaches any of the conditions of parole order and/or creates law and order problem, which shall be treated as a negative factor for consideration of his similar prayers in the future.
The instant writ petition is allowed in the aforesaid terms. Pending application(s), if any, are also disposed of.
(Vivek Singh Thakur), Judge.
(Rakesh Kainthla), Judge.
May 20, 2024 (Purohit) Digitally signed by SUBHASH CHAND DHIMAN SUBHASH DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3418061207364d8c002725dfc58ff116f678c3d39289db2 CHAND 9b992cce875905119, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= 5ce240fac0e1267843f29509683d09a9912af10edc4e6cd 2ed5d4a8c30134c1b, CN=SUBHASH CHAND DHIMAN Reason: I am the author of this document DHIMAN Location:
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