Bombay High Court
Dadu @ Tulsidas Manpher Patel vs State Of Maharashtra And Ors. on 1 November, 2001
Equivalent citations: 2001(5)BOMCR264, 2002CRILJ3850, 2002(1)MHLJ902
Author: R.K. Batta
Bench: R.K. Batta
JUDGMENT R.K. Bhatt, J.
1. The petitioner seeks directions for treating the period spent on parole as part of sentence undergone by him. The petitioner's case is that he was convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act vide judgment dated 25-1-1993 and has been sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1,00,000/- in default, imprisonment for six months. The petitioner had challenged his conviction before this Court, but the appeal was dismissed. The petitioner had been arrested in connection with the said offence on 29-5-1991 and that he is in jail to date. The petitioner had preferred Writ Petition (Criminal) No. 169 of 1999 before the Apex Court challenging the constitutional validity of Section 32A of the said Act. The Apex Court held that Section 32A of the said Act insofar as it completely debars the jurisdiction of the Court to suspend the sentence awarded to the convict under the Act, is unconstitutional. The Apex Court directed that the petitioner shall be at liberty to apply for parole and his prayer be considered and disposed of in accordance with the statutory provisions, if any, Jail Manual or Government instructions without implying Section 32A of the Act as a bar to consideration for prayer. In this judgment, the Apex Court has considered the concept of "parole" in general as also rulings on the subject vis-a-vis Section 32A of the said Act. In this case judgment of the Apex Court in State of Haryana v. Mohinder Singh, has been considered wherein concept of "parole" and "furlough" had been considered and it was observed that the said two terms have acquired different meanings in the Statute with varied results. In this judgment, the Haryana Good Conduct Proceedings (Temporary Release) Act, 1988 and also terminology used in the Delhi Jail Manual was considered. It was pointed out by the Apex Court that parole is a form of temporary release from custody which does not suspend the sentence or period of detention, but provides conditional release from custody and change the mode of undergoing the sentence.
2. In Sunil Fulchand Shah v. Union of India and Ors., , the Constitution Bench of the Apex Court by majority judgment, has been held that the judgment in Poonam Lata v. M.L Wadhawan, does not lay down the correct law because the proposition of law laid down in the said judgment as also two other judgments in Harish Makhija v. State of U.P., and Pushpadevi M. Jatia v. M. L. Wadhawan, has been very widely stated. In this judgment, the Constitution Bench of the Apex Court has examined the concept and effect of the parole more particularly in a preventive detention case. Relying upon the judgment in State of Haryana v. Mohinder Singh (supra), it has been pointed out by the Constitution Bench of the Apex Court that, "parole is a form of temporary release from custody, which does not suspend the sentence or period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence. It is pertinent to note the following observations of the Constitution Bench of the Apex Court in para 30 which read as under :--
"30. Since release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise. The period during which parole in availed of is not aimed to extend the outer limit of the maximum period of detention indicated in the order of detention. The period during which a detenu has been out of custody on temporary release on parole, unless otherwise prescribed by the order granting parole, or by rules or instructions, has to be included as a part of the total period of detention because of the very nature of parole. An order made under Section 12 of temporary release of a detenu on parole does not bring the detention to an end for any period - it does not interrupt the period of detention - it only changes the mode of detention by restraining the movement of the detenu in accordance with the conditions prescribed in the order of parole. The detenu is not a free man while out on parole. Even, while on parole he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. He is not a free person. Parole does not keep the period of detention in a state of suspended animation. The period of detention keeps ticking during this period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents, subject at any time, for breach of condition, to be returned to custody. Thus, in cases which are covered by Section 12 of COFEPOSA, the period of temporary release would be governed by the conditions of release whether contained in the order or the rules or instructions and where the conditions do not prescribed it as a condition that the period during which the detenu is out of custody, should be excluded from the total period of detention, it should be counted towards the total period of detention for the simple reason that during the period of temporary release the detenu is deemed to be in constructive custody. In cases falling outside Section 12, if the interruption of detention is by means not authorised by law, then the period during which the detenu has been at liberty, cannot be counted towards period of detention while computing the total period of detention and that period has to be excluded which computing the period of detention. The answer to the question, therefore, is that the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period during which the detenu is on parole, therefore, requires to be counted towards the total period of detention."
Ultimately while summarising in para 33, it is laid down that the parole does not interrupt the period of detention and, thus, that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instructions, prescribe otherwise.
3. In Dadu alias Tulsidas v. State of Maharashtra, also it has been laid down that parole is not a suspension of sentence. The convict continues to be serving the sentence despite granting of parole under the statute, rules, jail manual or the Government Orders. The Apex Court has further observed that the parole does not amount to the suspension, remission or commutation of sentence which could be withheld under the garb of Section 32A of the NDPS Act. Notwithstanding the provisions of the offending Section, 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 government instructions.
4. The petitioner, pursuant to the observations made by the Apex Court in Dadu alias Tulsidas v. State of Maharashtra, Writ Petition (Cri.) No. 169 of 1999 (supra) applied for parole and he was released on parole. The petitioner has now approached this Court that the said period of parole be counted in sentence undergone by him.
5. Section 32A of the NDPS Act reads as under :--
"32A. No suspension, remission or commutation in any sentence awarded under this Act. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 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,"
6. Rule 20 of the Prisons (Bombay Furlough And Parole) Rules, 1959 provides that the period spent on parole shall not count as remission of the sentence. It neither amounts to suspension of sentence. In such circumstances, the period of parole has to be treated as part of the sentence and the said period shall, therefore, be counted towards the sentence undergone by the petitioner. Petitioner's case is that he was on parole for 90 days with effect from 31-5-2001 which was initially granted for 30 days and was subsequently extended for 30 days each time vide orders dated 16-6-2001 and 31-7-2001. The said period of parole availed by the petitioner shall, therefore, be counted as part of sentence,
7. Petition is accordingly allowed in aforesaid terms. Rule made absolute in aforesaid terms. Hamdast allowed.