Rajasthan High Court - Jaipur
Samiullaha vs State Of Rajasthan And Ors. on 5 December, 2001
Equivalent citations: 2002CRILJ839, 2002(2)WLC69, 2002(4)WLN456
Author: Gyan Sudha Misra
Bench: Gyan Sudha Misra
JUDGMENT Misra, J.
1. The question that falls for consideration in this writ petition is whether an accused like the petitioner herein who has been convicted and sentenced for the offence under the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter shortly referred to as the N.D.P.S. Act of 1985) can at all avail the privilege of 'parole' under the Rajasthan Prisoners Release on Parole Rules, 1958 (for short 'Rajasthan Prisoners Rules, 1958) for any reason whatsoever.
2. A slight enumeration of the circumstances would indicate that the petitioner herein-Samiullaha has been convicted and sentenced for an offence under Section 8/21 of the N.D.P.s. Act, 1985 vide judgment and order dated 25.9.2000 passed by the Special Judge, N.D.P.S., Jaipur against which the petitioner has preferred as appeal before this High Court which is pending. During pendency of the appeal and while undergoing the sentence, the petitioner filed an application before the Jail authorities for emergency parole under Rule 10-A of the Rajasthan Prisoners Rules, 1958 for the treatment of his minor son Wahid on the plea that he has developed Brain Tumour and has been referred for further treatment to Mumbai by the Associate Professor of Neurology Unit in the S.M.S. Hospital at Jaipur. For this purpose the petitioner wanted to be released temporarily on parole since there is on one else in the petitioner's family to take the child to Mumbai for further treatment. It is stated by the petitioner that the Jail authorities orally refused to grant an emergency parole to the petitioner and, therefore, he did not feel the need to file further application for grant of regular parole. The petitioner feeling aggrieved by the refusal of the Jail authorities to grant him even emergency parole, has been compelled to file this writ petition for a direction to the Jail authorities to release the petitioner for a period of two months so that he can get his son Wahid checked-up and get him treated for his Brain Tumour. He has also prayed that any ban on the grant of parole to the prisoners convicted under the Act of 1985 be declared illegal and unconstitutional.
3. On a show cause notice being issued to the respondents, a reply has been filed on behalf of the State of Rajasthan through the Jail authorities, stating therein that the Stale of Rajasthan vide Notification/Instruction No. 21(58) Home - 12/76 Jaipur dated 29.4.2000 has imposed a ban on the power of the Jail authorities to grant parole to any prisoner who is convicted and serving the sentence under the N.D.P.S. Act of 1985. It has been further stated therein that the petitioner has not submitted any application for grant of parole for the treatment of his son Wahid for Brain Tumour. It has also been stated that the petitioner had initially applied for grant of parole for the treatment of his wife and the same being rejected, he has again filed this writ petition on the plea of treatment f his son Wahid. It is also submitted that the petitioner never applied even for emergency parole under Rule 10-A of the Rules of 1958 to the respondents herein and straightway filed this writ petition claiming parole.
4. At this stage the counsel for the petitioner explained that since a blanket ban has been imposed on the power to grant parole to any convict undergoing sentence for offence under the Act of 1985, it would have been a futile exercise to move any application for grant of parole unless a competent Court holds that such a ban is illegal and unconstitutional. The respondents on the other hand, relied upon the judgment passed by a Division Bench of this Court in DB Civil Writ Petition No. 2024/2000, dated 10.5.2000 wherein the learned Judges of the Division Bench relying upon the decision of the Apex Court in the case of Maktool Singh vs. State of Punjab, held that in no circumstance the sentence imposed on the person convicted for the offence under the Act of 1985 can be suspended since the learned Judges therein have held that Section 32-A of the Act of 1985 has taken away the powers of the Court to suspend the sentence of a person convicted for offence under the Act of 1985 (except Section 27) either during pendency of any appeal or otherwise. It is perhaps for this reason that a circular has also been issued by the State of Rajasthan putting a ban on the power of the Jail authorities to grant any parole to anyone who has been convicted and sentenced under the Act of 1985.
5. The controversy, therefore, is confined, as already stated, to the question as the whether a person convicted for any offence under the N.D.P.S. Act of 1985 can be granted that benefit of parole under any circumstances whatsoever in view of the interpretation of Section 32-A of the N.D.P.S. Act of 1985 made by the Supreme Court in Maktool Singh's case (supra). But it appears that this controversy has already been resolved by a decision of the Larger Bench of the Supreme Court in the case of Dadu @ Tulsidas vs. State of Maharashtra (2), wherein the constitutional validity of Section 32-A of the Act of 1985 had been challenged on the ground that it was arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India which created unreasonable distinction between the prisoners convicted and sentenced under the Act of 1985 and the prisoners convicted and sentenced for the offence punishable under various other statutes. One of the specific questions which was considered therein was whether 'parole' can be held to be a suspension of sentence so as to bring it within the ambit of Section 32-A of the Act of 1985 in order to hold it that it could not be awarded to any accused convicted and sentenced under the N.D.P.S. Act of 1985. The learned Judges of the Apex Court elaborately dealt with this issue by a well-considered judgment and held therein that parole is not a suspension of sentence since the convict continues to be serving the sentence despite grants of parole under the Statute, Rules, Jail Manual of the Government orders. '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 or other internment after actually being in jail serving part of sentence. The learned Judges further held that grant of parole is essentially an executive function to be exercised within the limits prescribed in that behalf, it would not be open to the court to reduce the period of detention by admitting a detenu of convict on parole. The court cannot substitute the period of detention either by abridging or enlarging it. The ratio of the judgment is, therefore, to the effect that the parole did not amount to suspension, remission or commutation of sentences which could be withheld under the garb of Section 32-Aof the N.D.P.S. 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. Consequently, in this case the petitioner was granted liberty to apply for parole and his prayer for its consideration and disposal in accordance with the statutory provisions of any jail manual or government instructions without applying Section 32-A of the Act of 1985 as a bar for consideration of the prayer.
6. It is thus sufficiently clear that the constitutional validity of Section 32-A of the Act of 1985 has already been examined by the Apex Court wherein it has been held to be unconstitutional in so far as it ousts the jurisdiction of the Court to suspend the sentence awarded to a convict and a blanket ban on the power of the jail authorities to grant parole has not been upheld. However, it has to be subject to the rules of the jail manual or the government instructions, if any. In this circumstances, the plea of the respondents specifically taken in their counter-affidavit that parole cannot be granted in view of the government circular referred to hereinabove, cannot be treated as a bar for refusing to consider the prayer of parole raised on behalf of an accused convicted under the Act of 1985 but at this stage we cannot tinker with the State Government Circular since the petitioner has not made any prayer to that effect in his writ petition. Nevertheless, we cannot refrain from observing that this circular is clearly contrary to the Supreme Court's decision delivered in Dadu's case (supra).
7. However, we have further noticed that Rule 9 of the Rajasthan Prisoners Rules of 1958 envisages that only those prisoners who have completed one-fourth of his sentence and subject to good conduct in the jail may be released on first parole for 20 days and second parole for 40 days and also third parole. The petitioner herein appears to have been convicted by judgment and order dated 25.9.2000 but he has not indicated as to what is the period of sentence imposed on him and how much of it he has undergone. The fact also remains that the petitioner has not filed any application before the jail authorities for grant of regular parole narrating all the facts and circumstances for such temporary release. Hence this court cannot straightway issue any direction to the respondents to release the petitioner on the months' parole as prayed by him but having held that there can be no blanket ban on the power to grant parole against any accused even if he is a convict of the NDPS Act, it is considered appropriate to leave the liberty to the petitioner to move a proper application before the jail authorities for releasing him on parole and that application obviously will have to be considered within the ambit and scope of Rule 9 of the Rajasthan Prison Rules of 1958.
8. The writ petition, in the light of the aforesaid directions, be treated as disposed of.