Gujarat High Court
Matabhai Shakrabhai Bariya vs The State Of Gujarat And Anr. on 11 March, 2008
Equivalent citations: 2008 CRI. L. J. 2764, (2009) 74 ALLINDCAS 618 (GUJ), (2009) 1 CRIMES 760, 2009 (74) ALLINDCAS 618, (2008) 3 GUJ LR 2412, (2008) 2 GUJ LH 159, 2008 CRILR(SC MAH GUJ) 339
Author: M.R. Shah
Bench: J.R. Vora, M.R. Shah
JUDGMENT M.R. Shah, J.
1. Rule. Mr.RC Kodekar, learned Additional Public Prosecutor waives the service of notice of rule for the respondents.
2. Present application under Section 389 of the Code of Criminal Procedure, has been filed by the applicant convict who has been convicted for the offence punishable under Section 18 of the N.D.P.S Act having found to be in possession of 12 kilograms Morphine and who has been sentenced to undergo Rigorous Imprisonment for 10 years with fine of Rs. 1 Lac and in default to make the payment of fine, to undergo Simple Imprisonment for a further period of six months, for releasing him on temporary bail for a period of four weeks on the ground of marriage ceremony of his younger son which was scheduled on 27/12/2008.
3. At the outset, it is required to be noted that the applicant came to be convicted by the learned Additional Sessions Judge, Court No. 7, Ahmedabad vide judgement and order dtd.23/9/2005 and the appeal came to be preferred by the applicant on 16/1/2007 which came to be admitted by the Division Bench of this Court on 4/4/2007. Considering the Jailsheet Report, it was found that the applicant was released on parole by the competent authority i.e. I.G. Prison in all for 135 days, more particularly initially for 25 days from 25/5/2006 to 18/6/2006; thereafter for a period of 30 days from 1/12/2006 to 30/12/2006 and thereafter for 80 days from 8/3/2007 to 26/5/2007. It was also found that when the applicant was lastly released on parole from 8/3/2007 to 26/5/2007, not only the appeal was preferred by the applicant original accused but the appeal was already admitted by this Court and once the appeal is entertained by this Court, the authority would not have any jurisdiction to release the convict on parole.
4. It was also found from the History Ticket of the applicant accused that the applicant was released on parole in a most casual manner on flimsy grounds by the I.G. Prison as if the parole application is of an accused involved in some minor offence under the Indian Penal Code and/or other statutes. Therefore, this Court passed following order on 18/2/2008 directing the learned APP to explain [i] as to how despite bar under Section 32-A of the N.D.P.S. Act, the applicant came to be released on parole and the said parole came to be extended and [2] how when the appeal is admitted by this Court, I.G. Prison could have exercised powers releasing the applicant on parole, in a case under the N.D.P.S. Act:
1. It appears from the Jail record that the applicant was released on parole even after admission of the present appeal and that too when the applicant has been convicted for the offences punishable under the N.D.P.S.Act. After the applicant was released on parole, thereafter, thrice parole has been extended by the concerned I.G. (Prisons) and that in all for a period of 80 days in a case where the applicant has been convicted for the offences punishable under the N.D.P.S.Act and inspite of the bar under Section 32A of the N.D.P.S.Act. Learned Additional Public Prosecutor to explain (1)How despite bar under Section 32A of the N.D.P.S.Act the applicant came to be released on parole and said parole came to be extended; and (2) how when the appeal admitted by this Court, I.G.(Prisons) could have exercised power releasing the applicant on parole in a case involving under the N.D.P.S.Act and when there is specific bar under Section 32A of the N.D.P.S.Act more particularly earlier when police report was against the applicant.
2. Stand over to 20th February, 2008. Copy of this order be given to the learned Additional Public Prosecutor.
5. Mr.R.C. Kodekar, learned Addl.Public Prosecutor appearing for the respondents, while drawing attention of this Court to the Affidavit-in-reply, affirmed by Inspector General of Police (Prison), has relied upon the decision of the Hon'ble Supreme Court in the case of Dadu alias Tulsidas v. State of Maharashtra , and has submitted that in the said decision, the Hon'ble Supreme Court has saved the powers of the authority to consider the application for parole and has held that while considering the application for parole, bar under Section 32-A of the N.D.P.S. Act would not be applicable. He has heavily relied upon para 11 of the said decision and has submitted that as observed by the Hon'ble Supreme Court notwithstanding Section 32-A of the NDPS Act, a convict is entitled to parole and therefore, it is submitted that I.G. Prison has jurisdiction and/or and discretion to consider the application of the accused, who has been convicted for the offences punishable under the N.D.P.S. Act, for parole and in the present case as the grounds submitted in the applications were found to be genuine, he has been released on parole thrice by the I.G Prison. It is submitted that so far as the ground of the parole by I.G. Prison after the admission of the Criminal Appeal is concerned, first of all I.G. Prison was not aware of preferring appeal by the accused and admission of the same by this Court. It is further submitted that by Mr.R.C. Kodekar, learned APP that, in fact, the applicant submitted that he has not preferred any appeal and thereby the applicant mislead the authority and kept the authority in dark with regard to filing of the Criminal Appeal by him. He has further submitted that at present there is no inbuilt mechanism with the authority to verify with regard to preferring appeal and/or admission of the appeal. It is submitted that still as and when the application for parole is submitted, the authority tries to get information from the registry by sending communication whether any appeal has been preferred or not. He has also relied upon the decision of the Division Bench of this Court (Coram : J.M. Panchal & J.R. Vora,JJ) in the case of Shermohmad @ Bablo (Babakhan) Noormahmad Sadhvani v. State of Gujarat rendered in Criminal Misc.Application No. 1130 of 2002 in Criminal Appeal No. 7 of 2001, whereby the Division Bench of this Court has taken a view that till the appeal is admitted, the authority would be entitled to exercise discretion in entertaining the application for parole, as until the appeal is admitted, this Court would not have any jurisdiction to entertain application under Section 389 of the Code of Criminal Procedure. Therefore, it is submitted by Mr.Kodekar, learned APP that in view of the decision of the Hon'ble Supreme Court in the case of Dadu alias Tulsidas (supra), bar under Section 32-A of the NDPS Act would not be applicable while considering the application of the convict for releasing him on parole and the authority would have jurisdiction and/or discretion to release the convict, who has been convicted for the offences punishable under NDPS Act, on parole.
6. We have heard Mr.R.C. Kodekar, learned APP for respondents at length. We have also considered the decision of the Hon'ble Supreme Court in the case of Dadu alias Tulsidas (supra). At the outset, it is required to be noted that the applicant has been convicted for the offence punishable under Section 18 of the NDPS Act and is sentenced to undergo Rigorous Imprisonment for 10 years with fine of Rs. 1 Lac, and in default, further Simple Imprisonment for six months.
7. Now, looking to the History Ticket of the applicant, it appears that after the judgement and order of conviction passed by the learned Additional Sessions Judge on 23/9/2005, the applicant submitted an application for releasing him on parole on 5/11/2005 on the ground of sickness of his wife, which came to be rejected by the I.G. Prison on 8/2/2006 considering the police opinion and the fact that the applicant has been convicted for the serious offence under the NDPS Act recently. It further appears from the History Ticket of the applicant that thereafter the applicant submitted another application for parole on 10/4/2006 on the ground of sickness of his wife and the applicant came to be released on parole for 15 days by order dtd.24/5/2006. It also appears that while the applicant was on parole pursuant to the order dtd.24/5/2006 and before expiry of the said parole period and before he surrenders before the jail authority, he submitted an application for extension of parole on 9/6/2006 on the ground of marriage of his son and the parole came to be extended upto 18/6/2006 i.e. for a period of 10 days. It appears that again the applicant submitted an application for parole on 7/7/2006 on the ground of sickness of his wife which came to be rejected by the authority on 5/9/2006 looking to the police report and as he had recently enjoyed parole. It also appears that the applicant submitted another application for parole on 10/10/006 on the ground of sickness of his wife and the applicant came to be released on parole for 15 days vide order dtd.22/11/2006, from 1/12/2006 to 16/12/2006. That while on parole, the applicant submitted another application for extension of parole and the parole came to be extended for a further period of 15 days vide order dtd.14/12/2006 and the applicant surrendered before the jail authority on 31/12/2006. Thus, the applicant was on parole from 1/12/2006 to 30/12/2006. It also appears that thereafter the applicant submitted another application for parole on 17/1/2007 on the ground of transferring the land in his name and the said application came to be granted by the authority releasing the applicant on parole for a period of 15 days vide order dtd.7/3/2007. Thus, the applicant was on parole upto 23/3/2007. However, again during the parole period, the applicant submitted an application for extension of parole on the ground of transaction of the land and surprisingly by order dtd.21/3/2007, the same came to be extended for a period of 30 days at a stretch. That again while on parole, the applicant submitted another application for extension of parole on 21/4/2007 on the ground of repairing of house and again surprisingly the parole came to be extended for a further period of 15 days vide order dtd.21/4/2007. Again the applicant submitted another application for extension of parole on 4/5/2007 on the ground of house repairing, and again the parole came to be extended for a further period of 20 days. Thus, after conviction and during the pendency of the appeal, within a period of one year, the applicant came to be released on parole for a period of 135 days.
8. It also appears from the History Ticket that subsequently also the applicant had submitted various applications through jail for releasing him on temporary bail on one ground or other and all those applications either came to be dismissed and/or withdrawn. Looking to the above, the History Ticket and the grounds for which the applicant came to be released by the I.G. Prison on parole, it appears that the applications of the applicant for parole have been considered by the authority very lightly and in casual manner, as if the authority was considering the applications for parole of an accused who has been convicted for the minor offences under the Indian Penal Code, and/or other statutes, without appreciating and/or realising the fact that the applicant has been convicted for the serious offence punishable under Section 18 of the NDPS Act.
9. It is the contention on behalf of the State, relying upon the decision of the Hon'ble Supreme Court in the case of Dadu alias Tulsidas (supra), that as held by the Hon'ble Supreme Court in the said decision, parole do not amount to suspension of sentence, remission or commutation of sentences which could be withheld under the grab of Section 32-A of the Act and as held by the Hon'ble Supreme Court notwithstanding provisions of Section 32-A of the NDPS Act, a convict it is entitled to parole. Therefore, it is submitted that it will be the discretion of the authority to consider the application for parole and as the authority was satisfied with the grounds, the applicant was released on parole.
10. Now considering the decision of the Hon'ble Supreme Court in the case of Dadu alias Tulsidas (supra), it is true and it cannot be disputed that as held by the Hon'ble Supreme Court notwithstanding provisions of Section 32-A of the NDPS Act, a convict is entitled to parole. Thus, the bar under Section 32-A of the NDPS Act would not come in the way of the authority in considering the application for parole of a convict who has been convicted under the NDPS Act and the authority has jurisdiction and/or discretion to consider such applications. However, the question is whether how and in what manner such discretion is to be exercised by the authority while considering the application for parole of an accused who has been convicted for serious offence under the NDPS Act. Even while upholding the constitutional validity of Section 32-A of the NDPS Act in part, the Hon'ble Supreme Court in para 15 has observed as under:
15. The restriction imposed under the offending section, upon the executive are claimed to be for a reasonable purpose and object sought to be achieved by the Act. Such exclusion cannot be held unconstitutional, on account of its not being absolute in view of the constitutional powers conferred upon the executive. Articles 72 and 161 of the Constitution empowers President and the the Governor of a State to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the Union and State exists. For the exercise of aforesaid constitutional powers circulars are stated to have been issued by the appropriate Governments. It is further submitted that the circulars prescribe limitations both as regards the prisoners who are eligible and those who have been excluded. The restriction imposed upon the executive, under the section, appears to be for a reasonable purpose and object sought to be achieved by the section. While moving the Amendment Bill, which included Section 32-A, in the Parliament on 16/12/1988, the Minister of State in Department of Revenue in the Ministry of Finance explained to the Parliament that the country had been facing the problem of transit traffic in illicit drugs which had been escalated in the recent past. The spillover from such traffic had been causing problems of abuse and addiction. The Government was concerned with the developing drug situation for which a number of legislative, administrative and preventive measures had been taken resulting in checking the transit traffic to a considerable extent. However, increased internal drug traffic, diversion of opium from illicit growing areas and attempts of illicit manufacture of drugs within the country threatened to undermine the effects of the counter measures taken. Keeping in mind the magnitude of the threat from drug trafficking from the Golden Crescent region comprising Pakistan, Afghanistan and Iran and the Golden Triangle region comprising Burma, Thailand and Laos and having regard to the internal situation, a 14-point directive was stated to have been issued by the then Prime Minister on 4/41988, as a new initiative to combat drug trafficking and drug abuse. Keeping in mind the working of the 1985 Act, the Cabinet Sub-Committee recommended that the Act be suitably amended, inter alia:
(i) to provide for the constitution of a fund for control of drug abuse and its governing body. The fund is to be financed by such amounts as may be provided by Parliament, the sale proceeds of any property forfeited under the Act and any grants that may be made by any person or institution;
(ii) to provide for death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs;
(iii) to provide that no sentence awarded under the Act, other than Section 27, should be suspended, remitted or commuted;
(iv) to provide for constitution of Special Courts;
(v) to provide that every offence punishable under this Act shall be cognizable and non-bailable;
(vi) to provide immunity from prosecution to the addicts volunteering for treatment for deaddiction or detoxification once in their lifetime;
(vii) to bring certain substances which are neither narcotic drugs nor psychotropic substances but are used in the manufacture or production of these drugs or substances, under the ambit of the Act. Such controlled substances would be regulated by issue or order;
(viii) violation of the provisions relating to the controlled substances would be liable for punishment with rigorous imprisonment for a term which may extend to 10 years and fine which may extend to Rs. 1 lakh;
(ix) financing illicit traffic and harbouring drug offenders would be offences liable to punishment at the same level as per drug traffic offences.
11. In the aforesaid decision, the Hon'ble Supreme Court has considered the distinction between the convict under the NDPS Act and other statutes. It is also to be noted that in the said decision even while holding Section 32-A of the NDPS Act as void in so far as it takes away the right of the Courts to suspend the sentence awarded to a convict under the NDPS Act, the Hon'ble Supreme Court has further observed and held that still while holding Section 32-A of the Act as void, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the Courts of their legal obligation to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act.
12. In para 28 of the said decision, the Hon'ble Sureme Court has considered the decision of the Hon'ble Supreme Court in the case of Union of India v. Ram Samujh , wherein it is held that the jurisdiction of the Court to grant bail is circumscribed by Section 37 of the Act and the bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during the period of suspension of the sentence. As observed by the Hon'ble Supreme Court in the aforesaid decision, the mandatory condition are provided in Section 37 while releasing the accused of the offence under NDPS Act, to check the menace of dangerous drugs flooding the market. Thus, while considering the application for parole of an accused who has been convicted for the offence under the NDPS Act and while exercising the discretion, the authority is required to act with a great care and caution and is also required to consider the distinction of the convict under the NDPS Act and under other statutes. While considering the application for parole of an accused who has been convicted for the offence under the NDPS Act, the authority is also required to consider the seriousness of the offence and the purpose for which NDPS Act has been enacted more particularly Section 37 of the NDPS Act. The authority is also required to consider that even while considering bail application and the application for suspension of the sentence of an accused who has been convicted for the offence under the NDPS Act, even jurisdiction of the Court to grant bail is circumscribed by Section 37 of the NDPS Act. Thus, application for parole of an accused who has been convicted for the offence under the NDPS Act, cannot be considered by the authority so lightly and unless there are special reasons and/or urgency such as sudden death and/or serious illness of the absolute near relative like mother, father, wife, children etc, such accused is not required to be released on parole.
13. In the present case, as stated above, the applicant has been released on parole for 135 days and on one occasion for a period of 80 days continuously on the ground of transferring the land in his name for the transaction of the land, marriage of the son, as if the applicant has been convicted for the offence under other statutes and while releasing the applicant on parole exercising the discretion it appears that the authority has not considered seriously the fact that the applicant has been convicted for the offence under the NDPS Act and has not drawn the distinction between the convict convicted under the NDPS Act and other statutes. Thus, it appears that the authority has not exercised the discretion judiciously and it can be said that the authority has considered the application of the convict convicted under the NDPS Act very lightly and in casual manner, without considering the seriousness of the offence and to that extent the exercise of discretion is unreasonable and arbitrary. It is required to be noted that even looking to the seriousness of the offence under NDPS Act, the convict who has been convicted for the offence under the NDPS Act, is not entitled to furlough leave and even parole cannot claim as a matter of right and it will be the discretion of the appropriate authority.
14. So far as the exercise of powers by the I.G. Prison for considering application of a convict during the pendency of the appeal is concerned, in the present case it appears that the authority was not aware with regard to filing of the appeal by the applicant and in fact, considering the Affidavit-in-reply of the I.G. Prison it appears that the authority was mislead by the applicant. Even otherwise, looking to the submissions of the learned APP, it appears that there is no inbuilt mechanism with the jail authority to ascertain the factum of filing of appeal by the convict against the judgement and order of conviction, except sending communication to the registry of this Court asking particulars whether any appeal has been preferred by the convict or not. It cannot be disputed that once appeal is entertained by the High Court, the authority has no jurisdiction to deal with the application of a convict for parole. Before considering the application of a convict for parole, it will be in the fitness of things that the authority is first satisfied that the appeal is not preferred and entertained by the High Court. In a given case, to avoid submitting an application before the Court for temporary bail, the convict may play mischief and even after preferring appeal, the convict may not even get the appeal circulated for admission apprehending that the Court may not release him on temporary bail under Section 389(1) of the Code of Criminal Procedure considering bar under Section 37 of the NDPS Act and thereby the convict may go on making application for parole before the I.G. Prison and the I.G. Prison may go on releasing the convict on parole. The same would amount to give premium to a dishonest convict.
15. So far as the present application is concerned, the same is filed by the applicant for releasing him on temporary bail for a period of four weeks on the ground of marriage of his younger son which was scheduled to be held on 27/2/2008. Considering the fact that the applicant has been convicted for the offence under the NDPS Act having found to be in possession of 12 kilograms morphine, the grounds shown by the applicant for releasing him on temporary bail, can hardly be said to be a ground for releasing him on temporary bail. In the facts and circumstances of the case, more particularly considering provisions of Section 37 of the NDPS Act, the applicant cannot be released on temporary bail and hence the present application fails and is required accordingly dismissed with following observations and directions:
i. While considering the application of an convict who has been convicted under the NDPS Act, for parole, the I.G. Prison is required to draw a distinction between the convict convicted under the NDPS Act and other statutes and such applications are not required to be dealt with and considered lightly and in casual manner as if the convict is convicted for minor offence under other statutes. Unless some extraordinary urgency such as serious illness of the near relative like parents, wife, children or death of the near relative and like other grounds, are made out, application for parole of the convict who has been convicted for the offence under the NDPS Act is not required to be considered so lightly and in casual manner, but the same is required to be considered with great care and caution.
ii. At the time of considering the application for parole of a convict, the authority is required to satisfy whether any appeal against the judgement and order of conviction has been preferred and admitted by the High Court and for that purpose the authority is required to have some inbuilt mechanism especially in cases like present one and when it is found that appeal is preferred but the convict has not tried to get it circulated for admission for a sufficient time, the authority before exercising discretion, bring such circumstances of the concerned Public Prosecutor of the High Court, otherwise, it will lead to chance to the convict to play mischief for his release on parole even during the pendency of admission of the appeal. Once it is found that the appeal is entertained and admitted by the High Court, the authority shall not entertain application for parole.
16. With the observations and directions as aforesaid, present application is dismissed. Rule is discharged. The registry is directed to send copy of this order to the jail authority as well as Inspector General of Police (Prison), Gujarat State, Ahmedabad, for compliance.