Himachal Pradesh High Court
__________________________________________________________ vs Of on 9 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No. 4348 of 2023
.
Decided on: 9th August, 2023
__________________________________________________________
Rajinder Singh
....Petitioner
Versus
of
State of HP and others
......Respondents
Coram
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
rt
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? No.
For the Petitioner: Mr. Sunil Kumar and Mr. Pankaj
Sawant, Advocates.
For the Respondents: Mr. Anup Rattan, Advocate General
with Mr. Ramakant Sharma,
Additional Advocate General.
Ranjan Sharma, Judge (Oral)
The instant petition has been filed by the petitioner for grant of the following substantive reliefs:-
(i) "That this Hon'ble Court may kindly be pleased to issue writ in the nature of certiorari, thereby quash and set aside the Annexure P-2 dated 07-06-2023 in the interest of justice and fair play.1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 16/08/2023 20:31:52 :::CIS -2-(ii) That this Hon'ble Court may kindly be pleased to issue writ in the nature of mandamus, thereby .
directing the respondents to release the petitioner on parole for the period of 42 days, in the facts and circumstances of the present case."
FACTS of 2(i). Precisely, the case of the petitioner is that an FIR No.6 of 2016, dated 15.01.2016, was registered against him in Police Station, Kotkhai, District Shimla, Himachal Pradesh, rt under Sections 20 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act').
Flowing therefrom, the petitioner faced trial and as per the judgment dated 05.04.2018 passed by the learned Special Judge (Forests), Shimla, he was convicted and sentenced to undergo rigorous imprisonment for fourteen years and to pay a fine of Rs.1,25,000/- (Rupees One Lakh and Twenty Five Thousand Only) and in default of payment of fine, the petitioner was to undergo further rigorous imprisonment, for a period of two years.
2(ii). The aforesaid conviction and sentence was assailed before this Court, in Criminal Appeal No.117 of 2018, titled as Lokinder Singh and others Versus State of Himachal Pradesh ::: Downloaded on - 16/08/2023 20:31:52 :::CIS -3- and the same is pending adjudication before this Court.
However, the petitioner after having undergone sentence of six .
years, seven months and seven days, in Model Central Jail, Kanda, District Shimla, Himachal Pradesh, applied for grant of parole, so as to enable him to undertake harvesting-ploughing and other agricultural purposes, as mentioned therein, as his of wife and three minor children are unable to perform these tasks.
2(iii). The aforesaid request of the petitioner for grant of rt parole was turned down by the Competent Authority on 07.06.2023, Annexure P-2, in view of non-recommendation of his case, by the District Magistrate, i.e. Additional District Magistrate (L&O), Shimla, which is further based on the report of Superintendent of Police, Shimla, dated 06.04.2023, Annexure P-3(T), on the ground that the petitioner has been involved under NDPS Act and the cases under NDPS are increasing in the State.
REPLY/STAND OF RESPONDENTS:
3. While issuing notices in this writ petition, on 05.07.2023, this Court directed the respondents to file reply within four weeks. Thereafter, the matter was again listed on 02.08.2023, when the respondents were granted a week's ::: Downloaded on - 16/08/2023 20:31:52 :::CIS -4- further time to file reply. Today (09.08.2023), when, the matter was again taken up, the respondents have furnished .
instructions dated 8th August, 2023, which are taken on record, whereby, the respondents have attempted to justify the rejection orders dated 07.06.2023, Annexure P-2.
4. We have heard Mr. Sunil Kumar and Mr. Pankaj of Sawant, Learned Advocates, for the petitioner and Mr. Anup Rattan, Learned Advocate General assisted by Mr. Ramakant Sharma, Learned rt Additional Advocate General for the respondents-State.
LEGAL POSITION:
5(i). At the outset, it would be relevant to take note, of the pronouncement of the Hon'ble Apex Court in Asfaq Versus State of Rajasthan and others, (2017) 15 Supreme Court Cases 55. The Apex Court has enunciated the object of granting parole to a convict. It has been emphasized that the parole is granted with an objective of reformation of the convicts. The convicts have right to breathe fresh air, albeit for short periods. The main purpose of parole is to provide humanistic approach towards those lodged in jails, so that such convicts can prepare not only to solve their personal and family problems, but also to maintain their links with society and such ::: Downloaded on - 16/08/2023 20:31:52 :::CIS -5- gestures by the State go a long way for redemption and rehabilitation of such prisoners, which are good for the society .
and are in public interest. The relevant paragraphs of the judgment are reproduced here-in-below:-
"11. There is a subtle distinction between parole and furlough. A parole can be defined as conditional release of prisoners i.e. an early of release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also rt be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:
(i) a member of the prisoner's family has died or is seriously ill or the prisoner himself is seriously ill; or ::: Downloaded on - 16/08/2023 20:31:52 :::CIS -6-
(ii) the marriage of the prisoner himself, his son, daughter, grandson, granddaughter, brother, sister, sister's son or daughter is to be .
celebrated; or
(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father's undivided land actually in possession of the prisoner; or of
(iv) it is desirable to do so for any other sufficient cause;
(v) parole can be granted only after a portion of rt
(vi) sentence is already served;
if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence; and
(vii) parole may also be granted on the basis of aspects related to health of convict himself.
xxx... xxx.... xxx...
15. A convict, literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and ::: Downloaded on - 16/08/2023 20:31:52 :::CIS -7- become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they .
are undergoing sentence of imprisonment.
xxx... xxx.... xxx...
17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be of allowed to maintain family and social ties. For this purpose, he has to come out for some time rt so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for periods. These gestures on the part of the ::: Downloaded on - 16/08/2023 20:31:52 :::CIS -8- State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the .
good of the society and, therefore, are in public interest.
18. The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity of to solve their personal and family problems and to enable them to maintain their links rt with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furloughs or parole can help prepare offenders for success.
19. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be ::: Downloaded on - 16/08/2023 20:31:52 :::CIS -9- granted or not. This public interest also demands that those who are habitual offenders and may have the tendency to .
commit the crime again after their release on parole or have the tendency to become threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the of coin is the experience that great number of crimes are committed by the offenders who rt have been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such a crime or he is showing tendency to reform himself to become a good citizen.
20. Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law-abiding citizens. Thus, ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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parole program should be used as a tool to shape such adjustments.
21. To sum up, in introducing penal reforms, the .
State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such of reforms, the authorities cannot be oblivious of the obligation to the society to render it rt immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform. 22) ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
- 11 -
Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of .
serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a of person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has rt committed, he cannot be categorised as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious office, the competent authority, while examining such cases, can be well advised to ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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have stricter standards in mind while judging their cases on the parameters of good conduct, habitual offender or while judging .
whether he could be considered highly dangerous or prejudicial to the public peace and tranquillity etc.
23. There can be no cavil in saying that a society that believes in the worth of the individuals can have the quality of its belief judged, at of least in part, by the quality of its prisons and services and recourse made available to the rt prisoners. Being in a civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitute human dignity.
For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. {See - Sunil Batra (II) v. Delhi Administration (1980) 3 SCC 488, Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248, and Charles Sobraj v. Superintendent Central Jai, Tihar, New Delhi (1978) 4 SCC 104.}
24. It is also to be kept in mind that by the time an application for parole is moved by a prisoner, he would have spent some time in ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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the jail. During this period, various reformatory methods must have been applied. We can take judicial note of this fact, having .
regard to such reformation facilities available in modern jails. One would know by this time as to whether there is a habit of relapsing into crime in spite of having administered correctional treatment. This habit known as "recidivism" reflects the fact that the of correctional therapy has not brought in the mind of the criminal. It also shows that rt criminal is hardcore who is beyond correctional therapy. If the correctional therapy has not made in itself, in a particular case, such a case can be rejected on the aforesaid ground i.e. on its merits."
(underlining ours) 5(ii). So far as respondents are concerned, the State Legislature had enacted "The Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968", which provides for temporary release of the prisoners on certain conditions.
Section 3 and Section 6 of the Act, read as under:-
"3. Temporary release of prisoners on certain grounds.-
(1) The Government may, in consultation with the District Magistrate and subject to such conditions and in such manner as may be prescribed, release temporarily for a period ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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specified in sub-section (2) any prisoner if the Government is satisfied that,-
(a) a member of the prisoner's family has .
died or is seriously ill; or
(b) the marriage of the prisoner's son or daughter is to be celebrated; or
(c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other of agricultural operation on his land and no friend of the prisoner or a member of rt the prisoner's family is prepared to help him in this behalf in his absence; or
(d) it is desirable so to do for any other sufficient cause.
(2). The period for which a prisoner may be released shall be determined by the Government so as not to exceed,-
(a) Where the prisoner is to be released on the ground specified in clause (a) of sub-section (1), two weeks;
(b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four weeks; and
(c) where the prisoner is to be released on the ground specified in clause (c) of sub- section (1), six weeks.
(3) The period of release under this section shall not count towards the total period of the ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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sentence of a prisoner.
(4) The Government may, by notification, authorise any officer to exercise its power .
under this section in respect of all or any of the grounds specified therein."
6. "Prisoners not entitled to be released in certain cases.- Notwithstanding anything contained in sections 3 and 4, no prisoner of shall be entitled to be released under this Act, if, on the report of the District Magistrate, the Government or an officer rt authorised by it in this behalf is satisfied that his release is likely to endanger the security of the State or the maintenance of public order."
5(iii). In exercise of powers conferred under Section 10 of the Act, respondents-State have framed "The Himachal Pradesh Good Conduct Prisoners (Temporary Release) Rules, 1969" (for short 'Rules'). The relevant portion of Rule 3 reads as under:-
"3. Procedure for temporary release. -
(1) A prisoner desirous of seeking temporary release under section 3 or section 4 of the Act shall make an application in Form 'A-1' , Form 'A-2', as the case may be, to the Superintendent of Jail. Such an application may also be made by an adult member of the prisoners' family.::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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(2) The Superintendent of Jail shall forward the application of a prisoner within 24 hours of its receipt along with his report to the District .
Magistrate of the district to which the convict belongs. The District Magistrate before making any recommendations shall, with the consultation of the Superintendent of Police, verify the facts and grounds on which temporary release has been requested and of shall also give their opinion whether the temporary release on parole/furlough is rt opposed on ground of prisoner's presence being dangerous to the security of State or prejudicial to the maintenance of Public Order.
The District Magistrate shall complete the process of consultation with the Superintendent of Police and forward his recommendations within one week to the Inspector General of Prisons (Releasing Authority) together with report of Superintendent Jail, who shall decide the parole/furlough case ordinarily within a period of three days from the date of receipt of the recommendations of the District Magistrate.
In the event of the serious illness of close relation i.e. father, mother, brother, sister, spouse or child of the prisoner, the application should be processed more expeditiously. However in the event of death of the close ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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relation i.e. father, mother, brother, sister, spouse or child of the prisoner, the Superintendent of the Jail shall also be the .
competent authority to release a prisoner on parole for a period not exceeding fifteen days. The Superintendent of Jail should release a prisoner on parole immediately on receipt of a death certificate, provided he satisfies himself independently within reasonable time about of the genuineness of the certificate. For satisfying himself he will approach the concerned Police Station by wireless and rt verify about the truth of the death and the exact relation of the prisoner with the deceased in order to ascertain the nearness of the relationship.
The Superintendent of Jail shall also take into consideration the prisoner's past criminal history and behaviour in the prison since admission as recorded in his case file and the likelihood of his not abusing the concession of parole, if granted.
The Superintendent of Jail shall without fail submit the case file of the prisoner to whom parole is thus granted, to the Inspector General of Prisons enabling him to ensure that the Superintendent has used proper discretion in effecting the release."
[underlining ours] ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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5(iv). A perusal of Section 3 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 and .
Rule 3 of the Rules aforesaid stipulate that a convict (prisoner) can seek temporary release for specified period for the purpose of carrying out the ploughing, sowing, harvesting or carrying on any other agricultural operation on his land, or on any other of sufficient cause, besides other grounds, as mentioned therein.
Rule 3 provides for the procedure as to the manner in which the application for parole is to be processed, examined and decided rt by the competent authorities. Section 6 of the Act bars the release of the prisoners in specified eventualities, in case the release is likely to endanger the security of the State or the maintenance of the public order.
ANALYSIS 6(i). In the instant case, the documents placed on record make it manifestly clear that the mandate of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, and the Rules framed thereunder have not been followed by the authorities in its true perspective. As per the mandate of Rule 3, the District Magistrate was legally bound, to consult the Superintendent of Police concerned; and to verify the facts and grounds on which parole was requested; and to give his ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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opinion as to whether the convict was entitled to the concession of temporary release-parole or not. In the instant .
case, this aspect is missing, as the District Magistrate has neither undertaken the requisite exercise by impartial and independent application of mind nor framed any opinion, as to whether the petitioner was to be released on parole. However, of records reveal that the District Magistrate has acted mechanically, by following the report submitted to him by the Superintendent rt of Police. Accordingly, the non-
recommendation of case by the District Magistrate and the resultant rejection is cryptic and vitiated by non-application of mind and is thus, unsustainable.
6(ii). A perusal of Section 6 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, mandates that the release is likely to endanger the security of the State or the maintenance of public order. In the present case, the respondents have not placed on record any cogent and convincing material justifying that the temporary release of the petitioner, on parole, would infringe the mandate of Section 6 of the Act, as mentioned above. Thus, once the case of the petitioner does not fall in any of the exceptional categories, therefore, the inaction and the impugned orders, ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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denying parole are not tenable and liable to be set aside.
6(iii). The plea of the respondents that the temporary .
release-parole cannot be granted, as the petitioner was convicted under the NDPS Act and the cases under the NDPS Act are increasing in the State. To our mind, this cannot be a ground for denying temporary release-parole to the convict, of when, it is the bounden duty of the State to be vigilant enough to prevent and combat such activities. Moreover, the provision of Section 28 of the NDPS Act takes care of such eventualities rt and any person, who attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and does any act towards the commission of any offence, then any such person is liable to be proceeded against, in law. Accordingly, the plea of the respondents in denying parole, does not stand the test of judicial scrutiny.
6(iv). It is relevant to take note of the Custody/Jail Certificate dated 28.02.2023, Annexure P-4, whereby, the conduct and behaviour of the petitioner has been found to be satisfactory. Besides this, it has come on record that the petitioner was released on parole, on four earlier occasions.
Even during the previous release, the conduct and behaviour of the petitioner was satisfactory and nothing adverse was ever ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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reported against him. The denial of parole indefinitely, when, nothing cogent exists, amounts to frustrating and defeating the .
very object of granting parole, as carved out by the enactment(s) and the law laid down by the Hon'ble Apex Court, in case of Asfaq (supra). In view of this, the inaction of the respondents and the impugned orders are not tenable in law.
of 6(v). It goes without saying, that the apprehension, if any, of the respondents, can be safeguarded by imposing stringent/strict conditions before releasing the petitioner on rt parole. It is also made clear, that in case, the petitioner involves himself or he attempts or conspires to any of the offences under NDPS or any other offences in law; then, such involvement or attempt shall entail the cancellation of parole automatically. It is further made clear that the petitioner shall surrender before the Superintendent Jail, Model Central Jail, Kanda, District Shimla, Himachal Pradesh, on expiry of 42 days parole period.
In peculiar facts and circumstances, herein, respondents are at liberty to impose any other just and reasonable condition(s) as deemed fit and proper to meet the ends of justice.
CONCLUSION AND DIRECTIONS:
7. In view of the above discussion, the instant writ petition is allowed, with the following directions:-
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(i) Order dated 07.06.2023 (Annexure P-2), rejecting the request, of the petitioner for parole, is quashed and .
set-aside.
(ii) Respondents are directed to re-consider the case for extending concession of parole to the petitioner, for a period of 42 days, as requested, on his furnishing personal bond in the sum of Rs.50,000/- with two of sureties in the sum of Rs.25,000/- each, to the satisfaction of Superintendent Jail, Model Central rt Jail, Kanda, District Shimla, Himachal Pradesh. It is also made clear that the respondents shall insert the stipulation in the parole order to the effect that in case the petitioner involves himself or he attempts or conspires to any of the offences, then, such involvement or attempt shall entail the cancellation of parole automatically. It is further made clear that the petitioner shall surrender before the Superintendent Jail, Model Central Jail, Kanda, District Shimla, Himachal Pradesh, on expiry of 42 days parole period.
(iii) In peculiar facts and circumstances, herein, respondents are at liberty to impose any other just and reasonable condition(s), in addition to the ::: Downloaded on - 16/08/2023 20:31:52 :::CIS
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conditions mentioned in para 7(ii), supra, if deemed fit and proper to meet the ends of justice.
.
8. The instant writ petition is allowed in the aforesaid terms. Pending miscellaneous application(s), if any, are also disposed of.
(Tarlok Singh Chauhan)
of
Judge
rt (Ranjan Sharma)
Judge
August 09, 2023
(Bhardwaj)
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