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Section 6 of the Act further provides that notwithstanding anything contained in sections 3 and 4 (which relate to the release on parole and furlough), no prisoner shall be entitled to be released under this Act if, on the report of the District Magistrate, the State Government or an officer 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. Rule 4 of the Rules provides that a prisoner shall be entitled to apply for parole only after he has completed one year of his imprisonment after conviction and has earned his first annual good conduct remission under the Act. Secondly, a prisoner, who has been convicted and sentenced for imprisonment less than four years, shall not be eligible for parole. Rule 5 provides that no parole or furlough shall be granted to a prisoner who has been sentenced to death penalty. Rule 11 provides for procedure for execution of the bonds and furnishing of surety for temporary release of the convict on parole/furlough. Sub-rule (2)(a) of Rule 11 provides that in case of convicts of offences of murder, rape, rape with murder, murder for dowry, dacoity and the Narcotic Drugs and Psychotropic Substances Act, 1985 or any other heinous crime, surety shall be from one lac rupees to two lac rupees as per discretion of the releasing authority accepting the surety bonds etc. As per the stand taken by the respondents, a convict is entitled for parole only after he has completed one year of his imprisonment after conviction and has also earned his first annual good conduct remission. It is further the stand of the respondents that in view of Section 32-A of the NDPS Act, the prisoners convicted under the NDPS Act are not entitled for remission, therefore, the petitioners are not entitled for temporary release on parole on any of the grounds mentioned in the Act.

The constitutional validity of Section 32A of the NDPS Act was challenged before the Hon'ble Supreme Court in Dadu @ Tulsidas v. State of Maharashtra, AIR 2000 (SC) 3203. In that case it was held that Section 32A is constitutionally valid in so far as it curtails the power of the Executive to suspend, remit and commute the sentence of a NDPS convict. However, the provision was partially held to be unconstitutional where it curtails the powers of the appellate courts to suspend the sentence of such accused during the pendency of the appeal. In that judgment, it was held that parole is not a suspension of the sentence. The convict continuous to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or 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 been in jail serving part of sentence. It was further held that grant of parole is essentially an Executive function to be exercised within the limits prescribed in this behalf. In para 11 of the said judgment it was observed that parole did not amount to 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 the Government Instructions. In para 27 of the said judgment, it has been further held that Section 32A of the NDPS Act does not in any way affect the powers of the authorities to grant parole.

Under the Act, release of a convict on parole is a wing of the reformative process. In the Act, there is no provision which debars the temporary release of a prisoner who has been convicted under the NDPS Act. However, under the Rules, which have been enacted in 2007, two conditions have been laid down under Rule 4(1) of the Rules for granting parole to the convicts, i.e., a prisoner shall be entitled to apply for parole only after he has completed one year of his imprisonment after conviction, and has earned his first annual good conduct remission under the Act. The only ground on which the parole has been declined to the petitioners in the instant cases is that they have not earned first annual good conduct remission because in view of Section 32A of the NDPS Act, no remission is permissible to a prisoner who has been convicted under the NDPS Act. The concept of temporary release, which has been introduced by the Act, is based on the good conduct of the prisoners during their imprisonment on fulfilling certain conditions. As per Punjab Jail Manual, every prisoner, who has been convicted for any offence, is granted remission on various grounds, including the remission on account of his good conduct maintained by him in the jail throughout the year. It has not been disputed by the respondents that the conduct of all the petitioners remained throughout good since the period they are in custody. According to the Punjab Jail Manual, all the petitioners are entitled for first annual good conduct remission, which they have actually earned, but according to the respondents, in view of Section 32A of the NDPS Act, the benefit of remission is not to be granted to the prisoners, who have been convicted under the NDPS Act. As far as remission granted to the prisoners by the State Government in exercise of the powers conferred under Sections 432 and 433 Cr.P.C./Article 161 of the Constitution of India is concerned, the benefit of such remission is not to be granted to the prisoners under the NDPS Act in view of specific clause in the notification itself. But the learned counsel for the respondent-State could not produce any notification of the State Government or draw the attention of this Court towards any provisions of the Punjab Jail Manual which debars the ordinary remission or yearly good conduct remission to the prisoners on the ground that such prisoner is convicted under the NDPS Act. However, the State counsel has drawn the attention of this Court towards the opinion given by the Legal Remembrancer, Government of Haryana, Chandigarh which says that Section 32A of the NDPS Act creates a specific bar to the suspension or remission or commutation of sentence awarded under the NDPS Act. This opinion is nothing but the reproduction of Section 32A itself, which has already been interpreted by the Hon'ble Supreme Court in Dadu @ Tulsidas's case (supra). Thus, in our opinion, the petitioners, who have maintained good conduct throughout the period they are in custody and also earned first annual good conduct remission, according to the Punjab Jail Manual, cannot be declined the benefit of parole on the ground that under Section 32A of the NDPS Act, no remission can be granted, therefore, it should not be deemed that they have not earned the first annual good conduct remission. As has been held by the Supreme Court, the parole is not the suspension of a sentence. The convicts continuous to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government orders. It is a temporary release of a prisoner for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It does not curtail the period of sentence. Under section 3 (3) of the Act, it has been specifically provided that "the period of release under this section shall not count towards the total period of sentence of a prisoner". Therefore, by releasing the convict on parole, the sentence of a convict under the NDPS Act is not going to be reduced. On the other hand, remission, if granted to an accused, will amount to reduce the sentence of the accused (which was the main purpose of enacting Section 32A of the NDPS Act). Therefore, denial of parole to a prisoner convicted under the NDPS Act on the prohibition contained in Section 32A of the NDPS Act, is arbitrary and de hors the purpose of the Act. Because of this reason, the Hon'ble Supreme Court in Dadu @ Tulsidas's case (supra) has clearly laid down that Section 32A of the NDPS Act does not in any way affect the powers of the authorities to grant parole.

In one of the petitions, i.e., Crl.W.P. No.2278 of 2010, in para 7 of the petition, it has been specifically stated that in three cases, reference of which has been made in the said para, the parole has been granted to the prisoners who have been convicted under the NDPS Act. The respondents were specifically directed to controvert the said factual position. But, in the reply, it has been admitted that in some cases the parole has been granted to the convicts, who are undergoing imprisonment under the NDPS Act. This fact further indicates that the respondents have acted arbitrarily. Thus, in our opinion, the respondents have acted arbitrarily in declining parole to the petitioners and, thus, the impugned orders passed by the authorities are not sustainable and the same deserve to be quashed.