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5. In order to appreciate the submissions made by the counsel for the petitioners and respondents, it is necessary to take into consideration the relevant Act and the Rules made in that behalf. The Prisons Act of 1894 being Act No. 9 of 1894 has defined the furlough system and the parole system under Sections 5(A) and 5(B) of the Prisons Act, 1894 which reads as follows :

"5(A) 'Furlough system' means the system of releasing prisoners in jail on furlough in accordance with the rules for the time being in force."
"5(B) 'Parole system' means the system of releasing prisoners in Jail on parole, by suspension of their sentences in accordance with the rules for the time being in force."

6. Pursuant to the powers conferred by Clauses 5 and 28 of Section 59 of the Prisons Act, 1894 (9 of 1894) in its application to the State of Bombay, the Government of Bombay had framed rules which are known as The Prison (Bombay Furlough and Parole) Rules, 1959 which are applicable to the Maharashtra and Gujarat. The power to grant furlough to a prisoner is provided under Rule 3. Rule 3 reads as follows :

'There is no denying the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenues on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody. (See: The Oxford Companion to Law, edited by Walker, 1980 Edn., P. 931, Black's Law Dictionary, 5th Edn., P. 1006, Jowitt's Dictionary of English Law, 2nd Edn., Vol. 2, P. 1320, Kenny's Outlines of Criminal Law, 17th Edn., pp 574-76. The English Sentencing system by Sir Rupert Cross at pp 31-34; 87 et seg., American Jurisprudence, 2nd Edn., Vol. 59, pp 53-61, Corpus Juris Secundum, VI. 67, Probation and Parole, Legal and Social Dimensions by Louis P. Carney). It follows from these authorities that parole is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of misbehaviour."