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On the other hand, it was submitted by Shri Rajendra Yadav and Shri M.A.Khan, learned counsel appearing on behalf of the respondents that in view of Rule 1(c) of the Parole Rules, 1958 framed by the State of Rajasthan, the Parole Rules, 1958 cannot apply to a convict under NDPS Act and his case has to be considered by the Central Government as per the Central Rules framed vide Notification of the Government of India, Ministry of Home Affairs No.40/32/55-Judl.I dated 9th November, 1955; the State Government is not the appropriate Government so as to consider the cases where the persons have been sentenced to undergo imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules and thus, the State Government was not competent to consider the cases of such persons for release on parole. It was further submitted that the Rules framed by the Central Government vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench deciding the case of Mana Singh (supra) and though the decision in the case of Mana Singh (supra) has laid down that for a convict under NDPS Act, the Central Rules would be applicable as provided under Rule 1(C) of Parole Rules, 1958, however, as the Rules of the Central Government framed vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench deciding the case of Mana Singh (supra), certain guidelines were laid down to be followed till the rules are framed by the Union of India. The decision in the case of Mana Singh (supra) is thus, per incuriam as the Rules which had been framed by the Central Government vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench otherwise guidelines would not have been laid down on the premise that Central Government has not framed such rules. It was further submitted that the decision of the Division Bench of this Court in Samiullaha's case (supra) also proceeds on the assumption that Parole Rules, 1958 are applicable and similarly, it was not submitted before the Division Bench that the Central Government has framed rules vide Notification dated 9th November, 1955 and as per Rule 1(c) of Parole Rules, 1958, the Parole Rules, 1958 framed by the State Government are not applicable. The main question for consideration before the Division Bench in Samiullaha's case (supra) was whether Section 32A of NDPA Act, which restricts suspension, remission or commutation of sentence would cover release on parole also and the Division Bench has followed the decision of the Apex Court in the case of Dadu @ Tulsidas (supra) and laid down that grant of parole is not restricted by Section 32A of the NDPS Act. Thus, the decision in the case of Samiullaha (supra) cannot be taken authority on the question whether a convict under NDPS Act can be released on parole by the Central Government or the State Government.

In the case of Dadu @ Tulsidas (supra), the Hon'ble Supreme Court has considered the constitutional validity of Section 32A of the NDPS Act, inasmuch as it takes away the power of the Court to suspend sentence; question was also considered by Their Lordships whether it excludes grant of parole to person convicted under NDPS Act. It was laid down by the Apex Court that Section 32A is unconstitutional in so far as it ousts jurisdiction of appellate court to suspend sentence awarded to convict under NDPS Act. But, Section 32A is constitutionally valid in so far as it takes away right of Executive to suspend, remit or commute sentence. However, Section 32A does not in any way affect powers of authorities to grant parole. The Apex Court further laid down that parole is not a suspension of the sentence. The convict continues 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 being in jail, serving part of sentence. 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 detenue or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it. The Apex Court further laid down that parole does not amount to the suspension, remission or commutation of sentences 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. Paras 9, 10, 11 and 29 of the decision in Dadu @ Tulsidas (supra) are quoted below:-

The decision in the case of Maktool Singh (supra) has been considered in Dadu @ Tulsidas's case (supra) and the decision in the case of Dadu @ Tulsidas (supra) holds the field.

The Division Bench of this Court in the case of Mana Singh (supra) has considered the question where the convict under NDPS Act was denied parole under the Parole Rules, 1958 in view of Section 32A of the NDPS Act. The Single Bench directed the State Government to consider the case of accused for grant of parole in view of Apex Court's decision in the case of Dadu @ Tulsidas (supra). The Division Bench did not find any illegality in the order of Single Bench, but adverse remarks made by Single Bench against the State Government were expunged as the matter relating to NDPS Act is within purview of Union Government and the Division Bench has also laid down guidelines as the Central Government has not framed Rules for release on parole. The Division Bench also observed that prayer for parole has to be considered in accordance with the statutory provisions, if any, jail manual or government instructions. Rule 1(c) of the Parole Rules, 1958 was also considered. Section 432 Cr.P.C. was also considered and it was held by the Division Bench that the law relating to the matter to which the executive powers of the Union of India extends the Central Government is the appropriate Government. It was also laid down that in view of the Entry 19 of the concurrent list of the Constitution of India the law relating to the NDPS Act falls within the executive powers of the Union of India. The entry 19 of the concurrent list says that drugs and poisons to be, subject to the provisions of entry 59 of the List-I, with respect to opium. The said entry i.e. Entry No.59 of the Union List provides regarding the cultivation, manufacture and sale for export of opium. Thus, opium is a matter to which executive power of the Union of India extends. The Union of India enacted the special legislation as NDPS Act and thus, opium has become subject matter to which the executive power of the Union of India extends. Thus, in view of Rule 1(c) of the Parole Rules, 1958, prayer of persons convicted under NDPS Act can be considered only under the Rules framed in that regard by the Central Government. Following is the relevant discussion made by the Division Bench in the case of Mana Singh (supra):-

So far as the decision of the Division Bench of this Court in Samiullaha's case (supra) is concerned, it has also followed the decision of the Apex Court in Dadu @ Tulsidas's case (supra) and it has been laid down that notwithstanding the provisions contained in Section 32A of the NDPS Act, convict is entitled to parole. The Division Bench at the same time however laid down that conditions governing the grant of it under the statute, if any, or the jail manual or government instructions have to be followed. There cannot be any quarrel with the aforesaid proposition laid down in the case of Samiullaha (supra). However, the Rules of 1955 framed by the Central Government were not placed for consideration before the Division Bench. The Division Bench has laid down that statutory provisions or the jail manual or government instructions have to be followed for grant of parole. As the Rules of 1955 framed by the Central Government were not brought to the notice of the Division Bench of this Court, it has been held that case of convict has to be considered under Rule 9 of the Parole Rules, 1958. The Division Bench decision to the extent of providing consideration of parole under the Rules of 1958 has to be considered in the light of the ratio of decision in case Rules of 1955 would have been brought to the notice of court, it would have followed that; release on parole is subject to the conditions governing grant of it under the statute i.e. Rules of 1955 framed by the Central Government which were not brought to the notice of the Division Bench deciding Samiullaha's case (supra). The Division Bench decision buttresses our conclusion that it is the Rules of 1955 which have to be applicable in the cases of release of parole under NDPS Act. What is intended under Rule 1 of Rules of 1955 is release on parole, not suspension of the execution of sentence of imprisonment or remission and these concepts have been explained in the case of Dadu @ Tulsidas (supra). Thus, even as per the ratio laid down by the Division Bench in the case of Samiullaha (supra), case of convict under the NDPS Act cannot be considered under the Parole Rules of 1958 due to failure to bring to the notice of court Rules of 1955 and to the extent that it has been laid down that case of such convict can be considered under Rule 9 of Parole Rules of 1958, it cannot be said to be binding precedent.