Document Fragment View
Fragment Information
Showing contexts for: parole in ndps in Matabhai Shakrabhai Bariya vs The State Of Gujarat And Anr. on 11 March, 2008Matching Fragments
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.
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:
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.
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.