HON'BLE SRI JUSTICE D.S.R.VARMA AND HON'BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.24436 of 2009 Date: 16.12.2009 Between: Sheelam Ramesh and another. … Petitioners and The Principal Secretary to Government, Home (Prisons-C) Department, Government of Andhra Pradesh, Hyderabad and another. … Respondents HON'BLE SRI JUSTICE D.S.R.VARMA AND HON'BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.24436 of 2009 ORAL ORDER: (per Hon’ble Sri Justice D.S.R.Varma) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri Balla Ravindranath, learned counsel appearing for the petitioners, as well as the learned Assistant Government Pleader, representing the learned Advocate General, appearing for the respondents. 2. This Writ of Habeas Corpus is filed by the petitioners directing the respondents to produce the petitioners before this Court and order for their release, forthwith, after declaring that their continued detention is illegal and void. 3. The petitioners are A.2 and A.3 in S.C.No.90 of 1994 on the file of the Sessions Judge, Karimnagar. By the judgement dated 15.11.1995, they were convicted and sentenced for the offences under Section 302 read with 34 I.P.C. and under Section 3 (2) of the Terrorist and Disruptive Activities (Prevention) Act, 1989 (for brevity “the TADA Act”) and also convicted under Section 27 of the Indian Arms Act and Section 5 of the TADA Act. The genesis for filing the present writ petition is the issuance of G.O.Ms.No.338, Home (Prisons.C) Department, dated 24.7.2009, setting out certain guidelines for grant of special remission of sentence to certain categories of life convicted prisoners on the occasion of Independence Day, 2009. 4. As per G.O.Ms.No.338, dated 24.7.2009, certain categories of prisoners, who have satisfied the conditions mentioned in para-3 of the said G.O., can be considered for extending the benefit of special remission on the occasion of Independence Day, 2009, which is as under: “3. The Government hereby issue the following guidelines giving one time exemption to the orders issued in the reference first read above, to consider the cases of following categories of prisoners in the State, who have been convicted by Civil Courts of criminal jurisdiction: a) All convicted women prisoners sentenced to imprisonment for life who have undergone an actual sentence of 5 years and total sentence of 7 years including remission as on 15.8.2009. b) All decrepit prisoners as defined in Rule 321 (h) of A.P. Prison Rules, 1979, r/w G.O.Ms.No.44, Home (Prisons.B2) Department, dated 16.3.2007. c) All the convicted prisoners sentenced to imprisonment for life including those governed by section 433-A, Code of Criminal Procedure, 1973 (Central Act 2 of 1974) aged more than 65 years and have undergone an actual sentence of 5 years and total sentence of 7 years including remission as on 15.8.2009. d) All the convicted prisoners sentenced to imprisonment for life including those governed by section 433-A, Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and who have undergone an actual sentence of 7 years and total sentence of 10 years including remission as on 15.8.2009 and.” 5. The petitioners have satisfied all the conditions mentioned in the said G.O. However, the guidelines in the said G.O., are subject to certain rider clauses as mentioned in para-4 of the said G.O., which reads as under. “4. The remission of sentence in para (3) above shall also apply to prisoners, who have been convicted by Courts situated within the State of Andhra Pradesh and are undergoing sentence in other States, but shall not apply to the following categories of prisoners, namely; i) Prisoners convicted and sentenced by Courts situated outside the State of Andhra Pradesh; ii) Prisoners convicted of offences against laws relating to a matter to which the executive powers of the Union extends; iii) Prisoners involved in and convicted for offences related to communal incidents; iv) Prisoners convicted of murder of Public Servants on duty; v) Prisoners convicted under the Essential Commodities Act; vi) Prisoners convicted under the Protection of Civil Rights Act, 1955; vii) Prisoners convicted under the Andhra Pradesh Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. viii) Prisoners convicted for crimes against Women under Section 354, 376 and 498 A IPC while being sentenced to imprisonment for life. ix) Prisoners sentenced to death sentence, which is later commuted to life sentence. x) Life convicted prisoners who have availed either parole/furlough during the preceding two years and not surrendered in time.” Ex-facie, the petitioners does not fall under any of the clauses mentioned supra. 6. However, a counter affidavit has been filed by the 1st respondent-Principal Secretary to Government, Home Department, Government of Andhra Pradesh, Hyderabad, stating that pursuant to the issuance of G.O.Ms.No.338, dated 24.7.2009, a High Level Committee had been constituted to review the lists and recommend to the Government for its consideration. In that process, the cases of the petitioners herein were also forwarded to the said Committee by the Director General and Inspector General of Prisons and Correctional Services, Andhra Pradesh, Hyderabad. The said Committee met on 7.8.2009 and reviewed the cases of the petitioners and rejected the same solely on the ground that they used fire arms while committing the offence and have extremist leanings. Except this reason, there is no other reason for the High Level Committee or for the competent authority to reject the cases of the petitioners for extending the benefit of special remission. 7. Extremist leanings have not been precisely described anywhere nor there is any information forthcoming from the learned counsel appearing on either side. However, it is on record that the petitioners were convicted and sentenced to suffer imprisonment for life under Section 302 read with 34 I.P.C. and under Section 3 (2) of the TADA Act and also convicted under Section 27 of the Indian Arms Act and Section 5 of the TADA Act. Therefore, perhaps, the petitioners were identified as having the extremist leanings and denied the benefit of special remission. 8. The expression “Extremist Leanings” is a vague term. It is to be noticed that being identified as extremists is one thing and have leanings to extremist activities is yet another thing. Both are relative terms and the individuals, who were found to have participated in such disruptive activities falling under the TADA Act, should be tested on the anvil of the provisions and the prohibited acts under the said Act. Mere conviction under the TADA Act by itself is not sufficient to brand a person as having extremist leanings. Therefore, the contention raised by the 1st respondent in the counter affidavit showing such extremist leanings as a ground to reject the case of the petitioners for extending the benefit of special remission as per G.O.Ms.No.338, 24.7.2009, cannot be countenanced, nor it is the intention of the Government to exclude such persons on the said score. 9. In order to test the intention of the Government in issuing the said G.O., this Court directed the learned Assistant Government to verify whether any such condition was available in the earlier G.Os. issued as regards the special remission. In response to the same, G.O.Ms.No.196, Home (Prisons-C) Department, dated 7.8.2007, was pressed into service, wherein a reference of G.O.Ms.No.17, Home (Prisons-B2) Department, dated 17.1.2003, was made, which was the basis for Government to issue the present G.O. i.e., G.O.Ms.No.338, dated 24.7.2009. In the said G.O. also certain guidelines have been prescribed excluding certain categories of persons from being extended the benefit of special remission. 10. In this connection, clause (x) of para-3 of G.O.Ms.No.196, dated 7.8.2007, is relevant and the same is extracted hereunder. “(x) Prisoners convicted under Narcotic Drugs and Psychotropic Substances Act, 1985; Explosive Substances Act, 1908; Indian Explosives Act, 1884; Indian Arms Act, 1959; Prevention of Terrorism Act, 2001; and A.P. Control of Organized Crimes Act, 2001, who had been sentenced to imprisonment for life.” 11. The cases of the petitioners fall under the above clause and more precisely fall under the Indian Arms Act, 1959, which, in fact, has been mentioned by the 1st respondent in the counter affidavit, in addition to the other offences falling under the Indian Penal Code. All the prisoners who have committed the offences, barring a few offences against women, were excluded from extension of the benefit of special remission in G.O.Ms.No.338, dated 24.7.2009. In G.O.Ms.No.196, dated 7.8.2007, the prisoners, who committed the offences under the Arms Act, are specifically barred for being extended the benefit of special remission, whereas such prisoners were also extended the benefit of special remission in the present G.O., i.e., G.O.Ms.No.338, dated 24.7.2009. 12. From the above, we could perceive, with utmost clarity, the intention of the Government in passing G.O.Ms.No.338, dated 24.7.2009, extending the benefit of special remission as per the guidelines prescribed therein. Therefore, in the absence of such a prohibition in G.O.Ms.No.338, dated 24.7.2009, we are of the view that the case of the petitioners ought to have been considered by the respondents for extending the benefit of special remission. 13. For the foregoing, we deem it appropriate to dispose of the writ petition directing the respondents to consider the cases of the petitioners once again, keeping in view the marked distinction between G.O.Ms.No.196, dated 7.8.2007, and the present G.O., i.e., G.O.Ms.No.338, dated 24.7.2009, and the import thereof and pass appropriate orders in accordance with law. 14. With the above observations and directions, the writ petition is disposed of, at the stage of admission. There shall be no order as to costs. _________________________ JUSTICE D.S.R.VARMA ___________________________ JUSTICE R.KANTHA RAO 16.12.2009 Msr HON'BLE SRI JUSTICE D.S.R.VARMA AND HON'BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.24436 of 2009 16.12.2009 (Msr)