CW 5271/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No. 5271/2008 Mohd. Munawwar Versus State & Ors. Date of Order ::: 15/07/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Kaleem Ahmed Khan, for petitioner Ms Alka Bhatnagar, Addl. Govt. Counsel, for respondents-State At joint request, matter is finally disposed of at admission stage. Instant petition has been filed by petitioner seeking 1st parole U/r 9 of Rajasthan Prisoner's Release on parole Rules, 1958 (“Rules 1958”), which was declined by respondents vide order dt.02/07/08 (Ann.R.4). As alleged, petitioner was sentenced for offence U/s 8/18, 8/20 & 8/21 of NDPS Act to undergo Ten years' RI alongwith a fine of Rs.Three lacs vide judgment dt.08/02/08 (Sess. Case No.26/04) passed by Special Judge (NDPS Cases)(Addl. Sess. Judge NO.1), Kota – against which he preferred Criminal appeal which is pending before this Court; and presently is undergoing sentences in Central Jail, Kota. On completion of 1/4th of his sentence petitioner claiming himself as eligible, applied for first regular parole for twenty days on the ground of sickness of his old aged father. As CW 5271/08 //2// per para 3 of the reply to instant petition, petitioner has served out imprisonment for four years & five months & 28 days on 06/12/08. His case was placed for consideration before District Parole Committee which was rejected vide order dt.02/07/08 (Ann,R.4) on the premise of there being adverse reports dt.12/06/08 (Ann.R.1) of District Collector, Kota; dt.16/05/08 (Ann.R.2) of Superintendent of Police, Kota City and so also of Central Bureau of Narcotics dt.14/05/08(Ann.R.3). Counsel for petitioner submits that Division Bench of this Court at Jodhpur in State of Rajasthan Vs. Mana Singh vide judgment dt. 15/01/02 (Spl Appeals (Writ) No.527, 435, 439, 514 & 513/2001)(2002(2) RLR p.285/2002(2) WLN 719) laid down guidelines for concerned authorities as interim arrangements, to consider applications for grant of parole in cases of convicts of NDPS Act till Central Government frames Rules providing guideline for release of convicts of NDPS Act on parole or transfer to the Open Air Camps. Counsel submits that since no such Rules despite observations made by Division Bench have been framed so far, application of petitioner ought to have been considered only under CW 5271/08 //3// guidelines provided as interim arrangements in DB judgment (supra) but despite his case being covered under such guidelines, respondents have failed to take note thereof in true perspective and arbitrarily denied regular parole vide order dt.02/07/08. Prior to rejection, writ petition was filed, on which notice was issued on 01/07/2008. Reply to instant petition has been filed, wherein respondents inter-alia averred that in the light of DB judgment (supra), case of petitioner was considered taking note of reports received from District Collector, Superintendent of Police, Kota City and so also of Central Bureau of Narcotics, Kota and the parole committee taking note of reports opined that it would not be in the public interest to release him on parole; as such no error has been committed while rejecting his prayer for grant of parole vide order impugned. I have considered contention of Counsel for the parties and with their assistance, examined material on record. State Government framed Rajasthan Prisoner's Release on parole Rules, 1958 considering importance of reformatory theory of punishment. Parole Rules, 1958 empowered the authority with ample powers CW 5271/08 //4// to deal with applications seeking regular parole and even in emergent situation of death or illness of near relatives or marriage in his family or his property being threatened by natural calamities; and in such circumstances, parole can be granted by advisory committee under Scheme of Rules, 1958. R.9 of Rules, 1958, clearly contemplates that if prisoner who has completed with remission, if any, one fourth of his sentence and subject to good conduct in jail, be considered for first parole for twenty days which includes days of journey to home & back; and even upon his behaviour being good during 1st parole, he can be considered for 2nd parole. Although R.13 of Rules, 1958 clearly provides that parole cannot be claimed as of right while at the same time, parole Rules certainly bestow right of consideration upon convicts/prisoners. Once a convict/prisoner completed one 1/4th of his sentence and observes good behavior in course of his incarceration, certainly makes him eligible for consideration for release on 1st parole of 20 days. However, question arises as to whether prisoners convicted under NDPS Act can be considered for grant of parole under Rules, CW 5271/08 //5// 1958. Division Bench of this Court in State of Rajasthan vs. Mana Singh (supra), took note of decision of Apex court in Dadu Vs. State of Maharashtra (AIR 2000 SC 3202) and so also of S.32A of NDPS Act and parole Rules, wherein it has observed that the parole does not amount suspension, remission or commutation of sentence; as such a convict cannot be deprived of benefit of parole under the garb of S.32A of NDPS Act. The Division Bench finally observed that in view of Rule 1(c) of Rules, 1958, persons convicted under NDPS Act can be considered only under Rules framed by Central Government; and further observed that the Union of India may frame Rules providing guidelines for releasing the convicts of NDPS Act on parole or transfer to the open air camps keeping in view the objects behind enactment of NDPS Act; and till such Rules are framed, as interim arrangements, this Court provided guidelines for concerned authority & the Courts ad infra: “(i) a report to be obtained from the police or narcotics authorities, as the case may be ascertained, if the accused has been a member of a gang involved in nefarious activities covered by NDPS Act and has chance of joining them. CW 5271/08 //6// Persons likely to join the gang shall not be entitled to parole, but the case of prisoners convicted for isolated act can be considered favourably. (ii) in case of emergency release, while releasing the applicant on parole this movement should be restricted to a particular area and he kept under the vigil of the concerned police station or narcotics authorities; (iii) the application for parole or for transfer to the open air jail should be accompanied by the certified or uncertified copy of the judgment of the trial court or the appellate court as the case may be; (iv) sufficient safeguards should be provided by the authorities concerned for his surrender before the jail authorities to serve out the remaining part of the sentence; and (v) these guidelines shall apply to a consideration of case of convict for transfer to open jail.” Despite observations (supra), it is not the case of respondents that Rules or guidelines have been framed by Central Government so far with regard to release of convicts under NDPS Act on parole or for transfer to open air camps. According to guidelines provided as interim arrangements by Division Bench (supra), CW 5271/08 //7// if the accused is a member of a gang involved in nefarious activities covered by NDPS Act shall not be entitled to parole but case of a prisoner for isolated act can be considered favourably and while releasing prisoner on parole his movement can be restricted to a particular area for being kept under vigil of concerned police station/narcotics authorities; and sufficient safeguards can also be provided by authority concerned for his surrender before jail authority to serve out remaining part of sentence under NDPS Act. While keeping object of parole Rules introduced by State Government and taking note of guidelines provided as interim arrangements by Division Bench (supra), what emerges is that release on parole to convicts is provided in order to encourage prisoners to change their criminal attitude or mentality and to develop acceptable social behaviour while in prison; and to keep family links intact because of long period of imprisonment and by this reformatory method, it may be possible to bring prisoner back within the society as a peace loving and law abiding citizen. However, those prisoners/accused who are members of a gang engaged in nefarious CW 5271/08 //8// activities covered under NDPS Act in case of their chances to join gang, are not entitled to parole but convicts under NDPS Act for an isolated act can be considerable favourably. Object behind introducing Parole Rules, 1958 has been considered by Division Bench in Pappu Khan Vs. State (2006(1) WLWC (Raj) 31) : “The emergence of Reformative Theory of punishment in the 20th century saw a sea change in the prison system. Prisoners were no longer to be chained and forgotten; they were to be reformed and brought back into the society. In order to encourage the prisoners to reform themselves during period of incarceration, certain motivational techniques were introduced in jail administration. Besides granting remission, besides having open air camps, parole was and is used as a great motivation force.” “Therefore, it is also in the interest of the State to reform the prisoners, to teach them techniques and skills which would ensure a source of livelihood to them after they are released from jail. Although fundamental rights of the prisoners are curtailed by incarceration, but the flame of liberty continues to burn even in the dark corners of the prison cells. The parole Rules emanate from CW 5271/08 //9// Article 21 of the Constitution of India.” “Therefore, while dealing with the parole cases, it is essential to keep in mind the criminology and constitutional philosophy which underlines the parole Rules.” This Court has to consider as to whether in the light of guidelines provided as interim arrangement vide DB judgment (supra) and Scheme of Parole Rules, gravity of offence can dis- entitle prisoner under NDPS Act for release on parole, to which he is entitled for. In the instant case, petitioner was convicted U/s 8/18, 8/20, & 8/21 of NDPS Act and sentenced to Ten years RI vide judgment dt. 02/08/08 against which criminal appeal is pending before this Court. Application filed by petitioner for grant of first parole which was rejected merely based on adverse report, as taken note of by advisory committee. These reports are stereo-typed reports of Collector, police & narcotics department (Ann.R.1 to R.3) in which the authorities have merely reported that as petitioner was convicted under NDPS Act, and there is every possibility that he may get himself involved in such nefarious activities but no material has come on record by which an inference of there being any CW 5271/08 //10// apprehension of his involvement in such nefarious activities in case of release on parole can be drawn. From the reports (Ann.R.1 to R.3), there is no whisper of consideration of antecedents of petitioner based on report of jail authority about his conduct & behaviour while in prison for last 4 years and five months which may dis- entitle him to release on regular parole. It is also not the case of respondents that he is a habitual offender or facing any other criminal trial. In the opinion of this Court, if conduct & behavour of petitioner being satisfactory in the jail while having undergone 1/4th of his sentence, and he is otherwise eligible, 1st parole in terms of guidelines (supra) is not to be denied and the facts which respondents have taken note of for refusal of 1st parole, in the facts & circumstances of instant case are not legally sustainable. Consequently, writ petition stands allowed. Order dt.02/07/08 qua petitioner is hereby quashed. Superintendent, Central Jail, Kota is directed to release petitioner (Mohd. Munawwar) on 1st parole, if not availed of as yet, for twenty days including days of journey to home & back from the date of his release on CW 5271/08 //11// furnishing his personal bond besides one surety each of Rs.50,000/- to the satisfaction of jail authority with the stipulation that he shall surrender himself and return back to the Central Jail, Kota, on expiry of twenty days (supra) to be notified by jail authority, and shall maintain peace & tranquility during 1st parole period and will not leave Kota City without prior permission from Superintendent of Police, Kota who will keep vigil on petitioner asking him to report whenever deemed just during parole period. In case of failure to surrender by petitioner on stipulated date and breach of aforesaid conditions during parole, the jail/ police authority shall proceed in accordance with law. No order as to costs. (Ajay Rastogi), J. K.Khatri/p11/5271CW08Jul15-NDPS-1-Prol.doc