Crl.W.P.No.1923 of 2010 etc. -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.W.P.No.1923 of 2010 Mann Singh .....PETITIONER Versus State of Haryana and others ....RESPONDENTS Crl.W.P.No.2118 of 2010 Kashmir Singh .....PETITIONER Versus State of Haryana and others ....RESPONDENTS Crl.W.P.No.2267 of 2010 Med Ram .....PETITIONER Versus State of Haryana and others ....RESPONDENTS Crl.W.P.No.2278 of 2010 Leela Parkash @ Leela Parshad .....PETITIONER Versus State of Haryana and others ....RESPONDENTS DATE OF DECISION: DECEMBER 20,2010 CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr.H.S. Jaswal, Advocate, for the petitioners in Crl.W.P.Nos.1923,2267 & 2278 of 2010. Mr.R.K. Bagga, Advocate, for the petitioner in Crl.W.P.No.2118 of 2010. Mr. S.S. Randhawa, Addl. A.G., Haryana. .. Crl.W.P.No.1923 of 2010 etc. -2- SATISH KUMAR MITTAL, J. This order shall dispose of Crl. Writ Petitions No.1923, 2118, 2267 and 2278 of 2010. These four petitions have been filed by the convicts, who have been convicted and undergoing sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act'), for quashing the impugned orders passed by Divisional Commissioner, Ambala, whereby they have been declined the benefit of parole under Section 3 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter referred to as `the Act') on the ground that they have not earned First Annual Good Conduct Remission, therefore, they cannot be temporarily released on parole. Admittedly, all the petitioners have been convicted under the NDPS Act and have completed more than five years of sentence, but they have not been granted the benefit of parole on the aforesaid ground. In the reply filed on behalf of the respondent-State, it has been stated that as per the provision of Rule 4(1) of the Haryana Good Conduct Prisoners (Temporary Release) Rules, 2007 (hereinafter referred to as `the Rules'), a prisoner shall be entitled to parole only after he has completed one year of his imprisonment after conviction and has earned his first annual good conduct remission. Since as per the provisions of Section 32-A of the NDPS Act, a convict undergoing imprisonment under the NDPS Act is not entitled for remission, therefore, all the petitioners, who, after conviction, have not earned their first annual good conduct remission, they cannot be temporarily released on parole under the provisions of the Act. We have heard the learned counsel for the parties. Crl.W.P.No.1923 of 2010 etc. -3- The Government of Haryana has enacted the Haryana Good Conduct Prisoners (Temporary Release) Act. This Act provides the temporary release of prisoners for good conduct on certain conditions. The temporary release on parole, which has been provided in this enactment, is a wing of reformative process and is expected to provide opportunities to the prisoners to transform themselves into useful citizens. Section 3 of the Act provides for temporary release of prisoners on certain grounds, which reads as under:- “3. Temporary release of prisoners on certain grounds.-(1) The State Government may, in consultation with the District Magistrate or any other officer appointed in this behalf, by notification in the Official Gazette and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2), any prisoner, if the State Government is satisfied that - (a) a member of the prisoner's family had died or is seriously ill or the prisoner himself is seriously ill; or (b) the marriage of prisoner himself, his son, daughter, grandson, grand-daughter, brother, sister, sister's son or daughter is to be celebrated; or (c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land or his father's undivided land actually in possession of the prisoner; or (d) it is desirable to do so for any other sufficient cause. (2) The period for which a prisoner may be released shall be determined by the State Government so as not to exceed - (a) where the prisoner is to be released on the grounds specified in clause(a) of sub-section (1), three weeks; (b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four Crl.W.P.No.1923 of 2010 etc. -4- weeks; and (c) where the prisoner is to be released on the grounds specified in clause (c) of sub-section (1), six weeks : Provided that the temporary release under clause (c) can be availed more than once during the year, which shall not, however, cumulatively exceed six weeks. (3) The period of release under this section shall not count towards the total period of sentence of a prisoner. (4) The State Government may, by notification, authorise any officer to exercise its powers under this section in respect of all or any other ground specified thereunder.” According to the aforesaid provisions, the prisoners on satisfaction of certain conditions prescribed under the Rules, can be temporarily released on parole primarily on four grounds, which have been mentioned in Section 3(1)(a),(b),(c) and (d) of the Act. In sub-section(2) the period of parole has also been prescribed for each of the ground. Rule 8 of the Rules defines “sufficient cause”, which reads as under:- “8.Under section (3)(1)(d) “sufficient cause” may be considered from amongst the following reasons, namely:- (i) admission in school/colleges/professional institutions of the dependents of the convict; (ii) medically scheduled delivery of wife of the convict; (iii) house repairs/new construction of house owned by the convict. Parole for house repair shall be granted only once in three years; (iv) marriage of prisoner's brother's son or daughter to be celebrated in case his brother is not alive.” Section 6 of the Act further provides that notwithstanding anything contained in sections 3 and 4 (which relate to the release on parole and furlough), no prisoner shall be entitled to be released under this Act if, Crl.W.P.No.1923 of 2010 etc. -5- on the report of the District Magistrate, the State Government or an officer authorised by it in this behalf is satisfied that his release is likely to endanger the security of the State or the maintenance of public order. Rule 4 of the Rules provides that a prisoner shall be entitled to apply for parole only after he has completed one year of his imprisonment after conviction and has earned his first annual good conduct remission under the Act. Secondly, a prisoner, who has been convicted and sentenced for imprisonment less than four years, shall not be eligible for parole. Rule 5 provides that no parole or furlough shall be granted to a prisoner who has been sentenced to death penalty. Rule 11 provides for procedure for execution of the bonds and furnishing of surety for temporary release of the convict on parole/furlough. Sub-rule (2)(a) of Rule 11 provides that in case of convicts of offences of murder, rape, rape with murder, murder for dowry, dacoity and the Narcotic Drugs and Psychotropic Substances Act, 1985 or any other heinous crime, surety shall be from one lac rupees to two lac rupees as per discretion of the releasing authority accepting the surety bonds etc. As per the stand taken by the respondents, a convict is entitled for parole only after he has completed one year of his imprisonment after conviction and has also earned his first annual good conduct remission. It is further the stand of the respondents that in view of Section 32-A of the NDPS Act, the prisoners convicted under the NDPS Act are not entitled for remission, therefore, the petitioners are not entitled for temporary release on parole on any of the grounds mentioned in the Act. The remission has not been defined under the Act. However, as Crl.W.P.No.1923 of 2010 etc. -6- per para 563 of the Punjab Jail Manual, 1996, remission is a concession which can be granted to prisoners by the State Government/Inspector- General/Superintendent Jails. It is not a right. The remission is intended to be an incentive for good behaviour and work in the jail. According to the Punjab Jail Manual, remissions are of three types- (i) Ordinary remission; (ii) Special remission; and (iii) State Government remission. Ordinary remissions are being granted by the Superintendent, Jails to the prisoners who are having substantive sentences of imprisonment of three months or more. As per Punjab Jail Manual, Ordinary remissions are being awarded for two days per month for thoroughly good conduct and scrupulous attention to all prison regulations; two days per month for industry and the due performance of the daily task imposed. The prisoners performing some special kind of job during their imprisonment are further entitled for some additional remissions, as mentioned in the Punjab Jail Manual. Further, ordinary remission includes remission for good conduct. In para 576 of the Punjab Jail Manual, it has been provided that “(1) any prisoner eligible for remission under these rules who, for a period of one year reckoned from the first day of the month following the date of his sentence or the date on which he was last punished for an prison offence, has committed no prison- offence whatever shall be awarded fifteen days' ordinary remission in addition to any other remission earned under these rules; and (2) If however the prisoner completes three years of his sentence and is not punished for any prison offence he shall be granted 60 days' remission for good conduct at the end of third year.” The Special remissions are being awarded by the Superintendent, Jails for some special reasons like assisting in detecting or Crl.W.P.No.1923 of 2010 etc. -7- preventing breaches of prison discipline or regulations; success in teaching handicrafts; special excellence in or greatly increased out-turn of work of good quality etc. The Special remissions may consist of 30 days in a year. The remission granted by the State Government shall be called the State Government Remission. The State Government by specific notification can award remission to such prisoners or category of prisoners as the State Government may decide. However, no ordinary/special remission except Govt. remission can be granted to any prisoner in excess of 2/5 of his sentence. Section 32-A of the NDPS Act takes away the powers of the Executive conferred upon it under Sections 432 and 433 Cr.P.C. to suspend, remit or commute the sentence of a convict under the said Act. This Section reads as under:- “32A. No suspension, remission or commutation in any sentence awarded under this Act.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted.” On various occasions, the State Government, in exercise of powers conferred by sub-section (1) of Section 432 of the Code of Criminal Procedure, 1973 or under Article 161 of the Constitution of India, have granted special remission to the prisoners who are undergoing sentence as a result of their conviction by the Courts of Criminal Jurisdiction in the State of Haryana. In one of such notifications issued on 22.11.2005, a convict who has been sentenced for a period exceeding 10 years has been granted remission for two months. A convict who has been sentenced for a period Crl.W.P.No.1923 of 2010 etc. -8- exceeding 2 years up to 10 years has been granted remission for one month. A convict who has been sentenced for a period up to 2 years has been granted remission for 15 days. However, in the notification itself it was specifically provided that the said remission will not be granted to the prisoners convicted under the NDPS and TADA Acts. The constitutional validity of Section 32A of the NDPS Act was challenged before the Hon'ble Supreme Court in Dadu @ Tulsidas v. State of Maharashtra, AIR 2000 (SC) 3203. In that case it was held that Section 32A is constitutionally valid in so far as it curtails the power of the Executive to suspend, remit and commute the sentence of a NDPS convict. However, the provision was partially held to be unconstitutional where it curtails the powers of the appellate courts to suspend the sentence of such accused during the pendency of the appeal. In that judgment, it was held that parole is not a suspension of the sentence. The convict continuous 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 been in jail serving part of sentence. It was further held that grant of parole is essentially an Executive function to be exercised within the limits prescribed in this behalf. In para 11 of the said judgment it was observed that parole did not amount to suspension, remission or commutation of sentence 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 Crl.W.P.No.1923 of 2010 etc. -9- the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions. In para 27 of the said judgment, it has been further held that Section 32A of the NDPS Act does not in any way affect the powers of the authorities to grant parole. Under the Act, release of a convict on parole is a wing of the reformative process. In the Act, there is no provision which debars the temporary release of a prisoner who has been convicted under the NDPS Act. However, under the Rules, which have been enacted in 2007, two conditions have been laid down under Rule 4(1) of the Rules for granting parole to the convicts, i.e., a prisoner shall be entitled to apply for parole only after he has completed one year of his imprisonment after conviction, and has earned his first annual good conduct remission under the Act. The only ground on which the parole has been declined to the petitioners in the instant cases is that they have not earned first annual good conduct remission because in view of Section 32A of the NDPS Act, no remission is permissible to a prisoner who has been convicted under the NDPS Act. The concept of temporary release, which has been introduced by the Act, is based on the good conduct of the prisoners during their imprisonment on fulfilling certain conditions. As per Punjab Jail Manual, every prisoner, who has been convicted for any offence, is granted remission on various grounds, including the remission on account of his good conduct maintained by him in the jail throughout the year. It has not been disputed by the respondents that the conduct of all the petitioners remained throughout good since the period they are in custody. According to the Punjab Jail Manual, all the petitioners are entitled for first annual good conduct remission, Crl.W.P.No.1923 of 2010 etc. -10- which they have actually earned, but according to the respondents, in view of Section 32A of the NDPS Act, the benefit of remission is not to be granted to the prisoners, who have been convicted under the NDPS Act. As far as remission granted to the prisoners by the State Government in exercise of the powers conferred under Sections 432 and 433 Cr.P.C./Article 161 of the Constitution of India is concerned, the benefit of such remission is not to be granted to the prisoners under the NDPS Act in view of specific clause in the notification itself. But the learned counsel for the respondent-State could not produce any notification of the State Government or draw the attention of this Court towards any provisions of the Punjab Jail Manual which debars the ordinary remission or yearly good conduct remission to the prisoners on the ground that such prisoner is convicted under the NDPS Act. However, the State counsel has drawn the attention of this Court towards the opinion given by the Legal Remembrancer, Government of Haryana, Chandigarh which says that Section 32A of the NDPS Act creates a specific bar to the suspension or remission or commutation of sentence awarded under the NDPS Act. This opinion is nothing but the reproduction of Section 32A itself, which has already been interpreted by the Hon'ble Supreme Court in Dadu @ Tulsidas's case (supra). Thus, in our opinion, the petitioners, who have maintained good conduct throughout the period they are in custody and also earned first annual good conduct remission, according to the Punjab Jail Manual, cannot be declined the benefit of parole on the ground that under Section 32A of the NDPS Act, no remission can be granted, therefore, it should not be deemed that they have not earned the first annual good Crl.W.P.No.1923 of 2010 etc. -11- conduct remission. As has been held by the Supreme Court, the parole is not the suspension of a sentence. The convicts continuous to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government orders. It is a temporary release of a prisoner for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It does not curtail the period of sentence. Under section 3 (3) of the Act, it has been specifically provided that “the period of release under this section shall not count towards the total period of sentence of a prisoner”. Therefore, by releasing the convict on parole, the sentence of a convict under the NDPS Act is not going to be reduced. On the other hand, remission, if granted to an accused, will amount to reduce the sentence of the accused (which was the main purpose of enacting Section 32A of the NDPS Act). Therefore, denial of parole to a prisoner convicted under the NDPS Act on the prohibition contained in Section 32A of the NDPS Act, is arbitrary and de hors the purpose of the Act. Because of this reason, the Hon'ble Supreme Court in Dadu @ Tulsidas's case (supra) has clearly laid down that Section 32A of the NDPS Act does not in any way affect the powers of the authorities to grant parole. In one of the petitions, i.e., Crl.W.P. No.2278 of 2010, in para 7 of the petition, it has been specifically stated that in three cases, reference of which has been made in the said para, the parole has been granted to the prisoners who have been convicted under the NDPS Act. The respondents were specifically directed to controvert the said factual position. But, in the reply, it has been admitted that in some cases the parole has been granted to the convicts, who are undergoing imprisonment under the NDPS Act. This Crl.W.P.No.1923 of 2010 etc. -12- fact further indicates that the respondents have acted arbitrarily. Thus, in our opinion, the respondents have acted arbitrarily in declining parole to the petitioners and, thus, the impugned orders passed by the authorities are not sustainable and the same deserve to be quashed. Hence, the petitions are allowed and the impugned orders are quashed and the respondents are directed to re-consider the claim of the petitioners for temporary release on parole in light of the observations made in this order and pass necessary orders, in accordance with law, within a period of four weeks' from the date of receipt of certified copy of the order. (SATISH KUMAR MITTAL) JUDGE December 20, 2010 ( JORA SINGH ) vkg JUDGE Refer to Reporter