No leave for prisoners under TN sentence suspension rules during pendency of their appeal: Madras High Court

W.P. No.102621IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON27.01.2022DELIVERED ON18.02.2022CORAM:THE HON’BLE MR. JUSTICE P.N. PRAKASHandTHE HON’BLE MRS. JUSTICE R. HEMALATHAW.P. No.102621L. Wasib KhanPetitionervs.1The State represented by itsDeputy Inspector General of Prisonsread with Sections 22(c) and 8(c) read with Section 29 and 8(c) read with Sections 27 A and 8(c) read with Section 23(c) read with Section 28 of the NDPS Act for possession of commercial quantity of Alprazolam tablets and was sentenced to undergo 10 years rigorous imprisonment for each of the offences but the sentences were ordered to run concurrently together with the benefit of set off under Section 428 Cr.P.C. Challenging the aforesaid conviction and sentences Wasib Khan has filed Crl.A.1220 and the same is under consideration by this Court. https: www.mhc.tn.gov.in judis W.P. No.1026213While so a representation dated 10.01.2021 was given by Wasib Khan s mother Ramzan Beevi Yakit Ali seeking one month ordinary leave for the former. Since no order was passed on the said representation by the Prison authorities a writ petition being W.P. No.45721 was filed by Wasib Khan which was disposed of on 10.03.2021 directing the Prison authorities to dispose of the representation dated 10.01.2021 within a period of ten days in accordance with the Tamil Nadu Suspension of Sentence Rules 1982pursuant to which the said representation was considered and rejected by the Superintendent Central Prison I Puzhal vide the impugned order dated 23.03.2021 aggrieved by which the present writ petition has been filed by Wasib Khan besides seeking a direction to the second respondent to grant 30 days leave to him without escort.4Justifying the impugned order of rejection the Superintendent Central Prison Puzhal has filed a counter affidavit dated 04.06.2021.5Heard Mr. Mohamed Saifullah learned counsel for Wasib Khan and Mr.R. Muniapparaj learned Additional Public Prosecutor appearing for the respondents State.6Mr. Mohamed Saifullah cited several rulings of the Supreme Court to assail the impugned order which we are not deliberately adverting to as we https: www.mhc.tn.gov.in judis W.P. No.102621agree with him on most of the aspects covered under those rulings. To appreciate his arguments it may be necessary to state the grounds on which Wasib Khan’s leave application has been turned down by the impugned order. The impugned order cites two reasons for rejection of leave for Wasib Khan.(a)Wasib Khan has not completed three years of imprisonment as required under Rule 22 of the Sentence Suspension Rules and(b)Wasib Khan s appeal challenging his conviction and sentence is pending in the appellate Court viz. High Court.7With regard to reasonabove Mr. Mohamed Saifullah submitted that Wasib Khan was in detention since his arrest on 13.02.2016 and he continued to remain in the prison as an undertrial without bail and therefore under Section 428 Cr.P.C. if the period of custody is calculated from the date of commencement of his incarceration he would fulfil the requirement of Rule 22 of the Sentence Suspension Rules.8It is seen that in the impugned order the period of detention has been calculated from the date of conviction and sentence viz. 21.11.2019 and the period of Wasib Khan’s detention as an undertrial was not reckoned at all. In the counter affidavit it is stated that Wasib Khan has completed 5 years 3 months and 16 days as on 25.05.2021 by including the period of detention as an https: www.mhc.tn.gov.in judis W.P. No.102621undertrial. This procedure in our opinion is a correct one. Under Section 428 Cr.P.C. a prisoner is entitled to set off and the benefit of such a set off cannot be denied to him while calculating the actual period of incarceration for fulfilling the eligibility condition in Rule 22 of the Sentence Suspension Rules. Ergo the reasonassigned in the impugned order for rejecting Wasib Khan’s leave application cannot be sustained.9Now coming to reasonfor rejection of leave to Wasib Khan viz. pendency of appeal before the High Court this issue is no longer res integra in the light of the authoritative pronouncement of the Constitution Bench of the Supreme Court in K.M.Nanavati vs. State of Bombayand in view of the definition of the word “sentence” in Rule 2 of the Sentence Suspension Rules.10Now let us examine as to what the Supreme Court has held in NanavatiMWN379which was rendered way back on 03.01.1991.11Sections 426 and 401 of Cr.P.C. 1898 are in pari materia with Sections 389 and 432 respectively of Cr.P.C. 1973. The legal principle that has been set out in Nanavatiis that when the appellate Court has the power to grant suspension of sentence and bail pending appeal the executive power of the State cannot extend to grant parole or leave or suspension of sentence. Pertinent it is to state that the Sentence Suspension Rules has been framed under Section 432(5) Cr.P.C. Further in consonance with the law laid down by https: www.mhc.tn.gov.in judis W.P. No.102621the Supreme Court in Nanavatithe definition of the word “sentence” in Rule 2(4) of the Sentence Suspension Rules has been designed as under:“(4) “sentence” means a sentence as finally fixed on appeal or revision or otherwise and includes an aggregate of more sentence than one. Sentences in default of fine shall not be taken into consideration while fixing eligibility for being released on leave.”on 01.10.2002 it came to the notice of the Supreme Court that in the State of Tamil Nadu the convict prisoners were being granted parole leave during the pendency of their appeal. This was frowned upon by the Supreme Court and the Joint Secretary to the Government was summoned. Apposite it is to extract the observations of the Supreme Court in the said order dated 01.10.2002:“Mr.J.A. Syed Abdul Khader Joint Secretary to Government of Tamil Nadu Home Department Chennai is present in terms of the earlier orders of this Court. Mr. Khader regrets that unfortunately a practice has grown in the State of Tamil Nadu to act in the fashion as it has been effected in the matter under consideration. Mr. Khader however assures this Court that in future the State Government would act strictly according to the requirements of the statute and not de hors. The question of continuity of there being any practice being followed henceforth would not arise and the same has been discarded by the State Government.”13Following this the office of the Additional Director General of Prisons issued an Office Memo No.43880 PS4 2002 dated 21.10.2002 which reads as under:“The Superintendent is informed that the Supreme Court of India in C.A. No.866 2002 has observed that the practice being following in this State for granting leave to prisoners even for short duration during the pendency of their appeal is not in accordance with Tamil Nadu Suspension of Sentence https: www.mhc.tn.gov.in judis W.P. No.102621Rules 1982 and it is also contrary to the Constitution Bench judgment of Supreme Court in K.M. Nanavati vs. State of Bombay AIR 1961 SC 112. The Supreme Court of India has therefore ordered that in future no such short term release should be made by the competent authority without informing the Court in which the prisoner’s appeal is pending and that this order of the Court should be scrupulously followed in future.2. In this connection the attention of the Superintendent is invited to Government letter no.66517 Prison.V 2000 15 Home Department dated 20.06.2002 communicated in this office endt.No.38245 PS4 2000 dated 04.08.2002 wherein the Government have clarified that for suspension of sentence of a convicted person whose appeal is pending he has to approach only the Appellate Court or High Court.”3.The Superintendent Deputy Inspector General of Prisons should therefore act in accordance with the above orders of the Supreme Court of India and should desist from releasing any prisoner on emergency or ordinary leave when his appeal is pending before the appropriate Court without prior permission of the Court. If any violation is noticed in this regard the Superintendent concerned will be liable for disciplinary action.4.The receipt of this memo should be acknowledged.BHOLA NATHAdditional Director General of Prisons”14In view of the above Wasib Khan cannot be granted leave under the Sentence Suspension Rules and therefore the second reason given in the impugned order stands upheld.In the result this writ petition stands dismissed however sans costs.(P.N.P. J.) (R.H. J.)18.02.2022cadhttps: www.mhc.tn.gov.in judis W.P. No.102621To1The Deputy Inspector General of Prisons (Chennai Range)Gandhi Irwin RoadCMDA BuildingEgmoreChennai 600 0082The Superintendent of PrisonCentral Prison at Puzhal ITiruvallur 600 0663The Superintendent of PrisonCentral Prison at Puzhal IITiruvallur 600 066https: www.mhc.tn.gov.in judis W.P. No.102621P.N. PRAKASH J.andR. HEMALATHA J.cadW.P. No.10262118.02.2022

Summary: The legal principle that has been set out in K.M.Nanavati vs. State of Bombay [AIR 1961 SC 112] is that when the appellate Court has the power to grant suspension of sentence and bail, pending appeal, the executive power of the State cannot extend to grant parole or leave or suspension of sentence. These were upheld by the High Court of Madras through the Division Bench of Justice PN Prakash and Justice R. Hemalatha in the case Wasib Khan v. The State represented by its Deputy Inspector General of Prisons (Chennai Range) &amp; Ors.( W.P. No.10265 of 2021). The crux of the case is Wasib Khan, the petitioner herein, was convicted on 21.11.2019 by the I Additional Special Court for NDPS Act Cases, Chennai, of the offences under Sections 8(c) read with Sections 22(c) and 8(c) read with Section 29 and 8(c) read with Sections 27-A and 8(c) read with Section 23(c) read with Section 28 of the NDPS Act for possession of commercial quantity of Alprazolam tablets and was sentenced to undergo 10 years rigorous imprisonment for each of the offences, but, the sentences were ordered to run concurrently, together with the benefit of set off under Section 428 Cr.P.C. Challenging the aforesaid conviction and sentences, Wasib Khan has filed Crl.A.125 of 2020 and the same is under consideration by this Court. Mr. Mohamed Saifullah learned counsel for Wasib Khan cited several rulings of the Supreme Court to assail the impugned order, which we are not deliberately adverting to, as we agree with him on most of the aspects covered under those rulings. To appreciate his arguments, it may be necessary to state the grounds on which Wasib Khan’s leave application has been turned down by the impugned order. The impugned order cites two reasons for rejection of leave for Wasib Khan. (a) Wasib Khan has not completed three years of imprisonment, as required under Rule 22 of the Sentence Suspension Rules; and (b) Wasib Khan’s appeal challenging his conviction and sentence is pending in the appellate Court, viz., High Court. Division Bench of Justice PN Prakash and Justice R. Hemalatha held that the rule of law stated in the case of K M Nanavati v. State of Bombay [AIR 1961 SC 112] must be complied with and the State’s administrative authority to grant leave cannot be extended if the appellate court can impose a sentence and bail. Section 432 CrPC deals with the government’s ability to suspend or withdraw sentences. TN Punishment Rules are based on CrPC S.432 (5). However, Section 389 CrPC deals with the suspension of a court of appeal pending an appeal. The court also found that Rule 2 (4) of the Suspension Rules usually refers to a sentence imposed at the end of the appeal or review. And stated “Under Section 428 CrPC. a prisoner is entitled t set off and the benefit of such a set off cannot be denied to him while calculating the actual period of incarceration, for fulfilling the eligibility condition in Rule 22 of the Sentence Suspension Rules Ergo, the reason (a) assigned in the impugned order for rejecting Wasib Khan’s leave application cannot be sustained, the court observed.”