Alai Joseph Iruthaiaraj @ Raja (Now confined in Central Prison, Madurai) vs State

E. Padmanabhan, J.—The writ petitioner, who is undergoing sentence in Central Prison, Madurai, has prayed for the issue of a writ of

certiorarified mandamus to call for the records relating to Letter No.49837/C5/2001-1 dated 9.4.2001 of the respondent, quash the same and

direct the respondent to grant one month parole to the petitioner or pass such or other orders as this Court deems fit.

The petitioner alleged that he has been falsely implicated for alleged offence u/s 8 (c) read with Section 21 of The Narcotic Drugs and

Psychotropic Substances Act and arrested on 16.11.98. The petitioner has already been prosecuted and convicted to undergo sentence of

rigourous imprisonment for ten years and to pay a further fine of Rs.1 lakh and in default to undergo two years rigourous imprisonment. It is also

stated that since 18.11.98, the date of arrest, he is in continuous detention.

Since the petitioner''s mother is bed ridden and is unable to move, he applied for parole for a period of one month to see his ailing old parents.

The request for parole was rejected on 9.4.2001. The order of rejection proceeds as if the petitioner is not eligible for being let on parole.

Challenging the same, the present writ petition is filed.

The respondents resisted the writ petition contending that the petitioner is not eligible to be granted parole. A counter has been filed by the

respondents.

As seen from the counter affidavit, the petitioner was convicted for offence u/s 8 (c) read with Section 21 of The Narcotic Drugs and

Psychotropic Substances Act and sentenced to undergo rigourous imprisonment for ten years and to pay a fine of Rs.1 lakh on 16.11.98 by the

Special District and Sessions Court, Madurai, in C.S. No.19/97. As on 20.3.2002, the petitioner has undergone three years and four months of

the sentence. The appeal preferred by the petitioner before this Court against the sentence imposed on him by the Special District and Sessions

Court has since been dismissed by this Court and no further appeal has been preferred.

On 19.12.2000, the petitioner applied for parole for a period of one month, which was examined and rejected by the respondents by letter

dated 9.4.2000 on the ground that he is not eligible for parole as per Rule 22 (1) of the Tamil Nadu (Suspension and Sentence) Rules, 1982.

Since the petitioner had not completed three years of sentence from the date of initial imprisonment, the respondents took the view that he is not

eligible for parole. In the counter affidavit, the respondents refer to the judgment of the Apex Court in Dadu @ Tulsidas Vs. State of Maharashtra,

, where the Apex Court held that Section 32A of The Narcotic Drugs and Psychotropic Substances Act does not affect the powers of the

authority to grant parole to the prisoners convicted under the said Act.

It is contended that as per Rule 22 (1) of The Tamil Nadu (Suspension of Sentence) Rules, 1982, no prisoner shall be granted ordinarily unless

he has been sentenced by a Court in this State to imprisonment for a term or imprisonment for life for an offence against any law other than the law

relating to a matter to which the executive power of the Union Government extends and he has completed three years of imprisonment from the

date of initial imprisonment. According to Rule 2 (4) of the said rules, sentence means a sentence as finally fixed on appeal or revision or otherwise

and includes and aggregate of more sentence than one. It is contended that the sentence has not become final since the appeal preferred is pending.

The parole petition has been rejected as the petitioner is not eligible for parole in terms of Rule 2 (4) read with Rule 22 (1) of the Tamil Nadu

(Suspension of Sentence) Rules, 1982. It is further contended that in terms of the judgment of the Supreme Court in Dadu @ Tulsidas Vs. State of

Maharashtra, , the respondents have considered the application of the petitioner according to the rules and rejected the same.

According to the respondents, the eligibility for grant for ordinary leave is prescribed by Rule 22 of the said rules, which reads thus :-

Eligibility for ordinary leave :- (1) No prisoner shall be granted ordinary leave unless he has been sentenced by a court in this state to

imprisonment for a term or imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of

Union Government extends and he has completed 3 years of imprisonment from the date of initial imprisonment.

According to the respondent, the appeal is pending and, therefore, the petitioner is not eligible to be granted any parole and he has been

imprisoned for an offence in respect of a law relating to a matter to which the executive powers of the Union Government extends, viz., Narcotic

Drugs and Psychotropic Substances Act, 1985. It is contended that the order passed by the respondents is neither violative of the judgment of the

Supreme Court nor violates Article 21 of The Constitution and the impugned proceedings of the respondents is in accordance with the provisions

of the Tamil Nadu (Suspension of Sentence) Rules, 1982.

Heard Mr.Sankara Subbu, learned counsel appearing for Mr.Mayilvahana Rajendran and Mr.I.Subramanian, learned Public Prosecutor

appearing for the respondents.

The following points arise for consideration in this writ petition :-

i) Whether the petitioner is entitled to parole ?

ii) Whether the impugned rejection is liable to be quashed ?

iii) Whether the petitioner is entitled for parole and if so, for what period and subject to what conditions, if any ?

At the bar it is fairly admitted that the petitioner has been behind bars for more than three years from the date of his arrest. It is further admitted

that the appeal preferred by the petitioner has already been dismissed and the conviction has been confirmed by this Court on appeal and the same

has reached finality. Therefore, the two contentions advanced, namely, that the petitioner had not completed three years and that appeal is pending

is no longer available to the respondents as admittedly the petitioner has completed three years and six months as of today and also the conviction

had reached finality. Therefore, the two objections advanced by the respondents do not deserve any further consideration in view of the above

admitted facts and in view of the admitted passage of time.

The only other contention that deserves to be examined is as to whether the respondents are bound to allow parole to the petitioner ?

The last objection being that the competent authority to grant parole is the Central Government and not the State Government and, therefore,

the petitioner has to move the Central Government. In this respect Mr.Sankara Subbu, learned counsel for the petitioner contended that the

petitioner has been convicted and he is undergoing imprisonment at Madurai Central Prison as a transferred prisoner and, therefore, all the rules

governing the prisoners in the State will apply and the contention that the petitioner has to move the Central Government is a misconception and it

cannot be sustained. This point alone requires consideration.

Mr.I.Subramanian, learned Public Prosecutor, while drawing the attention of the Court to the circular issued by the State Government in its

letter No.247/PE.XV/2001 Prohibition and Excise Department, dated 22.11.2001, pointed out that it is the stand of the respondent State

Government that Section 32A of The Narcotic Drugs and Psychotropic Substances Act does not in any way affect the power of the competent

authority/State Government to grant parole as in the case of other convicted prisoners in the State and, therefore, request for parole has to be

considered under the provisions of Tamil Nadu (Suspension of Sentence) Rules, 1982. Having issued such a circular now, it is sought to be

contended that insofar as the petitioner is concerned, it is the Central Government and not the State Government, who is competent to grant

parole. Nowhere in the impugned order such a reason has been suggested, but reliance is placed on rule 22 of the Prison Rules. According to the

respondents, a prisoner shall be granted leave unless he has been sentenced by a Court for a term or imprisonment for leave against any law other

than a law relating to a matter to which the executive power of the Union Government extends. According to the respondents, it is contended that

the executive power of the Union Government extends with respect to the prosecution under Narcotic Drugs and Psychotropic Substances Act

and, therefore, it is the Union Government, which is the competent authority to consider and grant parole.

In other words, the construction of Rule 22 is the essence of the controversy in this writ petition. If the executive power of the Union

Government extends in the matter in question, then the respondents herein cannot grant parole. The conviction is for violation of the Narcotic

Drugs and Psychotropic Substances Act, a Central legislation. The petitioner, a prisoner, who is undergoing sentence in the Central Jail at

Madurai, which is under the control and administration of the respondents and State Prison Authorities. That being the position, whether parole has

to be granted by the State or by the Union Government is the incidental question, which arises for consideration. In this respect, we have to

examine the meaning and scope of the expression ""parole"" and the rules, which are relevant to decide the application for grant of parole.

It is also essential to examine as to the scope of power of the State to grant parole and whether such action is administrative or quasi-judicial.

The Apex Court as already held that grant of parole is essentially an executive function. In Poonam Lata Vs. M.L. Wadhawan and Others, ,

the Apex Court held thus :-

There is no denying of the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be

within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenus on parole

were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian

considerations. Historically ''parole'' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has

become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society

towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of

above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole

is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a

provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is

expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a errant of partial liberty or lessening of

restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by

parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to

surrender to custody. (See The Oxford Companion to Law, edited by Walker, 1980 edn., p. 931; Black''s Law Dictionary, 5th edn., p. 1006;

Jowitt''s Dictionary of English Law, 2nd edn.. Vol. 2, p. 1320; Kenny''s Outlines of Criminal Law, 17th edn., pp. 574-76; The English Sentencing

System by Sir Rupert Cross at pp. 31-34, 87 et. seq.'', American Jurisprudence, 2nd edn.. Vol. 59, pp. 53-61; Corpus Juris Secundum, Vol. 67;

Probation and Parole, Legal and Social Dimensions by Louis P. Camey.) It follows from these authorities that parole is the release of a very long

term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under

conditions that permit his incarceration in the event of misbehaviour.

While examining the scope of Section 432 of The Code of Criminal Procedure, in State of Haryana and Others Vs. Mohinder Singh, , the

Apex Court held thus :-

Parole is defined in these two dictionaries as under:

The Concise Oxford Dictionary - (New Edition)

The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such

a promise; a word of honour.

Black''s Law Dictionary - (Sixth Edition)

Release from jail, prison or other confinement after actually serving part of sentence. Conditional release from imprisonment which entitles parolee

to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.

In State of Haryana Vs. Nauratta Singh and Others, , the Apex Court held that parole relates to executive action after the door has been

closed on a convict. The Apex Court, in this context, held thus :-

Parole is defined in Black''s Law Dictionary as ""a conditional release of a prisoner, generally under supervision of a parole officer, who has

served part of the term for which he was sentenced to prison"". Parole relates to executive action taken after the door has been closed on a convict.

During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.

A Constitution Bench of this Court has considered the distinction between bail and parole in the context of reckoning the period which a

detenu under a preventive detention order has to undergo in prison. It was in Sunil Fulchand Shah v. Union of India, Dr A.S. Anand, C.J.,

speaking for himself and for K.T. Thomas, D.P. Wadhwa and S. Rajendra Babu, JJ., has observed thus: -

Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of

Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable

offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would

still retain constructive control over him through the sureties.

After referring to the meaning given to the word ""parole"" in different lexicographs learned Chief Justice has stated thus:

Thus, it is seen that ''parole'' is a form of temporary release from custody, which does not suspend the sentence or the period of detention, but

provides conditional release from custody and changes the mode of undergoing the sentence.

In a still later pronouncement, in Dadu @ Tulsidas Vs. State of Maharashtra, , the Apex Court, while holding that part of Section 32A of The

Narcotic Drugs and Psychotropic Substances Act is unconstitutional, to the extent it takes away the right of the Court to suspend the sentence of a

person convicted under the Act, but clarified that Section 32A does not affect in any way the powers of authorities to grant parole. In the said

pronouncement, the Apex Court held thus :-

Parole is not a suspension of the sentence. The convict continues 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 being in jail serving part of

sentence.

* * * *

It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of

Section 32A of the Act. Notwithstanding the provisions of the offending section, a convict is entitled to parole, subject however, to the conditions

governing the grant of it under the statute, if any, or the jail manual or the government instructions. The Writ Petition No. 169 of 1999 apparently

appears to be misconceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with the jail

manual applicable in the matter.

* * * *

Judged from any angle, the section insofar as it completely debars the appellate courts from the power to suspend the sentence awarded to a

convict under the Act cannot stand the test of constitutionality. Thus Section 32A insofar as it ousts the jurisdiction of the court to suspend the

sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that the Allahabad High Court in Ram Charan

case has correctly interpreted the law relating to the constitutional validity of the section and the judgment of the Gujarat High Court in Ishwar Sinh

M. Rajput case cannot be held to be good law.

Despite holding that Section 32A is unconstitutional to the extent it affects the functioning of the criminal courts in the country, we are not

declaring the whole of the section as unconstitutional in view of our finding that the section, insofar as it takes away the right of the executive to

suspend, remit and commute the sentence, is valid and intra vires of the Constitution. The declaration of Section 32A to be unconstitutional, insofar

as it affects the functioning of the courts in the country, would not render the whole of the section invalid, the restriction imposed by the offending

section being distinct and severable.

Holding Section 32A as void insofar as it takes away the right of the courts to suspend the sentence awarded to a convict under the Act,

would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal

obligations to exercise the power of suspension of sentence within the parameters prescribed u/s 37 of the Act. Section 37 of the Act.

The Supreme Court has now held that an accused person convicted under the provisions of the Narcotic Drugs and Psychotropic Substances

Act also could be granted parole and Section 32A of the Narcotic Drugs and Psychotropic Substances Act has been held is not a bar and to that

extent the said provision has been clarified.

The question as to what is the interpretation that has to be placed on the following expression appearing in Rule 22 of The Tamil Nadu

(Suspension of Sentence) Rules, 1982, viz., sentence of imprisonment for a term/life for an offence against any law other than a law relating to a

matter to which the executive power of Union Government extends"". Referring to the said portion of the rule, it is contended that it is the Central

Government whose executive power extends with respect to the Central legislation, namely, Narcotic Drugs and Psychotropic Substances Act

and, therefore, it is the Central Government alone, which is the competent to consider the application for grant of parole and not the State

Government.

Concedingly, the offence for which the petitioner has been found guilty and sentenced to undergo sentence is for violation of Section 8(c) read

with Section 21 of The Narcotic Drugs and Psychotropic Substances Act, which is a central enactment. It is pointed out that the prison in which

the petitioner is undergoing sentence is a prison established, controlled and run by the State Authorities and not by the Central authorities. In this

respect Mr.Sankara Subbu refers to the provisions of The Prisoners Act. The Prisoners Act provides for transfer of a prisoner. It is true that the

Central Government has not located any prison within the State.

It is by now well settled that bail and parole have different connotations in law. Bail is well understood in Criminal Jurisprudence and Chapter

XXXIII of The Criminal Procedure Code prescribes the elaborate provisions relating to grant of bail. Parole is a temporary release from custody

which does not suspend the sentence. The Code of Criminal Procedure does not contain any provision for grant of parole. But in the State of

Tamil Nadu, rules have been framed regulating the grant of parole. The action for grant of parole is an administrative action.

The executive power of the Union Government extends to matters with respect to which Parliament has the power to make laws. The Union

has the executive power for the administration of laws made by Parliament under its exclusive powers. The executive power of the Union is co-

extensive with the legislative power of the Union Parliament and it extends over the whole of the territory of India with respect to the matters

enumerated under List I and III of the VII Schedule.

It may not be necessary to examine this question as to who is the appropriate Government or authority competent to release the prisoner on

parole in the light of the latest pronouncement of the Apex Court in Dadu @ Tulsidas Vs. State of Maharashtra, . In the said pronouncement, the

Supreme Court examined the validity of Section 32A of The Narcotic Drugs and Psychotropic Substances Act, 1985. On the facts of the case,

the prisoner, who had undergone the sentence for more than seven years could not claim parole presumably under the impression that Section 32A

is a bar for the State to grant parole. The Apex Court held that parole is essentially an executive function to be exercised within the limits

prescribed in that behalf. The Apex Court, after detailed discussions held that a convict is entitled to parole, subject however, to the conditions

governing grant of it under the statute rule if any or jail manual or the Government instructions. The Supreme Court held that Section 32A of The

Narcotic Drugs and Psychotropic Substances Act, 1985, does not in any way affect the powers of the authorities to grant parole. Ultimately, the

Supreme Court directed the writ petitioner in that case to apply for parole and his prayer be considered and disposed of in accordance to the

statutory provisions if any, or jail manual or Government instructions without reference to Section 32A of the Act for consideration of the prayer.

The direction being to consider for parole in terms of the State Rule only. Hence, in the light of the said pronouncement, it is not necessary to

examine the objection that has been raised by the learned Public Prosecutor.

In the present case, the rejection of the petitioner''s application is apparently vitiated by factual misconception and misdirections and, therefore,

it is liable to be interfered. The State Government itself subsequently, while following the judgment of the Supreme Court in Dadu''s Case issued a

circular to all the jail authorities, which reads thus :-

I am directed to invite attention to your letter cited in the matter of grant of parole to a convicted prisoner under the NDPS Act, 1985, in Dadu @

Tulsidas Vs. State of Maharashtra, of the NDPS Act, 1985, does not in any way affect the power of the competent Authority/State Government

to grant parole as in the cases of other convicted prisoners in the State. Hence, Parole petitions from the convicted prisoners under the NDPS Act

may also be considered under the provisions of the Tamil Nadu Suspension of Sentence Rules, 1982.

In the light of the above discussions, while quashing letter No. 29837/C.5/2001-1 dated 9.4.2001 rejecting the petitioner''s request for parole,

the respondent is directed to consider the petitioner''s request for parole in the light of the decision of the Supreme Court in Dadu @ Tulsidas Vs.

State of Maharashtra and taking into consideration of the merits of the petitioner''s claim or eligibility for parole or desirability to grant parole.

In the result, this writ petition is allowed and the impugned proceedings are quashed and the matter is remitted back to the State Government

for fresh consideration in the light of the above discussions. It is needless to add that it is for the State Government, which has to decide the request

on merits and according to law, and subject to such conditions as it may impose, but without delay. No costs. Consequently, connected

W.P.M.P.s are closed.