Kashmir Singh vs State of Punjab

R.L. Anand, J.

Kashmir Singh and 37 others have filed the present petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India seeking the directions of this court against the respondents to allow parole or furlough or temporary release to the prisoners who are convicted and sentenced under the Narcotic Drugs and Psychotropic Substances Act with further directions to the respondents that the parole/furlough cases of the prisoners be considered in accordance with the law laid down in Punjab Good Conduct Prisoners (Temporary Release) Act, 1962.

Admittedly the petitioners are the convicts under the N.D.P.S. Act. They made prayer for parole/furlough but by taking the shelter of Section 32A of the N.D.P.S. Act and their request has been declined.

Before I proceed further, I would like to quote in extenso the provisions of Section 32A of the N.D.P.S. Act as under :

"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."

The counsel for the State has also invited my attention to Hassan Ismail Dalvi v. State of Maharashtra, 1999(1) RCR (Criminal) 387 in which the views of Rajasthan High Court and Kerala High Court have also been considered and the Hon''ble Judges of the Bombay High Court came to the conclusion that he convicts under the N.D.P.S. Act are not entitled to avail parole/furlough.

The Punjab Government enacted an Act known as `The Punjab Good Conduct Prisoners (Temporary Release) Act 1962'' i.e. Punjab Act 11 of 1962. Section 3 of the said Act lays down certain grounds upon which temporary release of the prisoners is permissible. According to this section the State Government may, in consultation with the District Magistrate and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in subsection (2) any prisoner if the State Government is satisfied that : (a) a member of the prison family had died or is seriously ill; or (b) the marriage of the prisoner''s son or daughter is to be celebrated; or (c) the temporary release of the prisoner is necessary of ploughing, sowing or harvesting or carrying on any other agricultural operation on his land and no friend or the prisoner or a member of the prisoner''s family is prepared to help him in this behalf in his absence; (d) it is desirable to do so for any other sufficient cause. According to subsection (2) of Section 3, 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 ground specified in clause (a) of subsection (1), four weeks; (b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of subsection (1), four weeks; and (c) where the prisoner is to be released on the ground specified in clause (c) of subsection (1), six weeks. For my purpose subsection (3) of Section 3 is of significant importance which lays down that period of release under this section shall not count towards the total period of the release of a prisoner, meaning thereby that when a prisoner proceeds on parole, his that period is counted towards actual sentence but is deducted from the total sentence awarded to him. When a person is granted parole he is not a free bird. Concession is being given to him so that he may be able to utilise some time with his family members. He remains under the supervision of the State because his bond is subject to certain conditions. When this Act was enacted by the Punjab Government, it was enacted with a purpose and the purpose as I understand is very useful to change the outlook of criminal so as to make him a useful member of the society. If he is not allowed to do so, it can have a very bad effect on his attitude towards the society. The stress these days is to hate the crime and not the criminal, rather to give him the possible avenues to bring him on the path which may lead to bring peace in the society and to get rid of a criminal tendency in a criminal, and one of the ways to do it is to allow him to come out of the cold wall of the jail and to associate with the members of his family so as to carry out the obligations of a social human being so as to being tranquillity, happiness and prosperity in the society. Many a time, crime is the result of socioeconomic milieu and it is the duty of the agencies maintaining the public order and running criminal justice system, to see that the crimes are minimized and there is peace and tranquillity in the society and one of the ways to achieve this object is to give effect to social legislation and salutary provisions of the Act so that the institution of prison which is now being run as not concentration camps with all its brutalities and devoid of human spirit and touch but as reformatory so as to churn out good citizens from bad ones.

The object of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 was also mentioned in a single bench authority of this court reported as Gurvinder Singh v. State of Punjab, 1996(2) Recent CR 242 and it was stated by his Lordship that the object of this Act when the legislature in its wisdon enacted the said Act was to enable the prisoners to make sojourn to their family and keep in touch with what is happening in their family.

The material word which is to be interpreted under Section 32A of the Act is that whether the granting of parole to a prisoner amounts to `suspension'' of his sentence or not. What I understand from the word "suspension" is that the sentence which is already imposed on a convict stands deferred for some period. If the sentence is not suspended then Section 32A of the Act will not come into play. When a prisoner is granted parole under Section 3 of the Punjab Good Conduct Prisoners (Temporary Release) Act and is granted furlough under Section 4, it is not suspension of his sentence, rather it is in continuation of that very sentence as he is not a free bird. His activities are controlled under the terms of the bond and for this reason by virtue of subsection (3) of Section 3 the period of release under that section is only counted towards the actual sentence and is not counted towards the total period of released of the prisoner.

The Haryana Government has also contacted an Act known as `Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, and as per the provisions of Section of this Act parole can be granted and by virtue of Section 4, like the Punjab Act, furlough can be granted. Subsection (3) of Section 3 of the Haryana Act lays down as follows :

"The period of release under this section shall not count towards the total period of the sentence of a prisoner."

It means that the period of release on parole is counted towards actual sentence, and if that is so it cannot be said that when a prisoner remains on furlough or parole his sentence stands suspended as understood under Section 32A of the N.D.P.S. Act or under Section 389 of Cr.P.C. The Hon''ble Division Bench of the Bombay High Court was not seized of the provisions of the special Act and the special language as contained in the Punjab Act and Haryana Act. In para No. 8 of the judgment of the Hon''ble Division Bench of the Bombay High Court, the Judge while making a mention of 1996(1) Mah LJ 843 were referring to the Prisons (Bombay Furlough and Parole) Rules, 1959. I am not aware what is the language of Prisons (Bombay Furlough and Parole) Rules, 1959, but in view of Section 3(3) of both Punjab Act and Haryana Act it is clear that parole/furlough period of a convict is treated as a substantive period of punishment. It is counted towards actual sentence but, of course, is deducted from the total sentence. The only diference is that while a prisoner remains on parole/furlough, he spends that period with his family members and does not serve the jail by suffering rigorous or simple imprisonment as awarded to him.

In this view of the matter, I am inclined to allow this petition by setting aside the decision of the Government of Punjab and direct the Government that it will consider the case of the petitioners for parole/furlough according to law as contained in Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 and its Rules by treating that such convicts are entitled to the benefit of parole/furlough as per the provisions of Sections 3 and 4 of the said Act.