TMI Blog2012 (3) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... le both regular and permanent without the question of payment of fine being reckoned. When the arguments on the aforesaid question were being heard by the Division Bench, it was considered necessary to consider the aspect whether in the cases where conviction is under NDPS Act, the provisions of Rajasthan Prisoners Release On Parole Rules, 1958 (hereinafter referred to as the Parole Rules, 1958) are applicable. This question arose on 2.1.2012; the matter was further argued on 10.1.2012 and our attention was drawn by the Government Advocate to Rule 1(c) of the Parole Rules, 1958 which provides that these rules shall not apply to persons under a sentence of imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules made under Notification of the Government of India, Ministry of Home Affairs No.40/32/55-Judl.I dated 9th November, 1955. Hence, the following two questions have been framed by the Division Bench of this Court which are to be answered:- (1) Whether the Rajasthan Prisoners Release On Parole Rules, 1958 are applicable in the cases where sentence of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra), certain guidelines were laid down to be followed till the rules are framed by the Union of India. The decision in the case of Mana Singh (supra) is thus, per incuriam as the Rules which had been framed by the Central Government vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench otherwise guidelines would not have been laid down on the premise that Central Government has not framed such rules. It was further submitted that the decision of the Division Bench of this Court in Samiullaha's case (supra) also proceeds on the assumption that Parole Rules, 1958 are applicable and similarly, it was not submitted before the Division Bench that the Central Government has framed rules vide Notification dated 9th November, 1955 and as per Rule 1(c) of Parole Rules, 1958, the Parole Rules, 1958 framed by the State Government are not applicable. The main question for consideration before the Division Bench in Samiullaha's case (supra) was whether Section 32A of NDPA Act, which restricts suspension, remission or commutation of sentence would cover release on parole also and the Division Bench has followed the decision of the Apex Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi in exercise of the power conferred by sub-section (6) of section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898) framed the rules, which have been referred to in Rule 1(c) of the Parole Rules, 1958, and the same were published in the Gazettee of India, November 19, 1955. The Notification dated 9th November, 1955 containing the Rules (hereinafter referred to as the Rules of 1955) of the Central Government is quoted below:- MINISTRY OF HOME AFFAIRS New Delhi-2,the 9th November 1955 S.R.O. 3491.- S. R. O. 3491 -In exercise of the power conferred by sub section (6) of section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Central Government hereby makes the following rules:- 1. Where a petition for suspension of the execution of a sentence of imprisonment or for remission of the whole or part of a sentence of imprisonment is made by or on behalf of a person sentenced to imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends and the person sentenced to such sentence of imprisonment is in jail, the execution of the sentence shall be suspended and such person released on parole, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n make such order as they deem fit. Thus, it is apparent from the aforesaid Rule 1 of the Rules of 1955 framed by the Central Government that a convicted person can be released on parole and orders of Central Government have to be obtained on the petition if the State Government is satisfied that immediate release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife, husband or child of such person. If the State Government considers release of person necessary, it has to report the matter to the Central Government and the Central Government shall pass final order under Rule 2. Hence, it is apparent that once the Rules of 1955 have been framed by the Central Government, they are applicable and have to be followed for releasing on parole a convict, who has been sentenced to undergo imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends and in such cases, Rajasthan Prisoners Release on Parole Rules, 1958 are not applicable. In the case of Dadu @ Tulsidas (supra), the Hon'ble Supreme Court has considered the constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted 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. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety. In Halsbury's Laws of England, 4th Edn., Vol. II, Para 166, the following observation succinctly brings out the effect of bail: The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned. 'Parole', however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jail manual applicable in the matter. 29. Under the circumstances the writ petitions are disposed of by holding that (1) Section32Adoes not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section37of the Act as dealt with in this judgment. In view of the aforesaid decision of the Apex Court in the case of Dadu @ Tulsidas (supra), a person can still claim parole and Rules of 1955 framed by the Central Government have to be read down to the effect that parole can still be obtained and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. The entry 19 of the concurrent list says that drugs and poisons to be, subject to the provisions of entry 59 of the List-I, with respect to opium. The said entry i.e. Entry No.59 of the Union List provides regarding the cultivation, manufacture and sale for export of opium. Thus, opium is a matter to which executive power of the Union of India extends. The Union of India enacted the special legislation as NDPS Act and thus, opium has become subject matter to which the executive power of the Union of India extends. Thus, in view of Rule 1(c) of the Parole Rules, 1958, prayer of persons convicted under NDPS Act can be considered only under the Rules framed in that regard by the Central Government. Following is the relevant discussion made by the Division Bench in the case of Mana Singh (supra):- 9. Thus, we find that the judgment of the learned Single Judge is in consonance of the judgment of the Apex Court in Dadu's case. The learned Single Judge has not asked to consider the case of the accused convicted under N.D.P.S. Act straightway. The prayer of parole has to be considered in accordance with the statutory provisions, if any, Jail Manual or Government instructions. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules framed in that regard by the Central Government. Thus, the adverse remarks made by the learned Single Judge against the State Government in para extracted above are expunged. To the aforesaid extent, there is no quarrel with the decision rendered by the Division Bench of this Court in the case of Mana Singh (supra). However, at the same time, as the Rules of 1955 framed by the Central Government for release on parole were not brought to the notice of the Division Bench, following guidelines have been issued by the Division Bench in the case of Mana Singh (supra):- 14. We hope and trust that the Union of India will frame the rules and provide a guideline for releasing the convicts of N.D.P.S. Act on parole or transfer them to the open air camps, keeping in view the objects behind enactment of N.D.P.S. Act and different judicial pronouncements on the point. As usual, the Central Government may take time in framing the Rules for providing guidelines to release a convict of N.D.P.S. Act on parole or transferring to open jail, as such in the larger public interest till such rules are framed, we provide the following guidelines for concerned authorities and the courts, as int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by the Supreme Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under: A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd.1944 KB 718:(1944) 2 All ER 293. In Huddersfield Police Authority v. Watson1947 KB 842:(1947) 2 All ER 193.; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the jail manual or government instructions have to be followed. There cannot be any quarrel with the aforesaid proposition laid down in the case of Samiullaha (supra). However, the Rules of 1955 framed by the Central Government were not placed for consideration before the Division Bench. The Division Bench has laid down that statutory provisions or the jail manual or government instructions have to be followed for grant of parole. As the Rules of 1955 framed by the Central Government were not brought to the notice of the Division Bench of this Court, it has been held that case of convict has to be considered under Rule 9 of the Parole Rules, 1958. The Division Bench decision to the extent of providing consideration of parole under the Rules of 1958 has to be considered in the light of the ratio of decision in case Rules of 1955 would have been brought to the notice of court, it would have followed that; release on parole is subject to the conditions governing grant of it under the statute i.e. Rules of 1955 framed by the Central Government which were not brought to the notice of the Division Bench deciding Samiullaha's case (supra). The Division Bench decision buttresses ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-consideration of the application for parole without deposit of fine which has been imposed by the trial court at the time of applicant's conviction and sentence. It was also submitted that payment of fine can be made even towards the end of the substantive sentence or the convict can choose to suffer further imprisonment in lieu of fine. As such, it was submitted that non-payment of fine is extraneous to the whole issue. It was further submitted that the decision in Shiv Shanker Teli's case (supra) is per incuriam and in any event, was not binding as no reason whatsoever was mentioned for reaching to the conclusion as to deposit of fine before consideration of petition for release on parole. The Single Bench on the grounds of comity of courts, consistency of law and that the decision view expressed by the coordinate bench in Shiv Shanker Teli's case (supra) cannot be overlooked, considered it advisable to refer the matter to the Larger Bench whether the order passed in Shiv Shanker Teli's case (supra) is the obtaining law or whether a convict after having undergone the statutory period of sentence is entitled to be considered for parole both regular and perma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red from learned counsel for the petitioner whether the fine has been deposited and it was submitted that the fine has not been deposited. This petition is dismissed on the ground that the fine has not been deposited so far and only after the petitioner has deposited the fine, this court would consider the case for being released on parole. Vide order dated 4.5.2011, the petition was dismissed on the ground that fine has not been deposited so far and only after the petitioner has deposited the fine, this Court would consider the case for being released on parole. As already held above, deposit of fine cannot be a condition precedent for consideration of application for parole. For releasing on parole, it is not necessary that this Court should insist for deposit of fine as parole is not suspension of sentence and during parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also as held by the Apex Court in the case of Nauratta Singh (supra). Thus, it would not be appropriate to ask the convict to deposit fine before consideration of his application for parole as that is not provided under the Rules of 1955 or with r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
