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2014 DIGILAW 1867 (BOM)

Abdul Gani Ismail Turk v. State of Maharashtra

2014-08-25

B.P.DHARMADHIKARI, V.M.DESHPANDE

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Judgment : V.M. Deshpande, J. 1. Rule. Rule returnable forthwith. Heard finally by consent of learned counsel for the parties. 2. By present writ petition, the petitioner is questioning correctness of order passed by D.I.G. (Prisons) dated 06.01.2013, together with the order dated 13.03.2014 by appellate authority, by which his application for furlough leave was rejected. According to the order dated 06.01.2013, in view of the adverse police report, received on 27.12.2013 together with the fact that the petitioner was convicted under the Mumbai Serial Bomb Blast case of 1993, he is not entitled to claim the same. Needless to mention, the said order was carried in appeal and the appellate authority vide order dated 13.03.2014 was pleased to reject the said appeal by citing the reason that Sub Rule (13) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 disentitles the present petitioner to claim the relief of furlough. 3. Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 deals with the categories of prisoners, who shall not be considered for release on furlough. These rules were amended and sub rule (13) was introduced by the State Government in exercise of its powers available to the State. Sub rule (13) of Rule 4, which is relevant for decision of the present writ petition is reproduced as under: "(13). Prisoners convicted for offences such as dacoity, terrorist crimes, kidnapping, smuggling including those convicted under the Narcotic Drugs and Psychotropic Substances act, 1985 (61 of 1985) and foreigner prisoners;" The amended rules including aforesaid one came into existence by notification dated 23.02.2012. 4. The learned A.P.P. submitted that initially the present petitioner was sentenced to death by the TADA Court. However, in appeal, the apex Court has commuted the death sentence into life. According to the learned A.P.P., when the apex Court has commuted the death sentence into life imprisonment on 21.03.2013, it is subsequent to notification making amendment in sub clause (13) of Rule 4 of the Rules. Thus it is the submission of learned APP that the case of the petitioner will be governed by the amended Rules. 5. The submission of the learned A.P.P, in our view, cannot be accepted for the reason that by the order in appeal, the Hon'ble Apex Court found imposition of death sentence unjust and, therefore, proceeded to correct the error committed by the trial Court. 5. The submission of the learned A.P.P, in our view, cannot be accepted for the reason that by the order in appeal, the Hon'ble Apex Court found imposition of death sentence unjust and, therefore, proceeded to correct the error committed by the trial Court. The apex Court has thus merely substituted the death sentence by life imprisonment. Because of such substitution, no new finding of guilt is being recorded and the petitioner was not punished for the first time. His date of conviction remains the same and his period of imprisonment is also computed from the said date only. The punishment inflicted by Hon'ble Apex Court becomes effective from initial or first date of conviction as its exercise in appeal relates back to the date of judgment of trial court. Therefore, since the petitioner was convicted prior to the amended rules came in force, his case will be governed by unamended rules. Merely because the death sentence was commuted at later point of time on introduction of sub rule (13) in Rule 4 of the Rules, it cannot be held the petitioner is not entitled to the furlough. It is to be noted that, in Criminal Writ Petition No.432/2013, the Division Bench of this Court has already ruled that the said amendment to the Rules is prospective one and it cannot be applied retrospectively. 6. In view of above, both the orders, which are impugned in the present petition cannot stand to the scrutiny of law. Hence, order dated 06.01.2013 passed by Dy. Inspector General of Prisons, Nagpur and order dated 13.03.2014 passed by Inspector General of Prisons, Pune, are quashed and set aside. The petitioner is entitled to furlough leave, if otherwise he is found to be eligible. The matter is remitted back to the competent authority to consider the application for furlough leave filed by the petitioner, afresh in the light of observations made in the present judgment. The competent Authority shall decide the application in the light of this judgment and in accordance with law within a period of four weeks from the date of communication of this order. Rule made absolute in the above terms.