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2020 DIGILAW 369 (HP)

Sajid v. State of Himachal Pradesh

2020-06-29

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT Jyotsna Rewal Dua, J. - The District Magistrate, Baghpat (U.P.), did not recommend release of the petitioner on parole, hence, the respondents rejected his case as such. 2. Learned Special Judge-II, Mandi, Distrit Mandi (H.P.), vide judgment dated 16.01.2014, passed in Trial No.23 of 2012, convicted the petitioner for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. He was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-. In default of payment of fine, he has to further undergo rigorous imprisonment for a period of one year. Criminal Appeal No.26/2014, preferred by the petitioner against the aforesaid judgment was dismissed by this Court on 09.05.2016. SLP (Criminal) Diary No.266/2018, preferred by the petitioner also stands dismissed by Hon'ble Apex Court on 25.01.2018. 3. Ever since 2014, all applications of the petitioner seeking parole have been rejected by the respondents on the basis of non-recommendation by the District Magistrate, Baghpat (U.P.). Last application seeking release on parole was moved by him on 01.08.2018. It also met the same fate as the District Magistrate did not recommend his case for release on parole. The reason assigned was that petitioner being 31 years old can indulge in same offence again. Aggrieved, instant petition has been preferred, praying for release on parole for a period of six weeks. 4. Taking note of Section 6 of Himachal Pradesh Good Conduct Prisoners (Temporary Release ) Act, 1968, a Coordinate Bench of this Court in CWP No.2931 of 2019, titled Hari Dei versus State of Himachal Pradesh & others, decided on 03.06.2020, allowed the petitioner therein to be released on parole on the ground that there was no report of the concerned District Magistrate that release of the convict on parole would endanger either security of the State or the public order. In the instant case also, this is not a ground for refusing to recommend the release of the petitioner on parole. The District magistrate has simply assumed that petitioner being young can repeat the offence if released on parole. In titled Bir Singh Vs. the State of Himachal Pradesh and others, (1985) CriLJ 1458 , this Court observed as under:- "3. The District magistrate has simply assumed that petitioner being young can repeat the offence if released on parole. In titled Bir Singh Vs. the State of Himachal Pradesh and others, (1985) CriLJ 1458 , this Court observed as under:- "3. ............"The absence of an opportunity to watch his conduct outside jail for the reason of his not having been released on parole/furlough is again not a factor which could be legitimately pressed into service on the facts and in the circumstances of the case. There is no reason to assume that if the petitioner is granted the benefit of premature release, he would once again display criminal tendency. Such an assumption overlooks not only that the petitioner is not shown to be a habitual offender but also the reformatory aspect of the penalty procedure as well as the good record of the petitioner during the entire period of his imprisonment. ..................." Similarly, in, titled Asfaq versus State of Rajasthan and others, (2017) 15 SCC 55 , Hon'ble Apex Court observed as under:- "18). The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furloughs or parole can help prepare offenders for success." 22). Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorised as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious office, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of god conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc." The principles laid down in the above judgment were reiterated in, titled Mohammed Shamsuddin versus The State of Rajasthan & others, (2019) 1 Scale 560 . Entire law has been enunciated and encapsulated by this Court in CWP No.529 of 2018, titled Jagat Ram versus State, decided on 26.06.2020. 5. In the instant case, it is not in dispute that petitioner has completed almost 7, out ten years of substantive sentence, imposed upon him. He has not been released on parole since 2014 despite repeated applications stated to have been submitted by him in this regard. There is no complaint against the act and conduct of the petitioner within the prison. Release of parole was originally sought on the grounds that wife of petitioner had passed away on 14.01.2014 and but for his aged and inform parents needing care themselves, there is no one to look after his two minor children. This factual position is not disputed by the respondents. Release of parole was originally sought on the grounds that wife of petitioner had passed away on 14.01.2014 and but for his aged and inform parents needing care themselves, there is no one to look after his two minor children. This factual position is not disputed by the respondents. During hearing, learned counsel for the petitioner informed the court about demise of petitioner's father today. Such a situation falls within the ambit of Section 3(1)(a) of Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968. Considering all relevant facts and circumstances of the case, petitioner deserves to be released on parole. Therefore, this petition is allowed. The respondent/competent authority is directed to release the petitioner on parole for a period of 21 days. Since the petitioner is resident of Bijrole, Tehsil Badaut, District Baghpat (U.P.), therefore, besides his personal bond, he will furnish surety bond either of his mother or any of his close family member. However, we make it clear that immediately on expiry of 21 days of parole, the petitioner shall surrender himself before respondent No.5/The Superintendent of Jail, Model Central Jail Nahan, District Sirmaur (H.P.). However, parole is liable to be cancelled in case the petitioner breaches any of the conditions of the parole order and/or creates law and order problems. This shall also be treated as a negative factor for consideration of his similar future applications. With the aforesaid directions, the petition stands disposed of, so also pending miscellaneous application(s), if any. Authenticated copy.