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2023 DIGILAW 35 (PNJ)

Jatinder Singh v. State of Punjab

2023-01-04

SANJIV BERRY, TEJINDER SINGH DHINDSA

body2023
JUDGMENT Sanjiv Berry, J. (Oral) The instant petition has been filed challenging the impugned order dated 29.09.2022 (Annexure P-1) passed by respondent No. 3 vide which request of petitioner for temporary release to meet his family under Section 3 (l)(d) of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (for short 'the Act of 1962') has been declined on the ground that there is apprehension of breach of peace in the event of the release of the petitioner on parole and that he can indulge in activities of selling drugs. 2. A perusal of the paper book reveal that the petitioner is undergoing sentence of 12 years in case FIR No. 274 dated 24.11.2017 under Section 18 of the NDPS Act, Police Station Meharban, District Ludhiana and the said conviction had been challenged vide appeal number CRA-D-372-DB of 2020, which is lying pending before this Court. 3. After issuance of notice of motion on 21.10.2022, respondents No. 1 to 4 filed their reply way of an affidavit dated 07.12.2022, wherein it was submitted that there is adequate apprehension of public peace and State security or that he will implement a big deal of sale of narcotics. 4. Learned counsel for the petitioner further contends that petitioner was granted parole for 8 weeks by this Court vide CRWP 5988 of 2021 on 09.08.2011 and the petitioner has not misused the same and surrendered back in jail in time. She further contends that no complaint is registered against him and the non-grant of parole to the petitioner is not just a punishment to him but to his family as well. 5. Learned counsel contends that parole cannot be refused on the ground that there was apprehension of breach of peace and it is the duty of police and the District Magistrate to give protection to the people. 6. However, learned State counsel submits that a prisoner cannot claim parole as a matter of right as it is the only concession given to the prisoner for his good conduct and that too on certain conditions. 7. We have given our thoughtful consideration to the matter and have also gone through the record with the assistance of learned counsel for the respective parties. 8. 7. We have given our thoughtful consideration to the matter and have also gone through the record with the assistance of learned counsel for the respective parties. 8. Hon'ble Apex Court in Asfaq v. State of Rajasthan and others, 2017 (15) SCC 55 while dealing with the issue of provisions of parole and furlough, has held that a humanistic approach is to be adopted against those who are lodged in jails. It has been held therein that furlough is a brief release from the prison which is conditional and is given in case of long term imprisonment which is granted as a good conduct remission. His release from jail for short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society and the convicts too mush breathe fresh air for at least some times provided, they maintain good conduct consistently, during incarceration and show a tendency to reform themselves to become good citizens. Thus, the redemption and rehabilitation of such prisoners for good of society must receive due weightage while they are undergoing sentence of imprisonment. Hon'ble Apex Court has further clarified that the provisions of parole and furlough thus provide for humanistic approach towards those lodged in jails. Even citizens of the country have a vested interest in preparing offenders for successful re-entry into the society after their release. Those who leave prisons without a strong network of support, employment prospects, fundamental knowledge of the community to which they will return and without resources stand a significantly higher chance of failure. Furlough or parole can help the offenders prepare for success. Being in a civilized society organized with law and system as such it is essential to ensure for every citizen a reasonably dignified life. If a person commits any crime, it does not mean that by committing such crime he seizes to be a human being and he can be deprived of those aspects of life which constitutes human dignity. It has been emphasized that the parole programme should be used as a tool to shape such adjustments. 9. If a person commits any crime, it does not mean that by committing such crime he seizes to be a human being and he can be deprived of those aspects of life which constitutes human dignity. It has been emphasized that the parole programme should be used as a tool to shape such adjustments. 9. Further a Division Bench of this Court in Ram Chander v. State of Punjab and others 2017(3) R.C.R. (Criminal) 340, while taking into account the judgment in CRM-M No.34013 of 2009 titled Varun @ Gullu v. State of Haryana and others, decided on 26.04.2010, had noticed that the benefits of parole and furlough are regulated by a statute and the authorities cannot act arbitrarily, capriciously or without due application of mind. Declining the request for parole or furlough only for the reason of apprehension of breach of peace, for which there is no such condition under the Act, was held not to be justified. 10. The provisions of the Punjab Good Conduct Prisoners (Temporary Release)) Act 1962, deals with the temporary release of prisoners for good conduct on certain conditions. Temporary release on parole is granted on certain conditions as envisaged by the provisions of Section 3 of the Act; besides, temporary release on furlough is granted in terms of Section 4 of the Act. In terms of Section 5A of the Act, prisoners are not entitled to temporary release in certain cases, like cases where death sentence has been awarded or a prisoner is a 'hardcore prisoner'. Further, 'hardcore prisoner' has been defined in Section 2 (aa) of the Act as follows "(aa) "hardcore prisoner" means a person confined in prison under a sentence of imprisonment, who has been convicted of-(i) an offence of rape with murder under section 376 read with section 302 of the Indian Penal Code, 1860; (ii) an offence punishable under section 14 of the Protection of Children from Sexual Offences Act, 2012;"; 11. The petitioner does not fall under the said category and therefore, is not a 'hardcore prisoner'. 12. The petitioner does not fall under the said category and therefore, is not a 'hardcore prisoner'. 12. In the present case the benefit of parole has been declined to the petitioner vide impugned order dated 29.09.2022 (Annexure P-1) on the ground that there is apprehension of breach of peace in the event of release of the petitioner on parole and he can indulge in activities of selling drugs and also placed reliance on the reports of the District Magistrate, Ludhiana, Commissioner of Police, Ludhiana, and the District Magistrate Lakhimpur Kheri (UP) not recommending the grant of parole to the petitioner. However there is no mention of any other case registered against the petitioner for such activities. Further, it is worth mention that the petitioner had not misused the concession of parole availed by him earlier. 13. Undoubtedly, parole or furlough is a concession granted to a prisoner. However, grant of such concession is regulated by a statue and on fulfilment of conditions prescribed therein, a prisoner is entitled to parole. The concession of releasing a prisoner on parole or furlough is circumscribed by a statute; therefore, the release of prisoner is in exercise of the right created under that statute. In other words, the authorities under the 1962 Act cannot act arbitrarily, capriciously or without due application of mind. 14. We find that the impugned order has been passed in a routine and mechanical fashion only by reciting that if such concession is granted, there would be apprehension of public peace and State security or that he will implement a big deal of sale of narcotics. However, no foundation/material has been adverted to in the reply or by learned State counsel during the course of the arguments to justify such apprehension. 15. Thus, it appears that the competent authority while passing the impugned order dated 29.09.2022 (Annexure P-1) has acted mechanically and as such we feel, in the circumstances mentioned above, that the impugned order is without any sustainable reasons and accordingly the present petition is allowed by setting aside the impugned order dated 29.09.2022 (Annexure P-1). The petitioner shall be released on parole for the period of four weeks on his furnishing the requisite bail bonds to the satisfaction of the competent authority and he shall surrender back in time in jail premises on the expiry of the said period after his release from jail.