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GUJARAT HIGH COURT
M.B. Shah and B.C. Patel, IJ.
Ishwar Singh M. Rajput - Petitioner
versus
State of Gujarat - Respondent
Special Criminal Applications
Nos. 988, 1174,1175, 1182 and 1218 of 1990.
Decided on 5-11-1990.
Counsel for the parties:
Spl. Crl. App. No. 988 of 1990.
For the Petitioner: Mr. A.H. Mehta
For the Respondent: Mr. M.A. Bukhari Addl. P.P.
Spl. Crl. Appl. No. 1174 of 1990
For the Petitioner: Miss J.C. Bhatt
For the respondent: Mr. R.P. Solanki
Spl. Cd. Appl. No. 1175 of 1990
For the Petitioners: Miss. J.C. Bhatt
For the Respondent: Miss R.M. Doshit
Spl. Cd. Appl. No. 1182 of 1990
For the petitioner: Mr. V.M. Dhotre
For the respondent: Mr. M.D. Raval
Spl Cd. Appl. No. 1218 of 1990
For the Petitioner: Mr. A.H. Mehta
For the respondent: Mr. D.K.Trivedi Addl. P.P.
IMPORTANT POINT
Considering s. 32 A of N.D.P.S. Act, 1985 prisoners who are convicted under the said Act are not entitled to be released or Parole or furlough.
Headnote:(i) Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 32A - No suspension, remission or commutation in any sentenee awarded under this Act - Whether any person convicted under NDPS Act, 1985 can be released either on parole or rurlough by the concerned authority under Parole and Furlough Rules arter addition or S. 32A? (No)-Because Parol means suspension or sentence Furlough amounts to remission or sentence There i5 clear mandate or Parliament u/s. 32A NDPS Act not to suspend or remit sentence awarded under the Act. (Paras 5 & 6)
(ii) Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 32A Constitution or India - Articles 14, 21, 72 and 161 Section 32A whether inracts any or the Articles or the Constitution? (No) (Paras 8, 10, 16 to 19)
Result: Petition dismissed.
JUDGMENT
M.B. Shah, J. - In these petitions, the question, which requires determination, is whether a person convicted under the Provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Narcotics Act") can be released either on parole or furlough by the concerned authority under Parole and Furlough Rules after addition of section 32A in the Act? Section 32A reads as under:
"32A. No suspension remission or commutation in any sentence awarded under this Act:
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) 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."
This section came into force with effect from 29th May, 1989. It is mandate of the aforesaid section that-notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any law for the time being in force no sentence under this Act shall be suspended, remitted or commuted, otherwise that is provided under section 26 or section 33 of the Act. The language of section 32A is clear and admits of no ambiguity. Therefore, once a person is convicted under the Narcotics Act, his sentence cannot be suspended or remitted. .
2. By granting parole or furlough, the prisoner is released from the jail for a short time. It is granted for various reasons, such as, to enable the prisoner to return to the outside world, to enable continuity with his family life, and to deal with family matters, etc. If the prisoner is released on parole, his sentence is suspended for the time being for the period for which he is released on parole. If he is released on furlough, his sentence is suspended and remitted. However, grant of parole or furlough is a concession given to the prisoner under the system, known as "Parole and Furlough Rules", which are framed under the provisions of the Prisons Act, 1894. The purpose and object of granting parole or furlough is, to some extent, considered by the Full Bench of this Court in the case of Bikhabhai v. State 1. The relevant discussion is under:
"The Parole and Furlough Rules are part of the penal and prison reform with a view to humanise the prison system. These rules enable the prisoner to obtain his release and to return to the outside world for a short prescribed period. The objects of such a release of prisoner can be read from para 101 of the report submitted by the All India Jail Manual Committee as also the objects mentioned in the Model Prison Manual. These objects are:
1) to enable the inmate to maintain continuity with his family life and deal with family matters.
2) to save the inmate from the evil of forts of continuous prison life.
3) to enaable the inmate to maintain constructive hope and active interests in life.
14. In the Statement of Objects and Reasons for Bombay (Prison Amendment) Act No. 27 of 1953, the Jail Reforms Committee had recommended and the Government accepted the recommendation that:
"There should be the system of release of prisoners on furlough under which well behaved prisoners of certain categories should, as a matter of right have a spell of freedom occasionally after they undergo a specified period of imprisonment, so that they may maintain contact with their near relatives and friends and may not feel uprooted from society. Government accepted these recommendations and also decided that the furlough period should count towards the prisoner's sentence.
The experience has shown that the system has worked satisfactorily. The Prisons Act, 1894 does not specifically provide for the grant of furlough and the remission of sentence consequent upon it. In order to place the system on a permanent footing and to enable the Government to delegate its powers to the Inspector General of Prisons, it is necessary that the Prisons Act, 1894 should be amended in its application to the State of Bombay."
3.
