Hon'ble MISHRA, CJ.—Reference has been made by the Single Bench on 8.11.2011 with respect to the grant of first regular parole to the petitioner Shambhu Dayal, who has been convicted for committing offence under Section 8 read with Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo 10 years rigorous imprisonment with fine of Rs.1 lac. The question referred by the Single Bench is to the effect whether the order dated 4.5.2011 passed by the Single Bench in S.B. Civil Writ Petition (Parole) No.5711/2011 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 permanent without the question of payment of fine being reckoned.

2. 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 imprisonment is for an offence relating to a matter to which executive power of Union extends such as under NDPS Act.

(2) Whether it is necessary for consideration of application for parole that fine imposed is deposited before application for parole is considered.

3. Shri Amarjit Singh Narang, learned counsel appearing on behalf of the petitioner has submitted that in view of the Division Bench decisions of this Court in State of Rajasthan vs. Mana Singh, etc. etc. (2002(2) RLR 285 = RLW 2003(1) Raj. 308 = 2002 (2) WLN 719) and Samiullaha vs. State of Rajasthan & ors. (2002 (1) RLR 41 (Raj.) = RLW 2002(4) Raj. 1972 = 2002(4) WLN 456), the petitioner is entitled for release on parole under the Parole Rules, 1958. He has also relied upon the decisions of the Apex Court in Maktool Singh vs. State of Punjab (AIR 1999 SC 1131 = RLW 2000(1) SC 69 = (1999) 3 SCC 321) and Dadu @ Tulsidas vs. State of Maharashtra (AIR 2000 SC 3203 = RLW 2000(3) SC 476 = (2000) 8 SCC 437).

4. On the other hand, it was submitted by Shri Rajendra Yadav and Shri M.A.Khan, learned counsel appearing on behalf of the respondents that in view of Rule 1(c) of the Parole Rules, 1958 framed by the State of Rajasthan, the Parole Rules, 1958 cannot apply to a convict under NDPS Act and his case has to be considered by the Central Government as per the Central Rules framed vide Notification of the Government of India, Ministry of Home Affairs No.40/32/55-Judl.I dated 9th November, 1955; the State Government is not the appropriate Government so as to consider the cases where the persons have been sentenced to undergo 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 and thus, the State Government was not competent to consider the cases of such persons for release on parole. It was further submitted that the Rules framed by the Central Government vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench deciding the cas

Click Here to Read the rest of this document