Honble MISRA, J.–The question that falls for consideration in this writ petition is whether an accused like the petitioner herein who has been convicted and sentenced for the offence under the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter shortly referred to as `the N.D.P.S. Act of 1985) can at all avail the privilege of `parole under the Rajasthan Prisoners Release on Parole Rules, 1958 (for short `Rajasthan Prisoners Rules, 1958) for any reason whatsoever.

(2). A slight enumeration of the circumstances would indicate that the petitioner herein-Samiullaha has been convicted and sentenced for an offence under Sec. 8/21 of the N.D.P.s. Act, 1985 vide judgment and order dated 25.9.2000 passed by the Special Judge, N.D.P.S., Jaipur against which the petitioner has preferred as appeal before this High Court which is pending. During pendency of the appeal and while undergoing the sentence, the petitioner filed an application before the Jail authorities for emergency parole under Rule 10-A of the Rajasthan Prisoners Rules, 1958 for the treatment of his minor son Wahid on the plea that he has developed Brain Tumour and has been referred for further treatment to Mumbai by the Associate Professor of Neurology Unit in the S.M.S. Hospital at Jaipur. For this purpose the petitioner wanted to be released temporarily on parole since there is on one else in the petitioners family to take the child to Mumbai for further treatment. It is stated by the petitioner that the Jail authorities orally refused to grant an emergency parole to the petitioner and, therefore, he did not feel the need to file further application for grant of regular parole. The petitioner feeling aggrieved by the refusal of the Jail authorities to grant him even emergency parole, has been compelled to file this writ petition for a direction to the Jail authorities to release the petitioner for a period of two months so that he can get his son Wahid checked-up and get him treated for his Brain Tumour. He has also prayed that any ban on the grant of parole to the prisoners convicted under the Act of 1985 be declared illegal and unconstitutional.

(3). On a show cause notice being issued to the respondents, a reply has been filed on behalf of the State of Rajasthan through the Jail authorities, stating therein that the State of Rajasthan vide Notification/Instruction No. 21(58) Home - 12/76 Jaipur dated 29.4.2000 has imposed a ban on the power of the Jail authorities to grant parole to any prisoner who is convicted and serving the sentence under the N.D.P.S. Act of 1985. It has been further stated therein that the petitioner has not submitted any application for grant of parole for the treatment of his son Wahid for Brain Tumour. It has also been stated that the petitioner had initially applied for grant of parole for the treatment of his wife and the same being rejected, he has again filed this writ petition on the plea of treatment f his son Wahid. It is also submitted that the petitioner never applied even for emergency parole under rule 10-A of the Rules of 1958 to the respondents herein and straightway filed this writ petition claiming parole.

(4). At this stage the counsel for the petitioner explained that since a blanket ban has been imposed on the power to grant parole to any convict undergoing sentence for offence under the Act of 1985, it would have been a futile exercise to move any application for grant of parole unless a competent Court holds that such a ban is illegal and unconstitutional. The respondents on the other hand, relied upon the judgment passed by a Division Bench of this Court in DB Civil Writ Petition No. 2024/2000, dated 10.5.2000 wherein the learned Judges of the Division Bench relying upon the decision of the Apex Court in the case of Maktool Singh vs. State of Punjab (1), held that in no circumstance the sentence imposed on the person convicted for the offence under the Act of 1985 can be suspended since the learned Judges therein

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