The presence of rules, instructions, or conditions in the parole order could extend the period of detention, validating the provision of Section 3(3) of the Act.

Per Kuldip Singh, J.-This judgment shall dispose of Cr. W.P. No. 2 of 2007 and Cr. W.P. No.3 of 2007 as identical question of law is involved in both the petitions. In Cr. W.P. No. 2 of 2007, ten prisoners and in Cr. W.P. No.3 of 2007, two prisoners submitted representations to Hon’ble the Chief Justice of this Court. On the basis of the aforesaid representations, this Court took suo motu cognizance of the question raised by the prisoners in the two representations and, therefore, two writ petitions came to be registered. Mr. Suneel Mohan Goel, Advocate was appointed Amicus Curie in both the writ petitions. Thereafter the petitions were amended. In view of common question of law involved in the two petitions, we are giving facts from Criminal Writ Petition No. 2 of 2007.

2. The case of the petitioners is that sub section (3) of Section 3 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 (for short ‘Act’) to the effect that the period of release under said section shall not count towards total period of sentence of a prisoner is bad in law and the same is contrary to law laid down by the Supreme Court in Sunil Fulchand Shah Vs. Union of India 2000 (3) SCC 409. The Supreme Court has held that period spent by a convict on parole is to be counted towards total sentence that has been undergone by the convict. It has been pleaded that in view of Article 141 of the Constitution, the judicial pronouncement of the Supreme Court is the law of the land. The sub section (3) of Section 3 of the Act is bad in law and against the judgments of the Supreme Court. A mandamus has also been prayed against the respondents restraining them from enforcing sub section (3) of Section 3 of the Act and to direct the respondents to include the period of parole for counting the total period of sentence undergone by a convict.

3. The respondents contested the petition by filing reply and have pleaded that the Act is valid piece of legislation. The Act is consistent with the judgments of the Supreme Court and does not violate any Article of the Constitution. It has been pleaded that under Section 3 of the Act, prisoners are released on certain emergent grounds and their release period is not counted towards the total period of sentence, whereas, the prisoners who are released under Section 4 of the Act, their release period is counted towards the total period of sentence. The respondents have thus prayed that both the petitions be dismissed.

4. In the petitions, the petitioners in support of their case have referred Poonam Lata Vs. M.L. Wadhawan and others (1987) 3 SCC 347; Ashok Kumar alias Golu Vs. Union of India and others (1991) 3 Cri. L.J. 2483 (SC) ; Balkar Singh Vs. State of Haryana and others (1996) 3 Cri. L.J. 2373; Sunil Fulchand Shah Vs. Union of India and others (2000) 3 SCC 409 and State of Haryana Vs. Nauratta Singh and others (2000) 3 SCC 514. In other words, on the basis of these judgments the petitioners want to convey that period of parole is to be included in the actual period of sentence spent by the prisoner, whereas sub section 3 of Section 3 of the Act provides contrary and, therefore, sub section 3 of Section 3 of the Act be declared contrary to law laid down by the Supreme Court.

5. The petitioners have not challenged sub section 3 of Section 3 on the well known grounds such as legislative competence or sub section 3 of Section 3 has no nexus with the object sought to be achieved. The only ground of attack of the petitioners to sub section 3 of Section 3 is that this provision is contrary to law laid down by the Supreme Court and, therefore, it is illegal.

6. In Poonam Lata Vs. M.L. Wadhawan and others (1987) 3 SCC 347, the wife of one Shital Kumar, who was detained under Section 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 had filed the petition under Article 32 of the Constitution. The counsel for the petitioner confined his submission to only one a