JUDGMENT :

S. Vaidyanathan, G. Jayachandran, JJ.

Prayer: Writ Petition filed under Section 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the 3rd respondent in Letter No.13325/TK2/2020 dated 20.10.2020 and quash the same and to direct the 3rd Respondent to grant leave of two months without escort to her husband, namely, O.Kasirajan now confined in Madurai Central Prison.

This Writ Petition has been filed to quash the impugned order dated 20.10.2020 passed by the 3rd respondent in Letter No.13325/TK2/2020, in and by which, the request of the petitioner to grant leave of two months without escort to her husband, namely, O.Kasirajan, confined in Central Prison, Madurai, has been declined. Aggrieved by the same, the Petitioner is before this Court.

2. It was the case of the Petitioner that on 09.01.2020, her husband was convicted and sentenced to undergo 10 years of imprisonment in C.C.No.99 of 2018 by the learned Additional Principal Special Judge for NDPS Act cases, Madurai and that she has two school going children and has been struggling to maintain the family on account of financial crisis. It was her further case that she made a representation dated 15.10.2020 to the respondents for grant of leave to her husband and the same was rejected on 20.10.2020 on flimsy reason, citing the pendency of yet another case in Kollam. She has stated in her affidavit that parole is not a suspension of the sentence and it can be granted for a special purpose based on the good behaviour of the prisoner.

3. Learned counsel for the Petitioner submitted that in similar circumstances, this Court in the case of S.Rajan vs. State [W.P.No.4247 of 2021] dated 23.02.2021 had considered the case of the petitioner therein positively for grant of leave. Learned counsel also referred to Paragraph No.4 of the order, which reads as under:

“5. It is left open to the petitioner to seek for bail in the other two pending cases and after obtaining bail, the petitioner can always approach the fourth respondent and seek for leave and such representation shall be considered by the fourth respondent in accordance with the rules.”

Thus, it was pleaded that the same benefit can be extended to the Petitioner's husband herein and the rejection order is arbitrary, discriminatory and is in violation of Articles 14 and 21 of the Constitution of India.

4. Per contra, learned Additional Public Prosecutor contended that as per the provisions of Rule 3 of the Tamil Nadu Suspension of Sentence Rules, 1982 (in short 'Rules, 1982'), leave cannot be claimed as a matter of right, which is merely construed as a concession granted to the Petitioner. Moreover, yet another case is pending trial before the 3rd Additional District and Sessions Judge, Kollam, against the petitioner's husband in Crime No.2416 of 2012 under Section 20(b) ii B of NDPS Act on the file of Kollam East Police Station. He further contended that Rule 35 of the Rules, 1982 clearly stipulates that “no prisoner on whom case is pending trial shall be granted leave” and hence, the petitioner's husband is not entitled to leave and the rejection order passed by the 3rd respondent is perfectly valid in the eye of law.

5. Heard the learned counsel for the Petitioner, learned Additional Public Prosecutor for the State and perused the materials available on record.

6. Admittedly, the petitioner's husband was a Convict No.653 in respect of a case in C.C.No.99 of 2018 on the file of Additional Principal Special Judge for NDPS Act cases, Madurai for offences under Section 8(c) r/w 20 (b) (ii) (C) of NDPS Act. In addition to the said case, one more case has been registered against her husband by the Kollam East Police in Crime No. 2416 of 2012 under the provisions of NDPS Act. Though learned counsel for the Petitioner relied upon a decision of this Court dated 23.02.2021 (supra) in support of his stand, the Paragraph No.5 of that case ca