The time spent on parole by a prisoner can be included in the period of imprisonment undergone by him, as clarified by Sec.3(3) of the Punjab Good Conduct Prisoners (Temporary Release) Act, but shall not be counted towards the total period of sentence of imprisonment.

1. The petitioner Faqir Singh is undergoing life imprisonment in Central Jail, Gurdaspur. As per Government instructions his case for premature release was to be considered by the State Government after he had actually undergone 81/2 years of sentence and 14years of sentence including remissions. So far his case has not been considered by the Government on the ground that he does not fulfil these conditions because he has undergone actual imprisonment for only 8 years one month and ten days.

2. The contention on behalf of the petitioner is that in calculating the actual period of imprisonment undergone by him the time spent by him on parole has wrongly not been included. To this the reply on behalf of the State Government is that the period spent on parole cannot be considered to be a part of actual imprisonment. Thus, the vital point for consideration in this case is whether the time spent by a prisoner on parole is or is not to be included in the period of undergone actual imprisonment.

3. Light on this subject is thrown by the Supreme Court in Maru Ram V/s. Union of India, AIR 1980 SC 2147: (1980 Cri LJ 1440). In para 71 of this judgment it is observed that the expression "prison" and "imprisonment" must receive a wider connotation. Any life under the control of the State, whether within the high-walled world or not, may be a prison if the law regards it as such. Palaces, where Gandhiji was detained, were prisons. Restraint on freedom under the prison law is the test. Licensed releases where instant recapture is sanctioned by the law, and, likewise, parole, where the parole is no free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment. Thus, the view taken by the Supreme Court is that the time spent on parole is part of imprisonment because it is a licensed release and the prisoner released on parole is not a free agent.

4. The learned counsel appearing for the State relied upon Poonam Lata V/s. M.L. Wadhawan (1987) 3 SCC 347 : (1987 Cri LJ 1130), wherein it was held that when a person is detained under S.3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the period for which he was released on parole has to be excluded in reckoning the period of detention. This judgment is not relevant to the instant case because it relates to preventive detention. It was observed in the judgment itself that there is no denying of the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. It is explained that parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Parole is thus a grant of partial liberty or lessening of restrictions on a convict prisoner, but release on parole does not change the status of the prisoner. Preventive detention stands on a different footing. It is held by the Supreme Court that in cases of preventive detention the period for which a detenu is detained does not tantamount to imprisonment. The Court has no power to substitute the period of detention either by abridging or enlarging it. The only power that is available to the Court is to quash the order in case it is found to be illegal. That being so it would not be open to the Court to reduce the period of detention by admitting the detenu on parole. Preventive detention jurisprudence in this regard is very different from regular conviction followed by sentence that an accused is to suffer. Thus, the judgment relied upon by the learned State counsel is not an adequate reply to the observations of the Supreme Court in the case of Maru Ram (supra).

5. I am, therefore, of the view that the time spent on parole by a prisoner