The computation of the five years imprisonment period for the grant of parole or furlough to convicted hardcore prisoners under Section 5A of the Act of 1988 should exclude more than two years of imprisonment during trial, and the punishment awarded by the trial court should not be considered as the punishment awarded by the Superintendent of Jail.

Surinder Gupta, J.

The question, which arises for consideration in this petition is how to compute period of five years bar, prohibiting grant of parole or furlough to convicted hardcore prisoners as provided in Sub Section (2) of Section 5A of the Haryana Good Conduct Prisoners (Temporary Release) Act (later referred to as 'the Act of 1988'), as amended vide Haryana Act No. 16 of 2015.

Section 5A of the Act of 1988 reads as follows:-

"5A Special provisions for temporary release of hardcore prisoners - (1) Notwithstanding anything contained in sections 3 and 4, no hardcore prisoner shall be entitled to temporary release or furlough.

Provided that a hardcore prisoners may be released on temporary basis to attend the marriage of his grand child or sibling, or death of his grand parent, parent, grand parent-in-laws, parent-in-laws, sibling, spouse, child or grand child under an armed police escort, for a period of forty-eight hours, to be decided by the concerned Superintendent of Jail;

Provided further that a hardcore prisoner may be released on temporary basis to attend the marriage of his daughter for ninety-six hours and for the marriage of his son for seventy-two hours under an armed police escort, to be decided by the concerned Superintendent of Jail. He shall intimate within twenty-four hours, the concerned District Magistrate and Superintendent of Police in this regard with full particulars of the hardcore prisoner being so released.

"(2) Notwithstanding anything contained in sub-section (1), a convicted hardcore prisoner who has not been awarded death penalty, may be entitled for temporary release or furlough only if he has completed his five years imprisonment and has not been awarded any major punishment by the Superintendent of Jail, as judicially appraised by the concerned District and Sessions Judge;

Provided that the five year imprisonment period shall not include imprisonment during trial period for more than two years, while counting five years of imprisonment;

Provided further that if the prisoner so released under this sub-section violates any condition of temporary release or furlough, he shall be debarred from such release in future."

2. Petitioner-Surjeet Singh was convicted and awarded sentence of rigorous imprisonment for ten years vide judgment dated 13.02.2001 in case bearing FIR No. 338 dated 02.10.1996, registered at Police Station Kalanwali, District Sirsa for offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeal filed by petitioner was also dismissed.

3. As per custody certificate produced by the petitioner as Annexure P-1, he has undergone actual sentence of 5 years 3 months and 21 days as on 17.03.2017, which include under-trial imprisonment period of 6 months 2 days. He moved an application seeking parole to look after his crops, which was declined by Commissioner, Hisar Division vide order dated 14.11.2016 with observation as follows:-

"As per section 2(aa) (iv) of Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013 issued by Haryana Government Jail department, the following provisions are mentioned:-

2. For clause (aa) of section 2 of the Haryana Good Conduct Prisoner Amendment of (Temporary Release) Act, 1988, the following clause shall be substituted section 2 of Haryana namely (aa) (i) (iv) "Hardcore Prisoner" means a person, who has been detected of using cell phone or in possession of cell phone/SIM card inside the jail premises; or

After section 5 of the principal Act, the following sections shall be inserted, namely:-

"5A Special provisions for hardcore prisoners -

Notwithstanding anything contained in sections 3 and 4, a hardcore prisoner shall not be released on temporary basis or on furlough;

Provided that a hardcore prisoner may be allowed to attend the marriage of his child, grand child or sibling, or death of his grand parent, parent, grand parent-in-laws, parent-in-laws, sibling, spouse or child under the armed poli