( 1. ) INVOKING the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner, the father of the convict, Jitendra, has prayed for issuance of an appropriate direction commanding the respondents to release his son as per the provisions of the Prisoners Act, 1900 (hereinafter referred to as the Act) for a period of one month.

( 2. ) THE facts as have been uncurtained are that the petitioners son has been convicted of an offence under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the NDPS Act) and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 40,000/ -.

( 3. ) AFTER serving the substantive sentence for a period of two years the petitioner applied for temporary release on the ground of his mothers illness under Section 31-A of the Act but the same has been rejected by the respondent No. 2, the District Magistrate, Narsinghpur, on the ground that there is possibility of the petitioner getting involved in the crimes of similar nature. It is urged in the petition that the respondent No. 2 has passed the impugned order on the basis of the report obtained from the Superintendent of Police, Narsinghpur, without verifying the antecedents of the petitioner and applying his mind.

( 4. ) THE matter was listed for admission on certain dates and the learned Panel Lawyer for the State took time to obtain instructions in the matter. The matter was heard on 10-5-2001 and on that day considering the importance of the matter Mr. R. Menon was appointed as Amicus Curiae to address the Court. On the adjourned date Mr. R. D. Ahirwar, learned counsel for the petitioner, Mr. P. D. Gupta, learned Deuty Advocate General for the State and Mr. R. Menon, friend of the Court were heard in the matter. It is submitted by Mr. Menon as well as by Mr. Ahirwar that the petitioner is entitled to parole, as he is entitled to the same as per law. It is further submitted by them that the order impugned is not based on the any material to establish that the petitioner would get himself involved in the similar activities and in absence of such material the order passed vide Annexure P-1 is susceptible. Mr. Gupta, learned Deputy Advocate General for the State, on the contrary, has contended that when the petitioner has been convicted under the NDPS Act, he is not entitled to the benefit of parole and further the order passed by the District Magistrate, Narsinghpur, is based on the report submitted by the Superintendent of Police and hence, no fault can be found with the said order. ( 5. ) TO appreciate the rival submissions raised at the Bar, it is apposite to refer to certain provisions of the Act. Sections 31-A to 31-E of the Act have been inserted by way of amendment in the State of M. P. They read as under

:

"31-A. Grant of leave to Prisoners.-- (1) Subject to the provisions to this part and to such conditions as may be prescribed, the State Government or any authority to which the State Government may delegate its powers in this behalf may grant leave to any prisoner who has been sentenced to a term of imprisonment of not less than three years, for a period not exceeding twenty one days in a year, excluding the time required for journeys to the first place of his visit immediately after departure from the prison and from the place of last visit to the person back.

(2) The provisions of Sub-section (1) shall not apply to a prisoner who has been classified as a habitual criminal for the purpose of the rules for the time being in force made under the Prisons Act, 1894 (IX of 1894) and who has more than three previous convictions.

(3) Leave shall not be admissible to a prisoner during a year under Sub-section (1):- (i) for more than two occasions; (ii) for a period of less than ten days; and (iii) unless a period of three months has elapsed since the expiration of leave last availed of during the year and the commencement of the leave a