2024:BHC-NAG:4111-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH : NAGPUR.

CRIMINAL WRIT PETITION No. 155 OF 2023.

Arun Gulab Gawli, Aged 71 years, resident of Geetai Cooperative Housing Society, 3^rd Floor, Bapurao Jagtap Marg, Byculla, Mumbai – 400 011.

Presently lodged in Nagpur Central Prison, Nagpur as a Prisioner convicted under the provisions of the Mahashtra Control of Organized Crime Act, 1999. ... PETITIONER.

VERSUS

1.The State of Maharashtra, through Deputy Inspector General Prison (East), Nagpur.

2.The Advisory Board, Nagpur Central Prison constituted under Rule 3 of the Maharashtra Prisons (Review of Sentence) Rules, or other applicable provisions of law having its office at Nagpur Central Prison, Nagpur.

3.The Secretary to the Government of Maharashtra, Home Department, Mantralaya, Madam Cama Marg, Hutatma Rajguru Chowk, 2^nd Floor, Main Building, Mumbai – 400032.

4.The Dy. Secretary to the Government Home Department, Mantralaya, Madam Cama Marg, Hutatma Rajguru Chowk, 2^nd Floor, Main Building, Mumbai – 400032.

5.The Addl.Director General of Police and Inspector General of Prisons, Maharashtra, having office at Central Building, Agarkar Nagar, Pune 411 001.

6.The Superintendent of Central Prison, Having office at Nagpur Central Prison, Wardha Road, Ajani Chowk, Dhantoli, Nagpur 440012.

7.The Commissioner of Police, Nagpur, CBI Colony, Sadar, Nagpur 440001. ... RESPONDENTS.

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Mr. M.N. Ali, Advocate for the Petitioner. Mr. M.J. Khan, Addl.P.P. for Respondents.

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CORAM : VINAY JOSHI AND VRUSHALI V. JOSHI, JJ.

CLOSED FOR JUDGMENT ON : MARCH 05, 2024. JUDGMENT PRONOUNCED ON : APRIL 05, 2024.

JUDGMENT (PER VINAY JOSHI, J.) :

Heard. Rule. Rule is made returnable forthwith and by consent of the learned Counsel for the parties, the Writ Petition is taken up for final disposal.

2. By this petition the petitioner, who has been convicted under the provisions of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as “the MCOC Act” for short), is seeking his premature release on account of the remission policy dated 10^th January, 2006, which was prevailing on the date of his conviction dated 31.08.2012. The petitioner claims to have been complied with all the conditions of the policy of the year 2006, and thus, the rejection by the respondent Authorities is unjust, arbitrary and is liable to be set aside.

3. The petitioner has been convicted for the offences under the provision of the MCOC Act, vide judgment and order dated 31.08.2012. By the time the petitioner has served actual imprisonment for 14 years. The petitioner has completed 65 years of age and he has been certified as weak by the Medical Board making him eligible for availing the benefit of the policy of the year 2006.

4. The State is empowered to frame policy for premature release. In terms of Section 59 of the Prisons Act, 1894 time to time different policies for early release have been framed. Initially the State Government vide notification dated 31.12.1999 framed a Special Remission Policy, particularly for a class of prisoners who have completed 65 years of age; weak and had undergone 14 yeas of actual imprisonment. Later on the said policy was revised vide notification dated 10.01.2006, which was prevailing on the date of conviction of the petitioner. The said policy similarly provides for early release for those life convicts who have undergone 14 years of actual imprisonment; completed 65 years of age and were physically weak. However, the policy has some inbuilt exceptions stating that the policy would not apply to the convicts of specific enactments stated therein.

5. Vide notification dated 01.12.2015, Rule 6 of the Maharashtra Prisons [Review of Sentences] Rules, 1972 has been modified with addition of sub-clause [3] and [4] below sub-clause [2] of Rule 6. It has excluded applicability of the policy to the convicts under certain Acts including convicts under MCOC Act. The p