Parole Denial Based on Mere Possibility of Absconding Unsustainable, Must Align with Statutory Grounds Under HP Good Conduct Prisoners Act: Himachal Pradesh High Court - 2025-04-26

Himachal Pradesh High Court Sets Aside Parole Rejection, Emphasizes Statutory Compliance Over Mere Apprehension of Absconding Shimla, HP - In a significant ruling concerning prisoner rights and the application of parole laws, the Himachal Pradesh High Court has set aside an order rejecting the temporary release (parole) application of a convict serving a sentence under the Narcotic Drugs & Psychotropic Substances Act (ND&PS Act).

A Division Bench of the Court, comprising Hon’ble Mr. Justice G.S. Sandhawalia , Chief Justice, and Hon’ble Mr. Justice Ranjan Sharma , held that rejecting parole based on a mere possibility of the convict absconding, without concrete grounds related to state security or public order as mandated by the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 and its Rules, is unsustainable.

Authored by Justice Ranjan Sharma , the judgment underscores the reformative object of parole and the need for authorities to strictly adhere to statutory procedures and principles laid down by the Supreme Court while considering temporary release applications.

Case Background

The petitioner, Kashish Gulyani, was convicted under Section 22 of the ND&PS Act by the Special Judge-II, Kullu, vide judgment dated October 11, 2023, and sentenced to rigorous imprisonment for ten years and a fine of Rs 1,00,000.

Having undergone two years, seven months, and twenty-five days of sentence, and not having previously availed parole, the petitioner applied for temporary release for 28 days on August 29, 2024, primarily to meet his family members, including old parents, a wife, and a young daughter. He highlighted the distance and poverty preventing family visits to his place of detention in Nahan , HP.

When no decision was taken on his application, the petitioner filed a writ petition (CWP No. 2609 of 2025) before the High Court on February 24, 2025.

Procedural Developments and State's Stance

Upon the High Court's intervention directing a decision, the State filed a reply. It admitted the petitioner's conviction, sentence duration, and the non-deposit of the fine amount. Critically, the reply stated that the petitioner's conduct in jail had been found "good" as per the Custody Certificate.

However, the State authorities rejected the parole application via an order dated March 18, 2025. This rejection was based on reports from the District Magistrate and Superintendent of Police, Alwar, Rajasthan (petitioner's native place). The SP's report, dated November 26, 2024, expressed apprehension that "there is no guarantee that petitioner will surrender after completion of parole period." Based on this "possibility," the DM Alwar forwarded a "non-recommendation" on December 27, 2024. The competent authority (Director of Prisons) adopted these non-recommendations, concluding that the possibility of absconding could not be ruled out.

Court's Analysis and Legal Principles

The High Court meticulously reviewed the legal position on parole, citing several landmark Supreme Court judgments:

• Poonam Lata vs. M.L. Wadhawan (1987): Emphasized parole as a "wing of the reformative process" and "partial liberty granted conditionally."
• State of Maharashtra vs. Suresh Pandurang Darvakar (2006): Highlighted the object of parole for family association, social ties, and avoiding the ill-effects of continuous prison life, distinguishing it from furlough.
• Asfaq vs. State of Rajasthan (2017): Reiterated the reformative object, the need for convicts to maintain family and social ties, and the public interest in preparing offenders for re-entry. Importantly, it held that the mere nature of the offence or apprehension of absconding should not outrightly deny parole, especially if the convict shows signs of reform and is not a "hardened criminal" (defined as one habitually relapsing into crime). It stressed balancing reformation with public security (deterrence and prevention).
• State of Gujarat vs. Narayan (2021): Summarized key principles, noting parole is for specific exigencies, requires balancing public interest, and can be refused for categories posing a threat (Rule 4(4) of Gujarat Rules, akin to Section 6 of HP Act, on public peace/tranquility).
• Atbir vs. State (NCT Delhi) (2022): Stated that denial of parole/furlough takes away the incentive for good conduct and is antithetical to the reformative approach. Good conduct in jail merits consideration for parole/furlough.

Turning to the statutory framework in Himachal Pradesh , the Court examined The Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, particularly Section 3 (grounds for temporary release) and Section 6 (prisoners not entitled if release endangers state security or public order). It also referenced Rule 3 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Rules, 1969, which outlines the procedure for verification and recommendation by the District Magistrate and Superintendent of Police, mandating their opinion on the likelihood of endangering state security or public order. Section 8 and 9 of the Act provide consequences for overstaying or failing to surrender.

Court's Findings on the Rejection

The High Court found the rejection order dated March 18, 2025, unsustainable for several reasons:

1. It defeated the intent and object of the HP Act and Supreme Court mandates on parole.
2. The rejection was deemed "casual and cryptic."
3. The District Magistrate failed to conduct the mandated consultation with the Superintendent of Police specifically on whether the release was dangerous to state security or prejudicial to public order, as required by Rule 3 and Section 6.
4. The competent authority (Respondent No. 2) rejected the plea without independently applying its mind to the twin conditions under Section 6 and Rule 3, merely adopting the non-recommendations.
5. Denial based on a "mere bald averment" or "possibility" of absconding, without cogent material showing a threat to state security or public order, was found to be outside the grounds permissible under Section 6 of the Act.
6. The Court emphasized that Section 8 and 9 of the Act provide legal mechanisms and penalties to address the risk of overstaying or absconding.
7. The petitioner's "good conduct" in jail was noted, highlighting that denying parole despite good behavior runs counter to the reformative objective and incentive structure.
8. Objections from local authorities or individuals cannot be the sole determinant, overriding the statutory considerations under Section 6.

The Court reiterated that while parole is not an absolute right, the discretion to grant or deny must be exercised fairly, impartially, and judiciously, considering all relevant factors, including good conduct, and only denying it on grounds permissible by statute.

Decision and Directions

In light of the above analysis, the High Court allowed the petition, ordering as follows:

1. The rejection order dated March 18, 2025, is quashed and set aside.
2. The State Authorities are directed to re-consider the matter expeditiously.
3. Upon reconsideration, the petitioner shall be released on parole for 28 days from April 24, 2025, to May 22, 2025.
4. The petitioner must surrender before the Superintendent, Model Central Jail, Nahan , District Sirmour, HP, on May 23, 2025, by 3:00 p.m.
5. The release is subject to furnishing a personal bond of Rs 25,000/- with one surety from his native place to the satisfaction of the concerned Trial Court.
6. Stringent conditions are imposed: the petitioner shall not involve himself or abet any offence; his involvement will result in automatic cancellation of parole; he must disclose contact information; he shall not jump parole or leave the country.
7. The Trial Court or State Authorities/Superintendent Jail are free to impose additional conditions.
8. The State is permitted to approach the Court for alteration, modification, or cancellation of parole in case of violation of conditions or necessitated by circumstances.

The Court directed the Registry to furnish copies of the judgment to concerned authorities in Himachal Pradesh and Rajasthan for compliance. The judgment highlights the judiciary's role in ensuring executive actions regarding prisoner rights conform to statutory provisions and established legal principles, particularly the balance between public safety and the reformative goals of the penal system.