1. The petitioner claims that State has denied him substantial right of furlough under The Prison (Bombay Furlough and Parole) Rules, 1959, (hereinafter called the said Rules) on the ground that Rule 4(11) of the said Rules, provides that the prisoner convicted for offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, are not eligible for grant of furlough. Learned Advocate Shri Sirpurkar was appointed as amicus curiae to assist the Court in the matter.
2. The State in its reply has stated that the petitioner had preferred Criminal Application No. 606 of 2001 for grant of parole or temporary bail which was rejected by this Court on 18-5-2001 and that the petitioner is not entitled to furlough.
3. Learned Advocate for the petitioner urged before me insofar as challenge on the basis of Rule 4(11) of the said Rules is concerned, the said challenge of the petitioner is based upon misconception that Rule 4(11) of the said Rules is applicable to Maharashtra whereas the said Rule 4(11) is applicable only in the case of Slate of Gujarat. However, it was urged by learned Advocate for the petitioner that in view of the judgment of the Apex Court in Dadu alias Tulsidas v. State of Maharashtra reported in : 2000CriLJ4619 , the petitioner would be entitled to furlough. In this connection, my attention was drawn to Rule 3, Rule 13, Rule 16 as also Rule 20 of the said Rules. According to the learned Advocate for the petitioner since the furlough period is to be counted as remission of sentence under Rule 16 of the said Rules, it does not amount to suspension of sentence and as such the petitioner would, therefore, be entitled to furlough in view of the judgment of the Apex Court in Dadu alias Tulsidas v. State of Maharashtra (cited supra).
4. On the other hand, learned P.P., after placing reliance on Constitution Bench Judgment of the Apex Court in Sunil Fulchand Shah v. Union of India and Ors. reported in : 2000CriLJ1444 urged before that the Apex Court has dealt with the concept of parole at greater length and taking into consideration the general concept of parole has laid down that parole does not interrupt the period of detention and, thus, that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instruction, prescribe otherwise. According to the learned P.P. under Rule 16 of the said Rules, furlough is to be counted as remission of sentence and since Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 puts embargo on the release of prisoners on remission, the petitioner in the light of Rule 18 of the said Rules is not entitled to be released on furlough.
5. In order to appreciate the arguments advanced on either side, it is necessary first to note down the provisions which are required to be considered in deciding the issue. Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act) lays down :--
'32A. No suspension, remission or commutation in any sentence awarded under this Act. -- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted.'
This provision was inserted by Act No. 2 of 1989. Rules regulating grant of furlough are contained in Rule 2 to Rule 17 of the said Rules. Rule 2 speaks of sanctioning authority competent to grant furlough. Rule 3 prescribes time limit after which a prisoner can be released on furlough. Rule 4 debars certain categories of prisoners from being considered for release on furlough. Rule 5 provides that ordinarily furlough shall not be granted within period of six months from the date of his return from parole. Rule 6 provides that furlough shall not be granted without surety. Rule 7 provides that prisoner shall execute personal bond before release on furlough. Rule 8 provides how applications for grant of furlough have to be dealt with that is to say the procedural aspect of it. Rule 9 provides for fresh application for furlough after six months of the rejection of the previous application. Rule 10 provides for conditions of release on furlough subject to execution of personal bond or giving cash surety as required under the Rules. Rule 11 provides for declaration of the prisoner before release to accept and abide by the condition imposed in the release order. Rule 12 provides that ordinarily the prisoner shall bear the journey expenses. Rule 13 provides for extension for period of furlough. Rule 14 provides for intimation of release and of non-surrender of prisoner. Rule 15 provides that release order becomes inoperative on a prisoner's surrender to the prison authorities for the purpose of extension of furlough. Rule 16 around which the whole controversy revolves reads as under:--
16. Furlough to be counted as remission of sentence. --The furlough period shall be counted as a remission of sentence : Provided that where any furlough period has been extended under Note 4 below rule 3 or under rule 13, the period of extension shall not be counted as a remission of sentence.'
Though Rule 17 provides that the rules do not confer legal right on the prisoner to claim release on furlough yet it is now settled that furlough is a matter of right, as can be seen from the judgment of this Court in Sharad Keshav Mehta v. State of Maharashtra reported in 1980 Cri.LJ 681 wherein it was laid down that the right to be released on furlough is a substantial legal right conferred on the prisoner and Rule 17 cannot deprive the prisoner of the substantial right to be released on furlough provided the requirements of the rules are complied with. The same view was reiterated in Sheikh Salim @ Guddu s/o Sheikh Gani v. State of Maharashtra and Ors. 1996 (1) Mh. LJ 843.
6. In Bhikhabhai Devshi v. State of Gujarat and Ors. reported in 1987 Cri.LJ 1932, Full Bench of the Gujarat High Court has laid down that the parole and furlough Rules are part of the penal and prison reform with a view to humanise the prison system. These rules enable the prisoner to obtain his release and to return to the outside world for a short prescribed period. The object of such release is to enable the inmate to maintain his continuity with his family life and deal with family matters; to save the inmate from the evil effects of continuous prison life and to enable the inmate to maintain constructive hope and active interest in life. The Jail Reforms Committee in the Statement of Objects and Reasons for Bombay (Prisons Amendment) Act No. 27 of 1953, had recommended the release of well behaved prisoners of certain categories on furlough as of right after they undergo a specified period of imprisonment which was accepted by the Government in pursuance of which furlough system was put in the act. Accordingly, parole and furlough rules were framed. The Full Bench has observed that the object of parole and furlough rules is to be humanised penal system and to enable the prisoner to maintain the continuity with his family life and to deal with the family matters as also to save him from evil effects of continuous jail life and to enable him to gain self confidence as also to maintain constructive hopes and active interest in life.
7. The Division Bench Judgment of the Gujarat High Court in Ishwar Singh M. Rajput v. State of Gujarat reported in 1991 (2) Crimes 160 while dealing with the question of release of prisoners on parole or furlough with reference to Section 32A of the NDPS Act, 1985 held that since parole means suspension of sentence and furlough amounts to remission of sentence and in view of the clear mandate of the parliament under Section 32A of the NDPS Act not to suspend or remit sentence awarded in the said Act, the prisoners were not entitled to be released either on parole or furlough. The Division Bench was of the view that if the prisoner is released on parole, his sentence is suspended for the time being for a period for which he is released on parole and if he is released on furlough his sentence is suspended and remitted. The constitutional challenge to Section 32A of the Act was negatived.
8. The Apex Court in Maktool Singh v. State of Punjab reported in : 1999CriLJ1825 has laid down that Section 32A of the Act has taken away the powers of the Court to suspend a sentence passed on persons convicted of offence under the Act (except Section 27) either during the pendency of appeal or otherwise. It is also laid down that similarly the powers of the Government under Sections 432, 433 and 434 of Criminal Procedure Code have also been taken away and Section 32A would have an overriding effect with regard to power of suspension, commutation and remission provided under the Criminal Procedure Code.
9. In State of Hariyana and Ors. v. Mohinder Singh; State of Haryana and Ors. v. Ashok Kumar; State of Haryana and Ors. v. Manjeet Singh; State of Haryana and Ors. v. Mukhtiar Singh and Anr.; State of Haryana and Ors. v. Mehar Singh; and Director General of Prisons, Haryana and Anr. v. Harphool reported in : 2000CriLJ1408 , the concept of parole and furlough was considered by the Apex Court and it was pointed out that the furlough and parole are two distinct terms now being used in the Jail Manuals or Laws relating to temporary release of prisoners and the two terms have acquired different meanings in the statute with varied results. Therefore, dictionary meanings are not quite helpful. With reference to the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, it was pointed out that when a prisoner is on parole his period of release does not count towards the total period of sentence while when he was on furlough, he is eligible to have a period of release counted towards the total period of the sentence undergone by him. The relevant provisions in Section 3(3) and Section 4(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, reads as under :--
'Section 3(3). The period of release under this section shall not count towards the total period of sentence of a prisoner.
Section 4(3). Subject to the provisions of Clause (d) of Sub-section (3)of Section 8 the period of release referred to in Sub-section (1) shall count towards the total period of the sentence undergone by a prisoner.'
The Apex Court also noted the terminology used in the Delhi Jail Manual wherein it is provided that the period spent on parole will not count as part of sentence and the period of furlough will count as sentence undergone except any such period during which the prisoner commits an offence outside.
10. In Sunil Fulchand Shah v. Union of India and Ors. (cited supra), the Constitution Bench of the Apex Court by majority judgment, has been held that the judgment in Poonam Lata v. M. L. Wadhawan : 1987CriLJ1924 does not lay down the correct law because the proposition of law laid down in the said judgment as also two other judgments in Harish Makhija v. State of U.P. : (1987)3SCC432 and Pushpadevi M. Jatia v. M. L Wadhawan : 1987CriLJ1888 have been very widely stated. In this judgment, the Constitution Bench of the Apex Court has examined the concept and effect of the parole more particularly in a preventive detention case. Relying upon the judgment in State of Haryana v. Mohinder Singh (supra), it has been pointed out by the Constitution Bench of the Apex Court thai, 'parole is a form of temporary release from custody, which docs not suspend the sentence or period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence. It is pertinent to note the following observations of the Constitution Bench of the Apex Court in para 30 which read as under :--
'30. Since release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does no! interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise. The period during which parole is availed of is not aimed to extend the outer limit of the maximum period of detention indicated in the order of detention. The period during which a detenu has been out of custody on temporary release on parole, unless otherwise prescribed by the order granting parole, or by rules or instructions, has to be included as a part of the total period of detention because of the very nature of parole. An order made under Section 12 of temporary release of a detenu on parole docs not bring the detention to an end for any period - it does not interrupt the period of detention - it only changes the mode of detention by restraining the movement of the detenu in accordance with the conditions prescribed in the order of parole. The detenu is not a free man while out on parole. Even while on parole he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. He is not a free person. Parole does not keep the period of detention in a state of suspended animation. The period of detention keeps ticking during this period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents, subject at any time, for breach of condition, to be returned to custody. Thus, in cases which are covered by Section 12 of COFEPOSA, the period of temporary release would be governed by the conditions of release whether contained in the order or the rules or instructions and where the conditions do not prescribe it as a condition that the period during which the detenu is out of custody, should be excluded from the total period of detention, it should be counted towards the total period of detention for the simple reason that during the period of temporary release the detenu is deemed to be in constructive custody. In cases falling outside Section 12, if the interruption of detention is by means not authorised by law, then the period during which the detenu has been at liberty, cannot be counted towards period of detention while computing the total period of detention and that period has to be excluded while computing the period of detention. The answer to the question, therefore, is that the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period during which the detenu is on parole, therefore, requires to be counted towards the total period of detention.'
Ultimately while summarising in para 33, it is laid down that the parole does not interrupt the period of detention and, thus, that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instructions, prescribe otherwise.
11. Coming now to the judgment of the Apex Court in Dadu alias Tulsidas v. State of Maharashtra (cited supra) upon which heavy reliance has been placed by the learned Advocate for the petitioner. It has been held that parole is not a suspension of the sentence as the convict continues to be serving the sentence despite granting of parole under the statute, rules, jail manual or the Government Orders. On the basis of this, it has been further held that it is thus clear that parole did not amount to suspension, remission or commutation of sentences which could be withheld under the garb of Section 32A of the Narcotic Drugs and Psychotropic Substances Act and notwithstanding the provisions of the offending section, a convict is entitled to parole, subject however, to the conditions governing the grant of it under the statute, if any, or the jail manual or government instructions. In this judgment, it was held that Section 32A of the NDPS Act insofar as it completely debars the jurisdiction of this Court to suspend the sentence awarded to the convict under the Act is unconstitutional. Therefore, the Apex Court directed that the petitioner in Writ Petition No. 169 of 1999 shall be at liberty to apply for parole and his prayer be considered and dispose of in accordance with the statutory provisions, if any, jail manual or government instructions without implying Section 32A of the Act as a bar for consideration of prayer.
12. We may now summarise the position of law laid down by the Apex Court in various rulings noted above. In Poonam Lata v. M. L. Wadhawan, : 1987CriLJ1924 , the Apex Court has dealt with general concept of parole and it was observed that parole is a provisional release from confinement but is deemed to be a part of imprisonment and as such parole is a grant of partial liberty or lessening of restrictions to the convict prisoner, but the release on parole does not change the status of the prisoner. In State of Haryana v. Mohinder Singh (supra), said observations in Poonam Lata v. M. L Wadhawan (supra) were referred to and it was observed that furlough and parole are two distinct terms now being used in jail manuals or laws relating to temporary release of prisoners. These two terms have acquired different meanings in the statute with varied results and as such dictionary meanings are not quite helpful. In this judgment, after referring to section 3(3) of the Haryana Good Prisoners (Temporary Release) Act, 1988 relating to parole and Section 4(3) relating to furlough, the Apex Court has observed that it would be thus seen that when a prisoner is on parole his period of release does not count towards total period of sentence while he is on furlough he is eligible to have a period of release counted towards the total period of his sentence undergone by him. The Constitution Bench of the Apex Court in Sunil Fulchand Shah v. Union of India (supra), has observed in para 18 of the majority judgment that the judgment in Poonam Lata (supra) as also in Harish Makhija v. State of U.P. (supra) and Pushpadevi (supra) do not lay down the correct law because the propositions of law laid down in those judgments have been very widely stated. In para 27, the Apex Court has laid down that parole is a form of temporary release from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentences. In para 30, the Constitution Bench has again reiterated that parole does not interrupt the period of detention and thus needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribed otherwise. It has been further observed in the same paragraph that even while on parole, he continues to serve the sentences or undergo the period of detention in a manner different than from being in custody as he is not a free person and the parole does not keep the period of detention in a state of suspended animation. It is further pointed out that the period of detention keeps ticking during this period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents. In para 33(5), the Apex Court has concluded that the parole does not interrupt the period of detention and, thus, that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instructions, prescribe otherwise. The Apex Court in State of Haryana v. Nauratta Singh reported in : 2000CriLJ1710 has pointed out the suspension of the sentence is obviously different from remission of any part of the punishment to which a person is sentenced. In Dadu's case (supra), the Apex Court has proceeded on the basis that parole is not suspension of sentence and parole did not amount to suspension, remission or commutation of sentence which could be withheld under the garb of Section 32A of the NDPS Act. In this case, the Apex Court has referred to and relied upon the observations made in Poonam Lata (supra), State of Haryana v. Mohinder Singh (supra) and Constitution Bench decision in Sunil Fulchand Shah v. Union of India (supra) as also State of Haryana v. Nauratta Singh (supra). In State of Haryana v. Nauratta Singh (supra) also, it has been observed that during the parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also. In this view of the matter, the Apex Court directed the petitioner in Writ Petition No. 169 of 2000 that he shall be at liberty to apply for parole and his prayer be considered and disposed of in accordance with statutory provisions, if any, jail manual or government instructions without implying Section 32A of the Act as a bar for consideration of the prayer.
13. Applying the principles laid down by the Apex Court in the context of the Prisons (Bombay Furlough and Parole) Rules, 1959 under which furlough is claimed, it is pertinent to note that Rule 16 provides that furlough shall be counted as remission of sentence which is prohibited under Section 32A of the NDPS Act and since furlough is to be counted as remission of sentence under the said Rules, the petitioner in my opinion is not entitled to furlough. In this context, Section 32A starts with non obstante clause which shall have overriding effect and furlough being remission of sentence, the petitioner is not entitled to furlough under the said Rules.
14. For the aforesaid reasons, the petition is hereby rejected. Rule is accordingly discharged.
15. Petition dismissed.