Judgment:
Arun Mishra, CJ.
1. Reference has been made by the Single Bench on 8.11.2011 with respect to the grant of first regular parole to the petitioner Shambhu Dayal, who has been convicted for committing offence under section 8 read with section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo 10 years rigorous imprisonment with fine of Rs.1 lac. The question referred by the Single Bench is to the effect whether the order dated 4.5.2011 passed by the Single Bench in S.B.Civil Writ Petition (Parole) No.5711/2011 is the obtaining law or whether a convict after having undergone the statutory period of sentence is entitled to be considered for parole both regular and permanent without the question of payment of fine being reckoned.
2. When the arguments on the aforesaid question were being heard by the Division Bench, it was considered necessary to consider the aspect whether in the cases where conviction is under NDPS Act, the provisions of Rajasthan Prisoners Release On Parole Rules, 1958 (hereinafter referred to as “the Parole Rules, 1958”) are applicable. This question arose on 2.1.2012; the matter was further argued on 10.1.2012 and our attention was drawn by the Government Advocate to Rule 1(c) of the Parole Rules, 1958 which provides that these rules shall not apply to persons under a sentence of imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules made under Notification of the Government of India, Ministry of Home Affairs No.40/32/55-Judl.I dated 9th November, 1955. Hence, the following two questions have been framed by the Division Bench of this Court which are to be answered:-
(1)Whether the Rajasthan Prisoners Release On Parole Rules, 1958 are applicable in the cases where sentence of imprisonment is for an offence relating to a matter to which executive power of Union extends such as under NDPS Act.
(2)Whether it is necessary for consideration of application for parole that fine imposed is deposited before application for parole is considered.
3. Shri Amarjit Singh Narang, learned counsel appearing on behalf of the petitioner has submitted that in view of the Division Bench decisions of this Court in State of Rajasthan V/s Mana Singh, etc. etc. (2002(2) RLR 285 = 2002 (2) WLN 719) and Samiullaha V/s State of Rajasthan and ors. (2002 (1) RLR 41 (Raj.)= 2002(4) WLN 456), the petitioner is entitled for release on parole under the Parole Rules, 1958. He has also relied upon the decisions of the Apex Court in Maktool Singh V/s State of Punjab (AIR 1999 SC 1131 = (1999) 3 SCC 321) and Dadu @ Tulsidas V/s State of Maharashtra (AIR 2000 SC 3203 = (2000) 8 SCC 437).
4. On the other hand, it was submitted by Shri Rajendra Yadav and Shri M.A.Khan, learned counsel appearing on behalf of the respondents that in view of Rule 1(c) of the Parole Rules, 1958 framed by the State of Rajasthan, the Parole Rules, 1958 cannot apply to a convict under NDPS Act and his case has to be considered by the Central Government as per the Central Rules framed vide Notification of the Government of India, Ministry of Home Affairs No.40/32/55-Judl.I dated 9th November, 1955; the State Government is not the appropriate Government so as to consider the cases where the persons have been sentenced to undergo imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules and thus, the State Government was not competent to consider the cases of such persons for release on parole. It was further submitted that the Rules framed by the Central Government vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench deciding the case of Mana Singh (supra) and though the decision in the case of Mana Singh (supra) has laid down that for a convict under NDPS Act, the Central Rules would be applicable as provided under Rule 1(C) of Parole Rules, 1958, however, as the Rules of the Central Government framed vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench deciding the case of Mana Singh (supra), certain guidelines were laid down to be followed till the rules are framed by the Union of India. The decision in the case of Mana Singh (supra) is thus, per incuriam as the Rules which had been framed by the Central Government vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench otherwise guidelines would not have been laid down on the premise that Central Government has not framed such rules. It was further submitted that the decision of the Division Bench of this Court in Samiullaha's case (supra) also proceeds on the assumption that Parole Rules, 1958 are applicable and similarly, it was not submitted before the Division Bench that the Central Government has framed rules vide Notification dated 9th November, 1955 and as per Rule 1(c) of Parole Rules, 1958, the Parole Rules, 1958 framed by the State Government are not applicable. The main question for consideration before the Division Bench in Samiullaha's case (supra) was whether Section 32A of NDPA Act, which restricts suspension, remission or commutation of sentence would cover release on parole also and the Division Bench has followed the decision of the Apex Court in the case of Dadu @ Tulsidas (supra) and laid down that grant of parole is not restricted by Section 32A of the NDPS Act. Thus, the decision in the case of Samiullaha (supra) cannot be taken authority on the question whether a convict under NDPS Act can be released on parole by the Central Government or the State Government.
Question No.(1)
5. The question no.(1) is whether a convict sentenced to imprisonment under any law to which executive power of Union extends such as NDPS Act can be released on parole under the provisions of the Rajasthan Prisoners Release On Parole Rules, 1958. Rule-1 of the Parole Rules, 1958 is relevant in this regard and the same is quoted below:-
“1. Title, Commencement and application.- (a) These Rules will be called Rajasthan Prisoners Release on Parole Rules, 1958;
(b)They shall come into force on the date of their publication in the Official Gazettee;
(c)These rules shall not apply to persons under a sentence of imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules made under Notification of the Government of India, Ministry of Home Affairs No.40/32/55-Judl.I, dated the 9th November reproduced in the Appendix to these rules.”
6. Rule 1(c) of Parole Rules, 1958 provides that the Rules shall not apply to persons under a sentence of imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules made under the Notification of the Government of India, Ministry of Home Affairs No.40/32/55-Judl.I dated 9th November, 1955. Thus, Rule 1(c) makes it clear that Parole Rules, 1958 are not applicable with respect to any law relating to a matter to which the executive power of the Union of India extends. NDPS Act is a law relating to a matter to which executive power of the Union of India extends. Hence, in view of Rule 1(c), the Parole Rules, 1958 are not applicable to persons under a sentence of imprisonment for an offence under NDPS Act and such persons shall be governed by the Central Rules made under Notification of the Government of India dated 9th November, 1955.
7. Vide Notification No.40/32/55-Judl.I dated 9th November, 1955, the Central Government, Ministry of Home Affairs, New Delhi in exercise of the power conferred by sub-section (6) of section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898) framed the rules, which have been referred to in Rule 1(c) of the Parole Rules, 1958, and the same were published in the Gazettee of India, November 19, 1955. The Notification dated 9th November, 1955 containing the Rules (hereinafter referred to “as the Rules of 1955”) of the Central Government is quoted below:-
“MINISTRY OF HOME AFFAIRS
New Delhi-2, the 9th November 1955
S.R.O. 3491.- In exercise of the power conferred by sub section (6) of section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Central Government hereby makes the following rules:-
1. Where a petition for suspension of the execution of a sentence of imprisonment or for remission of the whole or part of a sentence of imprisonment is made by or on behalf of a person sentenced to imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends and the person sentenced to such sentence of imprisonment is in jail, the execution of the sentence shall be suspended and such person released on parole, subject to the conditions specified in rule 3, for such period, not exceeding fifteen days, as may be necessary for obtaining the orders of the Central Government on the petition, if the State Government of the State in which such person is detained in jail is satisfied that the immediate release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife, husband or child of such person.
2. A State Government ordering a release on parole under rule 1 shall forthwith report the full facts and circumstances of the case to the Central Government while forwarding the petition to the Central Government and the Central Government may on consideration of the report and petition make such order as they deem fit.
3. A person released on parole under rule 1 shall enter into a bond undertaking to reside during the period of his parole at a place specified therein and not depart therefrom without the previous permission of the State Government and to return to the jail in which he is confined on expiry of the period of his parole, and to conform to such other conditions as the State Government may consider necessary.
(No.40/32/55-Judl.I)
GULZAR SINGH, Under Secy.”
8. It is apparent from Rule 1 of Rules of 1955 that when a petition for suspension of the execution of a sentence of imprisonment or for remission of the whole or part of a sentence of imprisonment is made by or on behalf of a person sentenced to imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends, such person may be released on parole, subject to the conditions specified in rule-3 for such period, not exceeding fifteen days, as may be necessary for obtaining the orders of the Central Government on the petition, if the State Government of the State in which such person is detained in jail is satisfied that the immediate release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife, husband or child of such person. As per Rule 2, the State Government has to report the full facts and circumstances of the case to the Central Government while forwarding the petition to the Central Government and the Central Government may on consideration of the report and petition make such order as they deem fit.
9. Thus, it is apparent from the aforesaid Rule 1 of the Rules of 1955 framed by the Central Government that a convicted person can be released on parole and orders of Central Government have to be obtained on the petition if the State Government is satisfied that immediate release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife, husband or child of such person. If the State Government considers release of person necessary, it has to report the matter to the Central Government and the Central Government shall pass final order under Rule 2. Hence, it is apparent that once the Rules of 1955 have been framed by the Central Government, they are applicable and have to be followed for releasing on parole a convict, who has been sentenced to undergo imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends and in such cases, Rajasthan Prisoners Release on Parole Rules, 1958 are not applicable.
10. In the case of Dadu @ Tulsidas (supra), the Hon'ble Supreme Court has considered the constitutional validity of Section 32A of the NDPS Act, inasmuch as it takes away the power of the Court to suspend sentence; question was also considered by Their Lordships whether it excludes grant of parole to person convicted under NDPS Act. It was laid down by the Apex Court that Section 32A is unconstitutional in so far as it ousts jurisdiction of appellate court to suspend sentence awarded to convict under NDPS Act. But, Section 32A is constitutionally valid in so far as it takes away right of Executive to suspend, remit or commute sentence. However, Section 32A does not in any way affect powers of authorities to grant parole. The Apex Court further laid down that parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the statute, rules, jail manual or the Government orders. Parole means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually being in jail, serving part of sentence. Grant of parole is essentially an executive function to be exercised within the limits prescribed in that behalf. It would not be open to the Court to reduce the period of detention by admitting a detenue or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it. The Apex Court further laid down that parole does not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32A of the NDPS Act. 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 the Government instructions. Paras 9, 10, 11 and 29 of the decision in Dadu @ Tulsidas (supra) are quoted below:-
“9. The Constitution Bench of this Court in Sunil Fulchand Shah v. Union of India and Ors. MANU/SC/0109/2000 : 2000CriLJ1444 considered the distinction between bail and parole in the context of reckoning the period which a detenu has to undergo in prison and held:
Bail and parole have different connotation in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the CrPC contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety. In Halsbury's Laws of England, 4th Edn., Vol. II, Para 166, the following observation succinctly brings out the effect of bail:
The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.
'Parole', however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of "parole" is:
The Concise Oxford Dictionary - (New Edition)
The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behavior; such a promise; a Word of honour
Black's Law Dictionary - (6th Edition)
Release from jail, prison or other confinement after actually serving part of sentence. Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confides of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.
According to the Law Lexicon, "Parole" has been defined as:
A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.
According to Words and Phrases:
"Parole" ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v. Murphy 135 NE2d 567, 571, 1 NY 2d 367, 153 NYS 2d 21, 26.
'Parole does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen Ky, 255 SW 2d 1000.
A 'parole' is not a 'suspension of sentence', but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the court. Jenkins v. Madigan CA Ind, 211 F 2d 904.
A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence' which actually modifies it.
10. Again in State of Haryana v. Nauratta Singh and Ors. MANU/SC/0176/2000 : 2000CriLJ1710 it was held by this Court as under:
Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.
11. It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32A of the Act. 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 the Government Instructions. The Writ Petition No. 169 of 1999 apparently appears to be misconceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with jail manual applicable in the matter.
29. Under the circumstances the writ petitions are disposed of by holding that (1) Section 32A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment.”
11. In view of the aforesaid decision of the Apex Court in the case of Dadu @ Tulsidas (supra), a person can still claim parole and Rules of 1955 framed by the Central Government have to be read down to the effect that parole can still be obtained and it is not suspension of the execution of a sentence of imprisonment or for remission of the whole or part of a sentence of imprisonment. What is contemplated under Rule 1 of the Rules of 1955 is not suspension of the execution of sentence or remission, it is parole which is contemplated under Rule 1 of the Rules of 1955 and that is to be in the exigency when release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife, husband or child of such person. Thus, in our considered opinion, parole for the aforesaid purpose could be obtained under Rule 1 of the Rules of 1955 on the satisfaction of the concerned State Government and subject to the order to be passed by the Central Government as provided in the Rules of 1955.
12. The decision in the case of Maktool Singh (supra) has been considered in Dadu @ Tulsidas's case (supra) and the decision in the case of Dadu @ Tulsidas (supra) holds the field.
13. The Division Bench of this Court in the case of Mana Singh (supra) has considered the question where the convict under NDPS Act was denied parole under the Parole Rules, 1958 in view of Section 32A of the NDPS Act. The Single Bench directed the State Government to consider the case of accused for grant of parole in view of Apex Court's decision in the case of Dadu @ Tulsidas (supra). The Division Bench did not find any illegality in the order of Single Bench, but adverse remarks made by Single Bench against the State Government were expunged as the matter relating to NDPS Act is within purview of Union Government and the Division Bench has also laid down guidelines as the Central Government has not framed Rules for release on parole. The Division Bench also observed that prayer for parole has to be considered in accordance with the statutory provisions, if any, jail manual or government instructions. Rule 1(c) of the Parole Rules, 1958 was also considered. Section 432 Cr.P.C. was also considered and it was held by the Division Bench that the law relating to the matter to which the executive powers of the Union of India extends the Central Government is the appropriate Government. It was also laid down that in view of the Entry 19 of the concurrent list of the Constitution of India the law relating to the NDPS Act falls within the executive powers of the Union of India. The entry 19 of the concurrent list says that drugs and poisons to be, subject to the provisions of entry 59 of the List-I, with respect to opium. The said entry i.e. Entry No.59 of the Union List provides regarding the cultivation, manufacture and sale for export of opium. Thus, opium is a matter to which executive power of the Union of India extends. The Union of India enacted the special legislation as NDPS Act and thus, opium has become subject matter to which the executive power of the Union of India extends. Thus, in view of Rule 1(c) of the Parole Rules, 1958, prayer of persons convicted under NDPS Act can be considered only under the Rules framed in that regard by the Central Government. Following is the relevant discussion made by the Division Bench in the case of Mana Singh (supra):-
9. Thus, we find that the judgment of the learned Single Judge is in consonance of the judgment of the Apex Court in Dadu's case. The learned Single Judge has not asked to consider the case of the accused convicted under N.D.P.S. Act straightway. The prayer of parole has to be considered in accordance with the statutory provisions, if any, Jail Manual or Government instructions. However, there is substance in the contention of the learned counsel that such rules can be framed only by the Union of India and not by the State Government.
10. Rule 1(c) of the Parole Rules reads as follows :--
"(c) These rules shall not apply to persons under a sentence of imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules made under Notification of the Government of India, Ministry of Home Affairs No. 40/32/55-Jud.I, dated the 9th November reproduced in the Appendix to these rules."
11. Section 432 of the Code of Criminal Procedure defines the powers to suspend or remit the sentence by the appropriate Government. Sub-section (7) of Section 432 defines the "appropriate Government" which reads as follows:--
"(7) In the section and in Section 433, the expression "appropriate Government" means, -
(a) in cases where the sentence is for an offence against, or the order referred to in Sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
12. Thus, the law relating to the matter to which the executive powers of the Union of India extends the Central Government is the appropriate Government. It is not in dispute that in view of the Entry 19 of the concurrent list of the Constitution of India the law relating to the N.D.P.S. Act falls within the executive powers of the Union of India. The entry 19 of the concurrent list says that drugs and poisons to be, subject to the provisions of entry 59 of the List-I, with respect to opium. The said entry i.e., Entry No. 59 of the Union List provides regarding the cultivation, manufacture and sale for export of opium. Thus, opium is a matter to which executive power of the Union of India extends. Accordingly, while consolidating all previous enactments such as Opium Act etc., the Union of India (Central Government) enacted the special legislation as N.D.P.S. Act and thus, opium has become subject matter to which the executive power of the Union of India extends. Thus, in view of Rule 1(c) of the Parole Rules, prayer of persons convicted under N.D.P.S. Act can be considered only under the Rules framed in that regard by the Central Government. Thus, the adverse remarks made by the learned Single Judge against the State Government in para extracted above are expunged.”
13. To the aforesaid extent, there is no quarrel with the decision rendered by the Division Bench of this Court in the case of Mana Singh (supra). However, at the same time, as the Rules of 1955 framed by the Central Government for release on parole were not brought to the notice of the Division Bench, following guidelines have been issued by the Division Bench in the case of Mana Singh (supra):-
“14. We hope and trust that the Union of India will frame the rules and provide a guideline for releasing the convicts of N.D.P.S. Act on parole or transfer them to the open air camps, keeping in view the objects behind enactment of N.D.P.S. Act and different judicial pronouncements on the point. As usual, the Central Government may take time in framing the Rules for providing guidelines to release a convict of N.D.P.S. Act on parole or transferring to open jail, as such in the larger public interest till such rules are framed, we provide the following guidelines for concerned authorities and the courts, as interim arrangements :--
(i) a report to be obtained from the police or narcotics authorities, as the case may be ascertained, if the accused has been a member of a gang involved in nefarious activities covered by N.D.P.S. Act and has chance of joining them. Persons likely to join the gang shall not be entitled to parole, but the case of prisoners convicted for isolated act can be considered favourably;
(ii) in case of emergency release, while releasing the applicant on parole his movement should be restricted to a particular area and be Kept under the vigil of the concerned police station or narcotics authorities;
(iii) the application for parole or for transfer to the open air jail should be accompanied by the certified or uncertified copy of the judgment of the trial court or the appellate court as the case may be;
(iv) sufficient safeguards should be provided by the authorities concerned for his surrender before the jail authorities to serve out the remaining part of the sentence; and
(v) these guidelines shall apply to a consideration of case of convict for transfer to open jail.”
14. With respect to the guidelines framed by the Division Bench of this Court in the aforesaid paragraph, they are based upon the supposition of incorrect fact that the Central Government has not framed Rules for release of convict under NDPS Act on parole, as such, in the larger public interest till such Rules are framed, guidelines have been issued, whereas the fact remains that the Central Government had already framed Rules of 1955, which were not brought to the notice of the Division Bench deciding the case of Mana Singh (supra). Thus, the guidelines, which have been issued, cannot be said to be operative in view of the specific Rules of 1955 framed by the Central Government vide Notification dated 9th November, 1959 published in the Gazettee of India, November 19, 1955. The decision rendered by the Division Bench of this Court in Mana Singh's case (supra) is per incuriam as Rules of 1955 framed by the Central Government were not brought to its notice while deciding the case.
15. In Young v. Bristol Aeroplane Company Limited ((1944) All ER 293) the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by the Supreme Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.
16. In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:
A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd. 1944 KB 718 : (1944) 2 All ER 293.
In Huddersfield Police Authority v. Watson 1947 KB 842: (1947) 2 All ER 193.; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.
17. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.
18. In Government of A.P. and Anr. v. B. Satyanarayana Rao (dead) by LRs. and Ors. (2000) 4 SCC 262, the Apex Court observed that the rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.
19. In Kishan Rao Vs Nikhil Super Speciality Hospital and anr. ((2010) 5 SCC 513), the Apex Court held that when a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered `Per incuriam'. This concept of `Per incuriam' has been explained in many decisions of Apex Court. Justice Sabyasachi Mukharji (as his Lordship then was) speaking for the majority in the case of A.R. Antulay v. R.S. Nayak and Anr. ((1988) 2 SCC 602) explained the concept in paragraph 42 at page 652 of the report in following words:
"Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.”
20. In the instant case, since the Division Bench deciding the case in Mana Singh (supra) omits to consider the statutory Rules of 1955 framed by the Central Government vide Notification dated 9th November, 1955, the decision rendered by the Division Bench of this Court in Mana Singh's case (supra) is held to be per incuriam as Rules of 1955 framed by the Central Government were not brought to its notice while deciding the case.
21. So far as the decision of the Division Bench of this Court in Samiullaha's case (supra) is concerned, it has also followed the decision of the Apex Court in Dadu @ Tulsidas's case (supra) and it has been laid down that notwithstanding the provisions contained in Section 32A of the NDPS Act, convict is entitled to parole. The Division Bench at the same time however laid down that conditions governing the grant of it under the statute, if any, or the jail manual or government instructions have to be followed. There cannot be any quarrel with the aforesaid proposition laid down in the case of Samiullaha (supra). However, the Rules of 1955 framed by the Central Government were not placed for consideration before the Division Bench. The Division Bench has laid down that statutory provisions or the jail manual or government instructions have to be followed for grant of parole. As the Rules of 1955 framed by the Central Government were not brought to the notice of the Division Bench of this Court, it has been held that case of convict has to be considered under Rule 9 of the Parole Rules, 1958. The Division Bench decision to the extent of providing consideration of parole under the Rules of 1958 has to be considered in the light of the ratio of decision in case Rules of 1955 would have been brought to the notice of court, it would have followed that; release on parole is subject to the conditions governing grant of it under the statute i.e. Rules of 1955 framed by the Central Government which were not brought to the notice of the Division Bench deciding Samiullaha's case (supra). The Division Bench decision buttresses our conclusion that it is the Rules of 1955 which have to be applicable in the cases of release of parole under NDPS Act. What is intended under Rule 1 of Rules of 1955 is release on parole, not suspension of the execution of sentence of imprisonment or remission and these concepts have been explained in the case of Dadu @ Tulsidas (supra). Thus, even as per the ratio laid down by the Division Bench in the case of Samiullaha (supra), case of convict under the NDPS Act cannot be considered under the Parole Rules of 1958 due to failure to bring to the notice of court Rules of 1955 and to the extent that it has been laid down that case of such convict can be considered under Rule 9 of Parole Rules of 1958, it cannot be said to be binding precedent.
22. Hence, we are of the considered opinion that decisions rendered by the Division Bench of this Court in the cases of Mana Singh (supra) and Samiullaha (supra) cannot be pressed into service by the convict sentenced to imprisonment under the NDPS Act or any other convict who has been sentenced to imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends. In the cases of convict sentenced to imprisonment for the offence under NDPS Act or against any law relating to a matter to which the executive power of the Union extends, Rajasthan Prisoners Release on Parole Rules, 1958 are not applicable as specifically provided in Rule 1(c) of Parole Rules, 1958 and Rules of 1955 framed by the Central Government are applicable for release on parole.
Question No.(2)
23. Coming to the second question whether it is incumbent upon convict to deposit fine before application for parole is considered, the Single Bench while referring the case has doubted the correctness of the decision in Shiv Shankar Teli @ Shiv Shanker Rathore V/s State of Rajasthan and ors. (S.B.Civil Writ Petition (Parole) No.5711/2011 decided on 4.5.2011) in which it has been laid down that since the accused has not deposited the amount of fine imposed at the time of conviction, he was not entitled to have his application for parole considered. It was submitted before the Single Bench that the decision in Shiv Shankar Teli's case (supra) is dehors the Parole Rules, 1958 and contrary to the judgment in D.B.Cr.Parole Writ Petition No.1680/2011. There is no provision under the Parole Rules, 1958 which mandates non-consideration of the application for parole without deposit of fine which has been imposed by the trial court at the time of applicant's conviction and sentence. It was also submitted that payment of fine can be made even towards the end of the substantive sentence or the convict can choose to suffer further imprisonment in lieu of fine. As such, it was submitted that non-payment of fine is extraneous to the whole issue. It was further submitted that the decision in Shiv Shanker Teli's case (supra) is per incuriam and in any event, was not binding as no reason whatsoever was mentioned for reaching to the conclusion as to deposit of fine before consideration of petition for release on parole. The Single Bench on the grounds of comity of courts, consistency of law and that the decision and view expressed by the coordinate bench in Shiv Shanker Teli's case (supra) cannot be overlooked, considered it advisable to refer the matter to the Larger Bench whether the order passed in Shiv Shanker Teli's case (supra) is the obtaining law or whether a convict after having undergone the statutory period of sentence is entitled to be considered for parole both regular and permanent without the question of payment of fine being reckoned.
24. In our considered opinion, deposit of fine cannot be a condition precedent for consideration of the application for parole. However, in the cases where executive power of the Union extends, such applications cannot be considered under the Parole Rules, 1958, but have to be considered under the Rules of 1955 framed by the Central Government. A person, who has applied for parole is undergoing sentence and sentence includes imprisonment as well as fine; when he is undergoing sentence and parole is not suspension of the execution of sentence, which will include the fine, deposit of fine would be beyond the purview of consideration of parole. In the case of Dadu @ Tulsidas (supra), it has been observed by the Apex Court that bail and parole have different connotation in law. Parole has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. Parole means release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour. Parole ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. Parole does not vacate sentence imposed, but is merely a conditional suspension of sentence. Parole is not a suspension of sentence. The Apex Court has referred to various dictionary meaning of parole and various decisions and laid down that parole did not amount to suspension, remission or commutation of sentences and during parole period, there is no suspension of sentence but the sentence is actually continuing to run during that period also as held by the Apex Court in State of Haryana V/s Nauratta Singh and ors. (2000 Cr.L.J.1710).
25. The order dated 4.5.2011 passed in S.B.Civil Writ (Parole) No.5711/2011 Shiv Shanker Teli @ Shiv Shankar Rathor V/s State of Rajasthan and ors., correctness of which has been doubted by the Single Bench, is quoted below:-
“The application has been filed for release on parole.
The conviction of the petitioner is for the offence under sections 8/20 and 8/29 of the NDPS Act, 1985 sentencing him to undergo ten years rigorous imprisonment with a fine of Rs.2,00,000/- and in default to undergo another six months rigorous imprisonment.
It was inquired from learned counsel for the petitioner whether the fine has been deposited and it was submitted that the fine has not been deposited.
This petition is dismissed on the ground that the fine has not been deposited so far and only after the petitioner has deposited the fine, this court would consider the case for being released on parole.”
26. Vide order dated 4.5.2011, the petition was dismissed on the ground that fine has not been deposited so far and only after the petitioner has deposited the fine, this Court would consider the case for being released on parole. As already held above, deposit of fine cannot be a condition precedent for consideration of application for parole. For releasing on parole, it is not necessary that this Court should insist for deposit of fine as parole is not suspension of sentence and during parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also as held by the Apex Court in the case of Nauratta Singh (supra). Thus, it would not be appropriate to ask the convict to deposit fine before consideration of his application for parole as that is not provided under the Rules of 1955 or with respect to a convict in the cases where Parole Rules, 1958 are applicable. In the instant case, Parole Rules, 1958 are not applicable. Thus, the decision in Shiv Shanker Teli's case (supra) is without consideration of the provisions of the Rules of 1955 and it is held to be per incuriam. The ratio laid down in that decision cannot be considered to be good law as no reasoning whatsoever has been given. It appears that the Court wanted to make a condition for consideration of parole petition that fine should be deposited first, but at the same time, there is no such requirement under the Rules of 1955 and it was not appropriate to impose such a condition, which may pertain to suspension of sentence of imprisonment as fine is part of the sentence alongwith imprisonment. Thus, in our considered opinion, the decision in Shiv Shankar Teli's cases (supra) cannot be said to be in accordance with law. The convict after having undergone the statutory period of sentence is entitled to be considered for parole both regular and permanent without the question of payment of fine being reckoned. At the same time, we make it clear that we have not dealt with the power of the Government while deciding a parole petition. We have also not dealt with the conditions which may be imposed by the State Government for release on parole.
27. In view of the discussions made above, the two questions framed by this Court are answered in the following manner:-
Question No.(1)
(1)Whether the Rajasthan Prisoners Release On Parole Rules, 1958 are applicable in the cases where sentence of imprisonment is for an offence relating to a matter to which executive power of Union extends such as under NDPS Act.
Answer
The Rajasthan Prisoners Release on Parole Rules, 1958 are not applicable in the cases where conviction is under NDPS Act and also where convict is sentenced to imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends and such cases have to be dealt with in accordance with the Rules of 1955 framed by the Central Government, Ministry of Home Affairs vide Notification dated 9th November,1955 published in the Gazette of India, November 19, 1955.
Question No.(2)
Whether it is necessary for consideration of application for parole that fine imposed is deposited before application for parole is considered.
Answer
Deposit of fine cannot be a condition precedent for consideration of application for parole. There is no such requirement under the Rules of 1955 framed by the Central Government under which present case of convict under the NDPS Act is to be considered. Hence, it is not appropriate to insist on deposit of fine for consideration of parole application.
28. Both the questions stand answered accordingly.
29. The matter be placed before the Single Bench for orders on parole petition.
Let a copy of this order be sent to Principal Secretary to Home Department, Government of India and Government of Rajasthan, Director General of Prisons, Rajasthan, District Collectors and Magistrates, Superintendents of all Central and District Jails of Rajasthan for information.