Pankaj Nanku Singh vs The State Of Maharashtra
2021 Latest Caselaw 10409 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

                         WRIT PETITION NO.2668 OF 2021

Pankaj Nanku Singh                                                   ...Petitioner
           vs.
The State of Maharashtra and Ors.                                    ...Respondents

Mr. Vinod Kashid, for the Petitioner
Mrs. M.H. Mhatre, APP for the Respondents-State.

                           CORAM :             S. S. SHINDE &
                                               N. J. JAMADAR, JJ.

                          DATE :               AUGUST 05, 2021

                                          -----------------

JUDGMENT (Per N. J. Jamadar, J.)

1. Rule made returnable forthwith and with the consent of the

counsel for the parties heard fnalll.

2. The challenge in this petition is to an order dated 19 th

August, 2020 passed bl the Additional Director General of Police

and Inspector General of Prisons and Reformation Services

wherebl the appeal preferred bl the petitioner came to be

dismissed confrming the order dated 11th October, 2018 passed bl

the Dl. Inspector General of Prisons, Central Division,

Aurangabad rejecting the application of the petitioner for release

on furlough.

Vishal Parekar                                                                              1/6




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3. The petition arises in the backdrop of the following facts:

a] The petitioner came to be convicted for the offences

punishable under sections 302, 120-B of Indian Penal Code, 1860

and section 3(1) and 3(4) of the Maharashtra Control of Organized

Crime Act, 1999 (the MCOC Act, 1999) and section 25(1-B) read

with 3 of Arms Act. For the major offences, the petitioner has been

sentenced to suffer imprisonment for life. As of 30 th June, 2011

the petitioner has undergone 11 lears and 2 months actual

imprisonment.

b] The petitioner applied for furlough. The respondent No. 2

rejected the application on the ground that the Superintendent of

Police, Sultanpur, Uttar Pradesh has submitted an adverse report.

It was noted, inter alia, that the petitioner would not surrender to

prison in the event he is released on furlough and there was a

strong likelihood of the petitioner, if released, committing offences

leading to breach of peace. It was further opined bl the

Superintendent of Police that the sureties would not be able to

keep control over the activities of the petitioner and the petitioner

would jump the furlough. Thus, invoking the provisions contained

in Rule 4(4) of the Prisons (Bombal Furlough and Parole) Rules,

1959 (the Rules, 1959), the application came to be rejected. An

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932-wp-2668-2021.doc

appeal preferred thereagainst came to be dismissed bl the

Inspector General, Prisons bl invoking Rule 4(4) and 4(20) of the

Rules, 1959, bl the impugned order.

4. We have perused the material on record including report of

Superintendent of Police, Sultanpur dated 23rd April, 2019.

5. We have heard Mr. Vinod Kashid, learned counsel for the

petitioner and Mrs. Mhatre, learned APP for the State.

6. Mr. Kashid invited the attention of the Court to an order

dated 4th June, 2019 in Writ Petition No. 1999 of 2019 passed bl

the Division Bench of this Court (Coram : B.P.Dharmadhikari and

Smt. Swapna Joshi, JJ.) wherebl this Court directed the

authorities to reconsider the application of the co-convict Randhir

@ Nikhil Singh for grant of furlough. It was inter alia recorded bl

this Court that the apprehension of not returning back to prison

or the possibilitl of indulging in criminal activities was not based

on anl factual material and, thus, without anl basis. It was

further noted that the authorities can impose appropriate

conditions including attendance at the local police station.

Vishal Parekar                                                                3/6




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7. Mr. Kashid further urged that the said co-convict, who was

released on furlough, has since surrendered.

8. Mrs. Mhatre, learned APP supported the impugned order. It

was submitted that the authorities were justifed in rejecting the

praler of the petitioner to release him on furlough on the basis of

adverse report of the Superintendent of Police, Sultanpur.

Emphasis was laid on the fact that the petitioner is a member of a

gang known as "Bharat Nepali Gang" and, therefore, the

apprehension entertained bl the authorities cannot be said to be

unfounded.

9. The primarl reason for rejection of the praler to release the

petitioner on furlough seems to be adverse police report. The

Superintendent of Police, Sultanpur has recorded that there is a

strong possibilitl of the petitioner feeing awal in the event he is

released on furlough. There is also an apprehension that the

petitioner mal indulge in criminal activities and commit breach of

public peace. The proposed sureties would not be able to keep a

tight leash on the petitioner.

Vishal Parekar                                                                  4/6




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10. We do not fnd that the apprehensions voiced bl the

Superintendent of Police, Sultanpur are backed bl anl positive

material. The apprehension that the petitioner mal not surrender

appears to steam from the fact of association of the petitioner with

Bharat Nepali Gang. It is imperative to note that the co-convict of

the petitioner was released on furlough, and the learned APP has

confrmed, on instructions, that the said co-convict Randhir

Singh has returned to prison. The authorities, in our view, have

not adverted to the possibilitl of imposing stringent conditions to

take care of the apprehension entertained bl them. It is trite that

mere bald and unsubstantiated assertion that the release of the

prisoner mal lead to breach of peace and tranquilitl and the

prisoner mal jump the furlough, without anl material in the

nature of unfavorable conduct of the prisoner, antecedents and

the attendant circumstances, is not suffcient to deprive a

prisoner of a legitimate privilege to be released on furlough and

parole.

11. We are therefore persuaded to quash and set aside the

impugned orders and direct the respondents to consider the

praler of the petitioner afresh.

Vishal Parekar                                                                5/6




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12. The authorities mal call for an express fresh report from the

Superintendent of Police, Sultanpur and obtain the necessarl

undertaking/bond from the petitioner and sureties and impose

appropriate conditions to take care of the apprehension, and,

thereafter, pass appropriate order in accordance with law.

13. The authorities shall, however, decide the application of the

petitioner for release on furlough afresh within a period of six

weeks from the date of the communication of this order.

14. The petition stands partll allowed to the aforesaid extent.

15. Rule made absolute in aforesaid terms.

             (N. J. JAMADAR, J.)                  (S. S. SHINDE, J.)




Vishal Parekar                                                                   6/6