Calcutta High Court (Appellete Side)

Noor Mohammed @ Sahabaz @ Sikendar vs The State Of West Bengal & Ors on 25 January, 2022

             IN THE HIGH COURT AT CALCUTTA
               CIVIL APPELLATE JURISDICTION
                        (Appellate Side)


                                         Reserved on: 20.01.2022
                                         Pronounced on: 25.01.2022

                                                    MAT 743 of 2021
                                                       With
                                                    CAN 1 of 2021

                                          (Through Video Conference)


Noor Mohammed @ Sahabaz @ Sikendar
                                                        ...Appellant
                                  -Vs-
The State of West Bengal & Ors.
                                                        ...Respondents

Present:-

Mr. Mujahid Ahmed, Mr. Sahid Uddin Ahmed, Advocates ... for the Appellant

Mr. Amitesh Banerjee, Mr. Suddhadev Adak, Advocates ... for the State

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

Prakash Shrivastava, CJ:

1. This appeal is directed against the order of the learned Single

Judge dated 07th July, 2021 whereby WPA 2594 of 2019 has been

disposed of with the direction to respondent No. 2 to resolve the

security issue and dispose of the appellant's application dated 27th

November, 2018 for release on parole keeping in view the directions

contained in the conclusion part of the order.

2 MAT 743 of 2021

2. Appellant was an accused in the POTA case and was found

guilty and sentenced by the Special POTA Court, Mumbai. The

appellant was also an accused in Khadim abduction case in Sessions

Trial No. 14(10) of 2012, corresponding Sessions Case No. 65(1) of

2003. He has been convicted for offence under Section 342 read with

120B of the Indian Penal Code, by the judgment and order dated 18th

April, 2018 passed by the Additional Sessions Judge, 2nd Court,

Alipore. Criminal Appeal No. 144 of 2018 has been filed by the

appellant against conviction, which is pending before this Court. The

appellant had filed the Writ Petition No. 2594 of 2019 seeking a

direction to the respondents to consider his representation dated 27th

November, 2018 for parole and to allow the appellant to go on parole

for a period of 30 days to visit his family. Before the learned Single

Judge, report in the form of affidavit was filed on behalf of the State

respondents taking the stand that the appellant was a life convict

connected to a serious case and parole for a long period of 30 days at

an address situated at Mumbai was not viable from the point of view

of security. It was also disclosed that earlier the appellant was granted

parole under police guard for two days excluding journey time vide

memo dated 28th November, 2019 but the Calcutta Police Authorities

had expressed inability to provide police escorts and guards at

Mumbai because State of Maharashtra does not fall within their

jurisdiction. The initiative of the concerned State Authority of West

Bengal to shift the appellant from Presidency Correctional Home,

Kolkata to Taloja Central Jail, Khargar, Mumbai permanently for

facilitating meeting of appellant with his family members and near

relatives was also not acceded to.

3 MAT 743 of 2021

3. Learned Single Judge has duly taken note of the fact that the

respondent authorities are not opposed to the appellant's release on

parole but considering the difficulties in implementing the parole

order, initially parole for two days was granted. In this regard, learned

Single Judge has also duly considered the security factor and the fact

that even if police authorities in West Bengal provide escort during

the transit from Kolkata to Mumbai, it will be the responsibility of the

Mumbai/Maharashtra Police to keep track over the appellant's

activities while he stays at Mumbai/Maharashtra. In this regard, the

judgment of the Hon'ble Supreme Court in the matter of Asfaq Vs.

State of Rajasthan and Others, (2017) 15 SCC 55 has been duly

taken note of wherein various circumstances have been enumerated

when parole should or should not be granted and it has been observed

that not all people in prison are appropriate for grant of furlough or

parole. The record reflects that exchange of correspondence has taken

place between the West Bengal Authorities and Maharashtra Police

Authorities and there is no positive response on record by the

Maharashtra Police to protect the appellant and keep track of his

activities during his stay in Maharashtra.

4. Learned Single Judge has duly taken note of Section 62 of the

West Bengal Services Correctional Act, 1992 which provides for

release of prisoners on parole as also the Prisoners Act, 1900 read

with West Bengal Amendment by the Prisoners (West Bengal

Amendment) Act, 1955 and thereafter, has found that there is no

embargo on the appellant to be released on parole and allow him to

transfer outside West Bengal during his period of release on parole if

he is so released save and except the security factor. It has been noted 4 MAT 743 of 2021

that the Jail Authorities or the Police Authorities in West Bengal have

no control over the Police Authorities in Maharashtra and it is for the

local police at Maharashtra, where the appellant intends to stay during

the parole, to keep a watch on his activities so that the appellant does

not turn out to be a threat to the society or that his life is not

endangered. It has also been noted that this Court had no territorial

jurisdiction over the State of Maharashtra to transfer the petitioner

from Alipore Jail, West Bengal to a jail in Maharashtra and thereafter,

release the appellant on parole.

5. Having regard to above, learned Single Judge, has issued the

following directions:

"The respondent no. 2 in order to resolve the security issue and dispose of the petitioner's application dated 27th November, 2018 for release on parole is given the following directions:-

i) The respondent no. 2 shall within a week from date collect the details of specific place or places where the petitioner intends to stay in Maharashtra on being released on parole;

ii) The respondent no. 2 shall within a week from the date of receiving such information seek a confirmation from his counterparts in Maharashtra wherein the petitioner intends to stay on being released on parole for keeping a watch on the petitioner's activities threat by forwarding a copy of this order.

iii) The respondent no. 2 shall wait for four months from the date of seeking confirmation from his counterparts in Maharashtra and shall thereafter within three months formally dispose of the petitioner's application dated 27th November, 2018 for release on parole by passing a reasoned order by taking into consideration of all relevant factors.

                                      5                    MAT 743 of 2021



      iv)     The respondent no. 2 shall be free to decide on the time

period for which the petitioner may be released on parole and the terms and condition for his release.

v) The respondent no. 2 shall also take into consideration the developments subsequent to the filing of the writ petition i.e., death of the petitioner's brother on 15th May, 2021.

vi) In the event there is no confirmation from the side of the Maharashtra Police Authorities within three months from the date of respondent no. 2 seeking confirmation from his counterparts in Maharashtra, the respondent no. 2 shall dispose of the petitioner's application dated 27th November, 2018 by a reasoned order giving all details as expeditiously as possible but not beyond seven months from date.

Writ petition is accordingly disposed of. There shall, however, be no order as to costs."

6. During the pendency of this appeal on 23rd December, 2021,

learned Counsel for the State had made a submission before this Court

that the State of West Bengal had no objection in granting parole to

the appellant but Maharashtra Police, where the appellant has to go, is

not coming forward to escort and protect the appellant. To this,

submission of learned Counsel for the appellant was that the

respondent authorities should first pass an order for release on parole

indicating the difficulties related to release even after the order of

parole, then at least appellant will have an opportunity to approach the

Court of competent jurisdiction in Maharashtra seeking a direction to

the concerned police authorities in Maharashtra to give proper

protection.

7. After the above stand of learned Counsel for the appellant

before this Court, competent authority, i.e., ADG & IG of 6 MAT 743 of 2021

Correctional Services, West Bengal has passed the order dated 11th

January, 2022 granting the parole to the appellant for a period of

seven days excluding journey time by recording as under:

"The representation dated 27.11.2018 (page 19-20 of WP no. 2594(W) of 2019) submitted by the petitioner Convict Noor Mohammad @ Sahabaz @ Sikaner is considered. Efforts continue from this Directorate to secure assistance of authorities in Maharashtra so that the petitioner is able to visit his residence situated at Mumbai Maharashtra by availing parole.

As soon as an appropriate response is received or the procedural steps are worked out further action will be taken. This would be his first chance of parole and hence a short period of 2 (two) days Parole was granted in the previous Order. However granting and executing parole to an outside state requires a considerable time, effort and co-ordination. Hence considering the long detention spent in custody but keeping in mind that this would be his first chance of parole, in supersession of this Directorate previous Order No. 6689/PR- 15(10-P)/2019Pt. dated 28.11.2019 Noor Md. @ Sahabaz @ Sikander is granted 7 (seven) days parole excluding journey time."

8. The above order reflects that the prayer of the appellant to

release on parole has duly been granted by the respondent authorities.

9. Submission of learned Counsel for the appellant at this stage is

appellant should be granted at least 30 days parole as was granted in

the case of co-accused Mojammel Sk. @ Akram @ Akka. The learned

Counsel for the State has fairly stated before this Court that this is the

first parole of the appellant and if he comes back safely without

creating any disturbance, then his further prayer for grant of parole for

a longer period will be duly considered by the State Authorities.

7 MAT 743 of 2021

10. We find the above stand of State to be reasonable. We have also

examined the order of the learned Single Judge which does not suffer