Himachal Pradesh High Court

Between vs State Of Himachal Pradesh & Others on 31 December, 2021

Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                       .

            ON THE 31st DAY OF DECEMBER, 2021

                           BEFORE





       HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
                            &
     HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA

               CIVIL WRIT PETITION No.7590 of 2021.

         Between:-
                   r        to
         TOSHAM KUMAR, S/O SH. JAGAR NATH,
         AGED ABOUT 26 YEARS, R/O VILLAGE:
         JANA, WARD NO. 05, P/O: ARCHHANDI,

         TEHSIL AND DISTRICT : KULLU, HP,
         THROUGH SUPERINTENDENT OF JAIL.
                                          ......PETITIONER.

         (BY SH. SUNIL KUMAR, SH. KARAN THAKUR AND



         SH. PANKAJ SAWANT, ADVOCATES)

         AND




    1.   STATE OF HP, THROUGH ITS PRINCIPAL
         SECRETARY, DEPARTMENT OF HOME





         (JAIL), SHIMLA, DISTT: SHIMLA-171002.

    2.   THE DIRECTOR GENERAL PRISON





         CORRECTIONAL SERVICES OFFICER AT
         SHIMLA-171009 (H.P.)

    3.   INSPECTOR GENERAL OF PRISIONS &
         CORRECTIONAL SERVICES, HIMACHAL
         PRADESH, SHIMLA-171009.

    4.   THE SUPERINTENDENT OF JAIL,
         MODEL CENTRAL JAIL, NAHAN,
         DISTRICT : SIRMOUR (H.P.)

                                            ......RESPONDENTS.




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          (BY SH.ASHOK SHARMA, ADVOCATE GENERAL
          WITH SH. ASHWANI SHARMA, ADDITIONAL
          ADVOCATE GENERAL AND SH. VIKRANT




                                                            .
          CHANDEL, DEPUTY ADVOCATE GENREAL,





          FOR RESPONDENTS-1 TO 4)
    ________________________________________________________________
                This petition coming on for admission after





    notice this day, Hon'ble Mr. Justice Tarlok Singh
    Chauhan, passed the following:
                          ORDER

The District Magistrate, Kullu, District Kullu, H.P.,

did not recommend release of the petitioner on parole,

hence, the respondents rejected his case as such.

2. Learned Special Judge-I, Mandi, District Mandi

(H.P.), vide judgment dated 27.06.2019 in Sessions Trial No.

16/17 of 2016, convicted the petitioner for the offence

punishable under Sections 20 of the Narcotic Drugs and

Psychotropic Substances Act, 1985. He was sentenced to

undergo rigorous imprisonment for ten years and to pay

fine of Rs.1,00,000/-. In default of payment of fine, the

petitioner was ordered to undergo simple imprisonment for

a period of one year.

3. Criminal Appeal No.371/2019, preferred by the

petitioner against the aforesaid judgment is still pending

adjudication before this Court.

4. All applications of the petitioner seeking parole

have been rejected by the respondents on the basis of non-

recommendation by the District Magistrate, Kullu, District

Kullu, H.P. The reason assigned for rejection of the parole

was that petitioner may again indulge in drugs peddling

which will affect the younger generation of the society.

Aggrieved thereby, the instant petition has been preferred

by the petitioner, praying for release on parole for a period

of four weeks.

5. Taking note of Section 6 of H.P. Good Conduct

Prisoners (Temporary Release ) Act, 1968 a Coordinate

Bench of this Court in CWP No.2931 of 2019, titled Hari

Dei versus State of Himachal Pradesh & others,

decided on 03.06.2020, allowed the petitioner therein to be

released on parole on the ground that there was no report

of the concerned District Magistrate that release of the

convict on parole would endanger either security of the

State or the public order. In the instant case also, this is not

a ground for refusing to recommend the release of the

petitioner on parole. The District magistrate has simply

assumed that petitioner being young can repeat the offence

if released on parole. In 1985 CRL L.J. 1458, titled Bir

Singh Vs. the State of Himachal Pradesh and others,

this Court observed as under:-

.

"3. ...................."The absence of an opportunity to watch his conduct outside jail for the reason

of his not having been released on parole/furlough is again not a factor which could be legitimately pressed into service on the facts

and in the circumstances of the case. There is no reason to assume that if the petitioner is granted the benefit of premature release, he would once

again display criminal tendency. Such an

assumption overlooks not only that the petitioner is not shown to be a habitual offender but also the reformatory aspect of the penalty

procedure as well as the good record of the petitioner during the entire period of his

imprisonment. ......................."

6. Similarly, in 2017 (15) SCC 55, titled Asfaq

versus State of Rajasthan and others, Hon'ble Apex

Court observed as under:-

"18). The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even

citizens of this country have a vested interest in preparing offenders for successful re-entry into

.

society. Those who leave prison without strong

networks of support, without employment prospects, without a fundamental knowledge of

the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to

criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furloughs or parole

can help prepare offenders for success."

"22). Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of

serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened

criminal would be a person for whom it has

become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed

a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorised as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit

the crime again or that he would be a threat to the society. Mere nature of the offence

.

committed by him should not be a factor to deny

the parole outrightly. Wherever a person convicted has suffered incarceration for a long

time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider

here, viz. in those cases where a person has been convicted for committing a serious office, the competent authority, while examining such

cases, can be well advised to have stricter

standards in mind while judging their cases on the parameters of god conduct, habitual offender or while judging whether he could be

considered highly dangerous or prejudicial to the public peace and tranquility etc."

7. The principles laid down in the above judgment

were reiterated in 2019 (1) Scale 560, titled

Mohammed Shamsuddin versus The State of

Rajasthan & others.

8. Entire law has been enunciated and

encapsulated by this Court in CWP No.529 of 2018, titled

Jagat Ram versus State, decided on 26.06.2020.

9. In the instant case, it is not in dispute that

petitioner has already served almost 5 years and 7 months,

out of ten years of substantive sentence, imposed upon

him. He has not been released on parole despite repeated

applications stated to have been submitted by him in this