M.Aysha Parveen vs The State Rep. By Its
2021 Latest Caselaw 15568 Mad

                                                                                 W.P.No.14531 of 2021

                            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 03.08.2021

                                                         CORAM

                           THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                               W.P.No.14531 of 2021

                     M.Aysha Parveen                                       ... Petitioner

                                                          Vs.

                     1.The State rep. by its,
                       Home Secretary (Prison),
                       Home Department,
                       Secretariat,
                       Fort St. George,
                       Chennai.

                     2.The Director General of Prison,
                       No.2, Gandhi Irwin Road,
                       CMDA Building,
                       Egmore,
                       Chennai – 600 008.

                     3.The Deputy Inspector General of Prison (Vellore Range),
                       Office of the Range DIG,
                       Ramset Nagar, Thorapadi,
                       Vellore.

                     4.The Superintendent of Prison,
                       Central Prison at Vellore.                          ... Respondents



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                                                                                   W.P.No.14531 of 2021

                     PRAYER: Writ Petition is filed under Article 226 of Constitution of India,
                     to issue a Writ of Certiorarified Mandamus, to call for the records in
                     No.7314/t.k.3/2021 dated 30.06.2021 passed by the fourth respondent and
                     quash the same and direct the respondents to provide the “A” Class Facility
                     in view of the Rule 226 of the Tamil Nadu Prison Rules, 1983 to the husband
                     of the petitioner/convict namely M.Mohamed Zahir @ Zahir Hussain S/o.
                     Muthu Mohammed (CT.No.3395) confined at Central prison – Vellore.


                                 For Petitioner     : Mr.M.Mohamed Saifulla

                                 For Respondents : Mr.A.Damodaran,
                                                   Government Advocate [Crl. Side]

                                                       *****

                                                      ORDER

This Writ Petition is filed to call for the records in No.7314/t.k.3/2021

dated 30.06.2021 passed by the fourth respondent and quash the same and

direct the respondents to provide the “A” Class Facility in view of the Rule

226 of the Tamil Nadu Prison Rules, 1983 to the husband of the

petitioner/convict namely M.Mohamed Zahir @ Zahir Hussain S/o. Muthu

Mohammed (CT.No.3395) confined at Central prison – Vellore.

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2.The petitioner is the wife of the convict M.Mohamed Jakir had sent a

representation seeking “A” Class facility as per the Rule 226 of the

Tamil Nadu Prison Rules, 1983. The Superintendent of the Prison, Vellore

by communication No.7314/t.k.3/2021 dated 30.06.2021 had rejected the

request and further observed that such power is only with the Courts and the

Government, challenging the same the above writ petition is filed.

3.The contention of the petitioner is that the petitioner's husband was

arrested by the Narcotic Control Bureau at Chennai on 22.12.2015 and a case

in R.R.No.19 of 2015 came to be registered for the offence under Sections

8(c) r/w 27A and 22(c), Section 8 (c) r/w 29(1) and 28 of NDPS Act. On

conclusion of the trial, the trial court in C.C.No.28 of 2016 by Judgment

dated 12.12.2018 had convicted the petitioner and sentenced him to undergo

ten years Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- (Rupees

one lakh only). The petitioner's husband confined in the prison right from

the date of his arrest and he has almost completed five years and more. The

petitioner's husband was in the Hotel business and he was a income tax

assessee. On the date of the seizure of the consignment the petitioner's

husband was in abroad and he has been roped in only on the confession of

http://www.judis.nic.in W.P.No.14531 of 2021

the co-accused. The petitioner's husband was not in possession of the drugs

and no seizure was made from the petitioner's husband. The petitioner had

filed the petition along with the income tax returns for the proof that the

petitioner's husband was living a superior mode of life and entitled for

“A” Class facility. The fourth respondent without considering all the aspect

had rejected the representation which is not proper. Hence, the above writ

petition is filed.

4.The learned Government Advocate [Crl. Side] submitted that the

petitioner's husband is a convict who has convicted by the Sessions Judge, I

Additional Special Court, Under NDPS Act, Chennai by Judgment dated

12.12.2018 and sentenced him to undergo ten years Rigorous Imprisonment

and to pay a fine of Rs.1,00,000/- (Rupees one lakh only), in default to

undergo one year under Section 28 of NDPS Act, the sentence ordered to be

run concurrently. From the date of the arrest the petitioner's husband is in

prison and he has almost completed five years and more.

5.He further submitted that the petitioner's husband involved in the

NDPS offence. The petitioner's representation has been considered by the

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authorities by following the Tamil Nadu Prison Manual, 1983 Rule 225 to

227 and the Superintendent is not the appropriate authority to grant “A” class

facility to the prisoner and rejected the representation of the petitioner.

6.In the counter, it is clearly mentioned that prior to the rejection,

report was called for from the Chennai District Collector, thereafter the

proposal was sent to the Director General of Police/Director General of

Prisons and Correctional Services, Chennai and thereafter the fourth

respondent had rejected the petitioner's representation.

7.Considering the submissions of both side and on perusal of the typed

set of papers filed by the petitioner and counter filed by the respondents, it is

not in dispute that the petitioner's husband is a convict prisoner No.3395,

who had been convicted by the trial Court by Judgment dated 12.12.2018.

The petitioner's husband is in prison from the date of his arrest and as on

date, he has served five years and more inside the prison. The petitioner's

husband was an income tax assessee. When the petitioner made a

representation on 19.06.2021 to the fourth respondent along with the copies

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of the income tax assessment and other documents. Thereafter it is strange

to see in the counter it has been mentioned that the petitioner's plea seeking

“A” Class Facility for her husband has been considered after getting the

report from the Chennai District Collector and a proposal was also sent to the

Director General of Police/Director General of Prison.

8.From the rejection order it is seen that the representation of the

petitioner dated 19.06.2021 had been received by them on 24.06.2021 and

within ten days the rejection order has been passed, after getting the above

said report. Further as per the Tamil Nadu Prison Manual, it is for the

Government to decide about the eligibility or otherwise for providing “A”

Class Facility. In this case, without authority the Superintendent of Police,

Vellore had rejected the representation of the petitioner for providing “A”

Class Facility to her husband and the same cannot be considered as rejection.

9.Further in this case, the petitioner's husband is an income tax

assessee and requirement as per Section 225 of the Tamil Nadu Prison

Manual is that if they by social status, education or habit of life have been

accustomed to a superior mode of living. In this case, the petitioner's being

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an income tax assessee and a business man and lead a habit of life have been

accustomed to a superior mode of living. There is no other adverse reason

found against the petitioner's husband to continue him with the “A” Class

Facility. In view of the same, this Court is of the view that the petitioner's

husband is qualified and eligible for “A” Class Facility.

10.Accordingly, this Writ Petition is allowed. The Superintendent of

Prison, Vellore is directed to provide “A” Class Facility to the petitioner's

husband. No costs.

03.08.2021

Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No ah

To

1.The State rep. by its, Home Secretary (Prison), Home Department, Secretariat, Fort St. George, Chennai.

http://www.judis.nic.in W.P.No.14531 of 2021

2.The Director General of Prison, No.2, Gandhi Irwin Road, CMDA Building, Egmore, Chennai – 600 008.

3.The Deputy Inspector General of Prison (Vellore Range), Office of the Range DIG, Ramset Nagar, Thorapadi, Vellore.

4.The Superintendent of Prison, Central Prison at Vellore.

5.The Public Prosecutor, High Court, Madras.

http://www.judis.nic.in W.P.No.14531 of 2021

M.NIRMAL KUMAR, J.

ah

W.P.No.14531 of 2021

03.08.2021

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