Madras High Court
M.Aysha Parveen vs The State Rep. By Its on 8 February, 2021
W.P.No.1912 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.No.1912 of 2021
M.Aysha Parveen,
W/o.Mohamed Zahir. ... 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
PRAYER: Writ Petition filed under Article 226 of Constitution of India,
seeking Writ of Certiorarified Mandamus, to quash the impugned order
in No.13231/R.h.3/2020 dated 16.12.2020 passed by the 4th respondent
Page No.1/8
https://www.mhc.tn.gov.in/judis/
W.P.No.1912 of 2021
and directing the respondents to grant 30 days ordinary leave without
escort to the convict namely Mohamed Zahir, S/o.Muthu Mohamed
(C.T.No.3395) confined at Central Prison, Vellore.
For Petitioner : Mr.V.Parthiban
for Mr.M.Mohamed Saifulla.
For Respondents : Mr.M.Mohamed Riyaz,
Additional Public Prosecutor.
ORDER
This writ petition has been filed challenging the impugned
order passed by the fourth respondent rejecting the application submitted
by the petitioner, who is the wife of the convict, seeking for ordinary
leave.
2.The husband of the petitioner viz.,Mohamed Zahir
underwent trial in C.C.No.28 of 2016 for an offence under Section 8(c)
r/w Sections 29, 22(c), 27A and 28 of NDPS Act 1985. He was convicted
and sentenced to undergo rigorous imprisonment of 10 years and to pay a
fine of Rs.1,00,000/-. The trial Court also ordered that the convict will
be entitled for set off under Section 428 Cr.P.C.
Page No.2/8
https://www.mhc.tn.gov.in/judis/
W.P.No.1912 of 2021
3.It is seen from records that the husband of the petitioner
continued to be in judicial custody right through the proceedings and as
on date, he has already undergone sentence of 5 years and 14 days. This
is by virtue of the fact that the period undergone by him as an under trial
prisoner will also be set off under Section 428 Cr.P.C.
4.The petitioner, who is the wife of the convict, made a
representation to the fourth respondent on 01.12.2020, requesting for
ordinary leave for her husband inorder to make arrangements for the
marriage of their daughter. This representation was rejected by the
fourth respondent through impugned order dated 16.12.2020, on the
ground that the husband of the petitioner has undergone sentence only
for a period of 2 years and 3 days. The fourth respondent had ascertined
this period only from the date of the judgment that was passed on
06.12.2018. Aggrieved by the same, the present writ petition has been
filed before this Court.
Page No.3/8
https://www.mhc.tn.gov.in/judis/
W.P.No.1912 of 2021
5.Heard Mr.V.Parthiban, learned counsel representing on
behalf of Mr.M.Mohamed Saifulla, learned counsel for the petitioner and
Mr.Mohamed Riyaz, learned Additional Public Prosecutor, appearing on
behalf of the respondent.
6.A convict is entitled for grant of ordinary leave under the
Tamil Nadu Suspension of Sentence Rules, 1982 (hereinafter called as
'the Rules'), if any of the grounds provided under Rule 20, is satisfied. In
the present case, the ordinary leave was sought for on the ground that
arrangements must be made for conducting the marriage of the daughter
of the convict. This ground is covered under Rule 20(iv).
7.For the purpose of availing ordinary leave, the eligibility is
provided under Rule 22 of the Rules, which states that the convict must
have completed 3 years of imprisionment from the date of initial
imprisonment. The fourth respondent while counting this period has
come to a conclusion that the convict has undergone imprisionment only
for a period of 2 years and 3 days. The fourth respondent arrived at such
Page No.4/8
https://www.mhc.tn.gov.in/judis/
W.P.No.1912 of 2021
a conclusion by taking into consideration the date of the judgment
i.e.06.12.2018.
8.In the present case, the convict continued to be in judicial
custody right through the proceedings and therefore, he will be entitled
for the set off as provided under Section 428 Cr.P.C. If the total period is
taken into consideration, the convict has undergone imprisonment for
nearly 5 years and 14 days. Therefore, the convict satisfies the eligibility
requirement under Rule 22. The language used under Rule 22(i) is 3
years of imprisonment from the date of initial imprisonment. This Rule
does not say that the period of imprisonment will be calculated from the
date of judgment. Unfortunately, this was not noticed by the fourth
respondent while passing the impugned order.
9.In view of the above, the impugned order passed by the
fourth respondent is liable to be interfered by this Court and accordingly
the same is hereby quashed. The fourth respondent is directed to
consider the application submitted by the petitioner dated 01.12.2020 and
Page No.5/8
https://www.mhc.tn.gov.in/judis/
W.P.No.1912 of 2021
grant ordinary leave for a period of 30 days, as provided under Rule
22(ii) of the Rules. It is left open to the fourth respondent to impose any
reasonable conditions.
10.This writ petition is allowed with the above directions.
08.02.2021
rm
Page No.6/8
https://www.mhc.tn.gov.in/judis/
W.P.No.1912 of 2021
To
1.The 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.
5.The Public Prosecutor,
High Court, Madras.
Page No.7/8
https://www.mhc.tn.gov.in/judis/
W.P.No.1912 of 2021
N.ANAND VENKATESH, J.,
rm
W.P.No.1912 of 2021
08.02.2021
Page No.8/8
https://www.mhc.tn.gov.in/judis/
