Madras High Court
V.N.Raj Kiran vs The State Of Tamil Nadu on 7 January, 2021
W.P.No.3317 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.06.2021
PRONOUNCED ON : 17.06.2021
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
W.P.NO.3317 OF 2021
V.N.Raj Kiran ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by
The Deputy Inspector General of Prison.
2.The Superintendent of Prisons,
Central Prison-I,
Puzhal, Chennai. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
Writ of Certiorarified Mandamus, direction in the nature of setting aside the
reply from the respondents dated 07.01.2021 and directing the respondents
herein to grant the ordinary leave for 30 days as provided under Section 20 of
Tamil Nadu Suspension of Sentence Rules, 1982 to the father of the petitioner
Y.V.Nagaraj (Convict) son of Y.Subba Rao presently held at Central Prison-I,
Pughal, Chennai – 66 bearing C.b.No.6707, in order to save the life of his
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W.P.No.3317 of 2021
wife and to provide for his son's education, and also to pass any such order or
orders as this Court may deem fit in the necessary in the circumstances of this
case.
For Petitioner : Mr.R.Rajan
For Respondents : Mr.A.Damodaran
Government Advocate (Crl.Side)
*****
ORDER
This Writ Petition has been filed to give a direction in the nature of
setting aside the reply from the respondents dated 07.01.2021 and directing
the respondents herein to grant the ordinary leave for 30 days as provided
under Section 20 of Tamil Nadu Suspension of Sentence Rules, 1982 to the
father of the petitioner Y.V.Nagaraj (Convict) son of Y.Subba Rao presently
held at Central Prison-I, Pughal, Chennai – 66 bearing C.b.No.6707, in order
to save the life of his wife and to provide for his son's education, and also to
pass any such order or orders as this Court may deem fit in the necessary in
the circumstances of this case.
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W.P.No.3317 of 2021
2.The petitioner is the son of the convict viz., Y.N.Nagaraj, who had
been convicted and sentenced to ten years Rigorous imprisonment under
NDPS Act passed by the I Additional Special Judge for NDPS Act Cases,
Chennai by Judgment dated 27.07.2017 in C.C.Nos.418 of 1995 and 36 of
1995 has filed this writ petition seeking grant of 30 days ordinary leave as
provided under Tamil Nadu Suspension of Sentence Rules, 1982.
3.The petitioner had sent a representation to the Superintendent of
Police, Central Prison, Puzhal, Chennai on 06.01.2021. By communication
dated 07.01.2021, the above said representation was rejected for the reason
that as per Section 32 A of the NDPS Act, the petitioner's father is not eligible
for Ordinary Leave, against which the present writ petition is filed.
4.The contention of the learned counsel appearing for the petitioner is
that the petitioner's father is convicted and sentenced to ten years Rigorous
Imprisonment and from 27.07.2017, he is confined in Central Prison, Puzhal,
Chennai and he has served more than three years and is presently held in
Central Prison-I, Puzhal, Chennai. The petitioner's father was granted
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W.P.No.3317 of 2021
emergency leave by this Court in H.C.P.No.2118 of 2020 vide order dated
04.12.2020 for 30 days. Further it was extended for another 14 days vide
order dated 05.01.2021 in Crl.M.P.No.14 of 2021.
5.The petitioner had given a representation on 06.11.2020 to the first
and second respondents seeking ordinary leave to his father so that his father
could arrange finance for the petitioner mother's treatment and brother's
college fees, since there was no response another representation dated
04.01.2021 was submitted by the petitioner's father. Thereafter, the
respondents vide impugned letter dated 07.01.2021, rejected the grant of
ordinary leave for the reason that Section 32A of NDPS Act is a bar.
6.The learned counsel appearing for the petitioner further submitted that
in the case of Dadu @ Tulsidas Vs. State of Maharashtra, the Apex Court by
order dated 12.10.2000 had held that Section 32 A does not in any way affect
the powers of the authorities to grant parole. The petitioner's father has been
granted parole for eight times from 01.05.2018 for nearly 60 days. Further he
submitted that the reason given by the second respondent is completely wrong
and the second respondent is not applied his mind and the petitioner's father is
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W.P.No.3317 of 2021
eligible for ordinary leave as per Section 20 of the Tamil Nadu Suspension of
Sentence Rules, 1982.
7.The learned Government Advocate appearing for the respondent has
filed his counter and submitted that the petitioner's father was admitted in the
prison on 27.07.2017 and he was convicted on 27.07.2017 by the I Additional
Special Judge for NDPS Court for the NDPS offence in C.C.Nos.36 of 1995
and 418 of 1995 and sentenced for a period of ten years Rigorous
Imprisonment and to pay a fine of Rs.1,00,000/-. The petitioner's father has so
far undergone 04 years 04 months and 26 days of imprisonment as on
27.04.2021. The petitioner's father was granted 30 days leave without escort
to arrange medical treatment for his wife vide orders in H.C.P.No.2118 of
2020 and subsequently the same was extended by this Court till 20.01.2021
vide orders in Crl.M.P.No.14 of 2021.
8.Further he submitted that a representation dated 04.01.2021 was
received from the petitioner's father seeking grant of 30 days ordinary leave
and as per Section 32 A of NDPS Act, there is a bar and there is no provisions
to grant ordinary leave to the prisoners involved in NDPS offence by way of
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W.P.No.3317 of 2021
suspension of sentence. Further in the counter, ground seeking for the grant
of ordinary leave has been enlisted, in which it is found that ordinary leave
can be granted for the prisoners to make arrangement for the admission of the
children in the school or college.
9.Considering the submissions and on perusal of the materials, the
petitioner's father being a convict for a period of ten years under NDPS Act
and he is in prison from 27.07.2017 is not in dispute. As on 25.02.2021, the
convict undergone 04 years 03 months and 08 days.
10.The details of the leave availed by the prisoner/petitioner's father is
as follows:
SI. From To No. of Leave Type Escort Y/N
No. Days
1 01.05.2018 01.05.2018 1 day Emergency Leave With Escort
2 06.06.2018 12.06.2018 6 days Court Leave as per order of the With Escort
Hon'ble High Court of Madras
dated 31.05.2018 in W.P.No.2859
of 2018
3 22.11.2018 29.11.2018 6 days Emergency Leave Without Escort
4 27.12.2018 31.12.2018 3 days Emergency Leave Without Escort
5 21.01.2019 28.01.2019 6 days Emergency Leave Without Escort
6 11.03.2019 15.03.2019 3 days Emergency Leave Without Escort
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W.P.No.3317 of 2021
SI. From To No. of Leave Type Escort Y/N
No. Days
7 24.06.2019 28.06.2019 3 days Emergency Leave Without Escort
8 08.12.2020 20.01.2021 42 Court leave vide orders dated Without Escort
days 04.12.2020 in H.C.P.No.2118 of
2020 and the same was extended
till 20.01.2021 vide orders in
Crl.O.P.No.14 of 2021
11.Thus, it is clear that the petitioner's father so far has not availed any
ordinary leave. One of the ground for ordinary leave is to make arrangement
for the admission of the children in the school or college. The specific plea
has been made by the prisoner is that the college admission for his son is to be
arranged and now the college admissions are to begin shortly.
12.The Apex Court in the case of Dadu @ Tulsidas Vs. State of
Maharashtra has held that Section 32 A in so far as it ousts the jurisdiction of
the court to suspend the sentence awarded to a convict under the Act is
unconstitutional. Further held that Section 32 A is unconstitutional to the
extent and it takes away the right of the Courts to suspend the sentence
awarded to convict under the Act as per Tamil Nadu Suspension of Sentence
Rules, 1982. It is made clear that there is no impediment for this Court to
entertain the above writ petition and Section 32 A is not a bar to grant ordinary
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W.P.No.3317 of 2021
leave for the prisoners. It is also seen that the petitioner's father so far has not
availed any ordinary leave.
13.Considering the above facts and circumstances, this Court is inclined
to grant 30 days ordinary leave for the petitioner's father from 23.06.2021 with
certain conditions:
i) The prisoner shall execute a surety bond in
Form II for a sum of Rs.5,000/- (Rupees five thousand
only) with two sureties for a like sum each;
ii) The prisoner shall report before the
Inspector of Police, E4 Police Station, Abiramapuram
daily once;
iii) The prisoner shall reside at the place
specified by the Superintendent of prisons and shall
not go beyond the limits of City of Chennai;
iv) The prisoner shall be of good behaviour
and shall not commit any offence during his leave;
v) The prisoner shall not associate with bad
characters or lead a dissolute life;
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W.P.No.3317 of 2021
vi) The prisoner shall be liable to be recalled
immediately to prison in case he violates any of the
conditions; and
vii) The prisoner shall surrender himself to the
Superintendent of the Prison on expiry of leave
granted or on recall.
14.Accordingly, this Writ Petition stands allowed. However, there shall
be no order as to costs.
17.06.2021
Speaking order/Non-speaking order
Index : Yes/No
Internet : Yes/No
ah
Note: Issue Order Copy on 17.06.2021
To
1.The State of Tamil Nadu,
Represented by
The Deputy Inspector General of Prison.
2.The Superintendent of Prisons,
Central Prison-I,
Puzhal, Chennai.
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W.P.No.3317 of 2021
M.NIRMAL KUMAR, J.
ah
Pre-Delivery Order in
W.P.NO.3317 OF 2021
17.06.2021
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