Madras High Court
B.V.Jeevankumar vs The Home Secretary on 21 June, 2021
W.P.No.648 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.02.2022
PRONOUNCED ON : 14.03.2022
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE Mr.JUSTICE A.A.NAKKIRAN
W.P.No.648 of 2022
B.V.Jeevankumar .. Petitioner
Vs.
1.The Home Secretary
Home Department (Prison)
Secretariat, Fort St. George
Chennai 600 009
2.The Director General of Prison and
Inspector General of Prison
Whannels Road
Egmore, Chennai 600 008
3.The Superintendent of Prison
Central Prison-I (Convicted Prison)
Puzhal, Chennai 600 066
4.The Deputy Inspector General
Department of Prisons and Corrections
Chennai Saragam, Chennai .. Respondents
1/17
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W.P.No.648 of 2022
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, directing the
3rd respondent to call for the records pertaining to the proceedings of the
3rd respondent in No.7387/Tha.Ku.1/2021 dated 21.06.2021 and quash the
same and to direct the 3rd respondent to grant the petitioner viz.,
B.V.Jeevakumar, S/o.Late B.Venkateswarlu, (Convict No.7387), 15 days
leave without escort, who is confined in the 3rd respondent's prison.
For Petitioner Mr.G.Murugendran
For Respondents Mr.Hasan Mohamed Jinnah
Public Prosecutor
Assisted by
Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
P.N.PRAKASH, J.
This petition has been filed to quash the impugned order in
No.7387/Tha.Ku.1/2021 dated 21.06.2021 and to direct the 3rd respondent
to grant 15 days leave without escort to the petitioner viz., B.V.Jeevakumar,
S/o.Late B.Venkateswarlu, (Convict No.7387), who is at present confined in
the Central Prison-I, Puzhal.
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2. The facts that are germane for deciding this writ petition are as
under :
2.1. The petitioner and three others, faced a prosecution that was
initiated by the Narcotics Control Bureau (NCB), Chennai, an executive arm
of the Central Government, in C.C.No.28 of 2016, on the file of the
I Additional Special Court for NDPS Act Cases, Chennai, for trafficking in
Methamphetamine, a psychotropic substance. The petitioner was convicted
on 06.12.2018 of the offences under Sections 8(c) read with 29(1) and 28 of
the NDPS Act and sentenced to undergo 10 years rigorous imprisonment
with fine. Challenging the said conviction and sentence, the petitioner
preferred an appeal in Crl.A.No.245 of 2019, before this Court and the same
is pending.
2.2. While that being so, the petitioner gave a representation dated
16.06.2021, seeking 30 days ordinary leave under the Tamil Nadu
Suspension of Sentence Rules, 1982 (for brevity "the Sentence Suspension
Rules"), which has been rejected by the Superintendent of Central Prison,
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Puzhal, by the impugned order dated 21.06.2021, challenging which, the
petitioner is before this Court.
3. Heard Mr.Murugendran, learned counsel for the petitioner and
Mr.Hasan Mohamed Jinnah, learned Public Prosecutor, assisted by
Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the
respondents/State.
4. The Superintendent, Central Prison, Puzhal, has filed a counter
affidavit dated 02.02.2022, wherein, he has taken a stand that, when the
appeal of the petitioner is pending, leave cannot be granted and that, only
suspension of sentence and bail can be granted under Section 389(1) Cr.P.C.
5. In the impugned order, the petitioner's request for leave for 30 days
has been rejected on the ground that since he has been convicted for the
offence under the NDPS Act, which is a Central Act, only 15 days ordinary
leave can be granted per year.
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W.P.No.648 of 2022
6. Mr.Murugendran took this Court through paragraph 30 of the
judgment of the Supreme Court in Dadu @ Tulsidas Vs. State of
Maharashtra [(2000)8 SCC 437] and submitted that parole cannot be
denied to the petitioner by the authorities. It may be profitable to extract
paragraphs 29 and 30 of Dadu (supra), as under :
“29. Under the circumstances the writ petitions are disposed of
by holding that:
(1) Section 32-A does not in any way affect the powers
of the authorities to grant parole.
(2) It is unconstitutional to the extent it takes away the
right of the court to suspend the sentence of a convict under
the Act.
(3) Nevertheless, a sentence awarded under the Act
can be suspended by the appellate court only and strictly
subject to the conditions spelt out in Section 37 of the Act, as
dealt with in this judgment.
30. The petitioner in Writ Petition No.169 of 1999 shall be at
liberty to apply for parole and his prayer be considered and disposed of
in accordance with the statutory provisions, if any, jail manual or
Government instructions without implying Section 32-A of the Act as a
bar for consideration of the prayer. Similarly the petitioner in Writ
Petition No.243 of 1999 is at liberty to move the High Court for
suspension of sentence awarded to him under the Act. As and when
any such application is filed, the same shall be disposed of in
accordance with law and keeping in view the limitations prescribed
under Section 37 of the Act and the law laid down by this Court.”
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7. A reading of the above shows that the petitioner therein in
W.P.No.169 of 1999, was given an opportunity, who applied for parole, with
a further direction that his prayer for parole should be considered and
disposed of in accordance with the statutory provisions, if any, jail manual or
Government instructions, without implying Section 32-A of the NDPS Act as
a bar for consideration of the prayer. In other words, the petitioner before
the Supreme Court in W.P.No.169 of 1999, was denied parole by the prison
authorities, by relying upon Section 32-A, ibid. Therefore, while interpreting
Section 32-A, ibid., the Supreme Court held that the said Section does not
take away the power of the prison authorities to grant parole. One can have
no quarrel with the above proposition of law.
8. In the State of Tamil Nadu, as held by the Full Bench of this Court
in State rep. by the Home Secretary, Government of Tamil Nadu and
Others Vs. Yesu @ Velaiyan [(2011) 5 CTC 353 : 2011 SCC OnLine Mad
1463], only leave can be granted and that too, under the Sentence
Suspension Rules. Therefore, Section 32-A, ibid. will not be a bar for grant
of leave to a convict prisoner under the Sentence Suspension Rules, provided
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W.P.No.648 of 2022
he satisfies the other eligibility conditions. In this case, the pendency of
Crl.A.No.245 of 2019, is a bar for grant of leave under the Sentence
Suspension Rules.
9. The word "sentence" has been defined in Section 2 of the Sentence
Suspension Rules, as under :
“4. Sentence means a sentence as finally fixed on appeal or
revision or otherwise and includes an aggregate of more sentence than
one. Sentences in default of fine shall not be taken into consideration while
fixing eligibility for being released on leave.”
Mr.Murugendran gave a convoluted interpretation by reading the second
portion of the aforesaid definition. We are unable to persuade ourselves to
agree with him because, the first portion of the definition is quite
unambiguous, in that, it clearly states that sentence means, a sentence finally
fixed on appeal or revision.
10. In the case of the petitioner, the sentence has been imposed only
by the trial Court and it has not been finally fixed by the Appellate Court, as
the appeal in Crl.A.No.245 of 2019 is under consideration. Therefore,
during the pendency of the said appeal, it is only this Court, which can grant
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W.P.No.648 of 2022
suspension of sentence and bail under Section 389(1) Cr.P.C. and the prison
authorities cannot arrogate to themselves, the power of this Court and
cannot grant leave or parole.
11. This issue is no more res integra, in the light of the authoritative
pronouncement of the Supreme Court in K.M.Nanavati Vs. State of
Bombay (AIR 1961 SC 112), wherein, the Supreme Court has held as
follows :
“21. In the present case, the question is limited to the exercise by
the Governor of his powers under Article 161 of the Constitution
suspending the sentence during the pendency of the special leave petition
and the appeal to this court; and the controversy has narrowed down to
whether for the period when this court is in seizin of the case the
Governor could pass the impugned order, having the effect of suspending
the sentence during that period. There can be no doubt that it is open to
the Governor to grant a full pardon at any time even during the pendency
of the case in this court in exercise of what is ordinarily called “mercy
jurisdiction”. Such a pardon after the accused person has been convicted
by the court has the effect of completely absolving him from all
punishment or disqualification attaching to a conviction for a criminal
offence. That power is essentially vested in the head of the Executive,
because the judiciary has no such “mercy jurisdiction”. But the
suspension of the sentence for the period when this court is in seizin of the
case could have been granted by this court itself. If in respect of the same
period the Governor also has power to suspend the sentence, it would
mean that both the judiciary and the executive would be functioning in the
same field at the same time leading to the possibility of conflict of
jurisdiction. Such a conflict was not and could not have been intended by
the makers of the Constitution. But it was contended by Mr.Seervai that
the words of the Constitution, namely, Article 161 do not warrant the
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conclusion that the power was in any way limited or fettered. In our
opinion there is a fallacy in the argument insofar as it postulates what has
to be established, namely, that the Governor's power was absolute and not
fettered in any way. So long as the judiciary has the power to pass a
particular order in a pending case to that extent the power of the
Executive is limited in view of the words either of Sections 401 and 426 of
the Code of Criminal Procedure and Articles 142 and 161 of the
Constitution. If that is the correct interpretation to be put on these
provisions in order to harmonise them it would follow that what is covered
in Article 142 is not covered by Article 161 and similarly what is covered
by Section 426 is not covered by Section 401. On that interpretation
Mr.Seervai would be right in his contention that there is no conflict
between the prerogative power of the sovereign state to grant pardon and
the power of the courts to deal with a pending case judicially.”
(emphasis
supplied)
12. The aforesaid passage was relied on by a Division Bench of this
Court in K.Rajamanickam and Others Vs. State [2015 (3) MWN (Cr.) 379
(DB)], which was rendered way back on 03.01.1991.
13. Superadded, during the hearing of the case in Manokaran Vs.
State of Tamil Nadu [(2010) 15 SCC 562], it came to the notice of the
Supreme Court that in the State of Tamil Nadu, the convict prisoners were
being granted parole/leave during the pendency of their appeal. This was
frowned upon by the Supreme Court and the Joint Secretary to the
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Government was summoned. Apposite it is to extract the observations of the
Supreme Court in Manokaran (supra) :
“Mr.J.A. Syed Abdul Khader, Joint Secretary to Government of
Tamil Nadu, Home Department, Chennai, is present in terms of the earlier
orders of this Court. Mr. Khader regrets that unfortunately a practice has
grown in the State of Tamil Nadu to act in the fashion as it has been
effected in the matter under consideration. Mr. Khader, however, assures
this Court that in future, the State Government would act strictly according
to the requirements of the statute and not de hors. The question of
continuity of there being any practice being followed henceforth would not
arise and the same has been discarded by the State Government.”
14. Following this, the office of the Additional Director General of
Prisons, issued an Office Memo No.43880/PS4/2002 dated 21.10.2002
which reads as under:
“The Superintendent is informed that the Supreme Court of India in
C.A. No.866/2002, has observed that the practice being following in this
State for granting leave to prisoners even for short duration during the
pendency of their appeal is not in accordance with Tamil Nadu Suspension
of Sentence Rules, 1982 and it is also contrary to the Constitution Bench
judgment of Supreme Court in K.M. Nanavati vs. State of Bombay AIR
1961 SC 112. The Supreme Court of India has therefore ordered that in
future no such short term release should be made by the competent
authority without informing the Court in which the prisoner’s appeal is
pending and that this order of the Court should be scrupulously followed in
future.
2. In this connection, the attention of the Superintendent is invited
to Government letter no.66517/Prison.V/2000-15, Home Department dated
20.06.2002 communicated in this office endt.No.38245/PS4/2000 dated
04.08.2002 wherein the Government have clarified that for suspension of
sentence of a convicted person whose appeal is pending, he has to approach
only the Appellate Court or High Court.”
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3. The Superintendent/Deputy Inspector General of Prisons should
therefore act in accordance with the above orders of the Supreme Court of
India and should desist from releasing any prisoner on emergency or
ordinary leave when his appeal is pending before the appropriate Court
without prior permission of the Court. If any violation is noticed in this
regard, the Superintendent concerned will be liable for disciplinary action.
4. The receipt of this memo should be acknowledged.
BHOLA NATH
Additional Director General of Prisons”
15. There is yet another bottleneck, for grant of leave by the Tamil
Nadu prison authorities for the petitioner, in that, the Sentence Suspension
Rules has been framed under Section 432(5) Cr.P.C. Section 432(5), ibid.
begins with the expression "appropriate Government", which expression has
been set out in Section 432(7), ibid. which reads as follows :
"In this Section and in Section 433, the expression "appropriate
Government" means,
(a) in cases where the sentence is for an offence against, or the
order referred to in sub-section (6) is passed under, any law relating to a
matter to which the executive power of the Union extends, the Central
Government;
(b) in other cases, the Government of the State within which the
offender is sentenced or the said order is passed." (emphasis supplied)
16. Methamphetamine is a psychotropic substance, the trafficking of
which has been made punishable by the NDPS Act, which is a
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Parliamentary enactment. The power to make a law relating to a drug is
traceable to Entry 9 in the Concurrent List. The NCB is a Central
Government agency that has been constituted vide Notification
No.S.O.96(E) dated 17.03.1986, Ministry of Finance (Department of
Revenue), Government of India under Section 4(3) of the NDPS Act. In
State through NCB Vs. Kulwant Singh [(2003)9 SCC 193], the Supreme
Court has held as under :
“Sub-section (2) of Section 4 enumerates only some of the
measures which the Central Government may take. Sub-section (3)
empowers and enables the Central Government in its discretion to
constitute an authority or a hierarchy of authorities for taking measures
with respect to such of the matters referred to in sub-section (2), as
may be mentioned in the order. The order constituting the authority is
required to be published in the Official Gazette. It is therefore apparent
on a mere perusal of Section 4 that the Act does not itself create an
authority, but empowers the Central Government to do so in its
discretion. The authority envisaged by the section is constituted by the
exercise of executive power by the Central Government which notifies
its order constituting the authority by publishing the same in the Official
Gazette enumerating the powers and functions to be exercised by it,
subject to the supervision and control of the Central Government.
Thus, the authority is not constituted by the Act, but is constituted by
the Central Government by exercise of executive discretion vested in it
by the Act. NCB is therefore not an authority created or constituted by
the Act, but an authority created under the Act.”
(emphasis supplied)
17. In this case, it is the NCB that has prosecuted the petitioner and
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therefore, the State Government cannot grant leave de hors the consultation
with the Central Government vide Section 435(1)(a) Cr.P.C. That is why, in
the impugned order dated 21.06.2021, it has been stated that since the
petitioner has been convicted under the NDPS Act, only 15 days ordinary
leave can be granted, under the extant rules. What they mean by the extant
rules, is set out in paragraph 4 of the counter affidavit, which reads as
follows :
"4. With regard to the averments made in para 4 of the affidavit, it is
submitted that the petitioner/said prisoner had submitted a representation,
received to this office on 16.06.2021, requesting to grant 30 days leave in
order to settle his family properties. It is submitted that the said prisoner is
convicted under NDPS Act, which is a Central Act. It is submitted that as
per the communication received from the Union Central Government vide
Government of India, Ministry of Home Affairs order F.No.V-
17013/02/2016-PR dt. 06.12.2017 and letter No.V-17013/02/2016-PR
dt.13.07.2018, only the State Government has the power to grant ordinary
leave to those prisoners who are convicted and sentenced under any law
relating to matter to which the executive power of the Union extends, for a
period not exceeding 15 days in a year, and the same was communicated to
the said prisoner vide this office letter No.7387/R1/2021 dt.21.06.2021. It
is submitted further that earlier ruling in Saleema Vs. The State rep. by the
Superintendent of Prisons, this Hon'ble Court has observed in para 18 that
'when the Courts are in seizin of a case, the judicial power to suspend a
sentence of imprisonment pending an appeal or revision can be traced to
Section 389 Cr.P.C.' ”
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18. The operative portion of Standing Order in S.O.3860(E) dated
06.12.2017, issued by the Ministry of Home Affairs, Government of India
under Section 432(5) Cr.P.C., reads as follows :
"Where a petition for suspension of the execution of a sentence of
imprisonment of for remission of the whole or part of a sentence of
imprisonment is made by or on behalf of a person sentenced to
imprisonment of an offence under any law relating to matter to which the
executive power of the Union extends and the person sentenced to an
imprisonment is in jail, the execution of the sentence shall be suspended
and such person released on parole, subject to the conditions specified in
paragraph 2, for such period not exceeding fifteen days, if the
Government of the State in which such person is detained in jail is
satisfied that the immediate release of such person on parole is rendered
necessary by reason of any illness constituting a grave threat to the life of
such person or of a parent, wife, husband or child of such person"
A reading of the above shows that the Central Government has empowered
the State Authorities to grant a maximum of 15 days parole, “by reason of
any illness, constituting a grave threat to the life of such person or of a
parent, wife, husband or child of such person.” We are afraid that this
power conferred by the Central Government on the State Government,
cannot be exercised by the State Government authorities, when the appeal of
the convict prisoner is pending in the Appellate Court, in the light of the law
laid down by the Supreme Court in Nanavati (supra).
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19. Thus, viewed from any angle, we find no infirmity in the
impugned order, warranting interference. It is always open to the petitioner
to seek suspension of sentence and bail under Section 389(1) Cr.P.C.
In view of the foregoing discussion, this writ petition is dismissed as
being devoid of merits. No costs.
[P.N.P., J.] [A.A.N., J.]
gya 14.03.2022
To
1.The Home Secretary
Home Department (Prison)
Secretariat, Fort St. George
Chennai 600 009
2.The Director General of Prison and
Inspector General of Prison
Whannels Road
Egmore, Chennai 600 008
3.The Superintendent of Prison
Central Prison-I (Convicted Prison)
Puzhal, Chennai 600 066
4.The Deputy Inspector General
Department of Prisons and Corrections
Chennai Saragam, Chennai
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W.P.No.648 of 2022
5.The Public Prosecutor
High Court, Madras
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P.N.PRAKASH, J.
AND
A.A.NAKKRIAN, J.
gya
W.P.No.648 of 2022
14.03.2022
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