Punjab-Haryana High Court
Gurpreet vs State Of Punjab And Others on 19 January, 2024
Neutral Citation No:=2024:PHHC:007999
CRWP-12305-2023 (O&M) -1- 2024:PHHC:007999
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
229
CRWP-12305-2023 (O&M)
Date of Decision:- 19.01.2024
GURPREET SINGH
....Petitioner(s)
Versus
STATE OF PUNJAB AND OTHERS
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJIV BERRY
Present : Ms. Neha Jain, Advocate for the petitioner.
Mr. Harpreet Singh, Additional AG Punjab.
*****
SANJIV BERRY, J. (ORAL)
1. The instant petition has been preferred under Article 226/227 of
the Constitution of India read with Section 3(1) of the Punjab Good Conduct
Prisoners (Temporary Release) Act, 1962 (hereinafter referred to as 'Act')
for issuance of appropriate writ in the nature of Certiorari for quashing of
impugned order/letter dated 26.10.2023 (Annexure P-1) passed by District
Magistrate, Bathinda-respondent No.3, whereby application filed by the
petitioner for release on parole was declined.
2. The petitioner has been convicted by learned Judge, Special
Court, Bathinda vide judgment dated 23.11.2022 and sentenced to undergo
rigorous imprisonment for a period of 10 years with fine of Rs.1 lakh and in
default of payment of fine to further undergo rigorous imprisonment for a
period of 1 year for offence punishable under Section 21(c) of the NDPS
Act. The petitioner has challenged the said judgment of conviction and order
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of sentence dated 23.11.2022 by way of Criminal Appeal No.CRA-S-279-
2023, which is pending admitted before this Court.
3. Upon notice of motion being issued on 22.12.2023, respondent-
State has filed reply dated 19.01.2024 by way of affidavit of Superintendent,
Central, Jail Bathinda, which is taken on record. A perusal thereof reveals
that the request of the petitioner for release on parole had been declined by
the District Magistrate, Bathinda on the basis of report received from the
Senior Superintendent of Police, Bathinda stating therein that the petitioner
may indulge himself into smuggling of narcotics, due to which the people of
the area may have conflict with each other and cause threat to State security
and maintenance of public order. There is also an apprehension of the
petitioner absconding during parole period.
4. Learned counsel for the petitioner contends that the petitioner is
in custody for about 3 years and has not availed parole and had moved the
application for parole as he wanted to meet his family members and also to
arrange for the marriage of his daughter who is of marriageable age. He
submits that the conduct of the petitioner inside jail is good. He submits that
parole to the petitioner cannot be refused on the ground that there is danger
of him running away. He submits that it is the duty of the Police and District
Magistrate to give protection to the public and maintain law and order. He
contends that the said apprehension raised by the Senior Superintendent of
Police is without any basis as there is no other NDPS Act case registered
against the petitioner and where from the said authority came to the
conclusion that the petitioner will indulge in such activities is hypothetical.
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5. In support of her contentions, learned counsel for the petitioner
has referred to judgement Avdesh Kumar v. State of Punjab and Others
(P&H) (DB), Law Finder Doc ID# 2257534; Amarjit Singh @ Kala @
Mama, (P&H) (DB), Law Finder Doc Id # 2200956; Mahammad Shehbaz
v. State of Punjab and others (P&H) (DB), Law Finder Doc Id # 2012267;
Babbu Singh alias Tidda v. State of Punjab and others (P&H), Law finder
Doc Id # 2062227; and Govinda v. Stae of Punjab and others, (P&H)Law
finder Doc Id # 2126549.
6. Per contra, learned State counsel while referring to the reply
filed by the State has opposed the prayer made by the petitioner. He submits
that petitioner has undergone actual sentence of 2 years, 9 months and 9
days and is involved in another case bearing FIR No.202 dated 25.09.2018
registered under Section 379B(2) IPC at Police Station Maur, Bathinda. He
further submits that the case of the petitioner was rightly rejected by the
District Magistrate, Bathinda on the basis of report of Senior Superintendent
of Police, Bathinda, wherein it had been stated that there is apprehension of
the petitioner getting indulged in smuggling of narcotics and that petitioner
may abscond after coming out on parole.
7. After considering the respective submissions and perusing the
record, it transpires that the only reason given by District Magistrate,
Bathinda for declining the prayer made by the petitioner is that there is risk
of the petitioner of indulging in smuggling and there is apprehension of
breach of public law and order. However, as per the custody certificate filed
by the State, there is no other case registered against the petitioner under the
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NDPS Act, which shows that petitioner is not a habitual offender. The other
case pending against the petitioner is registered under Section 379B(2) IPC
and the petitioner is on bail therein. These facts have not been controverted
by the learned State counsel.
8. In the light of the facts and circumstances referred to the
judgments cited by learned counsel for the petitioner it is observed that in
Mahammad Shehbaz's case (supra) it has been held that the release on
parole is a reformative process, provisions of the Act has been enacted as
reformative measure with an object to enable the prisoner to have family
association or to perform certain family obligations and rituals, therefore,
sufficient material should be available and there should be solid reasons for
declining temporary release on parole. As such, declining of parole on the
report of Senior Superintendent of Police that the release of convict could
disturb the law and order in the city and endanger country's security without
any solid reasons has been held to be without application of mind and
release of the convict had been held.
9. Similarly, in an identical situation arising in Avdesh Kumar's
case (supra) wherein the parole had been declined by the competent
authority on the ground that the convict would indulge in sale of contraband
besides it would give bad effect to young generation and there was
apprehension of breach of peace. It has been held therein that such
satisfaction recorded by the authorities is unsustainable based merely on
conjectures and surmises and mere apprehension of the convict indulging in
sale of contraband or of causing breach of peace would not bring case within
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the ambit of Section 6(2) of the Act so as to enable the competent authority
to reject application for temporary release on parole. However, in Amarjit
Singh @ Kala @ Mama's case (supra) it has been held that the concession
of parole to a convict is regulated by statute and the authorities there under
cannot act arbitrarily, capriciously or without due application of mind and
the decision of the competent authority on such application moved by the
convict has to be well reasoned and speaking one.
10. The facts and circumstances referred to in Babbu Singh alias
Tidda's case (supra) and Govinda's case (supra) are identical to the facts
and circumstances of the present case wherein also the parole had been
declined by the competent authority only due to the reason that the accused
may contact drug smugglers and can sell intoxicants substances and in this
cases it has been held that any specific input from any quarter to suggest
that the petitioner can indulge in such activities, the rejection order cannot be
passed by the competent authority merely on the basis of vague
apprehension based on conjectures and surmises.
11. It is relevant to mention that Section 3(1)(aa) of the Punjab
Good Conduct Prisoners' (Temporary Release) Act, 1962, permits temporary
release of prisoner on parole on the grounds as mentioned therein. The
petitioner wants to meet his family members. He has never been released on
parole earlier. There is nothing on record that the behaviour of the petitioenr
was not found good during his stay in jail. The concession of parole to a
convict is regulated by the statute and the authorities thereunder cannot act
arbitrarily, capriciously or without due application of mind. The decision on
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such application of convict has to be well reasoned and speaking one and
such decision on basis of mere apprehension without any specific input,
being just mechanical cannot sustain.
12. Therefore, taking into consideration all the facts and
circumstances and finding the impugned order having been passed in a
routine mechanical manner and without any sustainable reasons, the
impugned order/letter dated 26.10.2023 (Annexure P-1) is hereby set aside.
The petitioner is ordered to be released on parole for a period of six weeks
subject to his furnishing personal/surety bonds alongwith two surety bonds
to the satisfaction of the concerned District Magistrate. The District
Magistrate concerned, may impose such conditions as may be necessary to
secure the presence of the petitioner in jail after the parole is over and to
ensure that the temporary release is not misused.
13. Disposed of accordingly.
(SANJIV BERRY)
JUDGE
19.01.2024
S.Sharma(syr)/Gyan
i) Whether speaking/reasoned? Yes/No
ii) Whether reportable? Yes/No
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