Punjab-Haryana High Court
Kulwinder Singh Alias Taina vs State Of Punjab And Others on 6 May, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:062430-DB
CRWP-5395-2023 (O&M) -1-
204
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRWP-5395-2023 (O&M)
Date of Decision: 06.05.2024
Kulwinder Singh alias Taina
.... Petitioner
Versus
State of Punjab and others .... Respondents
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE AMARJOT BHATTI
Present: Mr. Navjot Singh, Advocate
for the petitioner.
Mr. H.S. Deol, Senior DAG, Punjab.
****
AMARJOT BHATTI, J.
1. Petitioner Kulwinder Singh alias Taina has filed criminal writ
petition with a prayer to quash/set aside impugned order dated 10.04.2023
(Annexure P-2) passed by respondent No. 3 District Magistrate, Ferozepur,
being illegal, vague, unreasonable and arbitrary with further prayer to issue
directions to respondents to release petitioner for eight weeks parole to
enable him to meet and look-after his family members and to settle
household affairs in accordance with provisions of Section 3(1)(d) of the
Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, Amended
Act 2015-16 and Punjab Government Notification dated 13.12.2018 or
issue any other appropriate direction as this Court may deem just and
proper.
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2. Petitioner, vide judgment dated 04.01.2019 has been convicted
and sentenced under Section 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short 'NDPS Act') to undergo rigorous
imprisonment for 11 years and to pay fine of Rs. 1,50,000/-, in default of
payment of fine to further undergo imprisonment for one year, in case
bearing FIR No. 132 dated 23.08.2015 under Sections 21, 25, 29 of NDPS
Act, Police Station Makhu, District Ferozepur. Petitioner filed criminal
appeal bearing No. CRA-D No. 54 of 2019 against the aforesaid judgment
of conviction and order of sentence which stands admitted.
3. Petitioner applied for eight weeks parole to jail authorities
(respondent No. 4) along with Panchayatnama (Annexure P-1) under
Section 3(1)(d) of the Punjab Good Conduct Prisoners (Temporary Release)
Act, 1962 to meet his family members and look-after household affairs. The
jail authorities initiated and recommended his application and forwarded to
District Magistrate, Ferozepur (respondent No. 3) vide letter No. 1431 and
to Director General of Police, Jail Department, Punjab, Chandigarh
(respondent No. 2) on 21.03.2022. District Magistrate, Ferozepur forwarded
his case to Senior Superintendent of Police, Ferozepur who did not
recommend parole to petitioner. Accordingly, respondent No. 3 District
Magistrate, Ferozepur rejected the application seeking eight weeks parole
vide order dated 10.04.2023, Annexure P-2. In the said order there was
reference of three other cases registered against petitioner i.e. present FIR in
which he applied for parole. Second case bearing FIR No. 114 dated
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16.07.2015 registered under Section 21 of NDPS Act at Police Station
Makhu in which criminal appeal No. CRA-D-184 of 2022 has been filed
against the judgment of conviction and same is pending in High Court and
sentence will start after completion of sentence in present FIR. Regarding
conviction, in FIR No. 98 dated 04.07.2015 under Sections 21, 22, 24, 25,
27, 28, 29, 30 of NDPS Act at Police Station Sadar Jalalabad, Fazilka, again
criminal appeal No. CRA-S-3300 of 2019 has been filed in this High Court
and sentence has been suspended. Copy of order dated 14.02.2020 in CRM
No. 40800 of 2019 in the aforesaid appeal is Annexure P-3. Learned
counsel for petitioner argued that mere conviction of petitioner in multiple
cases cannot be a ground to reject parole. He has relied upon judgment
dated 26.08.2020 passed in CRWP No. 4593 of 2020 title "Manga @
Manga Singh Versus State of Punjab and others" and 2016(4) RCR
(Criminal) 1017 of Division Bench case title "Bansi Lal Versus State of
Punjab". Therefore, it is submitted that impugned order dated 10.04.2023
may kindly be set aside and petitioner may be released on parole for eight
weeks by imposing suitable conditions.
4. Learned counsel for the State filed reply alleging that District
Magistrate, Ferozepur has declined application filed by petitioner seeking
parole of eight weeks by passing detailed order dated 10.04.2023, based on
report filed by Senior Superintendent of Police, Ferozepur. Apart from
present case, petitioner is convicted under two other FIRs registered under
the provisions of NDPS Act as referred above, which are detailed in para
No. 3 of reply. Petitioner was discharged in FIR No. 224 dated 14.09.2019
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under Section 302, 120-B, 34 of IPC, Police Station City Ferozepur by the
Court of learned Chief Judicial Magistrate, Ferozepur vide order dated
03.03.2020. Petitioner is facing trial in the Court of learned Chief Judicial
Magistrate, Faridkot in FIR No. 332 dated 16.10.2021 under Section 42, 52-
A of the Prisons Act, Police Station City Faridkot as one mobile phone was
recovered from his possession while he was confined in prison. The
application filed by petitioner was rejected as he could indulge in selling
narcotic drugs or he could abscond during his parole. Copy of impugned
order is Annexure R-2/R/T-2 (in vernacular).
5. Deputy Superintendent of Police, Zira also filed his reply by
way of affidavit confirming registration of aforesaid FIRs. It was alleged
that there is apprehension that in case he is released on parole he will
misuse the concession and will again start smuggling, thus, considering all
the facts, respondent No. 3 vide order dated 10.04.2023 rightly rejected the
application filed by petitioner seeking parole.
6. We have heard arguments advanced by learned counsel for
petitioner and learned counsel for State and have gone through the record
carefully.
7. Application filed by petitioner seeking parole of eight weeks
was rejected by learned District Magistrate, Ferozepur by passing impugned
order dated 10.04.2023, Annexure R-2/R/T-2. As per custody certificate
(Annexure R/1), petitioner has undergone custody as under :-
Year Month Days
period 03.01.2019
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period 25.07.2023
Availed
8. Status of other FIRs as referred above is mentioned in custody
certificate. Petitioner filed application seeking temporary release on parole.
Section 3 of the Punjab Good Conduct Prisoners (Temporary Release) Act,
1962 reads as under :-
"3. Temporary release of prisoners on certain grounds:- (1)
The State Government may, in consultation with the District
Magistrate and subject to such conditions and in such manner
as may be prescribed, release temporarily for a period
specified in sub-section (2) any prisoner if the State
Government is satisfied that -
[(a) a member of the prisoner's family has died; or
(aa) husband or wife or son or daughter or father or mother
or brother or sister or grand-father or grand-mother or
grandson or grand-daughter or father-in-law or mother-in-law
of the prisoner is seriously ill; or]
(b) the marriage of the prisoner's son or daughter is to be
celebrated; or
(c) the temporary release of the prisoner is necessary for
ploughing, sowing or harvesting or carrying on any other
agricultural operation [on his land or any other land cultivated
by him] and no friend of the prisoner or a member of the
prisoner's family is prepared to help him in this behalf in his
absence;
[(cc) a lady prisoner is pregnant and is likely to deliver a
child; or]
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(d) it is desirable to do so for any other sufficient cause.
[Explanation. The expression "sufficient cause" includes -
(1) serious damage to life property of the member of the
family cause by any natural calamity; or
(2) critical condition of any member of the family on
account of accident; or
(3) delivery of child by the wife of the prisoner.]
xxx xxx xxx"
9. It is settled position that normally temporary release on parole
or furlough, as may be, is to be granted but can be declined, in case
releasing authority is of the view that such release would be dangerous to
security of the State or maintenance of public order. Section 6(2) of the Act
provides for the same. Section 6 of the Act reads as under :-
"6. Cases where consultation with District Magistrate not
necessary or where prisoners are not to be released.-
Notwithstanding anything contained in sections 3 and 4 -
(1) it shall not necessary to consult the District Magistrate
where the State Government is satisfied that the prisoner
maintained good conduct during the period of his earlier
release under any of the aforesaid sections; and
(2) no prisoner shall be entitled to be released under this Act, if
on the report of the District Magistrate, where consultation
with him is necessary, the State Government or an officer
authorised by it in this behalf is satisfied that his release is
likely to endanger the security of the State or maintenance of
public order."
10. Objectives of parole are twofold i.e. rehabilitation of offender
and protection of society. The main purpose of parole is that prisoner can
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maintain continuity together with his family, friends and community and at
the same time to save prisoner from harmful effects of continuous prisoner
life. Parole enables a prisoner to develop a feeling of self confidence that
there is a life beyond prison. It helps prisoner to develop a sense of hope
and active interest in his life with a view to rehabilitate the prisoner.
Competent authority can always impose sufficient and necessary conditions
while granting parole. Gainful reference at this stage can be made to the
judgment of Coordinate Bench in "Bansi Lal versus State of Punjab &
Others", 2016(4) R.C.R. (Criminal) 1017, where it was observed as
under :-
"11. ..... During incarceration of a prisoner in jail after his
conviction he is entitled for temporary release on parole which
though is a concession and not a right. However, in order to
reform a prisoner a periodic temporary release on parole for
short duration is necessary. This is a welfare measure in the
interest of a prisoner .....
xx xx xx xx
15. The term 'Security of the State' out of the expressions of
'law and order', and 'public order' is considered more grave. It
may arise from within or outside the State. It is generally
understood as an act of aggression from outside, or militant
and terrorists operations engineered by foreign agencies. It can
also be effected by passing of classified information like
documents, secrets, maps etc. to foreign countries or through
undesirable foreign links. An act which poses a threat to the
State is to be considered as a threat affecting the security of the
State. 'Public order', however, is synonymous with public
safety. It is something more than mere law and order. Every
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breach of peace does not lead to public disorder. Maintenance
of public order is intended to prevent grave public disorder,
which is not the same as maintenance of law and order. The
latter is comparatively of a lesser gravity and in fact of local
significance. An act which does not affect the public at large or
has no impact on it, is not to be taken as an act affecting
maintenance of public order. The distinction between law and
order and public order is one of degree and extent of reach of
the act in question on society. In the case of breach of law and
order it affects individuals directly involved as distinct from the
public at large. This would raise a law and order problem only.
The true test is the potentiality of the act in question. One act
may affect some individuals and local persons while another
though of a similar nature may impact the public at large. An
act which disturbs the even tempo of life of the public at large
affects the maintenance of public order. These aspects are to be
considered by the concerned District Magistrates and
competent authorities under Act while deciding to recommend
or not to recommend the temporary release of a prisoner on
parole and/or passing orders for temporary release by the
competent authorities under the Act. The exercise is not to be
lightly conducted and the concerned District Magistrate and/or
the competent authorities are to apply their mind on the basis
of inputs received by them for recommending or passing an
order as the case may be for temporary release of prisoners on
parole."
11. A Division Bench of this Court in the case of Manga @
Manga Singh Versus State of Punjab and others, 2020(4) R.C.R.
(Criminal) 133 specifically held that merely because petitioner was
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involved in four other cases cannot be a valid ground by itself to deny
release on parole.
12. As per impugned order dated 10.04.2023 based on the report of
Senior Superintendent of Police, Ferozepur, it is observed that in case
petitioner is released on temporary parole, he can indulge in smuggling of
narcotics and he may also abscond during parole. On this basis, prayer for
parole was rejected by District Magistrate, Ferozepur by passing impugned
order dated 10.04.2023 (Annexure P-2). Such mere apprehension is not a
valid ground for rejection of application filed by petitioner seeking parole.
Affidavit filed by Deputy Superintendent of Police, Zira and impugned
order dated 10.04.2023 Annexure P-2 do not come to the aid of the State
justifying denial of parole to petitioner. Consideration of the question
whether release of petitioner on parole is likely to endanger security of State
or maintenance of public order has clearly not been carried out by the
competent authority. Cogent material to indicate the same rather than mere
registration of various cases has to be available.
13. Considering the aforesaid facts and circumstances, impugned
order dated 10.04.2023, Annexure P-2, passed by District Magistrate,
Ferozepur is set aside being unsustainable, with further direction to District
Magistrate, Ferozepur to reconsider the application filed by petitioner
seeking parole in the light of aforesaid provisions of the Punjab Good
Conduct Prisoners (Temporary Release) Act, 1962 and discussion as above,
within a period of four weeks of receipt of certified copy of the order.
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14. Petition is accordingly disposed of.
15. Pending miscellaneous applications, if any, stand disposed of
accordingly.
(AMARJOT BHATTI) (LISA GILL)
JUDGE JUDGE
06.05.2024
lalit
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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