P&H HC Grants Emergency Parole To NDPS Convict To Perform Funeral Rites Of Father

The petition, filed under Article 226/227 of the Constitution of India, read with Section 3 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, sought for the release of the Petitioner on emergency parole due to the death of his father.

The Petitioner had been convicted under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for the possession of commercial quantity of the contraband and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh.

It was averred in the petition that being the only son, the Petitioner had to perform the last rites of his father. However, the grant of 14 days emergency parole had been dismissed by the District Magistrate at Hisar on the ground that the Petitioner had not completed even one year of his imprisonment after conviction in view of Rule 4(1) of the Haryana Good Conduct (Temporary Release) Rules, 2007.

The counsel for the Petitioner asserted that there is no provision under the 1988 Act for denial of temporary release on parole on the ground that one year of sentencing had not been completed. Therefore, the impugned order of the District Magistrate suffers from material illegality. Reliance was placed on Deepak v. State of Haryana & Anr, Rakesh v. State of Haryana & Ors, Gulab Singh v. State of Haryana & Ors. and Mahavir v. State of Haryana & Ors.

On the other hand, it was submitted by the State counsel that as the Petitioner has not completed one year of imprisonment after conviction, he is not entitled to grant of parole.

Justice Arun Kumar Tyagi, the Judge presiding over the case, noted that Section 3(1)(a) of the 1988 Act permits release of a prisoner on parole if the State Government is satisfied that the member of the prisoner's family has died or is seriously ill or if the prisoner is seriously ill. Section 3(2) states that the period of parole shall not exceed three weeks.

Rule 4(1) of the 2007 Rules provides that a prisoner shall be entitled to apply for parole only after he has completed one year of his imprisonment after the conviction and has earned his first annual good conduct remission under the 1988 Act.

Justice Tyagi invoked the Mahavir case, wherein it had been observed by a Coordinate Bench that Rules cannot override the provisions of the Act and that the demand for postponement of family matters till the completion of the one-year period was untenable. A similar view was taken in the Deepak case that "there being no such restriction in the Act, the Rules cannot supersede substantive provision of the Act".

The Court then went on to state that:

"Presence of the Petitioner due to being the only son is necessary for performing last rites of his deceased father. In view of the above referred judicial precedents, application for temporary release of the Petitioner on parole could not be declined on the gorund that the Petitioner has not completed one year of his imprisonment after conviction and the impugned order suffers from material illegality and is liable to be set aside".

Therefore, the petition has been allowed emergency parole for a period of 2 weeks, and in view of the lockdown imposed, the Petitioner has been directed to furnish a personal bond in the sum of Rs. 1,00,000. He has also been directed to comply with the requisite conditions imposed under the lockdown.

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