2012 (3) TMI 564 - HC - Indian Laws

Court clarifies parole rules for drug offenses, fines not mandatory.

The court held that the Rajasthan Prisoners Release on Parole Rules, 1958 do not apply to individuals convicted under the Narcotic Drugs and Psychotropic ... Parole is not suspension of sentence - parole is an executive function - executive power of the Union of India - appropriate Government under Section 432 Cr.P.C. - State rules displaced by Central rules where Union executive power extends - decision rendered per incuriam for ignorance of binding statutory ruleExecutive power of the Union of India - State rules displaced by Central rules where Union executive power extends - appropriate Government under Section 432 Cr.P.C. - Applicability of Rajasthan Prisoners Release on Parole Rules, 1958 in cases of conviction under the NDPS Act or any law relating to a matter to which the executive power of the Union extends. - HELD THAT: - Rule 1(c) of the Rajasthan Parole Rules, 1958 expressly excludes persons sentenced for offences against any law relating to a matter to which the executive power of the Union of India extends and directs that such persons be governed by the Central Rules notified by the Union. The Central Government Rules notified on 9 November 1955 (Rules of 1955) permit release on parole in specified exigencies and require report to the Central Government for final orders. NDPS Act falls within matters to which the executive power of the Union extends and, therefore, cases of convicts under NDPS Act must be dealt with under the Rules of 1955 and not under the State Parole Rules, 1958. Earlier Division Bench decisions of this Court which proceeded without notice of the Rules of 1955 are held to be per incuriam to the extent they applied or directed consideration under the State Parole Rules; those decisions do not bind on the question of which rules govern parole for NDPS convicts.Rajasthan Prisoners Release on Parole Rules, 1958 are not applicable to convicts under the NDPS Act or to offenders under any law relating to a matter to which the executive power of the Union extends; such cases are governed by the Central Rules of 1955.Parole is not suspension of sentence - parole is an executive function - Whether deposit of fine is a condition precedent for consideration of an application for parole. - HELD THAT: - Parole is a conditional, temporary release that does not suspend, remit or commute the sentence; the sentence (including sentence of imprisonment and fine) continues to run during parole. The Rules of 1955 and the recognised legal distinction between parole and suspension indicate that requiring prior deposit of fine is not a condition precedent to considering a parole application. A State bench order declining to consider parole unless the fine was deposited is contrary to the Rules of 1955 and is held per incuriam where those Rules were not considered. While the Government retains power to impose conditions when granting parole, insistence on deposit of fine before considering the application is not mandated and cannot be treated as a prerequisite to consideration.Deposit of the fine is not a precondition for consideration of a parole application; a convict who has undergone the requisite part of the sentence is entitled to have his parole application considered without prior payment of fine.Final Conclusion: The Court holds that convicts sentenced for offences under the NDPS Act or any law to which the Union's executive power extends must be considered for parole under the Central Rules of 1955 (not the Rajasthan Parole Rules, 1958), and that prior deposit of a fine is not a condition precedent to consideration of a parole application; the matter is returned to the Single Bench for further orders on the parole petition. Issues Involved:1. Applicability of Rajasthan Prisoners Release on Parole Rules, 1958 in cases under NDPS Act.2. Necessity of depositing fine before consideration of parole application.Summary:Issue 1: Applicability of Rajasthan Prisoners Release on Parole Rules, 1958 in cases under NDPS ActThe court examined whether the Rajasthan Prisoners Release on Parole Rules, 1958 (Parole Rules, 1958) apply to convicts under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Rule 1(c) of the Parole Rules, 1958 specifies that these rules do not apply to persons sentenced for an offence against any law relating to a matter to which the executive power of the Union of India extends. Instead, such persons are governed by the Central Rules made under the Notification of the Government of India, Ministry of Home Affairs No.40/32/55-Judl.I dated 9th November, 1955. The court concluded that the Parole Rules, 1958 are not applicable to persons convicted under the NDPS Act, and such cases must be dealt with according to the Central Rules of 1955.Issue 2: Necessity of depositing fine before consideration of parole applicationThe court addressed whether it is necessary for a convict to deposit the fine imposed before their parole application is considered. It was argued that there is no provision under the Parole Rules, 1958 mandating the deposit of fine before considering a parole application. The court held that deposit of fine cannot be a condition precedent for the consideration of a parole application. Parole is not a suspension of sentence, and during the parole period, the sentence continues to run. The court found that the decision in Shiv Shanker Teli's case, which required the deposit of fine before considering parole, was per incuriam and not in accordance with law. Therefore, a convict is entitled to be considered for parole without the necessity of depositing the fine.Conclusion:1. The Rajasthan Prisoners Release on Parole Rules, 1958 are not applicable to convicts under the NDPS Act. Such cases must be dealt with according to the Central Rules of 1955.2. Deposit of fine is not a condition precedent for the consideration of a parole application. The convict is entitled to be considered for parole without the necessity of depositing the fine.The matter was directed to be placed before the Single Bench for orders on the parole petition, and a copy of the order was to be sent to relevant authorities for information.