CWP/7590/2021 of TOSHAM KUMAR Vs STATE OF HP AND ORS on 31 December 2021

O R D E R

The District Magistrate, Kullu, District Kullu, H.P.,did not recommend release of the petitioner on parole,hence, the respondents rejected his case as such.

2. Learned Special Judge-I, Mandi, District Mandi(H.P.), vide judgment dated 27.06.2019 in Sessions Trial No.16/17 of 2016, convicted the petitioner for the offencepunishable under Sections 20 of the Narcotic Drugs andPsychotropic Substances Act, 1985. He was sentenced toundergo rigorous imprisonment for ten years and to payfine of Rs.1,00,000/-. In default of payment of fine, thepetitioner was ordered to undergo simple imprisonment fora period of one year.

3. Criminal Appeal No.371/2019, preferred by thepetitioner against the aforesaid judgment is still pendingadjudication before this Court.

4. All applications of the petitioner seeking parolehave been rejected by the respondents on the basis of non-recommendation by the District Magistrate, Kullu, DistrictKullu, H.P. The reason assigned for rejection of the parolewas that petitioner may again indulge in drugs peddlingwhich will affect the younger generation of the society.Aggrieved thereby, the instant petition has been preferredby the petitioner, praying for release on parole for a periodof four weeks.

5. Taking note of Section 6 of H.P. Good ConductPrisoners (Temporary Release ) Act, 1968 a CoordinateBench of this Court in CWP No.2931 of 2019, titled HariDei versus State of Himachal Pradesh & others,decided on 03.06.2020, allowed the petitioner therein to bereleased on parole on the ground that there was no reportof the concerned District Magistrate that release of theconvict on parole would endanger either security of theState or the public order. In the instant case also, this is nota ground for refusing to recommend the release of thepetitioner on parole. The District magistrate has simplyassumed that petitioner being young can repeat the offenceif released on parole. In 1985 CRL L.J. 1458, titled Bir Singh Vs. the State of Himachal Pradesh and others,this Court observed as under:-

“3. ....................“The absence of an opportunityto watch his conduct outside jail for the reasonof his not having been released onparole/furlough is again not a factor which couldbe legitimately pressed into service on the factsand in the circumstances of the case. There is noreason to assume that if the petitioner is grantedthe benefit of premature release, he would onceagain display criminal tendency. Such anassumption overlooks not only that thepetitioner is not shown to be a habitual offenderbut also the reformatory aspect of the penaltyprocedure as well as the good record of thepetitioner during the entire period of hisimprisonment. .......................”

6. Similarly, in 2017 (15) SCC 55, titled Asfaq versus State of Rajasthan and others, Hon’ble ApexCourt observed as under:- “18). The provisions of parole and furlough, thus,provide for a humanistic approach towards thoselodged in jails. Main purpose of such provisionsis to afford to them an opportunity to solve theirpersonal and family problems and to enablethem to maintain their links with society. Even citizens of this country have a vested interest inpreparing offenders for successful re-entry intosociety. Those who leave prison without strongnetworks of support, without employmentprospects, without a fundamental knowledge ofthe communities to which they will return, andwithout resources, stand a significantly higherchance of failure. When offenders revert tocriminal activity upon release, they frequently doso because they lack hope of merging intosociety as accepted citizens. Furloughs or parolecan help prepare offenders for success.”

“22). Another vital aspect that needs to bediscussed is as to whether there can be anypresumption that a person who is convicted ofserious or heinous crime is to be, ipso facto,treated as a hardened criminal. Hardenedcriminal would be a person for whom it hasbecome a habit or way of life and such a personwould necessarily tend to commit crimes againand again. Obviously, if a person has committeda serious offence for which he is convicted, butat the same time it is also found that it is theonly crime he has committed, he cannot becategorised as a hardened criminal. In his caseconsideration should be as to whether he isshowing the signs to reform himself and becomea good citizen or there are circumstances whichwould indicate that he has a tendency to commit the crime again or that he would be a threat tothe society. Mere nature of the offencecommitted by him should not be a factor to denythe parole outrightly. Wherever a personconvicted has suffered incarceration for a longtime, he can be granted temporary parole,irrespective of the nature of offence for which hewas sentenced. We may hasten to put a riderhere, viz. in those cases where a person hasbeen convicted for committing a serious office,the competent authority, while examining suchcases, can be well advised to have stricterstandards in mind while judging their cases onthe parameters of god conduct, habitualoffender or while judging whether he could beconsidered highly dangerous or prejudicial to thepublic peace and tranquility etc.”

7. The principles laid down in the above judgmentwere reiterated in2019 (1) Scale 560, titled Mohammed Shamsuddin versus The State ofRajasthan & others.

8. Entire law has been enunciated and

encapsulated by this Court in CWP No.529 of 2018, titledJagat Ram versus State, decided on 26.06.2020.

9. In the instant case, it is not in dispute thatpetitioner has already served almost 5 years and 7 months,out of ten years of substantive sentence, imposed uponhim. He has not been released on parole despite repeatedapplications stated to have been submitted by him in thisregard. There is no complaint against the act and conduct ofthe petitioner within the prison. Release of parole wasoriginally sought on the ground to meet with his family. Thisfactual position is not disputed by the respondents.

10. Therefore, this petition is allowed. Therespondent/competent authority is directed to release thepetitioner on parole for a period of 28 days on his furnishingpersonal bond in the sum of Rs. 1.00 lakh with two suretiesin the sum of Rs. 15,000/- each, to the satisfaction of theSuperintendent Jail, Model Central Jail, Nahan, DistrictSirmaur, H.P. The petitioner shall surrender before theSuperintendent Jail, Model Central Jail, Nahan, DistrictSirmaur, H.P immediately on expiry of 28 days of parole.However, his parole shall be liable to be cancelled, in casethe petitioner breaches any of the conditions of the paroleorder and/or creates law and order problems, which shall be treated as a negative factor for consideration of his similarprayers in the future.

11. Accordingly, the writ petition is disposed of, soalso pending miscellaneous application, if any.

(Tarlok Singh Chauhan) Judge

(Chander Bhusan Barowalia) Judge

31[st] December, 2021.(krt)