S.S.GREWAL,J - (1.) THIS petition under Articles 226/227 of the Constitution of India relates to the release of Harnek Singh detenu, as his detention is said to be violative of Articles 14, 19, 20 and 21 of the Constitution of India.
(2.) BRIEF facts relevant for the disposal of this petition are, that Harnek Singh detenu after his arrest on 2-11-1979 was convicted and sentenced to undergo imprisonment for life on 9.6.1980 by Sessions Judge, Faridkot, He has undergone detention for a period of 15 years 3 months and 23 days which includes 8 years 11 months and 8 days of actual sentence undergone (including under trial period) and period of remissions to he extent of 7 years 1 month and 25 days. The detenu has been a convict teacher for more than 5 years. He imparted education to a large number of convicts and also got Master's degree in English and Philosophy during the period he was undergoing sentence He has availed of temporary release on parole and furlough 16 times and his conduct outside the jail was also good. The detenu moved his mercy petition under Article 161 of the Constitution of India on 15.2.85 for remission of his unexpired sentence. The case of the detenu for his premature release was recommended by 23 Panchayats, District Police, District Magistrate, Faridkot, Superintendent Central Jail, Patiala, Superintendent District Jail, Faridkot, Inspector General of Prisons, Punjab and the Chief Minister. His case was finally submitted to the Governor on 29.9.1986. However, the latter did not pass formal order for grant of premature release of the detenu, even though, it was obligatory for the Governor to act upon the advice of Chief Minister under Article 161 of the Constitution of India. Thereafter, the detenu filed Criminal Writ Petition No 416 of 1987 in the High Court, which, vide its order dated 12.8.1987 directed the State Government to decide the mercy petition of the detenu within a period of one month The mercy petition was again declined and the information in this regard was sent to the detenu vide letter dated 15.9. 1987 copy whereof is Annexure P-2, on the ground that there are no extenuating circumstances, or compassionate grounds warranting the exercise of powers of mercy under Article 161 of the Constitution of India, and consequential remission of the unexpired sentence. The State in its reply admitted that the detenu had been convicted on 9.6.1980 under Section 302 IPC and sentenced to undergo imprisonment for life. He was also convicted under sections 25/27 of the Arms Act. Upto 1.1.1989 the detenu had already undergone actual sentence of imprisonment for a period of 9 years 4 months (including under trial period of 7 months 7,days) as well as the period of remissions to the extent of 7 years 4 months and 20 days. It was pleaded that the mercy petition was rightly rejected under the orders of the Governor on 9.9.1987, on the ground that the same could not be considered as the detenu had not undergone 7-1/2 years of sentence, and at that time there was no elected Government in the State of Punjab.
(3.) COUNSEL for the parties were heard.;