MATHUR, J. - (1.) THIS group of State appeals are directed against the judgment of the learned Single Judge dated 19. 3. 2001.
(2.) THE respondent-petitioners are the convict under the Narcotic Drugs and Psychotropic Substance Act, 1985. THEy are undergoing the sentence awarded by the trial court. THEy have been denied parole under the Rajasthan Release of Prisoners on Parole Rules, 1958 (hereinafter referred to as "parole Rules") In view of the provisions of Section 32-A of the N. D. P. S. Act. THE learned Single Judge relying on the decision of the Apex Court in Dadu vs. State of Maharashtra (1), held as under:- " Considering the provisions of `the Rules' as they exist today and the law laid down by the Hon'ble Supreme Court in the case of Dadu vs. State of Maharashtra, this Court feels that there is no impediment feels that there is no impediment wherein it can be said that the petitioners cannot apply for grant of parole. " The learned Single Judge accordingly directed as follows:- " The respondents shall consider the case of the petitioners for grant of parole. It would then be for the authorities under `the Rules' to consider whether the petitioners are entitled and the eligible in terms of `the Rules' for grant of parole or not. Therefore, a direction is issued to the respondents to consider the case of the petitioners for grant of parole. " The main grievance of the appellant is with respect to the observations made by the learned Single Judge while parting with the case which is extracted as follows:- " While parting with the case, it is important to note here that it has been canvassed on behalf of the State that the Court should take care of the changed circumstances in the society and take cognizance of the fact that the convicts of serious offences like N. D. P. S. should not be granted parole. The argument is strange and speaks of the inefficiency of the State to meet out the responsibilities on it. If the State feel that such persons are not entitled then they have the arm to legislate on the point. A failure on the part of the State to rise to the occasion and amend the laws cannot be canvassed before the court as a social necessity. The state is required to show the will and power to curb the activities against which the learned Advocate General wants this court to act. It is expected that State would not bank upon the courts for discharging such functions which the State is required to do. With the hope that if any legislation is considered fit to be brought in then, State will do so and not waste years as is evident in the statement contained in Ex. 2. " It is contended by Mr. R. P. Vyas, learned Additional Advocate General that a careful reading of the decision of Apex Court in the case of Dadu, shows that a convict under the N. D. P. S. Act is not entitled for grant of parole straightway. It is also submitted that the learned Single Judge has unnecessarily criticised the State Government without appreciating that the N. D. P. S. Act being a Central Act in view of the provisions of Section 432 of the Code of Criminal Procedure, the statutory rule relating to release of convict under N. D. P. S. Act on parole can be framed only by the Central Government. We have read the judgment of the Apex Court in Dadu's case (supra ). On reading the Section 32-A of the N. D. P. S. Act and the parole rules, the court found that the parole does not amount to suspension, remission or commutation of sentence and as such the convict cannot be deprived of benefit of parole in the garb of Section 32-A of the Act. The court further held that irrespective of provisions of Section 32-A, a convict is entitled to parole subject, however to the conditions governing the grant of it under the statute, if any, or the jail manual or the government instructions.
(3.) IN para 29 of the judgment the court summed up its finding as follows:- (a) The section 32-A does not in any way affect the powers of the authorities to grant parole; (b) It is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a convict under the Act; (c) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment. In para 30 of the judgment the court gave liberty to the convict to apply for the parole. The court directed the concerned authorities to dispose of the prayer in accordance with the statutory provisions, if any, Jail Manual or Government Instructions without implying Section 32-A of the Act as a bar for consideration of the prayer. The Court has quoted its observations in earlier case i. e. , Durand Dilier vs. Chief Secretary, Union Territory of Goa (2):- " 24. With deep concern, we may point not that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impart on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the N. D. P. S. Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail, are satisfied. " Thus, we find that the judgment of the learned Single Judge is in consonance of the judgment of the Apex Court in Dadu's case. The learned Single Judge has not asked to consider the case of the accused convicted under N. D. P. S. Act straightway. The prayer of parole has to be considered in accordance with the statutory provisions, if any, Jail Manual or Government instructions. However, there is substance in the contention of the learned counsel that such rules can be framed only by the Union of India and not be the State Government. ;