ARUN MISHRA, J. - (1.) REFERENCE has been made by the single Bench on 8.11.2011 with respect to the grant of first regular parole to the petitioner Shambhu Dayal, who has been convicted for committing offence under section 8 read with section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced to undergo 10 years rigorous imprisonment with fine of Rs.1 lac. The question referred by the single Bench is to the effect whether the order dated 4.5.2011 passed by the single Bench in S.B.Civil Writ Petition (Parole) No.5711/ 2011 is the obtaining law or whether a convict after having undergone the statutory period of sentence is entitled to be considered for parole both regular and permanent without the question of payment of fine being reckoned.
(2.) WHEN the arguments on the aforesaid question were being heard by the Division Bench, it was considered necessary to consider the aspect whether in the cases where conviction is under NDPS Act, the provisions of Rajasthan Prisoners Release on Parole Rules, 1958 (hereinafter referred to as "the Parole Rules, 1958") are applicable. This question arose on 2.1,2012; the matter was further argued on 10.1.2012 and our attention was drawn by the Government Advocate to Rule 1(c) of the Parole Rules, 1958 which provides that these rules shall not apply to persons under a sentence of imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules made under Notification of the Government of India, Ministry of Home Affairs No.40/32/55 - Judl.I dated 9th November, 1955. Hence, the following two questions have been framed by the Division Bench of this Court which are to be answered: - (1) whether the Rajasthan Prisoners Release on Parole Rules, 1958 are applicable in the cases where sentence of imprisonment is for an offence relating to a matter to which executive power of union extends such as under NDPS Act. (2) whether it is necessary for consideration of application for parole that fine imposed is deposited before application for parole is considered. Shri Amarjit Singh Narang, learned count -el appearing on behalf of the petitioner has submitted that in view of the Division Bencn decisions of this court in State of Rajasthan v. Mana Singh, etc. etc. (2002 (2) RLR 285 : 2002 (2) WLN 719) and Samiullaha v. State of Rajasthan & Ors. (2002 (1) RLR 41 (Raj): 2002 (4) WLN 456) : (2002 Cri LJ 839), the petitioner is entitled for release on parole under the Parole Rules, 1958. He has also relied upon the decisions of the Apex Court in Maktool Singh v. State of Punjab (AIR 1999 SC 1131 : (1999) 3 SCC 321) and Dadu alias Tulsidas v. State of Maharashtra (AIR 2000 SC 3203 : (2000) 8 SCC 437). On the other hand, it was submitted by Shri Rajendra Yadav and Shri M.A.Khan, learned counsel appearing on behalf of the respondents that in view of Rule 1 (c) of the Parole Rules, 1958 framed by the State of Rajasthan, the Parole Rules. 1958 cannot apply to a convict under NDPS Act and his case has to be considered by the Central Government as per the Central Rules framed vide Notification of the Government of India, Ministry of Home Affairs No.40/32/55 - Judl.I dated 9th November. 1955; the State Government is not the appropriate Government so as to consider the cases where the persons have been sentenced to undergo imprisonment for an offence against any law relating to a matter to which the executive power of the union of India extends and such persons shall be governed by the Central Rules and thus, the State Government was not competent to consider the cases of such persons for release on parole. It was further submitted that the Rules framed by the Central Government vide Notification dated 9th November. 1955 were not brought to the notice of the Division Bench deciding the case of Mana Singh (supra) and though the decision in the case of Mana Singh (supra) has laid down that for a convict under NDPS Act, the Central Rules would be applicable as provided under Rule 1(C) of Parole Rules, 1958, however, as the Rules of the Central Government framed vide Notification dated 9th November, 1955 were not brought to the notice of the Division Bench deciding the case of Mana Singh (supra), certain guidelines were laid down to be followed till the rules are framed by the Union of India. The decision in the case of Mana Singh (supra) is thus, per incuriam as the Rules which had been framed by the Central Government vide Notification dated 9th November. 1955 were not brought to the notice of the Division Bench otherwise guidelines would not have been laid down on the premise that Central Government has not framed such rules. It was further submitted that the decision of the Division Bench of this Court in Samiullaha's case (supra) also proceeds on the assumption that Parole Rules, 1958 are applicable and similarly, it was not submitted before the Division Bench that the Central Government has framed rules vide Notification dated 9th November, 1955 and as per Rule 1(c) of Parole Rules, 1958, the Parole Rules, 1958 framed by the State Government are not applicable. The main question for consideration before the Division Bench in Samiullaha's case (supra) was whether Section 32A of NDPA Act, which restricts suspension, remission or commutation of sentence would cover release on parole also and the Division Bench has followed the decision of the Apex Court in the case of Dadu alias Tulsidas (supra) and laid down that grant of parole is not restricted by Section 32A of the NDPS Act. Thus, the decision in the case of Samiullaha (supra) cannot be taken authority on the question whether a convict under NDPS Act can be released on parole by the Central Government or the State Government. Question No.(l) The question No. (1) is whether a convict sentenced to imprisonment under any law to which executive power of union extends such as NDPS Act can be released on parole under the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958. Rule -1 of the Parole Rules, 1958 is relevant in this regard and the same is quoted below: - "1 Title, commencament and application. - (a) These Rules will be called Rajasthan Prisoners Release on Parole Rules, 1958; (b) They shall come into force on the date of their publication in the Official Gazettee; (c) These rules shall not apply to persons under a sentence of imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be governed by the Central Rules made under No - tifica.ion of the Government of India, Ministry of Home Affairs No.40/32/55 -Judl.I, dated the 9th November reproduced in the Appendix to these rules." Rule 1(c) of Parole Rules, 1958 provides that the Rules shall not apply to persons under a sentence of imprisonment for an offence against any law relating to a matter to which the executive power of the Union of India extends and such persons shall be 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. Thus, Rule 1(c) makes it clear that Parole Rules, 1958 are not applicable with respect to any law relating to a matter to which the executive power of the Union of India extends. NDPS Act is a law relating to a matter to which executive power of the Union of India extends. Hence, in view of Rule 1(c), the Parole Rules, 1958 are not applicable to persons under a sentence of imprisonment for an offence under NDPS Act and such persons shall be governed by the Central Rules made under Notification of the Government of India dated 9th November, 1955.
(3.) VIDE Notification No.40/32/55 -Judl.I dated 9th November, 1955, the Central Government, Ministry of Home Affairs, New Delhi in exercise of the power conferred by sub -section (6) of section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898)" framed the rules, which have been referred to in Rule 1(c) of the Parole Rules, 1958, and the same were published in the Gazettee of India, November 19, 1955. The Notification dated 9th November, 1955 containing the Rules (hereinafter referred to "as the Rules of 1955") of the Central Government is quoted below: - "MINISTRY OF HOME AFFAIRS New Delhi -2, the 9th November 1955 S.R.O. 3491. - In exercise of the power conferred by sub -section (6) of section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Central Government hereby makes the following rules: - 1. Where a petition for suspension of the execution of a sentence of imprisonment or for remission of the whole or part of a sentence of imprisonment is made by or on behalf of a person sentenced to imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends and the person sentenced to such sentence of imprisonment is in jail, the execution of the sentence shall be suspended and such person released on parole, subject to the conditions specified in rule 3, for such period, not exceeding fifteen days, as may be necessary for obtaining the orders of the Central Government on the petition, if the State Government of the State in which such person is detained in jail is satisfied that the immediate release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife, husband or child of such person. 2. A State Government ordering a release on parole under rule 1 shall forthwith report the full facts and circumstances of the case to the Central Government while forwarding the petition to the Central Government and the Central Government may on consideration of the report and petition make such order as they deem fit. 3. A person released on parole under rule 1 shall enter into a bond undertaking to reside during the period of his parole at a place specified therein and hot depart therefrom without the previous permission of the State Government and to return to the jail in which he is confined on expiry of the period of his parole, and to conform to such other conditions as the State Government may consider necessary. (No.40/32/55 -Judl. I) GULZAR SINGH, Under Secy." It is apparent from Rule 1 of Rules of 1955 that when a petition for suspension of the execution of a sentence of imprisonment or for remission of the whole or part of a sentence of imprisonment is made by or on behalf of a person sentenced to imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends, such person may be released on parole, subject to the conditions specified in rule -3 for such period, not exceeding fifteen days, as may be necessary for obtaining the orders of the Central Government on the petition, if the State Government of the State in which such person is detained in jail is satisfied that the immediate release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife, husband or child of such person. As per Rule 2, the State Government has to report the full facts and circumstances of the case to the Central Government while forwarding the petition to the Central Government and the Central Government may on consideration of the report and petition make such order as they deem fit. Thus, it is apparent from the aforesaid Rule 1 of the Rules of 1955 framed by the Central Government that a convicted person can be released on parole and orders of Central Government have to be obtained on the petition if the State Government is satisfied that immediate release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife, husband or child of such person. If the State Government considers release of person necessary, it has to report the matter to the Central Government and the Central Government shall pass final order under Rule 2. Hence, it is apparent that once the Rules of 1955 have been framed by the Central Government, they are applicable and have to be followed for releasing on parole a convict, who has been sentenced to undergo imprisonment for an offence against any law relating to a matter to which the executive power of the Union extends and in such cases, Rajasthan Prisoners Release on Parole Rules, 1958 are not applicable.;