ABUBAKER Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS Crl. M. C. was taken suo moto on petitions sent by one aboobacker, who is undergoing sentence in central Prison, Kannur, following his conviction for an offence under the N. D. P. S. Act. He has taken exception to the order of the Government denying parol to convicts undergoing sentence under the above Act, which, according to him, is not merely unwarranted, but illegal. He has prayed for an appropriate direction to the government to let him visit his house to see his wife, children and old ailing mother. His wife in a separate petition had virtually endorsed his case stating that he has to suffer R. I. for 12 years, that he has a clean history sheet, which is to the satisfaction of the jail authorities and therefore he is eligible and entitled to be let on parol like any other well behaved prisoner under the relevant rules. She has prayed that he may be let on parol atleast for one month "in order to re-establish the shattering pillars and restore peace and harmony in our crumbling family".

(2.) IN the remarks submitted by the Jail Superintendent he has stated that the petitioner was admitted to prison on 18-5-1991 as per the warrant dated 16-5-1991. He has to suffer R. I. for ten years and also to pay a fine of Rs. 1,00,000/- in default to R. I. for two years. He was allowed set off for eighteen days and his substantive sentence will expire on 27-4-2001, and the default sentence on 27-4-2003. He has already undergone imprisonment for three years as on 20-5-1994. Since he was convicted under the N. D. P. S. Act, he is not eligible for any kind of leave as per the amended Rule 452 (BB) (vi) of the Kerala Prison Rules. The sentence is also not liable to be suspended, remitted or commuted. He however was allowed to visit his house twice last year under police escort.

(3.) CHAPTER XXVI of the Kerala Prison Rules contains provisions for leave, which is of two kinds viz. emergency and ordinary. Rule 452 (B) which provides for eligibility for leave states: "well behaved prisoners sentenced to imprisonment for one year and above and who have served out actually the sentence in the case of those sentenced to one year and above upto and including 5 years, 1/3 or 3 years whichever is less in the case of those sentenced to above 5 years are eligible for ordinary leave. Any well behaved convicted prisoner-is eligible for emergency leave. A prisoner once released on leave of any kind will not be eligible for a subsequent release on leave until the completion of one year of actual imprisonment to be counted from the date of his last return from leave provided that this will not apply to the grant of leave to a prisoner in an emergency due to the death or serious illness of any near relative specified in rule 455". Under Rule 452 (BB) as it originally stood: "notwithstanding anything contained in CHAPTER XXVI of these Rules Government may, in deserving cases grant leave to any prisoner, exempting him from A. I. R or any of the provisions relating to the granting of leave. " This was struck down by judgment in O. P. No. 3489 of 1989 and Crl. M. C. No. 1565 of 1992 as violative of Art. 14 of the Constitution of india as it embodies no guidelines or principles. (See the explanatory note to the rule ). Under Clause (VI) of Rule 452 (BB) as it now stands, "a person convicted in respect of any offence relating to narcotic drugs or psychotropic substances or any law relating to smuggling or violation of foreign exchange regulations or national security shall not be eligible for leave". There is therefore a blanket prohibition in the matter of grant of leave to prisoners coming under the categories mentioned in the Rule. It is not possible to agree and the Rule does/not warrant that grant of emergency leave alone comes within scope of its provisions which would not come in the way of granting ordinary leave under Rule 452b. It is trite that leave cannot be claimed as a matter of right by a convict prisoner even if he has satisfied the criteria for its eligibility. In appropriate cases and in regard to certain class of prisoners leave can be refused by the authorities in whom such power is vested. In matters relating to jail discipline and national security, the decision of the concerned authority must ordinarily prevail. Sub-rule (vi) of rule 452 (BB) is neither irrational nor arbitrary. Prisoners coming under the categories mentioned in the Rule are disentitled to leave/parol either emergency or ordinary. No direction as claimed therefore can be granted.