DEVPURI HIRAPURI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Service of Rule is waived by Mr. K. P. Raval, learned A.P.P. for the State. The petitioner, Devpuri Hirapuri, shown to be aged 70 years undergoing sentence (now default sentence), by virtue of his conviction under Sec. 20(b)(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('N.D.P.S. Act' for short) rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 15 of 1989, confirmed by this Court in Criminal Appeal No. 622 of 1990, has moved this Special Criminal Application praying for his premature release while setting aside the order Annexure 'A' rendered by the Government of Gujarat, through its Home Department on 11/05/1999 rejecting his application for such premature release. Short ground, on which the petitioner seeks premature release, is that he has been suffering from Cancer and he has been in the terminal stage of his illness. Reference in this connection has been made to Paras (Rule) 1482 and 1485 of Bombay Jail Manual and a decision rendered by this Court on 18/08/1999 in Special Criminal Application No. 441 of 1998 (Coram : N. N. Mathur, J., as he then was). Quoting Para 1485 of the Manual, the learned single Judge of this Court came to the conclusion that the provision is pressed into service on an extraordinary situation where it is considered to allow the prisoner to die comfortably out of prison. There is a detailed procedure provided in the Manual for such release. The premature release is opined to be neither a suspension of sentence nor remission nor commutation, by the learned single Judge. It has, therefore, been concluded by the learned single Judge that the bar provided under Sec. 32A of the N.D.P.S. Act does not come in the way of invoking the power under Para 1485 of the Manual in a fit case.

(2.) . When the present Special Criminal Application was placed before a learned single Judge (Coram : M. C. Patel, J.), he came to the conclusion that prima facie the provision of Section 32A of the N.D.P.S. Act, which provides that no sentence awarded under the said Act shall be suspended, remitted or commuted, would come in the way of the petitioner. However, since the petitioner placed reliance upon the aforesaid decision of the learned single Judge, and since the learned Judge, by his order dated 31/05/1999, was unable to agree with the said view, as according to him, premature release from jail on any ground would prima facie amount to remission, the matter has been referred to a larger Bench. This matter is accordingly placed before this Court for deciding the difference as has been voiced in the decisions referred to hereinabove.

(3.) . The question, in our considered opinion, that arises in this reference is whether premature release pursuant to Para 1485 of the Bombay Jail Manual would amount to remission in the sentence imposed upon the concerned prisoner and whether such a prisoner, having been held guilty of the offence/offences punishable under the relevant provisions of the N.D.P.S. Act, is entitled to be released under the provision of said Para 1485 of the Bombay Jail Manual.