CHANDRAKANT BABURAO PAWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE . Learned A.P.P. waives service of Rule. By consent of the parties heard forthwith. Heard parties. The petitioner came to be arrested on 31.12.95 by Gamdevi Police Station in C.R. No. 1094 of 1991 for offenses under sections 302, 326 read with section 34 IPC and for offence under the Prohibition Act. The petitioner was tried by the court of sessions in the Session Case No. 780 of 1992. The petitioner was not granted bail during the trial and came to be convicted by the Ld. Additional Session Judge, Gr. Bombay under sections 120-B read with section 304 Part I, 326 IPC as well as u/s. 65 (b) (d) (e) of the Bombay Prohibition Act read with 120-B, 34, 109 IPC and also under section 78 r/w sections 81 and 83 of the Bombay Prohibition Act. The petitioner has been sentenced to suffer R.I. for life and fine of Rs. 5 lacs for having committed offence under section 304 Part I and section 326 of the IPC. The petitioner alongwith other co-accused also came to be convicted under Section 65 (b) (d) (e) read with 120-B, 34 and 109 as well as section 78 read with sections 81 and 83 of the Bombay Prohibition Act, 1949, but no separate sentence was passed for this conviction. It is the case of the petitioner that on or about 24.3.1995 petitioner submitted an application seeking furlough to respondent no. 2. Deputy Inspector General of Prisons, Yerwada Central Prison, Yerwada, Pune which was sent through respondent No. 3 - Superintendent, Yerwada Central Prison. The petitioner is undergoing his sentence but till date i.e. filing of this petition i.e. 7.3.1996, petitioner has not received any reply from the respondents and thus being aggrieved has preferred this petition.

(2.) IT is the contention of the petitioner that he has been denied the right of furlough under the Rules made by the Government of Maharashtra in that behalf and as the respondents have refused to entertain his application for furlough, this court should grant his so by exercising its powers under Article 226 of the Constitution of India.

(3.) MR . Marwadi further contended that rule 4(3) of the prisons (Bombay Furlough and Parole ) Rule, 1959 bars release of prisoners convicted of offence under the previsions of the Bombay Prohibition Act. He has pointed to us that though the petitioner has conviction under the Bombay Prohibition Act, for which no separate sentence was awarded by the court, and even taking into consideration this bar of rule 4(3), petitioner has already undergone 3 years and odd imprisonment which is the maximum which could have been imposed on the petitioner under section 65 of the Bombay Prohibition Act and as such under all counts for which has petitioner has been convicted under the Bombay Prohibition Act, the maximum sentence would have been 3 years. The petitioner has already served the sentence of 3 years and his case would not be covered by rule 4 (3) and, therefore, should be directed to be released on furlough on usual terms and conditions.