RAJENDRA SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The petitioner herein was convicted u/s. 8, read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, the Act) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac with default sentence of imprisonment for two years by the Special Court, Ratlam. His appeal was dismissed by the High Court. Having undergone a part of the sentence, he submitted an application to the State Government for release on licence u/s. 2 of the M. P. Prisoners' Release on Probation Act, 1954, (for short, the Act of 1954). During the pendency of the application, he filed the present writ petition for issue of a writ of habeas corpus and release on bail pending consideration of his application for release on licence under the 1954 Act. This writ petition was heard at Indore Bench by a Division Bench consisting of V. D. Gyani J. and S. D. Jha J. The State relied on an earlier unreported decision of a Division Bench consisting of A. G. Qureshi, J. and S. D. Jha, J. in Jagtar Singh v. State of MP, M. P. No. 534/91, holding that a person convicted u/S. 8, read with Section 18 of the N.D.P.S. Act is not governed by the provisions of the 1954, Act. The judgment is a brief one and does not give any reasons for the view taken. Gyani J. took the view that the earlier Division Bench decision requires reconsideration. The Division Bench, therefore, referred the matter to a Larger Bench. That is how the case has come before us.

(2.) The 1954 Act has been enacted to provide for the release on licence of certain prisoners on conditions imposed by the Government. The State Government has framed M. P. Prisoners Release on Probation Rules, 1954, in exercise of rule making power conferred on it u/s. 9 of the 1954 Act. Section 9(4) empowers the Government to make rules for defining the classes of offenders who may be conditionally released. Rule 3 prescribes the classes of persons who shall not be released under the Act. Since the Act was enacted and the rules were framed long before the coming into force of the N.D.P.S. Act, the question of Rule 3 including or not including persons convicted under the provisions of N.D.P.S. Act in the classes prescribed under Rule 3 does not arise.

(3.) Our attention is invited to Section 32-A of the N.D.P.S. Act which was incorporated by Amendment Act No. 2 of 1989. It read thus :