C.R.W.P. No. 665 of 2014. Case: Pardeep Kumar Vs Narcotic Control Bureau, Chandigarh. High Court of Punjab (India)
| Case Number | C.R.W.P. No. 665 of 2014 |
| Counsel | For Respondents: Manjri Nehru Kaul, Addl. A.G. and Vivek Saini, A.A.G. |
| Judges | Hemant Gupta and Lisa Gill, JJ. |
| Issue | Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 - Sections 3, 3(1), 3(b), 3(n), 4; Constitution of India - Articles 14, 19, 21, 226, 39A, 47; Prisons Act, 1894 - Sections 45, 46, 56, 59, 61 |
| Citation | 2015 (2) RCR 592 (Cri) |
| Judgement Date | March 10, 2015 |
| Court | High Court of Punjab (India) |
Judgment:
Hemant Gupta, J.
1. During the annual inspection of District Jail, Rupnagar, convict Pardeep Kumar son of Bahadur Singh resident of Village Kasol, undergoing sentence for an offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985, submitted a representation before the Administrative Judge complaining against the denial of parole to him. Such representation was ordered to be treated as a Criminal Writ Petition. Initially, this Court issued notice to the Union Territory, Chandigarh as well as the Narcotic Control Bureau, Chandigarh. However, later notice was ordered to be issued to the State of Punjab. On 04.07.2014, it was found that a humble beeri is the reason for denial of parole to convict Pardeep Kumar, but the Bench is unable to discern any provision in the Punjab jail Manual that a beeri is a prohibited article.
2. Thereafter, on 11.07.2014, an affidavit has been filed on behalf of the Superintendent, District Jail, Rupnagar, wherein it has been pointed out that as per para No. 540(2) of the Punjab Jail Manual, tobacco and all other substances except cigarettes and biddies are prohibited articles. It has been also pointed out that during visit of the District & Sessions Judge, Rupnagar on 27.07.2009, it was found that biddies and cigarettes were being sold in jail canteen prior to 13.07.2009. Such fact was also counter checked from the stock register maintained in the canteen. It was found that despite the order of the Hon'ble Supreme Court, the biddies and cigarettes were being sold in the jail premises, therefore, the Jail Superintendent stopped the sale of biddies and cigarettes in jail canteen. However, the petitioner was caught possessing bundles of biddies & tobacco during a search inside jail premises on 08.10.2013. Thus, the Superintendent, Jail, ordered the punishment of 30 days separate confinement to the petitioner, as tobacco i.e. bundles of biddies is prohibited article in jail premises. Such order was placed for appraisal before the District & Sessions Judge, Rupnagar on 26.10.2013. It has been also pointed out that as per Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, a convict can only be granted parole leave if he/she maintains good conduct inside the jail on continuous basis. Since the petitioner has broken the code of good conduct by keeping the prohibited articles i.e. bundles of beeris and tobacco in his possession, he would be eligible for release on parole after the expiry of one year from the date of commission of offence, as no parole/furlough leave could be granted to any such prisoner within this period.
3. However, after considering such affidavit, this Court found that in the absence of any prohibition regarding possession or consumption of cigarettes and biddies, as discernible from Clause 540 of Chapter XVII of the Punjab Jail Manual, punishment imposed upon the applicant, may be a nullity. The State of Punjab was called upon to consider; whether Clause 540 of Chapter XVII requires amendment to prohibit consumption of cigarettes and biddies etc. in jail. On 11.08.2014, it was found that Para 547 of Chapter XVIII of the Jail Manual provides that a prisoner, who has committed any of the offences enumerated in the preceding paragraph, shall be put up before the Deputy Superintendent by the Executive Officer In-Charge of the prisoner alongwith his history ticket in which the offence committed is recorded. The Deputy Superintendent shall hold a preliminary enquiry, record his own observations and present the prisoner alongwith his history ticket, witnesses and other relevant record before the Superintendent, who shall hold an enquiry and punish for such offences. The Court noticed the judgment of learned Single Bench of this Court in Shishpal Singh v. Superintendent District Jail, 1994 (3) RCR (Crl.) 516, wherein it has been held that punishment can be awarded only after examining the witnesses and giving an opportunity to the delinquent prisoner to cross-examine the witnesses alongwith an opportunity to lead evidence in defence. It has also been held that judicial appraisal of punishment cannot cure inherent defect of failure to grant requisite opportunity to the delinquent prisoner.
4. Subsequently, this Court noticed that the procedure prescribed and adopted for imposing punishments for offences in prisons, is violative of the rights of a convict, as it does not disclose a fair and transparent procedure. The States of Punjab, Haryana and UT, Chandigarh were directed to file their respective response.
5. The Chandigarh Administration in its reply pointed out that the Punjab Jail Manual has been amended from time to time by the Legislature, as and when the need so arose after the Constitution of India came into force. It was also stated that the Chandigarh Administration, after careful debate and deliberation and taking a holistic view of the Punjab Jail Manual and its cognate Acts and provisions, has come to the view that the provisions of the Punjab Jail Manual read with the Prisons Act, 1894 (for short 'the Act'), do not prima facie require any changes or amendments, as the same are very well serving the objective of proper and effective jail administration including the maintenance and discipline, law and order in the jail(s) under its jurisdiction.
6. In a separate reply filed by Mr. Jagjit Singh, Inspector General of Prisons, Haryana on behalf of the State of Haryana, it is pointed out that all cases of punishment by the Jail Superintendent are submitted before the concerned District & Sessions Judge during his jail visit and the District & Sessions Judge after examining the record and giving the opportunity to hear the convict in person in the jail, passes the order for judicial appraisal. Such procedure is said to be followed in letter & spirit in all the jails in Haryana. It is further stated that where convict is aggrieved by the orders of the Superintendent, Jail, the judicial appraisal may be made mandatory. It is pointed out that other alternative could be that if a convict is aggrieved against the punishment imposed upon him by the Superintendent, Jail, he may file an appeal before the Director General of Prisons, Haryana in writing and the Director General of Prisons, Haryana or any other officer authorized by him or by State Government, not below the rank of Additional Inspector General of Prisons, Haryana, may pass such orders only after taking into consideration of all facts and may also hearing the convict personally at the time of his visit in the Jail and may pass such orders in appeal, as he may deem proper.
7. In the reply filed by the Inspector General of Prisons, Punjab on behalf of the State of Punjab, it is pointed out that the Department of Home (Jails), Government of Punjab has issued mandatory instructions dated 01.10.2014 to all the Superintendents of Jails to follow the same while awarding punishment for jail offence committed by the prisoner. It is also averred that the request had been made to the Principal Secretary (Jails), Government of Punjab for making necessary amendments by giving fair opportunity to the prisoner, who has committed jail office in Para 547 of the Punjab Jail Manual, which deals with judicial appraisal of jail offence committed by the prisoner. It is also mentioned that a Committee has been constituted to suggest amendments in the Punjab Jail Manual on 01.10.2014.
8. We have heard learned counsel representing the States as well as the Union Territory, Chandigarh. The rights of the prisoners, facilities and privileges have been subject matter of consideration of this Court and of Hon'ble Supreme Court. Some of the judgments relevant are mentioned hereunder.
9. In C.W.P. No. 15041 of 2007 titled 'Court on its own motion v. State of Punjab', this Court has taken suo moto notice on a complaint made by the prisoners of Central Jail, Ludhiana. In the said case, vide order dated 30.05.2009, while observing that Jail Manual is a good guide for jail administration, the Bench feel that it needs a re-look, keeping in view the provisions made in Model Prison Manual. The Division Bench observed as under:
No doubt the Jail Manual is a good guide for jail administration, however, we feel that it needs a re-look, keeping in view the provisions made in Model Prison Manual. In view of order passed by us on 31.7.2006, in CWP No. 10791 of 2002, all the three States are under an obligation to implement recommendations made by the National Human Rights Commission regarding mentally ill prisoners/under trials. As on date, we can reasonably expect that the States are bound to adhere to and comply with the parameters for Jail Administration as laid down in Jail Manuals (till its modification), which is a very exhaustive document which deal with every aspect of Jail Administration. The fact all the same remains that the reports submitted before us indicate in no uncertain terms that there is complete violation of the provisions of the Jail Manual so far as administration and conditions in the jails in both the States are concerned.
As to how the situation can be improved, the rights of the inmates protected and a reformative approach implemented is the next question. That aspect can be taken care of by appointing a Committee each for the two States comprising three eminent citizens, having expertise in their own fields, to look into the problems as indicated by us in earlier part of this order. The Committee for the State of Punjab shall consist of:
(a) Shri Justice (Retd.) Amar Dutt
(b) Shri Md. Izhar Alam, I.P.S. (Retd.) House No. 1476, Sector 42 Chandigarh
(c) Shri G.P.S. Shahi, I.A.S. (Retd.) House No. 700, Sector 11-B, Chandigarh
The Committee for the State of Haryana shall consist of:
(a) Shri Justice (Retd.) Jai Singh Sekhon
(b) Shri V.K. Kapoor, I.P.S. (Retd.) House No. 836, Sector 16, Chandigarh
(c) Shri R.R. Banswal, I.A.S. (Retd.) House No. 303, Sector 7...
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