State can’t deny benefit of remissions to prisoner as per policies for period he remained on bail: Punjab & Haryana HC

Read Order- Bahadur Singh VS. State of Punjab and Another

LE staff

Chandigarh, August 31, 2021: The Punjab and Haryana High Court has recently directed the Home Secretary, Punjab Government, to release the petitioner(convict) forthwith, if he qualifies for the remissions in accordance with the judgments of the Supreme Court in Nalamolu Appala Swamy and Others versus State of Andhra Pradesh and D. Ethiraj versus Secretary to Govt. and Others.

Herein, the petitioner sought  for issuance of writ in the nature of mandamus/certiorari declaring that the petitioner had undergone the sentence awarded to him and his further detention in the jail was illegal.

In this matter, the petitioner had faced trial pursuant to an FIR registered at Police Station Sadar Mansa, under Section 15 of the NDPS Act, 1985,  and was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,50,000/- and in default of payment of fine, the petitioner was further awarded rigorous imprisonment for a period of 3 years.

The criminal appeal filed by the petitioner  was dismissed by this Court. The petitioner has been currently undergoing his sentence in District Jail, Barnal.

It was mainly contended from the petitioner’s side that out of 12 years of sentence the petitioner had already undergone more than 11 years of actual sentence and he was entitled to certain remissions which made him entitled for release, however, the State had not granted him the remissions which he was entitled to and therefore, the petitioner has been continuing to serve his sentence.

As per the affidavit of the Superintendent, District Jail, Barnala, it was stated therein that the petitioner was initially lodged in Central Jail, Bathinda from August 1,1997 to November 8,1998 as an under trial and then lodged as convict from November 9,1998 to July 8,2000.

It was stated that the petitioner was given the benefit of Governor Policy of remission of April 8,1999 and May 11,2000 as he was in jail during the said period.

It was further stated in the affidavit that since the petitioner was granted bail by this Court from July 9,2000 to January 8,2012 and therefore, he could not be granted the benefit of remissions of the Policies of the Governor of year 2001 to 2006 as he was on bail, as the policy laid down a condition that a person who is confined in jail can only avail the remissions.

The petitioner’s counsel relied on the judgment of the Apex Court in Nalamolu Appala Swamy (Supra) wherein the Court had directed the State Government to consider the matter afresh without reference to the fact that the appellants were not in jail on the date the Government Order was issued.

Another judgment relied on by the petitioner was of the Top Court in D. Ethiraj (Supra) wherein it was observed that the Court has to consider the actual period of sentence undergone by the prisoner and whether by reason of the period actually undergone, the prisoner qualifies for remission.

On the contrary, from the State’s side it was contended that since the petitioner was on bail, as per the policy of the State dated April 13,2001, the petitioner could not be granted the remissions as he was on bail. It was further submitted that the total sentence including the remission came out to be 10 years 9 months and 24 days as on January 30,2020.

Now deciding upon the petitioner’s grievance, the Bench of Justice Arvind Singh Sangwan found merit in the present petition, in view of the judgments of the Apex Court  in Nalamolu Appala Swamy (Supra) and D. Ethiraj (Supra), that the State cannot deny the benefit of remissions to the petitioner as per policies for the period he remained on bail.

The Court has also directed the Home Secretary to pass afresh order within a period of three weeks.