K.K. Ali, Shejeer @ Sajeer and Kasim K.E. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **THURSDAY, THE 24TH DAY OF MAY 2018 / 3RD JYAISHTA, 1940** **WP(C).No. 1713 of 2018** **----------------------** **PETITIONERS (IN JAIL) :** **--------------------** **1 K.K. ALI,(C.NO.2435), CENTRAL PRISON AND CORRECTIONAL HOME VIYYUR, TRISSUR), (S/O.KUNJUMUHAMMED, AGED 37, KUZHITHOTTIL HOUSE, KOORUMPANAMPARA BHAGAM, CHERUVATTOOR KARA, ERAMALLUR VILLAGE, ERNAKULAM).** **2 SHEJEER @ SAJEER,(C.NO.2433), CENTRAL PRISON AND CORRECTIONAL HOME VIYYUR, TRISSUR), AGED 35, S/O.HAMSA, AYYARUKUDI HOUSE, ERAMAM BHAGAM, MUPPATHADAM, KADUNGALLUR VILLAGE, ERNAKULAM.** **3 KASIM K.E.,(C.NO.2432), CENTRAL PRISON AND CORRECTIONAL HOME VIYYUR, TRISSUR), AGED 48, S/O.IBRAHIM, KAPPOORIL HOUSE, KUNJUNNIKARA, KADUNGALLUR VILLAGE, ALUVA.** **BY ADV.SRI.K.S.MADHUSOODANAN** ## **RESPONDENTS :** - **-----------** **1. STATE OF KERALA TO BE REPRESENTED BY SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** **2. DIRECTOR GENERAL OF PRISON AND CORRECTIONAL SERVICES, KERALA PRISON AND CORRECTIONAL SERVICES DEPARTMENT, GOVERNMENT OF KERALA, POOJAPPURA, THIRUVANANTHAPURAM.** **3. SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME, VIYYUR, TRISSUR.** **R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.P. NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-05-2018 ALONG WITH WPC NO. 2242/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp 25.5.2018** **WP(C).No. 1713 of 2018 (L) --------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 PHOTOCOPY OF THE APPLICATION OF 2ND PETITIONER'S WIFE DATED 7.12.17 TO THE PUBLIC INFORMATION OFFICER, BINANIPURAM POLICE STATION. EXHIBIT P1(A) PHOTOCOPY OF THE REPLY NO.33/RTI/BPM/17 DATED 11.12.17 RECEIVED FROM THE SUB INSPECTOR OF POLICE. EXHIBIT P2 PHOTOCOPY OF THE APPLICATION OF 3RD PETITIONER'S WIFE TO THE PUBLIC INFORMATION OFFICER, ALUVA POLICE STATION. EXHIBIT P2(A) PHOTOCOPY OF THE REPLY NO.59/RTI/17 AE DATED 9.12.17 RECEIVED FROM THE SUB INSPECTOR OF POLICE, ALUVA EAST POLICE STATION. EXHIBIT P3 PHOTOCOPY OF THE RELEVANT PAGES OF RULE 397 IN CHAPTER XXX OF PRISON RULE, 2014. EXHIBIT P4 PHOTOCOPY OF THE INTERIM ORDER DATED 27.11.2017 IN W.P.(C) 32340/2017 OF THE HON'BLE HIGH COURT.** **RESPONDENT'S EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **bp 25/5/2018** ## **K.ABRAHAM MATHEW J.** --------------------------------------W.P.(C)Nos.1713 and 2242 of 2018 ----------------------------------------Dated this the 24[th] day of May, 2018 ## **JUDGMENT** The petitioners were some of the accused in S.C.No.1/2013 on the file of Special Court for Cases filed under the National Investigation Agency Act. They were convicted of the offences under Sections 120-B, 153-A, 326 and 327 IPC, Section 3 of the Explosive Substances Act and Section 16 read with Section 18 of the Unlawful Activities (Prevention) Act. They have been sentenced to undergo imprisonment for various periods, the maximum of which is eight years. They are undergoing imprisonment. They were denied parole on the basis of the provision in Rule 397(l)(v) of the Kerala Prison and Correctional Services (Management) Rules, 2014. This is challenged in these writ petitions mainly on three grounds. The first ground is that the Prison Act does not empower making a Rule prohibiting granting parole to accused convicted of the offences relating to national security. The second ground is that the offence under Section 16 of the Unlawful Activities (Prevention) Act has nothing to do with national security, and so, Rule 397(l)(v) is not applicable to the case of the petitioners. The third ground is that by Ext.P4 order this Court granted ordinary parole for 15 days to the 8[th] accused, who also was ## W.P.(C)Nos.1713 and 2242 of 2018 2 convicted of the same offences. 2. Heard the learned counsel for the petitioners and the learned Senior Government Pleader. 3. It is in view of the prohibition in Rule 397(l)(v) of the Kerala Prison and Correctional Services (Management) Rules, 2014, the petitioners were denied parole. The Rule runs as follows: “ Any person convicted in respect of any offence relating to any law pertaining to smuggling or violation of foreign exchange regulations or national security or counterfeiting of currency and coins shall not be eligible for leave.” 4. The nature of the right to parole is relevant. In **Jameel Ahmed v. State of Rajasthan and Others [2007 KHC 6345]** , Rajasthan High Court held that remission and parole are not vested right of the prisoners and they are privileges granted by the State to convicted persons. 5. The learned counsel for the petitioners submits that unless there is a prohibition in the Unlawful Activities (Prevention) Act for granting parole to convicts, it cannot be denied to such convicts. On the other hand, the learned Special Government Pleader submits it need not do so. He relies on the decision of this Court in **Abubaker v. State of Kerala [1994(2) KLT 842]** . Clause (VI) of Rule 452(BB) of the Kerala Prison Rules provided that the person convicted in respect of an offence related to narcotic ## W.P.(C)Nos.1713 and 2242 of 2018 3 drugs and psychotropic substances shall not be eligible for leave. There was no prohibition in the Narcotic Drugs and Psychotropic Substances Act. This Court found that the prohibition in the Rule referred to above is a valid one. The decision in **Mohamed Moin** ## **Faridulla Qureshi v. State of Maharashtra and Others [2009** **CRL. L.J.3807]** is relied on by the learned counsel for the writ petitioners for some other purpose. The said case related to Bombay bomb blast case. The convicts were denied parole. The Bombay High Court held that since there was no prohibition in the statute for granting bail to such convicts, they were entitled to parole. But certain observations in that judgment are relevant. In Bombay the provisions relating to parole were contained in Prisons (Bombay Furlough and Parole) Rules, 1959. The Division Bench which disposed of the writ petition observed that if the legislature had the intention that the prisoners in serious matters like Bombay bomb blast case should not be granted parole, it could have amended the provisions in the Prisons (Bombay Furlough and Parole) Rules, 1959. It follows that the prohibition in granting parole need not be in the Act, the violation of which the convicts were convicted. 6. **In Avtar Singh v. State of Haryana and Another [AIR 2002 SC 1109]** , the provisions which came up for W.P.(C)Nos.1713 and 2242 of 2018 4 consideration were contained in the Good Conduct Prisoners (Temporary Release) Act, 1988 of Haryana, which contained the prohibition in granting parole to convicts. This also indicates that the prohibition in granting parole need not be contained in the Act under which the convicts were convicted. 7. In the light of the decision in **Avtar Singh v. State of Haryana and Another [2002 KHC 1816] = [AIR 2002 SC 1109]** , also it may be held that the argument that since the Unlawful Activities (Prevention) Act does not prohibit granting parole to a person convicted of an offence under the Act parole cannot be denied to the petitioners does not hold water. 8. According to the learned counsel for the petitioners, the Act for which the petitioners were convicted did not affect the national security and so Rule 397(l)(v) is not applicable to the petitioners' case. The Rule may be quoted again. “Any person convicted in respect of any offence relating to any law relating to smuggling or violation of foreign exchange regulations or national security or counterfeiting of currency and coins shall not be eligible for leave.” 9. The argument advanced by the learned senior Government Pleader is that the Act for which an accused is convicted need not affect national security to attract the prohibition W.P.(C)Nos.1713 and 2242 of 2018 5 contained in the Rule. He would submit that it is sufficient that the statute relates to national security. The plain meaning of the provision in the Rule quoted above definitely shows that to attract the prohibition it is sufficient that the offence for which the persons were convicted related to a statute relating to national security. In other words, the act of the convict need not affect national security. The Act was enacted to provide for more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected there with. The object of the Act is to make powers available for dealing with activities directed against the integrity and sovereignty of India. So, there cannot be any doubt that the Act related to the security of India. Any offence under the Act attracts the prohibition contained in Rule 397(l)(v) of the Kerala Prison and Correctional Services (Management) Rules, 2014. 10. Learned counsel has relied on the decision of the Supreme Court in **Mohd.Iqbal M. Shaikh and Others v. State of Maharashtra [(1998) 4 Supreme Court Cases 494]** and **People's Union for Civil Liberties and Another v. Union of India [(2004) 9 Supreme Court Cases 580].** Those decisions only say that a person convicted for terrorist acts cannot be denied parole unless there is a prohibition contained in a statute. In the ## W.P.(C)Nos.1713 and 2242 of 2018 6 case at hand the Rule quoted above prohibits granting parole to the petitioners. The two decisions of the Supreme Court are not applicable to the facts of this case. 11. Another decision cited by the learned counsel for the petitioners is the one in **Asfaq v. State of Rajasthan and others [AIR 2017 SC 4986].** The Supreme Court held that parole cannot be denied merely on the ground that the crime committed by the convict is a heinous crime. There is no dispute regarding it. The Supreme Court did not hold that when there is a prohibition in a statute the convict can be released on parole in any case. So, the decision is not applicable to the facts of the case. 12. Yet another decision pressed in by the learned counsel for the petitioners is the decision of the Supreme Court in **Dadu alies Tulsidas etc., v. State of Maharashtra [AIR 2000 SC 3203]** . The provision which came up for consideration in that case was the one contained Section 32-A of the Narcotic Drugs and Psychotropic Substances Act. It did not relate to granting of parole. So, the said decision is of no assistance to the petitioners. 13. The last ground on which the relief is prayed for by the petitioners is that the 8[th] accused was granted ordinary parole for 15 days pursuant to the directions issued by this Court. That is not relevant for the present purpose. In the present case, the question W.P.(C)Nos.1713 and 2242 of 2018 7 is whether the prohibition contained in Rule 397(l)(v) of the Kerala Prison and Correctional Services (Management) Rules, 2014 is valid and whether it is applicable to the present case. 14. In the light of the above discussion, I hold that in view of the prohibition contained in Rule 397(l)(v) of the Kerala Prison and Correctional Services (Management) Rules, 2014, the petitioners are not entitled to parole. In the result, these writ petitions are dismissed. Sd/- **K.ABRAHAM MATHEW JUDGE** sd