ORDER
1. The say of the petitioner is that his brother Bheru Lal convict having undergone a sentence of 9 years has not been granted parole as yet though under Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958 (for short “the Rules of 1958”), he is entitled to be released on parole. It is stated that the marriage of the petitioner is fixed on 12.5.2000 and therefore, Bheru Lal should be released on parole.
2. In the return, the case set up by the respondents is that Bheru Lal being a convict for the offence under Sections 8/18 of the N.D.P.S. Act, he is not entitled for the grant of parole.
3. We have heard the learned Counsel for the parties and have considered the provisions of Rule 9 of the Rules of 1958 as also the provisions of N.D.P.S. Act.
4. The relevant facts are these. Bheru Lal was arrested on 24.8.1992 for the offence under Section 8/18 of the N.D.P. Act. He was convicted by the competent Court vide judgment dated 18.6.1993. His Appeal No. 238/93 has been dismissed by this Court vide judgment dated 11.1.1995. It is not disputed that Bheru Lal has undergone 9 years’ imprisonment out of the sentence of 10 years’ R.I. The question for consideration is whether Bheru Lal is entitled to the parole on the ground of the marriage of the petitioner who is his brother.
5. Rule 9 of the Rules of 1958, provides that a prisoner, who has completed 1/4 of his sentence and subject to good conduct in the jail, may be released on 1st parole for 20 days and second parole for 40 days and also third parole. Bheru Lal admittedly has served more than 9 years of sentence out of 10 years sentenced by the trial Court. It is also not disputed that he has not been granted parole.
6. The serious question to be considered is whether a convict for the offence of N.D.P. Act is entitled to parole under the Rule of 1958.
7. Section 2(d) of the Rules of 1958 defines parole, which is to this effect.
“Parole” means suspension of sentence of a prison under these rule
8. It is obvious that if a prisoner is released on parole, his sentence stands suspended. Section 32-A of the N.D.P. Act, reads as under:-
32-A. No suspension, remission or commutation in any sentence awarded under this Act–Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted.
9. A bare reading of this section makes it clear that the sentence of an accused having been convicted for the offence under N.D.P.S Act except as provided in the said section, cannot be suspended. In other words, the section prohibits the suspension of sentence awarded under the Act except in the case of an offence under Section 27. The Legislature has thought, it proper to make prohibition of the suspension of sentence obviously for the reason that the offences under the N.D.P.S Act is against the society and there cannot be sympathy for such offenders.
10. The Apex Court in the case of Maktool Singh v. State of Punjab (1999) 3 SCC 321, has observed that Section 32-A of the Act has taken away the power of the Court to suspend the sentence. It is profitable to read hereunder the observations of their Lordships appearing at para No. 25 of the report:
The upshot of the above discussion is that SECTION 32-A of the Act has taken away the powers of the Court to suspend a sentence passed on persons convicted of offences under the Act (except SECTION 27) either during pendency of any appeal or otherwise. Similarly, the power of the Government under Sections 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32-A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code.
(Emphasis supplied)
11. The observations clearly indicate that not only that a sentence of a person convicted of offence under N.D.P.S Act, cannot be suspended during the pendency of the appeal but also after his appeal has been decided. The words “or otherwise” obviously mean that in no circumstance sentence of a person convicted of offence under the N.D.P.S Act can be suspended.
12. The contention of Shri Hasan is that the Jail authorities have granted a parole to the persons accused of offence under N.D.P.S Act. He files an affidavit to support his contention in which it has been stated that one convict K. Kamaluddin convicted under N.D.P.S Act was released on parole for 20 days from 19.11.1994 to 8.12.1994 and one Shakil Ahmed was released on parole from 13.12.1999 to 17.4.2000. The orders of this Court granting parole have not been brought to our notice nor the particulars have been supplied, therefore, it is not possible to obtain the said case in which the parole was granted. In any case, in view of the observations of their Lordships in the case of Maktool Singh (supra), a person convicted of an offence under N.D.P.S Act is not entitled to the grant of parole.
13. Consequently, there is no merit in this petition which is hereby dismissed.