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No leave for prisoners under TN sentence suspension rules during pendency of their appeal: Madras High Court

The legal principle that has been set out in K.M.Nanavati vs. State of Bombay [AIR 1961 SC 112] is that when the appellate Court has the power to grant suspension of sentence and bail, pending appeal, the executive power of the State cannot extend to grant parole or leave or suspension of sentence. These were upheld by the High Court of Madras through the Division Bench of Justice PN Prakash and Justice R. Hemalatha in the case Wasib Khan v. The State represented by its Deputy Inspector General of Prisons (Chennai Range) & Ors.( W.P. No.10265 of 2021).

The crux of the case is Wasib Khan, the petitioner herein, was convicted on 21.11.2019 by the I Additional Special Court for NDPS Act Cases, Chennai, of the offences under Sections 8(c) read with Sections 22(c) and 8(c) read with Section 29 and 8(c) read with Sections 27-A and 8(c) read with Section 23(c) read with Section 28 of the NDPS Act for possession of commercial quantity of Alprazolam tablets and was sentenced to undergo 10 years rigorous imprisonment for each of the offences, but, the sentences were ordered to run concurrently, together with the benefit of set off under Section 428 Cr.P.C. Challenging the aforesaid conviction and sentences, Wasib Khan has filed Crl.A.125 of 2020 and the same is under consideration by this Court.

Mr. Mohamed Saifullah learned counsel for Wasib Khan cited several rulings of the Supreme Court to assail the impugned order, which we are not deliberately adverting to, as we agree with him on most of the aspects covered under those rulings. To appreciate his arguments, it may be necessary to state the grounds on which Wasib Khan’s leave application has been turned down by the impugned order. The impugned order cites two reasons for rejection of leave for Wasib Khan.

(a) Wasib Khan has not completed three years of imprisonment, as required under Rule 22 of the Sentence Suspension Rules; and

(b) Wasib Khan’s appeal challenging his conviction and sentence is pending in the appellate Court, viz., High Court.

Division Bench of Justice PN Prakash and Justice R. Hemalatha held that the rule of law stated in the case of K M Nanavati v. State of Bombay [AIR 1961 SC 112] must be complied with and the State’s administrative authority to grant leave cannot be extended if the appellate court can impose a sentence and bail. Section 432 CrPC deals with the government’s ability to suspend or withdraw sentences. TN Punishment Rules are based on CrPC S.432 (5). However, Section 389 CrPC deals with the suspension of a court of appeal pending an appeal. The court also found that Rule 2 (4) of the Suspension Rules usually refers to a sentence imposed at the end of the appeal or review. And stated “Under Section 428 CrPC. a prisoner is entitled t set off and the benefit of such a set off cannot be denied to him while calculating the actual period of incarceration, for fulfilling the eligibility condition in Rule 22 of the Sentence Suspension Rules Ergo, the reason (a) assigned in the impugned order for rejecting Wasib Khan’s leave application cannot be sustained, the court observed.”

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Judgement reviewed by Himanshu Ranjan

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