Bombay High Court: In the present case, the petitioner, who was undergoing trial for an offence under Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), had applied for furlough leave application, but the same was rejected. he Division Bench comprising of Anil L. Pansare, and M.M. Nerlikar*, JJ., held that since the petitioner was yet to be convicted in a pending case, registered under the provisions of NDPS Act, which was one of the categories for which furlough was barred, therefore the Rules of Notification dated 2-12-2024 could not be applicable to him.
Further, the Court stated that the apprehension expressed by the Police in the Adverse Police Report, that there would be danger to the family of the deceased if the furlough was granted to the petitioner, was not sustainable. The Court thus, quashed and set-aside the rejection order and directed the authorities to release the petitioner on furlough leave for a period of 21 days on the condition as the authorities concerned deemed fit.
Background
The petitioner was accused under Sections 20 and 25 of NDPS Act; Sections 4 and 25 of the Arms Act, 1959; and Sections 50 and 277 of the Motor Vehicles Act, 1988 (‘MV Act’) and the said case was pending before the Sessions Court. Further, the petitioner was already undergoing life imprisonment in another case wherein he was convicted under Sections 302 and 307 of the Penal Code, 1860 (‘IPC’) for life imprisonment and under Section 148 of IPC for two years.
Thus, the petitioner applied for furlough leave application to the Deputy Inspector General Prison (East Region), Nagpur, who rejected the said application, firstly, on the ground that he was an accused in a case which was pending, for the offences under NDPS Act and MV Act, which acted as a bar as per Rule 4(2)(e)(l) under Chapter II of Notification dated 2-12-2024 and secondly, on the ground of Adverse Police Report.
Hence, the petitioner approached the Court under Article 226 of the Constitution, to seek relief.
Analysis, Law and Decision
The Court observed that the petitioner had undergone imprisonment for 3 years, 11 months and 10 days till 11-11-2024 for his conviction under Sections 302, 307 and 147 of IPC and since he had undergone imprisonment for more than 3 years, he was eligible for furlough leave as per Rule 3(C) of the Prisons (Bombay Furlough and Parole) Rules, 1959.
The Court pointed out that Rule 4(2)(e)(l) under Chapter II of Notification dated 2-12-2024 specifically bars a certain category of prisoners who have been convicted under those prohibited categories, like NDPS, terrorist activities, MCOCA, etc. The Court also referred to the definition of the “prisoner” as provided in Rule 2(f) under Chapter I of Notification which defined ‘prisoner’ as the convicted prisoner. Further, in Rule (1)(3) under Chapter I, under the heading of introduction, it was specifically stated that these Rules “shall apply to convicted prisoners”. In the instant case, since the petitioner was yet to be convicted for his crimes under NDPS Act, which was one of the categories for which furlough was barred, therefore the Rules of the said notification could not be applicable to him.
Regarding the second ground for turning down the said furlough application, the Court relied on the judgement of Supreme Court in Sanjay Kisan Kadse v. State of Maharashtra, 2003 SCC OnLine Bom 988 and held that as there was no complaint from the side of the informant at any point of time that the petitioner indulged in threatening the witnesses or the informant. Therefore, the apprehension expressed by the Police in the Adverse Police Report, that there would be danger to the family of the deceased if the furlough was granted to the petitioner, was not sustainable for rejection of the said leave.
The Court opined that Deputy Inspector General Prison committed gross error by relying on Notification dated 2-12-2024 and by not applying his mind while passing the order. Accordingly, the Court quashed and set-aside the rejection order and directed the authorities to release the petitioner on furlough leave for a period of 21 days on the condition as the authorities concerned deemed fit.
[Kapil Ratan Shitole v. State of Maharashtra, 2025 SCC OnLine Bom 2733, decided on: 24-7-2025]
*Judgement authored by- Justice M.M. Nerlikar
Advocates who appeared in this case :
Advocate for the Petitioner- Ratna Singh, Advocate
Advocate for the Respondents- N. Tripathi, Addl. Public Prosecutor
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