cri wp st. no. 1690-20.

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DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION STAMP NO. 1690 OF 2020

Santosh Manohar Deshmukh

Aged about 46 years, presently
serving sentence of life at
Kolhapur Central Prison as
Convict Prisoner No.C-3421. ..Petitioner

vs.

1. State of Maharashtra
through its Home Ministry, Mantralaya,
Madame Cama Road, Mumbai 400 032.

2. Superintendent
Kolhapure Central Prison, Kalamba,
Kolhapur, Maharashtra – 416007. ..Respondents
---------------
Mr. Yug Mohit Choudhary a/w. Ms. Payashi Roy for the petitioner.
Dr. F.R. Shaikh, APP for the State.
---------------

CORAM : S.S.SHINDE &

M.S.KARNIK, JJ.

RESERVED ON : SEPTEMBER 11, 2020

PRONOUNCED ON : SEPTEMBER 15, 2020

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JUDGMENT (PER M.S. KARNIK, J) :-

Rule. Rule is made returnable forthwith by consent of the

parties.

2. This Petition under Article 226 of the Constitution of India

fled by petitioner seeks a direction to the respondents to release

the petitioner on emergency parole in view of the spread of

Covid-19 pandemic.

3. It is the case of the petitioner that he is in custody since

August 5, 2001 pursuant to his arrest in Crime No. 87 of 2001 of

the Murbad Police Station, Thane. The petitioner was convicted

on October 20, 2005 by the Special Judge (The Maharashtra

Control of Organised Crime Act, 1999 - ‘MCOC’ Act for short) and

sentenced to undergo imprisonment for life and a cumulative fne

of Rs.15,04,000/- and in default further imprisonment of 10

years. By an order dated October 21, 2016 the Government of

Maharashtra categorised the petitioner under Category 7 (a) of

the 2010 Guidelines for Premature Release and directed that the

petitioner be released after having completed 14 years of actual

imprisonment. The petitioner has completed 18 years and 8

months in custody. The petitioner has not been able to pay the

fne amount of Rs.15,04,000/-.

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4. There is no dispute that the petitioner has completed 14

years of imprisonment of his sentence. Even the afdavit fled by

the respondents records that the petitioner has completed 14

years imprisonment of his sentence. It is further not in dispute

that due to non payment of fne he is undergoing in default

sentence.

5. It is brought to our notice that on October 17, 2014, the

Deputy Probation Ofcer, District Women and Child Welfare

Department, Raigad, Alibaug in its Home Inquiry Report noted

that the petitioner’s family has been pushed to abject poverty

during his incarceration, forcing his aged mother to work as a

manual labourer.

6. In view of the outbreak of Covid-19 in India, the Apex Court

issued directions vide order dated March 25, 2020 to decongest

the prisons. The High Powered Committee which was constituted

pursuant to the directions of the Apex Court recommended that

convict prisoners whose maximum sentence is above 7 years

shall be appropriately considered for emergency Covid parole.

However, the prisoners convicted or under trial prisoners under

MCOCA were excluded from getting the benefts of the aforesaid

directions. As the petitioner was convicted under MCOCA, he was

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not considered for emergency Covid parole as per High Powered

Committee report dated March 25, 2020.

7. Learned counsel for the petitioner submitted that he has

already undergone the substantive sentence under MCOCA. It is

only because of poverty that the fne amount could not be paid

as a result of which the petitioner is undergoing further

incarceration. According to learned counsel, the term of

imprisonment in default of payment of fne is not a sentence. In

his submission it is a penalty which a person incurs on account of

non payment of fne. He would therefore submit that as he has

already undergone the substantive sentence under the MCOC

Act, the authorities then cannot refuse to consider the case of

the petitioner by saying that his case falls under excepted

category of ofence vii. MCOCA for release on Covid parole.

8. Learned APP for the State on the other hand would submit

that the petitioner was convicted for the ofence punishable

under the MCOC Act. According to him, even in default sentence

which the petitioner is undergoing for non payment of fne will

have to be regarded as a sentence as the fne is imposed by way

of a punishment.

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9. Heard learned counsel for the petitioner and learned APP.

10. There is no dispute that the petitioner has been in custody

for more than 18 years and 10 months. The petitioner was

convicted for committing the ofence under MCOC Act. The State

Government has taken a decision regarding the petitioner’s

premature release and directed that the petitioner be released

after having completed 14 years of actual imprisonment. The

petitioner has already served the substantive sentence of 14

years for his conviction under MCOC Act. As the petitioner was

incapable of paying the fne amount of Rs.15,04,000/-, he is

undergoing in default imprisonment.

11. The Apex Court in the case of Shantilal vs. State of M.P.1

had an occasion to consider whether an imprisonment in default

of payment of fne is a sentence or a penalty which a person

incurs on account of non payment of fne. In paragraph 31, the

Apex Court has observed thus :-

31. The next submission of the learned counsel for the appellant,

however, has substance. The term of imprisonment in default of

payment of fne is not a sentence. It is a penalty which a person incurs

on account of non-payment of fne. The sentence is something which an

ofender must undergo unless it is set aside or remitted in part or in

1 (2007) 11 SCC 243

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whole either in appeal or in revision or in other appropriate judicial

proceedings or ”otherwise”. A term of imprisonment ordered in default

of payment of fne stands on a diferent footing. A person is required to

undergo imprisonment either because he is unable to pay the amount

of fne or refuses to pay such amount. He, therefore, can always avoid

to undergo imprisonment in default of payment of fne by paying such

amount. It is, therefore, not only the power, but the duty of the court to

keep in view the nature of ofence, circumstances under which it was

committed, the position of the ofender and other relevant

considerations before ordering the ofender to sufer imprisonment in

default of payment of fne.

The decision of the Shantilal’s case has been followed in

the subsequent decision of the Apex Court in the case of

Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat 2.

12. Having regard to the law laid down by the Apex Court,

there is no manner of doubt that the imprisonment now being

undergone by the petitioner is a penalty which he has incurred

on account of non payment of fne. Having undergone the

sentence of 14 years imposed for the ofence punishable under

MCOC Act, the term of imprisonment ordered in default of

payment of fne which the petitioner is presently undergoing

cannot be said to be a sentence imposed on him under the MCOC

2 (2013) 1 SCC 570

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Act. For the purpose of application of the HPC decision, the

petitioner cannot be regarded as a convict under the MCOC Act.

The petitioner is sufering the consequence of a penalty which he

has incurred on account of non payment of fne. The petitioner is

required to undergo the imprisonment only because he is unable

to pay fne amount. That the petitioner’s family is pushed to

abject poverty during his incarceration, forcing his aged mother

to work as manual labour, is substantiated by the report dated

October 17, 2014 of the District Probation Ofcer, Alibaug in the

Home Inquiry Report.

13. Learned APP does not dispute that the case of the

petitioner was not considered in view of the High Powered

Committee Guidelines excluding the MCOC convicts from the

beneft of release on Covid parole.

14. In view of the above discussion, the respondents are not

justifed in refusing to consider the case of the petitioner for

grant of Covid parole as per the directions of the High Powered

Committee on the ground of his conviction under MCOC Act.

Considering the circumstances that the petitioner has already

undergone 14 years of his substantive sentence for the ofence

punishable under MCOC; further the petitioner having undergone

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almost 4 years and 8 months of imprisonment in default of

payment of fne which is in the nature of penalty and not a

sentence; we feel it appropriate and in the interest of justice to

issue directions to the respondents to consider releasing the

petitioner on Covid parole on fling a formal application initially

for a period of 45 days in terms of the decision of the High

Powered Committee.

Further, the fact that the petitioner’s family has been

pushed to abject poverty during his incarceration, forcing his

aged mother to work as a manual labourer has also weighed with

us.

15. The present Petition therefore deserves to succeed. Hence

the following order :

ORDER

i. The Writ Petition is allowed.

ii. On the petitioner fling a formal application, the

respondents are directed to consider releasing the

petitioner on emergency Covid parole in terms of the

directions of the High Powered Committee initially for a

period of 45 days subject to imposing such conditions as

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the respondents deem ft and appropriate for securing his

surrender.

iii. The petitioner may thereafter make an appropriate

application to the jail authorities for renewal of Covid

parole in terms of the decision of the High Powered

Committee.

iv. Rule is made absolute in the above terms.

16. This judgment will be digitally signed by the Personal

Assistant of this Court. All concerned will act on production by fax

or email of a digitally signed copy of this judgment.

(M.S.KARNIK, J.) (S.S.SHINDE, J.)

Digitally signed
by Diksha Rane
Diksha Date:
Rane 2020.09.15
17:30:50
+0530

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