Case Note & Summary
The writ petition was filed by the wife of a convict under Article 226 of the Constitution of India, seeking a writ of certiorarified mandamus to quash the order passed by the Deputy Inspector General of Prisons rejecting her request for 21 days ordinary leave for her husband and for a consequential direction to grant such leave without police escort. The husband was convicted under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to 10 years rigorous imprisonment. He was confined in Central Prison, Madurai. The petitioner claimed that she was suffering from appendix and the convict's last child, who was born while he was an under-trial prisoner, needed pampering. The third respondent had rejected the representation made on 25.11.2024 by the impugned order dated 22.12.2024. The core legal issue was whether a convict under the NDPS Act could be granted ordinary leave in the face of a specific bar in Rule 21(h)(3) of the Tamil Nadu Prison Rules. The petitioner's counsel argued that ordinary leave was a fundamental right of a convict and that discrimination on the basis of the offence was impermissible. The State, represented by the Additional Public Prosecutor, submitted that Rule 21(h)(3) expressly disentitled NDPS convicts from ordinary leave; that the convict had completed only about four years and four months including pre-conviction detention and less than three years as a convict; and that there was no justification to invoke the discretionary power of exemption under Rule 40. The Court, per a Division Bench of Dr. Justice G. Jayachandran and Justice R. Poornima, observed that any challenge to the validity of Rule 21(h) would have to be decided in a proceeding known to law, but in the present case, the reasons for seeking ordinary leave did not satisfy the requirement of the rule, apart from the absolute bar. It therefore dismissed the writ petition, holding that the petitioner was not entitled to ordinary leave. However, the Court preserved the right of the petitioner to seek emergency leave with necessary documents, and directed that if the application was satisfactory, the authority should consider it as per the Rules. No costs were awarded.
Headnote
A) Prison Law - Ordinary Leave - Rule 21(h)(3) and Rule 40 Tamil Nadu Prison Rules - Convict under NDPS Act held not entitled to ordinary leave as per Rule 21(h)(3) which specifically bars such leave for NDPS offenders; prisoner had completed only four years and four months including pre-conviction detention and less than three years as convict; petitioner's grounds of wife's illness and child needing care did not satisfy the requirement for exempting the bar under Rule 40; Court dismissed writ petition but granted liberty to seek emergency leave with necessary documents, to be considered by authorities as per rules (Paras 3-6).
Issue of Consideration
Whether a convict under the Narcotic Drugs and Psychotropic Substances Act, 1985 is entitled to ordinary leave under the Tamil Nadu Prison Rules despite the prohibition in Rule 21(h)(3); whether the prohibition amounts to discrimination; and whether the petitioner made out a case for exercise of discretion under Rule 40.
Final Decision
The writ petition is dismissed. The Court held that the reasons for seeking ordinary leave did not satisfy the requirement of Rule 21(h)(3) and that a challenge to the rule itself would have to be made separately. However, the petitioner is at liberty to seek emergency leave with necessary documents, and if satisfactory, the authorities shall consider the same as per the Tamil Nadu Prison Rules. No costs.
Law Points
- Legal points not extracted
- convicts under NDPS Act not entitled to ordinary leave as per Rule 21(h)(3) of Tamil Nadu Prison Rules
- ordinary leave not a fundamental right
- discretion under Rule 40 to exempt bar in cases of necessity not warranted when prisoner has served less than three years as convict
- emergency leave may be sought with necessary documents
Case Details
2025 LawText (MAD) (02) 238
Dr. G. Jayachandran, R. Poornima
C. Karthikeyan, A. Thiruvdi Kumar
The State represented by its Principal Secretary to Government, Home, Prohibition & Excise (Prison-IV) Department and Others
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India seeking certiorarified mandamus to quash the rejection of ordinary leave to a convict and to direct grant of such leave.
Remedy Sought
The petitioner, wife of the convict, sought a direction to the prison authorities to grant 21 days ordinary leave without police escort to her husband, Mareeswaran, confined in Central Prison, Madurai, after quashing the rejection order dated 22.12.2024.
Filing Reason
The third respondent (Deputy Inspector General of Prisons) rejected the petitioner's representation for ordinary leave on the ground that convicts under the NDPS Act are not entitled to such leave as per Rule 21(h)(3) of the Tamil Nadu Prison Rules. The petitioner contended that her husband had served sufficient time, that she was suffering from appendix, and that the last child needed care.
Previous Decisions
The third respondent passed the impugned order on 22.12.2024 rejecting the leave application. No prior court orders were involved.
Issues
Whether a convict under the NDPS Act is entitled to ordinary leave in view of the bar in Rule 21(h)(3) of the Tamil Nadu Prison Rules.
Whether the prohibition of ordinary leave for NDPS convicts amounts to unconstitutional discrimination.
Whether the petitioner made out a case for invoking the discretionary power under Rule 40 to exempt the bar.
Submissions/Arguments
Petitioner argued that ordinary leave is a fundamental right of a convict and that there cannot be any discrimination based on the nature of the offence once the sentence is being served.
Respondents contended that Rule 21(h)(3) categorically disentitles NDPS convicts from ordinary leave; the convict had completed only about four years and four months (including pre-conviction detention) and less than three years as a convict, hence no reason to invoke Rule 40 exemption.
Ratio Decidendi
Rule 21(h)(3) of the Tamil Nadu Prison Rules imposes an absolute bar on grant of ordinary leave to convicts under the NDPS Act. The discretionary power of the government under Rule 40 to exempt application of the rule in cases of necessity was not liable to be exercised in the absence of exceptional grounds. The court would not circumvent the rules merely on compassionate grounds when the prisoner had not completed a substantial part of his sentence. Hence, the writ was dismissed with liberty to apply for emergency leave if warranted.
Judgment Excerpts
the convict been convicted under Section 8(c) r/w Section 20(b)(ii)(C) of NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and he has completed less than 3 years as convict and even his pre-conviction imprisonment is taken into account. It is only 4 years and four months and 15 days and therefore, there is no reason or justification to invoke the inherent power under Rule 40 of the Tamil Nadu Prison Rules
This Court is of the view that if at all any challenge to Rule 21(h) to be made, decide the matter in the manner known to law and proper decision will be taken by the Court. In the instant case, reason stated for ordinary leave per se does not satisfy the requirement besides the power under Rule 21(h)(3) of the Tamil Nadu Prison Rules.
Therefore the Writ Petition stands dismissed. However it is open to the Petitioner herein to seek for emergency leave with necessary documents and if they are satisfactory, the authority shall consider the same as per the Rules.
Procedural History
The petitioner submitted a representation on 25.11.2024 to the prison authorities seeking ordinary leave for her convict husband. The third respondent rejected the request by order dated 22.12.2024. Aggrieved, the petitioner filed the present writ petition under Article 226 of the Constitution before the Madurai Bench of Madras High Court, praying for certiorarified mandamus to quash the rejection order and direct grant of ordinary leave.
Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985: 8(c), 20(b)(ii)(C)
- Tamil Nadu Prison Rules: Rule 21(h)(3), Rule 40
- Constitution of India, 1950: Article 226
