Santosh Manohar Deshmukh v. State of Maharashtra

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/-.

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 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.

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.

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 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

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 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.