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Bombay High Court
Mohd Moin S/O Faridulla Qureshi vs The State Of Maharashtra And Others on 30 April, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:12577-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1789 OF 2024
Mohd. Moin s/o Faridulla Qureshi
Age: 48 years, Occu. Prisoner,
Convict No. 7786, Central Prison Harsool,
Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary,
Home Department, Mantralaya,
Bombay -32.
2. The Inspector General of Prison
Maharashtra State
Office of 2nd Floor. Old Central
Administrative Building Pune -1.
3. The Deputy Inspector General of Prison,
Central Prison Harsool.
Aurangabad.
4. The Superintendent of Prison,
Central Prison Harsool,
Aurangabad. .. Respondents
...
Mr. M. S. Choudhari, Advocate for the petittioner.
Mr. S. A. Gaikwad, APP for respondent No.4/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
RESERVED ON : 07 APRIL 2025
PRONOUNCED ON : 30 APRIL 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :
–
. Rule. Rule made returnable forthwith. The petition is heard finally
with the consent of the learned Advocates for the parties.
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2. The petitioner, who is a convict, challenges the order dated
25.06.2024 passed by respondent No.3 and the order dated 03.09.2024
passed by respondent No.2 thereby confirming the order passed by
respondent No.3, refusing to grant furlough leave to the petitioner. The
petitioner then prays for his release on furlough leave for 28 days.
3. Heard learned Advocate Mr. M. S. Choudhari for the petitioner and
learned APP Mr. S. A. Gaikwad for respondents/State.
4. The petitioner convict is undergoing imprisonment for life in
connection with Bombay Bomb Blast Case No.01 of 1993 by the
Designated Court (under TADA), Greater Bombay by judgment dated
07.06.2007. In short, the petitioner convict was one of the accused in
Bombay Bomb Blast case 1993. He had applied for furlough leave on
05.04.2024, however, the said application came to be rejected by
respondent No.3 on 25.06.2024. Then the petitioner had preferred the
appeal before respondent No.2, who had dismissed the appeal and
confirmed the order of respondent No.3 by order dated 03.09.2024. The
learned Advocate for the petitioner submits that in the past, on various
occasions since 2009, the applicant was released on parole and
furlough. Another co-accused – Sardar Shahvali Khan was also released
similarly. In fact, the order of granting furlough leave also challenged
before the Hon’ble Supreme Court, but the Supreme Court had not
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entertained the said petition by the State Government. The record would
show that on all the occasions, the applicant had surrendered himself to
the jail authority in time. Only once, he had returned after a delay of one
day. Now, the State Government says that Rule 4 (4), 4 (13) of the
Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959
(hereinafter referred to as the “Furlough and Parole Rules”) have been
amended on 16.04.2018 thereby changing the Rule that the convicts
under Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as the “TADA Act“) are not entitled to be released
on parole or furlough. The said rule cannot be made applicable
retrospectively as the conviction of the petitioner is prior to the
amendment.
5. The affidavit-in-reply on behalf of respondent Nos.3 and 4 filed by
Mr. Dattatray Ganpat Gawade, the Superintendent of Chhatrapati
Sambhajinagar Central Prison, whereupon he points out the amended
Rules 4 (4) and 4 (13) of the Furlough and Parole Rules, which states
that when the prisoners release is not recommended in the Police
Commissionerate area by the Assistant Commissioner of Police and
elsewhere, by Deputy Superintendent of Police on the grounds of public
peace and tranquility and those who are sentenced for offences such as
terrorist crimes, mutiny against state, kidnapping for ransom, then such
facts are not eligible for furlough leave. In case of petitioner, there is an
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adverse report by Assistant Commissioner of Police, Kherwadi Division,
Mumbai and the petitioner is convicted for the offence under Section 3(3)
of the TADA Act and under Section 120-B of Indian Penal Code and has
been sentenced to suffer rigorous imprisonment for life. Further, he has
been convicted under Section 3(3) of the TADA Act and sentenced to
suffer rigorous imprisonment for 12 years. Further, he has been
convicted for the offence punishable under Section 3(2)(i)(ii) of TADA Act
read with Section 149 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for life. Thereafter, he has been convicted
separately for offences punishable under Section 148 of Indian Penal
Code, under Section 302 read with Section 149 of Indian Penal Code,
under Section 307 read with Section 149 of Indian Penal Code, under
Section 324 read with Section 149 of Indian Penal Code, under Section
436 read with Section 149 of Indian Penal Code and under Section 5 of
TADA Act, where the sentence is for rigorous imprisonment for 10 years
and also he has been convicted under Sections 3 and 7 of Explosives
Substance Act. Learned APP also relies on the decision of the
Coordinate Bench of this Court in Sardar s/o Shahvali Khan Vs. The
State of Maharashtra and others, [Criminal Writ Petition No.2093 of
2019 with Criminal Writ Petition No.389 of 2020 decided on
10.01.2024] wherein by taking note of the decision in Bashir Ahmed
Usman Gani Kariullah Vs. State of Maharashtra and Ors., [Criminal
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Writ Petition No.3988 of 2017 decided on 07.08.2018], it was held that
for Rule 4 (13) of the Furlough and Parole Rules, the date of application
for furlough leave would be crucial date and not the date of conviction
and, therefore, the present petitioner, who is the co-accused, should also
receive the same treatment.
6. The first and the foremost fact to be noted is that the jail record
would certainly show that on several occasions since 2009, the present
petitioner was released on parole and furlough. On 03.08.2018, he was
granted parole/furlough leave on 18.08.2018 to 03.10.2018. Thereafter,
on 23.10.2023, he was granted parole/furlough leave between on
06.11.2023 to 05.12.2023 and he had surrendered in time. These two
decisions appear to have come after the Furlough and Parole Rules
came into effect in on 16.04.2018. However, when the Coordinate Bench
has taken note of the earlier decisions of the Coordinate Benches at
Principal Seat, Bench at Nagpur, then on the similar point, this Court
cannot take different view. In Bashir Ahmed (Supra), the Bench had
considered the decision in Asfaq Vs. State of Rajasthan and Ors.,
[AIR 2017 Supreme Court 4986] and other decisions have also been
taken note of, especially, the decision in Jafar s/o Abdul Haq Shaikh
Vs. The State of Maharashtra and Ors., [Criminal Writ Petition
No.1293 of 2017] wherein for convict under TADA Act, furlough leave
was granted, but in view of the decision of the Hon’ble Supreme Court in
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Asfaq (Supra); it was held in Bashir Ahmed (Supra) that the accused
convicted in Bombay Blast Case under TADA Act is not eligible for
furlough leave. In another case relied by the learned APP in Mo. Hasan
Mehndi Hasan Sheikh Vs. State of Maharashtra and another,
[Criminal Writ Petition No.649 of 2022 decided on 02.12.2022], it has
been held by the Coordinate Bench at Nagpur that Rule 4 (13) stood
amended in 2018, was held to be creating a bar upon the prisoners, who
are convicted for terrorist crime. It appears that by way of another Writ
Petition No.1119 of 2019, Bashir Ahmed Usman Gani Kairulla had
challenged the refusal of his furlough leave. The said petition was
rejected. In Niyaz s/o Ahmed Shaikh Vs. State of Maharashtra and
others, Criminal Writ Petition No.1561 of 2022 decided by the
Coordinate Bench of this Court on 03.05.2023 again the rules were
considered and various decisions were considered i.e. Bashir Ahmed
(Supra), Zeeshan Abdul Mallik Khot Vs. State of Maharashtra and
Others, [Criminal Writ Petition No.399 of 2021 decided on 17.09.2021],
Smt. Rubina Suleman Vs. State of Maharashtra, [Criminal Writ
Petition No.4017 of 2016 decided at Principal Seat on 22.12.2016] and
Kishor @ Prakash Lalsed Sadmek Vs. Deputy Inspector General of
Prison (East Region) Nagpur and another, [Criminal Writ Petition
No.1023 of 2017 decided at Nagpur Bench on 01.03.2018], to consider
that there is a consistent view taken about enforceability and applicability
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of the statutory bar created by way of amendment. Under such
circumstance, we are also of the opinion that since now there is a bar in
view of the amendment in the Rules, the rejection of furlough leave by
respondent No.3 on 25.06.2024 and the appeal confirming the same on
03.09.2024 by respondent No.2 requires no interference.
7. The writ petition stands dismissed.
8. Rule is discharged.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
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