Global Human Rights Protection ... vs State Of Gujarat

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) By this writ application under Article 226 of the Constitution of India, the writ applicant, a NGO has prayed for the following reliefs:

"[a] Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or directions, by granting temporary bail of two months to the prisoners within the state, who are facing trial / convicted for the offences punishable upto 7 years or less, without or without fine in the interest of justice.

[b] Your Lordships be pleased to issue a writ of mandamus or any other writ, direction or order to direct the Respondent No.3 to take a decision with regard to release of the undertrial prisoners in the light of the directions issued by the Hon'ble Supreme Court in the interest of justice;

C/WPPIL/82/2020 ORDER [c] Your Lordships be pleased to direct the respondent No.1 to consider the case of those under-trial prisoners who are aged i.e. above the age of 60 years or/and suffering from underlying disease for releasing them from the prison in the interest of justice.

[d] Your Lordships be pleased to direct the respondent No.1 to release the prisoners on temporary bail for two months, who are facing trial / convicted for the offences punishable upto 7 years or less, without or without fine pending admission, hearing and final disposal of petition in the interest of justice.

[e] Your Lordships be pleased to direct the respondent No.1 to release the prisoners on temporary bail for two months, who are above 60 years of age or / and suffering from underlying disease pending admission, hearing and final disposal of petition in the interest of justice".

The affidavit in reply has been filed on behalf of the respondent No.2, which reads thus:

"AFFIDAVIT-IN-REPLY ON BEHALF OF THE RESPONDENT No.02.

I, Dr. S. K. Gadhvi, Deputy Inspector General of Police (Prisoner), Gujarat State, Jail Bhawan, Near Subhash Bridge Circle, Sabarmati, Ahmedabad, do hereby state on solemn affirmation as under:

1 Following prayers are made in the captioned petition:

[A] Your Lordship be pleased to issue writ of certiorari or any other writ to quash para no. 6 from the impugned decision dated 28.03.2020 of the High power committee as being illegal, arbitrary and against the direction given by the Hon'ble Supreme Court in the interest of Justice;

C/WPPIL/82/2020 ORDER [B] Your Lordship be pleased to issue a writ of mandamus or any other writ, direction or order to direct respondent no.3 to take a decision with regard to release of the undertrial prisoners in the light of the direction issued by the Hon'ble Supreme Court in the interest of Justice;

[C] Your Lordship be pleased to direct the respondent no.1 to consider the case of those undertrial prisoners who are aged i.e. above the age of 60 years and suffering from underline decease for releasing them from the prison in the interest of Justice;

[D] Your Lordship be pleased to pass such other and further order, which may be deem fit in the interest of Justice;

2 Considering averments made in the petition, it contain concerns of petitioner with regard to jail inmates in context of pandemic situation arising out of corona virus infection and petitioner while expressing concerns regarding jail inmates has relied upon the order passed by the Hon'ble Supreme Court in Suo Moto Writ Petition (c) No. 1 of 2020 and the order dated 23.03.2020. Petitioner has also challenged guidelines of High-power committee issued on 28.03.2020. In view of this, following aspects needs to be considered:

[A] Pursuant to above referred order, High power committee is constituted existing of the senior most Judge of this Hon'ble Court, Additional Chief Secretory (Home, Gujarat State) and ADGP (Prison). I state that after threadbare discussion amongst HPC, it issued minutes of meeting of the High power committee on 28.03.2020, issuing guidelines for granting temporary bail / parole / furlough to certain categories of jail inmates, which includes undertrial prisoners as well as convict prisoners. Petitioner has placed these minutes at Annexure - A. I submit that list and categories of inmates, who were likely to be benefitted out of HPC's recommendation, is inclusive in nature and not exhaustive. I state that I rely on it. I further Page 3 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER state that these minutes issued on 28.03.2020 are also submitted in the proceedings of Suo Moto Writ Petition (PIL) No. 1 of 2020 before the Hon'ble Supreme Court of India.

[B] I state that in the matter of Suo Moto Writ Petition (PIL) No. 1 of 2020, the Hon'ble Supreme Court has passed another order dated 07.04.2020 and the same is annexed herewith and marked as ANNEXURE-R.1. I state that in the referred order, Hon'ble Supreme Court has taken note of framing of guidelines by the High-Power committee as well as release of prisoners pursuant to it.

[C] I state that in the referred proceedings of Suo Moto Writ petition (PIL) No. 1 of 2020 before the Hon'ble Supreme Court, another order is also passed on 13.04.2020 and vide this order, the referred petition is disposed of along with other IA applications. I rely on this order dated 13.04.2020 and same is annexed herewith and marked as ANNEXURE-R.2. I submit that relevant part of this order (Page.04) is reproduced herein under:

'we make it clear that we have not directed the States / Union Territories to compulsorily release the prisoners from their respective prisons. The purpose of our aforesaid order was to ensure the States / Union Territories to assess the situation in their prisons having regard to the out break of present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released.' I submit that our High-Power committee has absolutely abided with orders of the Hon'ble Supreme Court and above referred reproduced part of the order amply justifies guidelines issued by the High power committee.

[D] I submit that this Hon'ble Court in Writ Petition (PIL) No. 42 of 2020 with other allied matters, has passed an order dated 17.04.2020 and paragraphs Page 4 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER no. 19 and 19.1 of this order had called upon the High power committee to reconsider issues referred in the order relating to Writ Petition (PIL) No. 57 of 2020 and Writ Petition (PIL) No. 59 of 2020. Pursuant to it, High power committee met and referred issues as well as representation made were reconsidered in context of the Hon'ble Supreme Court's order dated 23.03.2020 (ANNEXURE-A) and 13.04.2020 passed in Suo Moto Writ (PIL) No. 1 of 2020 by the Hon'ble Supreme Court of India, and thereafter on the basis of it, minutes of meeting of the High power committee were issued on 28.04.2020 and same is annexed herewith and marked as ANNEXURE - R.3. I state that so far as occupancy of jail inmates across the State in all the jails as existing on 28.03.2020 i.e. before guidelines of High power committee is concerned, total capacity of various jails across the State is 13724 and against it, occupancy of jail inmates on that day was 14991, but subsequent to High power committee's guidelines, in all 2220 jail inmates were either released on temporary bail / parole / furlough hence as on 28.04.2020, total inmates in the various jails across the state were 12271, which implies, there was no overcrowding in the jails across the State.

[E] I state that ADGP (Prison) submitted two letters dated 05.05.2020 and 13.05.2020 stating therein that jail inmates who are granted temporary bail for the period of two months are suppose to surrender themselves before the jail authority for readmission in jail as that period of temporary bail would complete within somedays. Considering the pandemic situation and their exposure outside jail, their readmission in the jail was found harmful for the existing jail inmates as they could transmit infection, if any, to the existing jail inmates. Hence, ADGP (Prison) requested the High power committee for extending their period of temporary bail for further period of 30 days and its request was accepted by the High power committee and appropriate minutes of meeting of High power committee were issued on 20.05.2020. A copy of the same is annexed hereto and marked ANNEXURE-R.4. Pursuant to it, ADGP (prison) submitted appropriate Page 5 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER note before this Hon'ble Court which was considered vide order dated 22.05.2020, more particularly in paragraph 73 of the order which is reproduced here under:

'in view of the aforesaid, all the accused who have been released on temporary bail upon recommendation of High-power committee shall continue to remain on bail for the further period of 45 days.' Hence, sufficient care is taken by the High-power committee to prevent existing jail inmates from being infected from corona virus through seeking extension of temporarily released jail inmates from reentering by seeking extension of their temporary bail period.

[F] Lockdown period across the state remained in force from 25.03.2020 to 31.05.2020 and thereafter unlock period phase 1 began on 01.06.2020 and presently unlock period phase 2 is in existence since 01.07.2020.

[G] I state that as on 08.07.2020, following is the situation pursuant to recommendation of our High-power committee.

Serial No. Nature of Liberty. Number of benefited Jail inmates.

[H] Considering the above, against the total strength of all the jails across the State of 13724 as on 08.07.2020, there were 12720 total jail inmates, which implies, there is no overcrowding in jails across the State.

C/WPPIL/82/2020 ORDER [I] I state that pursuant to the direction passed by

this Hon'ble Court in Writ Petition (PIL) No. 42 of 2020, all new entrants in jail are subjected to Covid-19 test. If any new entrant, if found positive with Covid-19, is sent to Civil Hospital for the appropriate treatment and if he is found negative, he is kept in quarantine barrack for 14 days where inmate is subjected to regular health screening and their diet is also regulated according to recommendation of medical officer, which includes fruits, milk etc. and also further regulated by guidelines of Ayush Mantralay for improving the immunity of inmate by providing them Ayurvedik ukala (Kadha), vitamin C tablet as well as homeopathy medicine. Quarantine barrack is kept neat and clean and is sanitized by sodium hypochlorite.

[J] Particulars of jail inmates in context of capacity of various jails across the state as on 08.07.2020 is narrated here under :

SR. NAME OF JAIL CAPACITY OF INMATES ACTUAL INMATES No.

M F TOTAL M F TOTAL 1. GODHRA SUB 133 32 165 207 19 226 JAIL 2. VADODARA 955 0 955 1253 0 1253 CENTRAL JAIL 3. JUNAGADH 250 15 265 304 19 323 DISTRICT JAIL 4. MODASA SUB 100 5 105 125 0 125 JAIL 5. CHHOTAUDEP 102 5 107 125 2 127 UR SUB JAIL 6. BHAVNAGAR 382 30 412 456 25 481 DISTRICT JAIL 7. SURENDRANA 116 9 125 132 11 143 GAR SUB JAIL 8. AMRELI 248 16 264 280 19 299 DISTRICT JAIL 9. MORBI SUB 143 28 171 181 7 188 JAIL 10. BHARUCH 284 25 309 316 15 331 Page 7 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER DISTRICT JAIL 11. RAJKOT 1147 85 1232 1189 88 1277 CENTRAL JAIL 12. GONDAL SUB 120 30 150 155 0 155 JAIL 13. NADIYAD 379 42 421 407 28 435 DISTRICT JAIL 14. PORBANDAR 110 10 120 123 0 123 SPECIAL JAIL 15. GALPADAR 250 40 290 262 18 280 DISTRICT JAIL 16. AHMEDABAD 2646 0 2646 2479 0 2479 CENTRAL JAIL 17. PALANPUR 260 8 268 247 4 251 DISTRICT JAIL 18. PATAN SUB 180 22 202 179 6 185 JAIL 19. LAJPOR 2757 210 2967 2489 87 2576 CENTRAL JAIL 20. NAVSARI SUB 220 10 230 189 0 189 JAIL 21. JAMNAGAR 456 10 466 373 0 373 DISTRICT JAIL 22. MEHSANA 232 12 244 188 0 188 DISTRICT JAIL 23. PALARA 490 40 530 274 14 288 SPECIAL JAIL (BHUJ) 24. HIMMATNAGAR 223 20 243 129 0 129 DISTRICT JAIL 25. AHMEDABAD 0 200 200 0 97 97 MAHILA JAIL 26. RAJPIPLA 325 22 347 117 2 119 DISTRICT JAIL 27. AMRELI OPEN 40 0 40 12 0 12 JAIL 28. VADODARA 0 210 210 0 58 58 WOMEN JAIL 29. JUNAGADH 40 0 40 10 0 10 OPEN JAIL TOTAL 12588 1136 13724 12201 519 12720 [K] I state that considering the above, sufficient care

is taken by respondents to prevent overcrowding in the jails, and respondents have also taken sufficient measures to protect existing jail inmates from being Page 8 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER infected from Corona Virus and also have taken sufficient protective measures for new jail entrants as stated herein above.

[L] I state that I rely upon the order of this Hon'ble Court passed in the matter of Criminal Misc. Application (Temporary Bail) No. 03 of 2020 In Criminal Appeal No. 2241 of 2019 with Criminal Misc. Application (For Extension of Temporary Bail) No. 06 of 2020 in Criminal Appeal No. 1197 of 2018, the same is annexed herewith and marked as ANNEXURE - R.5. In both these matters petitioner / accused were seeking extension of their temporary bail on the ground of situation inside the central jail, allegedly being precarious due to pandemic of Covid-19.

3.1 Following aspects / observations of the order relied upon are reproduced here as under:

'14.1. - Noticing that the report of High power committee is implemented and all necessaries like masks, sanitizers, soaps, hand soaps, gloves are provided, it is to be directed that let a mechanism be created for anyone to avail these easily once utilized and social distancing is also maintained inside the barrack.

It is also taken note of that periodical sanitization of rooms and fumigation are regular processes in isolation and quarantine facilities created inside the jails.

Due care is being taken, while drawing sample in the jail and an elaborate arrangement also have been made by calling the team at Jail every morning for those who enter the jail first time or for those who return from their release. For all those who return, facility of quarantine, till the report of the prisoner concerned comes, also is extensively made. The details, which have been furnished by the jail authorities, make it apparent on record that drawing the sample of the prisoners, who have returned after completing the period of their release on parole, furlough or temporary bail, is being taken at the jail Page 9 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER premises, itself. Therefore, a prisoner does not need to have any brush with the civil hospital as apprehended by the applicant.

Under the circumstances, the only direction which is necessary, is vigilance of Jail administration and matching response of inmates for whose right to life, these arrangements are elaborately made. A word of caution that requires is that there could be no inertia or laxity on either side so far as implementation of directives / guidelines issued by the Apex Court, this Court, Central and the state Government are concerned.

14.2 - additionally, AYUSH ministry has come out with guidelines and the directions for every citizens to follow during the lockdown. It is essential to enhance their resistance power and what is far more important is immunity of an individual, body's natural defence system, which alone is a shield, which can provide protection in this pandemic against Covid-19 virus. Although, the inmates are being given vitamin 'C' and Homeopathic medicines and the herbal drinks prescribes i.e. 'Kadha' as stated in the affidavit. We suggest additional of milk with turmeric powder, as prescribed by AYUSH ministry along with the Ayurvedic medicines prescribed by it, like Neem Giloy (Samsan Vati etc.) In its publication as mentioned in the communication dated 03.04.2020 Government of India, Ministry of Human Resources Development. (Annexed with the order for ready reference.) Some of the recommendations and measures prescribed by the Central Government is forming the part of this order, let the same be considered for the purpose of boosting the immunity if the jail inmates along with regular Yoga, Pranayam, Nasal application and other physical exercise as well as applications necessary for their holistic health i.e. physical mental, emotional and psychological health.

14.3 - Noticing that by and large, all the required measures for safeguarding the health and immunity of the inmates are being followed, some of the additional measures, as prescribed by AAYUSH Ministry for Page 10 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER promoting immunity by self care be followed by the jail authorities.

14.4. - We express a word of caution while parting that right to freedom of expression brings with it corresponding and unfailing duty cum responsibility for all those who profess the same as a profession or as a crusade towards the informed citizenry. And therefore, in the present time of pandemic which comes in hundred years, psyche of average man when is already filled with fearfulness and apprehension when it concerns the news relating to COVID-19 virus, anything expressed or circulated without any verification would surely and unfailingly generate negative response. Therefore, all concerned are expected to exercise requisite care and caution before publication or circulation, of verifying the details from the Authority concerned which is also expected and has obligation to reveal absolute truth.

4 Considering the above facts as also different orders passed by the Hon'ble Supreme Court in Suo Moto Writ (PIL) No. 1 of 2020 referred and placed before this Hon'ble Court and also guidelines issued by High power committee and order of this Hon'ble Court placed herewith and referred herein above in paragraph no. 3, interest of jail inmates across the state is sufficiently protected in all and every manner.

5 I state that challenge to guidelines issued by High power committee is unsustainable as constitution of High power committee is based on the order passed by the Hon'ble Supreme Court of India in Suo Moto Writ (PIL) No. 1 of 2020 and pursuant to it, guidelines issued by the High power committee is also placed before the Hon'ble Supreme Court in the referred proceedings for its perusal and cognizance, and ultimately referred proceedings i.e. Suo Moto Writ (PIL) No. 1 of 2020 is also disposed of. I state that as already indicated in the guidelines issued by High power committee, exceptions placed in it are inclusive in nature and not exhaustive in nature and therefore, any deserving case which needs due consideration, so far as granting or otherwise of discretion either of interim / temporary bail, parole / furlough, can be considered either by appropriate Page 11 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER authority and/ or by the Hon'ble Court and exceptions placed by the High power committee have not prohibited filing, entertaining etc any bail application before the competent and jurisdictional Court and therefore, there is no arbitrariness and unreasonableness in the guidelines issued by High power committee. As such I would like to state that petitioner in person as a practicing advocate or otherwise and /or petitioner as NGO has no authority to attribute arbitrariness and unreasonableness in guidelines issued by the High power committee, petitioner also has no right to averred and allege that exceptions placed by the high power committee are either blanket, irrelevant, arbitrary and unreasonable. I would also submit that petitioner has exceeded his authority by using such expression against the High power committee which needs to be looked into seriously and petitioner should be rebuked, in the facts and circumstances stated herein above.

6 I state that so far as concerns expressed for jail inmates aged more than 60 years and suffering from decease like diabetes, blood pressure etc, I state that guidelines issued by High power committee has not taken away any liberty of any jail inmate on any count whatsoever. It would be for any jail inmate to agitate any cause and it would be for competent and jurisdictional court to accept or otherwise the same.

7 I state that reliance placed in the judgement of Hon'ble Kerela High Court as placed by petitioner at ANNEXURE - C is misplaced and misconceived as on perusal of the Judgement of Hon'ble Kerela High Court, it does not transpire that Hon'ble Kerela High Court was dealing with any challenge to any High power committee's guidelines / recommendation pursuant to the Hon'ble Supreme court's order as it is in the present case.

8 I state that petitioner has vaguely alleged that no meeting of undertrial review committee is held as directed in judgement of RE Inhuman Condition in 1382 prisons. I state that committee comprises of Learned District Judge amongst others and before making such vague and such irresponsible allegation, petitioner ought to have verified necessary particulars. I state that the undertrial review committee has already been formed at all jails for review the Page 12 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021 C/WPPIL/82/2020 ORDER cases of under trial prisoners under section 436(A) of Cr.P.C. from April,2020 to July,2020 total 257 Under trial review committee have been concluded, in which, total 49 cases were reviewed. No prisoner remained in jail due to non- conduct of Under trial review committee meeting across the jails of Gujarat State.

9 Considering the above, petition deserves to be dismissed with cost."

The issues raised in this writ application by and large have been looked into by this Court and a High Powered Committee has also been constituted by this High Court pursuant to the directions issued by the Supreme Court. In such circumstances, we need not adjudicate this writ application any further and the same is accordingly disposed of.

(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) M.A. SAIYED Page 13 of 13 Downloaded on : Sun Feb 21 13:23:34 IST 2021