Naved Naeemuddin Kadri through his Mother Jakerabanu Naimuddin Kadri vs State of Gujarat and Others

Bhaskar Bhattacharya, C.J.—By this Special Criminal Application, the petitioner has prayed for appropriate writ, order or direction upon the respondents for permitting the present petitioner and the other Muslim prisoners who are implicated in Sessions Case No. 38 of 2009 to consume food brought from the residence on the ground of humanity during the holy month of Ramzan. The matter was initially placed before a learned Single Judge of this Court and by order dated 10th July, 2013 His Lordship observed that although the petition was filed in the name of Naved Naeemuddin Kadri, in the prayer clause he having made prayer for not only himself but also for the other Muslim prisoners who are implicated in Sessions Case No. 38 of 2009, the matter should be placed before the Chief Justice for appropriate orders for listing before the appropriate Bench. Consequently, the matter has been placed before this Bench.

The case made out by the petitioner in this writ application is that as during the month of Ramzan, the Muslim prisoners who observe fast, are required to take meal twice a day - one prior to sunrise and the other at the time of sunset and they require nutritious food and sufficient meal which are not available in the jail. According to the petitioner, in the year 2009, the Government of Gujarat issued a circular by virtue of which the petitioner and the accused persons in Sessions Case No. 38 of 2009, who are under-trial prisoners in respect of some grave charges are not being allowed to take food from their residence. The petitioner complains that the accused persons in Sessions Case No. 38 of 2009 have preferred a detailed representation to the Inspector General of Police, but no reply has been given. Hence, this writ application.

This application is opposed by the State-respondent by pointing out that in exercise of powers conferred by clauses (11), (27) and (28) of Sec. 59 of the Prisons Act, 1894, the Gujarat Prisons (Diet for Prisoner) Rules, 1975 has been enacted and the same has been amended on 6th June, 2009 wherein Rule 2A has been added. The substance of the amended Rule 2A is that the prisoners including the convicted prisoners and detenus of certain categories shall not be allowed or permitted to remove, consume or possess any article of food, cold drink, juice or any home made food items from private sources other than which is prepared in the Jail premises.

Mr. Jani, the learned Public Prosecutor submits that the present petitioner and other prisoners who are implicated in Sessions Case No. 38 of 2009 are falling in the category as referred to in the amended Rule and they are accused of having committed the offence of planting bombs in the city of Ahmedabad at different places, killing large number of persons (56) and in the said serial bomb blasts on a given date in the city of Ahmedabad, the petitioners and others were arrested and are charge-sheeted and they are to face trial for the aforesaid offence in the said Sessions Case No. 38 of 2009.

It is further submitted that the State of Gujarat, with a view to maintaining the religious feelings of all under trial prisoners and convicts, have made special arrangements of all those prisoners who observe fast during Ramzan. Special barracks are created for convict prisoners and for under-trial prisoners so that during the month of Ramzan, their religious feelings and activities are appropriately maintained. It is submitted that four barracks are created and special arrangements are made to provide food to the under-trial prisoners and convicts keeping Roza-fast. It is further submitted that special arrangements are made to provide food before sunrise and for that purpose arrangements are made from 3-00 a.m. to 4-00 a.m. It is further submitted that in the morning before sunrise, food is provided to all the prisoners who are observing fast and similarly, immediately after sunset, special provisions are made for providing evening food to all Muslim convicted and under-trial prisoners who observe fast.

After hearing the learned Counsel for the parties and after going through the amended provisions of Rule 2A of the Gujarat Prisons (Diet for Prisoners) (Amendment) Rules, 2009, we find that the restriction of not allowing home-made food is limited to the following categories of the prisoners:

(a) The prisoners who are notorious, dangerous and involved in gang wars or inter-State crime or offences having international ramification.

(b) The prisoners who are involved in the offence falling under Secs. 392 to 402 of the Indian Penal Code.

(c) The prisoners upon whom the restrictions have been imposed under Sec. 268(1) of the Criminal Procedure Code, 1973.

(d) The prisoners who are involved in the serious offences under the Arms Act, 1959, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Explosive Act, 1884, the Explosive Substances Act, 1908, under the Narcotics Drugs and Psychotropic Substances Act, 1988, or under the Unlawful Activities (Prevention) Act, 2008.

(e) The prisoners who are kept in the high security yard.

(f) The prisoners who are involved in activities of spying or escaping '' from Jail.

(g) The prisoners who are dangerous to Jail discipline and security.

(h) The prisoners involved in terrorist activities.

(i) The prisoners belonging to banned organisation.

There is no dispute that when a person is in the custody of the State, the responsibility of maintaining his security is bestowed upon the State Government. In such circumstances, the restriction imposed by the aforesaid arrangement cannot be said to be unreasonable. It further appears in Rule 60 of the Gujarat Prisons (Diet for Prisoners) Rules, 1975, the following provisions are made:

Supply of ration to fasting prisoners:

(1) All Muslim prisoners shall be allowed to keep Roza during Ramzan month.

(2) A prisoner who is not physically fit shall not be allowed to observe fast without previous permission of the Medical Officer.

(3) A prisoner observing fast shall be permitted to receive the whole of his daily ration at evening meal and he shall be allowed to take the same into his barrack or cell for use during the night or in the morning following.

(4) The ration to be given to fasting Muslim prisoners during the Ramzan month shall be issued from the meals cooked in the afternoon.

By the above Rules, sufficient care has been taken to provide food at the appropriate time to the prisoners who are observing fast during the Ramzan month by deviating from the time schedule of taking food of the other prisoners.

In such circumstances, we do not find any illegality in the amended Rules for the protection of the prisoners either convicted or under-trial, as a precautionary measure, if the Jail authority does not want to take any risk. The petition, is therefore, bereft of any substance and is hereby dismissed.