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Judgment
R.A. Mehta, J.—The petitioners are undertrial prisoners in Sabarmati Central Prison, Ahmedabad. They have two grievances, namely: (1)
not allowing them to keep their private tiffin in their barrack at night, and (2) surprise search and seizure during night hours.
The learned Counsel for the petitioners has submitted that these are the elementary rights of human existence to have food and peaceful sleep at
night and the Jail authorities are depriving them of these elementary rights which constitute personal liberty guaranteed under Article 21 of the
Constitution of India. The petitioners submit that as undertrial prisoners, they are entitled and (should be) permitted to have their food from outside
twice in a day and the petitioners should be free in the Jail to take their food at the time of their choice at any time and they should be allowed to
keep the same with them in the barrack and they cannot be compelled to take their food at the time fixed for the convict prisoners.
As regards the surprise check at night, it is submitted that before closing the barrack in the evening, there is a complete check and thereafter
there is no cause for further check during the night or any surprise check and such check at unreasonable hours would deprive the petitioners-
prisoners of peaceful sleep and that would be violative of Article 21.
In respect of the first grievance regarding food, reference was made to Sections 31 and 32 of the Prisons Act, 1894. They read as under:
Section 31: Maintenance of certain prisoners from private sources: A civil prisoner or an unconvicted criminal prisoner shall be permitted to
maintain himself, and to purchase, or receive from private sources at proper hours, food clothing, bedding or other necessaries, but subject to
examination and to such rules as may be approved by the Inspector General.
Section 32: Restriction on transfer of food and clothing between certain prisoners: No part of any food, clothing, bedding or other necessaries
belonging to any civil or unconvicted criminal prisoner shall be given, hired or sold to any other prisoner, and any prisoner transgressing the
provisions of this section shall lose the privilege of purchasing food or receiving it from private sources, for such time as the Superintendent thinks
proper.
It is, therefore, submitted that the petitioners who are unconvicted prisoners (undertrial prisoners) are permitted to maintain themselves and to
receive from private sources food at proper hours and subject to rules as may be approved by the Inspector General of Prisons and it is further
submitted that the restriction of proper hours is for receipt of food from outside and not for consumption of food and the undertrial prisoners
cannot be compelled to take food at the hours fixed by the Jail authorities and it is further submitted that u/s 32, there is restriction on transfer of
food and breach of that provision is visited with loss of privilege of receiving the food from private source. It is, therefore, submitted that the
undertrial prisoners are entitled to keep the food with them even after close of barrack and consume the same at any time of their choice including
at night.
On behalf of the respondents, it is submitted that the Prisons Act and the Prisons Manual applies to all prisoners including undertrial prisoners.
The rules regarding Jail routine in the Jail are provided in Chapter XXII of the Bombay Jail Manual, Rule 687 provides for ordinary daily routine
and 10-45 a.m. to 11-45 a.m. is the time of morning meals and 4-45 to 5-45 p.m. is the time of the evening meals. It is further provided that these
times are approximate and may be altered at the discretion of the Superintendent according to the local circumstances and seasons of the year or
consultation with the medical officer. Rule 697 provides that the meals shall be served hot and the prisoner shall take it at a place where the food
will be free from contamination and the Convict Officers-in-charge shall see that after the meals, the premises are thoroughly cleaned and that
every prisoner thoroughly cleans his pots. Rule 699 provides that evening meals shall be served to prisoners from 4-45 p.m. to 5-45 p.m. It is
further pointed out that the same time schedule is also provided by the Gujarat Prisoners (Routine) Rules, 1973 which has come into force from 1-
12-1973 and the aforesaid timings are fixed for meals. It is also stated in the affidavit-in-reply that the uniform practice is followed in all the Jails in
the State of Gujarat. It is also stated that about 15% of the undertrial prisoners have their private tiffin arrangement and as on 16-4-1990, only 95
out of 720 undertrial prisoners were having their private tiffin arrangements. The Circular dated 18-1-1985 is annexed to the affidavit-in-reply
wherein the Inspector General of Prisons has observed that the practice of taking private tiffins in the Jail and keeping them in the barrack was
prevailing. However, it was noticed that the other prisoners who were not entitled to have such facility were also availing this practice and were
taking undue advantage of that practice and there was flagrant violation of the provisions of Sections 31 and 32 of the Act and, therefore, the
Inspector General of Prisons had directed all the Jail Superintendents to stop that practice and to see that such undertrial prisoners who have the
facility of private tiffins should see that Such prisoners take their tiffins near the inside gate of the Jail in presence of an Officer of the Jail.
The Prisons Act applies to all prisoners including undertrial prisoners, i.e., a criminal prisoner who is committed to Jail custody under the orders
of the Court and the provisions of the Prisons Act and Rules made thereunder are applicable to them and they are subject to the routine fixed for
all the prisoners including timings. It cannot be said that prescription of such time for undertrial prisoners is in any way unreasonable or violative of
Article 21 of the Constitution. The undertrial prisoners are entitled to have the facility of private tiffins and the food from private sources. However,
these meals have to be taken according to the rules and regulations of the prison in which the prisoner is committed and, therefore, there is no
substance in the contention that fixation of such time schedule and routine for taking meals is violative of Article 21 of the Constitution.
The second contention is that the surprise visits by the Jail Officers at night deprives the prisoners of their right to peaceful sleep and is violative
of Article 21 of the Constitution. In this regard, reliance has been placed on the judgment of the Supreme Court in the case of Kharak Singh Vs.
The State of U.P. and Others, . In that case, the Supreme Court held that the ""domiciliary visits"" of a Police Officer to search and inspect a private
house at night would be an intrusion into a residence of a citizen and knocking at his door with disturbance to his sleep and ordinary comforts,
though would not amount to violation of Article 19(1)(d) of the Constitution, it would amount to deprivation of personal liberty guaranteed by
Article 21, as an unauthorised intrusion into a person''s home and the disturbance caused to him thereby, would be violative of a common law right
of a man and ultimately the liberty.
7A. In the present case, it is not the dwelling place or private house of the prisoner which is the subject-matter of surprise visit. In the present case,
the Jail Officers charged with the administration of Jail, its discipline and proper conduct of the prisoners, vsit the barracks at random twice or
thrice in a month. This judgment of the Supreme Court cannot in any manner be pressed into service where the prisoner is not in his dwelling house
or private house. The prisoner is an inmate of the prison and the prison officers are not outsiders. They are the persons in-charge of the prison and
its administration and they are charged with the duty to see that the prison administration is run properly and that nothing untoward or illegal
happens in the Jail and for that, surprise checks are necessary and incidental part of their duty to maintain necessary vigil and instil sense of
enforcement of Jail discipline and Jail rules and regulations.
The learned Counsel for the petitioners submitted that even the undertrial prisoner has all the rights of a free citizen except confinement pending
trial and wherever he lives or sleeps is his dwelling place and he is entitled to peaceful sleep as a part of his personal liberty. Even though a prisoner
is entitled to peaceful sleep, that does not mean that the prison authorities do not have a right to any surprise visit. Such visit and checking once in a
fortnight or so cannot be said to be in any way unreasonable or in any manner violative of the personal liberty of the prisoners.
It is further submitted that during day time and before the barrack is closed in the evening, there is thorough check and, therefore, surprise vsit at
night is absolutely unjustified and unreasonable. The Circular dated 17-12-1986 issued by the Inspector General of Prisons in this connection
recites that with a view to control the Jail discipline and with a view to improve efficiency of administration, surprise visit and check was very
necessary and with a view to detect such undersirable activity in the Jails of the State and with a view to increase the efficiency of the Jail Staff,
Inspector General of Prisons was satisfied that such surprise visit was necessary.
In exercise of the powers u/s 58 of the Prisons Act, Gujarat Prisons (Staff Functions) Rules, 1975 have been enacted. Rule 8 provides for
inspection of prisons and it provides that Inspector General shall inspect every Central Prison and District Prison at least once in a month and in
addition to this regular inspection, he may also inspect any prison if he considers that there is any special reason for doing so. The Inspector
General of Prisons had, therefore, authorised three officers of different Jails for surprise inspection and the Officer of Ahmedabad Central Prison
was directed to visit at least once in a month Baroda Central Prison or any other Jail in the State. Similarly, the Officer of Baroda Central Prison
was directed to make at least once in a month surprise visit of Ahmedabad Central Prison or any other prison in the State and the Prison Officer
(Principal of Jail Staff Training School) was also directed to make at least once in a month surprise visit of Ahmedabad, or any other prison and it
is further directed that such surprise inspection shall be without any prior notice and detailed report shall be made to the Inspector General of
Prisons.
In the affidavit-in-reply, it is stated that in pursuance of the aforesaid Circular of Inspector General of Prisons, in the year 1989, on 20
occasions, such checking was done in Sabarmati Central Prison and in the year 1990, upto the date of the affidavit-in-reply, i.e. 19-4-1990, such
checking was done on 8 occasions. It is not clarified as to how many of these inspections were conducted at night. However, assuming that some
or many of them were conducted at night, time, it is to be noticed that violation of Jail rules can take place at night time even after checking at the
time of closure of the barrack in the evening. The very fact that an outside officer is directed to conduct surprise check indicates that some
members of the local Jail staff may be involved in the illegal activities that might occur during night time. Judicial notice can be taken of the fact that
such things have happened where illegal activities had been carried on during night time. Even otherwise, if the authorities have an apprehension
that such activities may take place at night time, they are duty-bound to see that such activities do not take place or that they are detected and if
surprise check is made at periodical intervals, it has a direct impact on the Jail administration and it has a direct effect in curbing such activities. It
cannot be said that the Jail authorities do not have any power to make the Jail administration effective and efficient and it cannot be said that this in
any manner violates any personal liberty of a prisoner.
There is no merit in the contention that such surprise inspection at night which is necessary in the interest of the effective and efficient
administration of the Jail is in any manner violative of the personal liberty of the prisoner. There is no merit in the second contention also.
In the result, this petition is dismissed. Rule discharged.