Ahmad Mohammad Ali Qureshi vs The Deputy Inspector General ...
2021 Latest Caselaw 9885 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                  CRIMINAL WRIT PETITION NO. 422 OF 2021


  Ahmad Mohammad Ali Qureshi,
  Aged about 27 years, Occ. Nil,
  R/o. Room No. 1144, Yogesh Niwas,
  33, S.V. Road, Khar (West), Mumbai-52
  (C-5842, presently at Central Prison, Amravati)                        . . . PETITIONER

                         ...V E R S U S..

  1. Deputy Inspector General Prison,
     East, Nagpur.

  2. Superintendent, Central Prison,
     Amravati.                                                       . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Shri S. D. Chande, Advocate for petitioner.
 Ms. N. R. Tripathi, A.P. P. for respondents/State.


                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 28.07.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Hearing was conducted through Video Conferencing and

learned counsel agreed that the audio and visual quality were proper.

2. Rule. Rule is made returnable forthwith. Heard finally by

consent of the parties.

3. By this petition under Article 226 and 227 of the

Constitution of India, the petitioner is challenging order dated

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01.04.2021 passed by the respondent no. 1, rejecting furlough leave

application of the petitioner for a period of 21 days.

4. The petitioner is a convict for offence punishable under

Section 302 of the Indian Penal Code and has undergone

imprisonment of 4 years, 5 months. The petitioner became eligible for

grant of furlough leave and applied for the said leave before the

respondent no. 1 on 29.01.2021. The respondent no. 1 after seeking

report from the Police Commissioner, Bandra Division, Mumbai

rejected the furlough leave application of the petitioner on the ground

that police report is adverse to the petitioner. It is stated that if the

petitioner is released on furlough leave, there is possibility of the

petitioner absconding and threatening the complainant and the

witnesses.

5. The petitioner has therefore challenged the order dated

01.04.2021 by way of the present petition. This Court on 22.06.2021

issued notices to the respondents. The respondent no. 2 has filed reply

stating that there is possibility of threat to the witnesses, if the

petitioner is released on furlough leave.

6. We have carefully considered the impugned order, which

is passed on the basis of adverse police report. On careful scrutiny of

the impugned order, it appears that the respondent no. 1 has not

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referred to any material, on the basis of which the apprehension could

have been expressed by the respondent no. 1 that there is possibility of

the petitioner absconding and threatening the complainant and the

witnesses. Neither the impugned order nor the police report referred

to the basic fact that there exists some material on record, which on

perusal would show that the apprehension so expressed by the

authorities has reasonable foundation. It is necessary for the

respondent no. 1 to record such substantive satisfaction, upon

consideration of the material on record and if it shows that subjective

satisfaction recorded by the respondent no. 1 was without any basis

then it would be a unreasonable order and hence liable to be struck

down.

7. We are therefore satisfied that the respondent no. 1 was

not justified in rejecting the furlough leave application of the

petitioner. In the result, we pass following order:-

(i) The impugned order dated 01.04.2021 passed by the

respondent no. 1 is hereby quashed and set aside.

(ii) The respondent no. 1 is directed to grant furlough leave to

the petitioner for a period of 21 days upon such terms and conditions,

which may be permissible in terms of the Rules applicable, within a

period of one week from the date of receipt of this order.

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                               Rule is made absolute in the above terms.




                               JUDGE                                  JUDGE




RR Jaiswal