1 wp2103.10.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2103 OF 2010 Abdul Gafar Johar Ali Shaikh. ....Petitioner Vs. The State of Maharashtra ....Respondent. None for the petitioner. Ms. S.V.Gajare, APP for State. CORAM:- A.M.KHANWILKAR AND U.D.SALVI, JJ. DATED:- SEPTEMBER 7, 2010. P.C. 1. This Petition is sent through jail. It challenges order passed by DIG(Prisons), Central Division, Aurangabad dated 7th June, 2010 rejecting Petitioner's application for furlough leave. The reason recorded in the order is that in the past when the Petitioner was released on parole leave, he overstayed and he was absconding for 101 days. However, the impugned order proceeds on the basis that there is adverse report against the Petitioner, for which reason, furlough leave cannot be granted under Rule 4(4). 2. When called upon to produce adverse report, the learned APP has relied 2 wp2103.10.sxw on the document, which at best would suggest that the authority apprehends that if the Petitioner is released on furlough leave is likely to abscond as he had overstayed the parole period on the earlier occasion. That fact may be relevant and ascribable to the condition specified in Rule 4(10) of the Rules of 1959 and has no relevance with the condition contained in Rule 4(4) of the Rules. Both operate in different fields. . Besides, it is noticed that in the impugned order, it is stated that the Petitioner was absconding for 101 days, which means that the Petitioner was eventually arrested by the police and taken back to the jail. Whereas, the report of the other authorities including affidavit filed before us suggest that the Petitioner on his own resumed in jail. Both these situations are qualitatively different for consideration of furlough leave application. In the case of the former, the authority may be justified in entertaining the apprehension that the petitioner may not return back at all but in the later case, such inference cannot be straightaway deduced, unless there is some further material available with the authorities to do so. 3. Suffice it to observe that the impugned order suffers for non-application of mind. We set aside the same and instead, relegate the Petitioner before the authority for reconsideration of the furlough leave application on its own merits in accordance with law. All questions are left open. 3 wp2103.10.sxw 4. We make it clear that this order is not an expression of opinion either way, in favour of the Petitioner or against the Petitioner with regard to the relief claimed by him in the leave application. 5. Copy of this order be forwarded to the Petitioner, who is in jail. (U.D.SALVI, J.) (A.M.KHANWILKAR, J.)