1. Heard, learned Adovocate Mr. B.A. Surti for the petitioner and Mrs. Hansa Punani learned APP for the State-Gujarat.
2. The main contention raised by the learned Advocate Mr. Surti that while imposing punishment for the jail offence, Jail Superintendent has not considered explanation forwarded by the convict for his surrender before the Jail Authority beyond the time. He has submitted that in view of the decision of Bhikhabhai Devshi Vs. State of Gujarat and Ors. reported in 1987 (2) GLR 1178, the Authority has not considered the defence of the convict while imposing punishment for the Jail Offence. The Deputy Superintendent filed an affidavit in reply on behalf of respondent No. 3 and placed the order passed by the Jail Superintendent, imposing punishment for the Jail offence.
4. Heard learned Advocate appearing for the parties and have perused the impugned order of the Appellate Authority dated 19.04.2012 passed by the IG Prisons, as well as order dated 14.11.2009 passed by the Superintendent of Jail Authority.
5. It appears from the order passed by the Superintendent of Jail Authority dated 14.11.2009 that though the Superintendent of Jail has referred the defence advanced by the convict but has not dealt with the same and directly passed the order of forfeiting the two furlough leave.
6. I am of the considered view that the Superintendent of Jail Authority was bound to pass a reasoned order after considering the defence raised by the convict for his delayed surrender and other relevant factors while imposing the jail punishment.
7. Since the first order itself is found to be contrary to the principle laid down by the Court in the case of Bhikhabhai Devshi(supra), the order of the Appellate Authority is also required to be quashed and set aside. Hence, both the order dated 14.11.2009 passed by the Superintendent of Jail Authority, as well as order dated 19.04.2012 passed by Inspector General of Prisons are quashed and set aside. The Superintendent of Jail shall decide the case of the convict afresh after considering the defence raised by the convict and the relevant facts as per the Jail Manual as well as under the provisions of Prisons Act.
8. The Superintendent of Jail shall decide the case as early as possible within a period of four weeks from the date of receipt of this order. Rule is made absolute. Direct Service is permitted.
(A.J. Desai, J.) bhati*