Abdul Kadir Alias Kadra v. State Of M.P And 3 Ors.

Heard.

By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 03.07.2012 (Annexure P/1) passed by the District Magistrate, Indore under section 3(2) of the National Security Act, 1980.

The petitioner's case, in brief, is that the impugned order passed by the District Magistrate affirmed by the State Government has been passed contrary to the facts and against law. The order is in violation of principles of natural justice and also in violation of the procedural requirement. The same is unsustainable in view of the fact that the cases referred to in the order are old and false also and some of the cases are still pending and it cannot be made basis for passing of the order of detention.

Today, when the matter came up for hearing learned counsel for the petitioner has pointed out that in support of the reply submitted by the respondents, the affidavit of the District Magistrate has not been filed and therefore, in view of the law laid down by a Division Bench of this Court in W.P No. 903 of 2012 Usman son of Gani Khan v. State of M.P, in W.P No. 9245 of 2011 Prabhu W. Prabhusingh v. State Of M.P. decided on 3.04.2012 and in the case of Wasim v. State of M.P decided on 17.09.2012, the impugned order is liable to be set aside.

In this case we find that the affidavit in support of the reply filed by the respondents is the affidavit of the City Superintendent of Police, Annapurna, Indore. The affidavit of the District Magistrate has not been filed. The affidavit does not say that the City Superintendent of Police personally dealt with the matter. He has merely sworn the affidavit on the information gathered from the record. No explanation in the reply and affidavit has been offered for not filing the affidavit of District Magistrate.

In the case of Usman son of Gani Khan v. State of M.P (supra) the Division Bench of this Court has observed thus:-

“In the instant case, the District Magistrate who passed the order of detention has not filed his affidavit. It is well established by catena of decisions of the Supreme Court that in answer to a Rule issued in a habeas corpus petition, the counter affidavit on behalf of the State should be sworn by the District Magistrate who had passed the detention order. In the present case, there is a direct allegation that the detention order was passed without application of mind and there was no material before the detaining authority to reach the subjective satisfaction. There is no parawise reply. The affidavit in support of the reply does not say that the City Superintendent of Police personally dealt with the matter. He has merely sworn the affidavit on the information gathered from the record. No explanation has been offered for not filing the affidavit of the District Magistrate.”

In the circumstances, as the affidavit of District Magistrate has not been filed, having regard to the law laid down in the cases referred to above in our considered view, the petition deserves to be allowed on this ground alone.

Since we are allowing the petition on this ground alone, we are not dealing with the other grounds raised by the petitioner.

As a result, the petition is allowed. The impugned order passed by the State Government is hereby quashed. The petitioner be set at liberty forthwith, if not required in any other case.

C.c by tomorrow.