BANTI ALIAS SACHIN ALIAS DAKAIT v. STATE OF M.P. AND 3 ORS.

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various offences committed by the petitioner and stating that the petitioner by those acts and offences had created the problem of public order and made a request for detaining the petitioner under Section 3(2) of the National Security Act. The list of cases registered against the petitioner as well as the list of witnesses was enclosed with the report. The petitioner at that time was in custody having been arrested on 18.3.2012 in respect of the offences registered against him under Section 25 and 27 of the Arms Act. The grounds of detention dated 20.3.2012 were supplied to the petitioner and the impugned order dated 20.3.2012 was passed in respect of the detention of the petitioner. The District Magistrate had sent the order of detention to the State Government on 27.3.2012 and the order of detention was duly approved by the State Government, and the State Government on the recommendation of the Advisory Committee confirmed the detention by the order dated 8.5.2012 direction the detention of the petitioner for a period of 12 months till 20.3.2013.

3/ Learned counsel appearing for the petitioner submitted that since the petitioner was in jail, therefore, there was no necessity of passing the detention order. He further submitted that the petitioner was not informed about his right to make the representation to the Central Government and that the affidavit in reply to the writ petition has not been filed by the

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District Magistrate. 4/ Learned counsel appearing for the respondents have opposed the writ petition and submitted that none of the grounds urged by the petitioner are made out in the present writ petition.

5/ Having heard the learned counsel for the parties, it is noticed that at the time of passing of the order of detention, the petitioner was already in custody, therefore, as per the settled legal position the respondents were required to consider the factum of the petitioner being in custody at the time of passing the order of detention. In this regard we have carefully perused the grounds of detention, which takes note of the fact that the petitioner was arrested on 18.3.2012 for illegally carrying the arms for sale. It has also been taken note of that in the said case there was a strong possibility of release of the petitioner on bail and after the release from the custody, the petitioner could again involve himself in similar incidence affecting the public order. Thus the detention order can not be faulted on the ground that the respondents have not considered the effect of the petitioner being in custody at the time of passing of the impugned order.

6/ The petitioner has further raised the ground that he was not informed about his right to make the representation to the Central Government. Such a ground is also bereft of any

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merit since the grounds of detention dated 20.3.2012 reveal that the petitioner was informed about his right to make a representation to the Central Government, the State Government and the Advisory Board.

7/ The petitioner has next contended that the District Magistrate, who had passed the order of detention, has not filed the counter affidavit in the present writ petition which was required to be filed by him in view of the settled position in law. 8/ Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the counter affidavit in reply to the writ petition has been filed by Sub Divisional Officer Police and no counter affidavit in the writ petition has been filed by the District Magistrate though the impugned order of detention has been passed by the District Magistrate. The Division Bench of this court in W.P. No.903/2012 Usman S/o Gani Khan Vs. State of M.P. and others decided on 20.3.2012 has held as under :-

"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

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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. The reply also does not show that all procedural steps, as required under the Act, were taken within the specified time. Except for news-paper cuttings (which have no evidensiary value), no other cogent material has been placed before us to judge the legality of the detention order. In this unsatisfactory state of affairs, we have no hesitation to hold that the District Magistrate passed the detention order in a most cavalier manner without any application of mind, and was

confirmed by the State Government in equally callous manner as such, it is difficult for us to sustain the detention order. Yet there is another ground which makes the detention order unsustainable. In this connection, we may refer to the earlier division Bench decision in W.P.No. 3426/2008 decided on 22.7.2008 wherein it is held that the detenue must be appraised of his right to make

representation to Central Government. We find even this was not fulfilled in the case on hand."

9/ In the present case, the affidavit which has been filed by the City Superintendent of Police, Pardeshiura, Indore (O.I.C.) does not state that he had personally dealt with the matter, but his affidavit states that the counter affidavit was filed on the basis on the information gathered from the record. No explanation has been offered for not filing the affidavit of the District Magistrate. The various allegations levelled in the writ

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petition that there was no application of mind and no material was available before the detaining authority to reach to the subjective satisfaction, were required to have been controverted by the affidavit of the District Magistrate. 10/ In view of the aforesaid having regard to the law laid down in the case of Usman S/o Gani Khan (supra), in our considered view the writ petition deserves to be allowed. Accordingly the impugned detention order and the order of the State Government affirming the detention are quashed. The petitioner be set at liberty forthwith, if not required in any other case.

(SHANTANU KEMKAR) (PRAKASH SHRIVASTAVA)

J u d g e J u d g e

Trilok/-