JUDGMENT S.C. Mathur, J. - Gur Bux Singh Bakshi alias Bakshi Baba has directed this writ petition against the order of preventive detention passed against him by the District Magistrate, Lucknow, under the provisions of the National Security Act, 1980 (Act No. 65 of 1980), for short Act. The facts necessary for the disposal of the petition fall within a narrow campus (compass?) and may he immediately stated. 2. The order of detention was passed on 25-1-1985, a copy of this order is annexure 1. The petitioner was arrested on 26-4-1985 and the grounds of detention were served upon him on 27-4-1985. a copy of the grounds of detention is annexure 2. Only two grounds have been mentioned on the basis of which the District Magistrate claims to have acquired his subjective satisfaction to the effect that the detention of the petitioner was necessary in order to prevent him from acting in a manner prejudicial to the maintenance of public order. 3. In the first ground it,is mentioned that an occurrence took place on 17-11-1984, at 12 noon, in which one Sunder,lost his life. It is stated that first information report with regard to this occurrence was lodged at police station Krishna Nagar, Lucknow, under S. 302, Penal Code, on the basis of which crime case No. 381 was registered. It is further stated in this very ground that in respect of this occurrence, after investigation, charge-sheet was submitted in Court where the case was pending trial. The petitioner is nominated in the report. 4. In the second ground it is alleged that the beat constable made a report which was entered in the general diary dated 29-11-1984 at No. 45 in which it was stated that on that day the petitioner and his brother Guru Saran Singh alias Shan threatened Sri Sanjay who was a witness in the occurrence referred to in ground No. I against giving evidence in the said case. This general diary entry is alleged to have been made at 21.30 hours. It is further stated in this ground that investigation of this matter was done by the Sub-Inspector of Police Sri Abhai Singh and the allegation was found to be correct. 5. This general diary entry is alleged to have been made at 21.30 hours. It is further stated in this ground that investigation of this matter was done by the Sub-Inspector of Police Sri Abhai Singh and the allegation was found to be correct. 5. The petitioner has asserted that the second ground of detention is not related to maintenance of public order and, therefore, an order of detention could not be passed under S. 3(2) of the Act. In respect of the first ground he has alleged that no case had been filed in Court and it has been wrongly stated in the grounds of detention that charge-sheet had been submitted and case was pending in Court. According to the petitioner the detention order, so far as first ground is concerned, is based on non-existent fact. We shall first take up the challenge relating to the second ground. 6. In the second ground there is no averment regarding the effect of the threat upon the witness Sanjay. It is also not stated that on account of the threat allegedly extended by the petitioner and his associate Sri Sanjay or other witnesses had been so much terrorised that they were unwilling to give evidence in the case referred to in the first ground. On such facts it has been held in two Full Bench decisions of this Court that the threat cannot be said to be related to maintenance of public order and such a threat cannot form the basis of an order of preventive detention under S. 3(2) of the Act, In Habeas Corpus Writ Petition No. 11151 of 1984, Ashok Dixit v. State of U. P., decided on 1-8-1985, the Full Bench observed thus :- "It would be unreasonable to hold that every attempt or persuasion or simple threat to witness not to give evidence would affect public peace or tranquillity. Only that kind of threat to witnesses which is likely to treat panic or terror in the minds of the eye-witnesses, that if they gave evidence against the detenu there would be reprisal. A simple threat cannot reasonably have any such effect to disturb even tempo of the life of community. Only that kind of threat to witnesses which is likely to treat panic or terror in the minds of the eye-witnesses, that if they gave evidence against the detenu there would be reprisal. A simple threat cannot reasonably have any such effect to disturb even tempo of the life of community. But, if the threat is accompanied by show of force or by any overt act if given publicly, it may create terror in the locality and the witnesses may feel insecure on account of possible reprisal such threat may have nexus to public order." In Habeas Corpus Writ Petri. No. 12438 of 1984 Shesh Dhar v. State of U.P., decided on 1-8-1985 : (reported in 1985 All LJ 1222 at P. 1230), the majority judgment states thus :- ".......The giving of threat to individual witnesses unaccompanied by any overt act could not have such an impact as to disturb the even tempo of the life of the community." In the present case also the alleged threat is not accompanied with any overt act. In view of the law laid down by the Full Bench the threat relied upon in the present case cannot constitute basis for an order of preventive detention under S. 3(2) of the Act. Accordingly the detention order cannot be sustained on the basis of the second ground. 7. The learned counsel for the State relied upon Mohammad Salim v. Adhikshak, Janpad Karagar Pauri, 1983 Cri LJ 548. This judgment, on this point, has been expressly overruled by the Full Bench in Ashok Dixit's case (supra). 8. Regarding the first ground there is now no dispute between the parties that no charge- sheet had been filed in Court in respect of the occurrence referred to in the said ground and that no case in respect of the said occurrence had become pending in a Court of law. However, the District Magistrate has tried to explain the circumstances in which the filing of charge-sheet and pendency of case in Court came to be mentioned in the first ground. In his supplementary counter-affidavit dated 8-8-1985 he has stated that the occurrence referred to in ground No. 1 had taken place on 17-11-1984 and first information report in respect of the occurrence was lodged the same day at police station Krishna Nagar. In his supplementary counter-affidavit dated 8-8-1985 he has stated that the occurrence referred to in ground No. 1 had taken place on 17-11-1984 and first information report in respect of the occurrence was lodged the same day at police station Krishna Nagar. It is then stated that investigation was conducted by the local police from 17-11-1984 to 1-12-1984 and from 2-12-1984 to 4-1-1985 and then on 4-1-1985 the police of Police Station Krishna Nagar submitted charge-sheet. In para 6 it is stated that during the investigation of the case by the local police the Inspector General of Police directed the Crime Branch to make a check on the investigation done by the local police. On the basis of this direction of the Inspector General of Police, the Crime Branch obtained from the local police the case diary on 29-11-1984. It is further stated that despite the fact that the case diary and papers of the investigation done till that time had been taken away by the Crime Branch, the local police continued with the investigation and completed the same on 4-1-1985 and on this very date they submitted charge-sheet. As a proposition of law it has been stated in para 7 that the investigation by local police does not get stopped on account of the check investigation done by the Crime Branch. In para 8 it is stated that although the local police submitted charge- sheet on 4-1-1985 it could not be sent to Court because of the absence of the papers of the investigation which had been taken in their custody by the Crime Branch on 29-11-1984. In the charge-sheet, which is alleged to have been submitted by the local police on 4-1-1985, the petitioner has been shown as an absconder. In the last para of the affidavit viz., para 11 it has been stated that the Criminal Investigation Department has still not completed the investigation which is still pending. 9. In para 8 of his first counter-affidavit viz., the affidavit dated 11-7-1985, the District Magistrate has asserted that the local police had, in its report given to him stated that charge- sheet had been submitted and from this it has been inferred that charge-sheet had gone to Court and, therefore, in the order of detention it has been mentioned that charge-sheet had been submitted and matter was pending in Court. Thereafter he has stated that normally while passing order of detention under the Act he insists upon completion of the investigation and submission of charge-sheet before he passes an order of detention but in the present case he would have passed the order of detention even though the charge-sheet had not been submitted to Court. It would be worth-while to reproduce his defence in his own language. It reads thus :- "Normally deponent while passing N. S. A. orders insists that investigations be completed and charge-sheet submitted before the contents of a particular crime are used against any proposed detenu although it is not necessary. This is only for deponents own subjective satisfaction regarding sufficience of grounds against a proposed detenu. In this case also the same procedure was followed and after police investigations were over the deponent was satisfied about detaining the petitioner on the basis of this ground and another ground. Deponent was not aware of any intervention by C.I.D. in the investigation and deponent after being satisfied with the material placed before him passed the orders. Even if the charge- sheet could not reach the Court due to above mentioned circumstances there could not have been any difference to the satisfaction of the deponent as on the basis of completed investigations of the local police deponent was satisfied that the petitioner be detained. The submission of charge-sheet to the Court was only a fact presumed by the deponent on the basis of written report before him but its not reaching the Court would not have altered depondent's satisfaction regarding the detention............" Now let us scrutinise the explanation of the District Magistrate. He himself admits that normally he passes an order of preventive detention only after investigation has been completed and charge-sheet has been submitted in Court. After making this statement he does not indicate any reason for departure from this normal procedure. After stating his normal practice, he makes a bald statement that he would have passed the same order even if the charge-sheet had not reached the Court. In the absence of any explanation regarding departure from normal practice we are unable to accept the District Magistrate's assertion that he would have passed the same order even with the knowledge that charge-sheet had not been submitted in the Court. In the absence of any explanation regarding departure from normal practice we are unable to accept the District Magistrate's assertion that he would have passed the same order even with the knowledge that charge-sheet had not been submitted in the Court. From the admission made by the District Magistrate it is apparent that a non-existent fact was taken into consideration while passing the order of , detention on the first ground the said non-existent fact being the submission of the charge- sheet to Court and pendency of case in Court. On similar facts a Division Bench of this Court in Writ Petri. No. 856 of 1982, Subhash Misra v. State of U.P., decided on 28-5-1982, quashed the order of preventive detention. In this case it was stated in one of the grounds that the 1986 All. L.J./35 V (1) detenu was involved in a crime said to have been committed on 11-12-1980 and the charge- sheet was sent to Court with respect to that case where it was pending consideration. The Bench summoned the record of that case and found that the charge-sheet had been submitted only on 22-9-1981 while the order of preventive detention had been passed much earlier on 3-7-1981. The Bench accordingly came to the conclusion that the detention order was based on non-existent ground and could not, therefore, be sustained. This judgment has full application to the facts of the present case. We respectfully subscribe to the view taken in this case. 10. In Banshi v. State of U. P., 1984 Lucknow LJ 128, the detention order had been passed with the allegation that a case under S. 324, Penal Code, was investigated and charge-sheet was filed in Court against the petitioner and the said case was pending. The fact, as subsequently revealed, was that prior to the date on which the detention order was passed, the case had concluded and the detenu had been acquitted of the charge. A Division Bench of this Court quashed the detention order on the ground that the same was based on non- existent fact. While quashing the order the Division Bench observed :- "The fact of acquittal of the petitioner was a material fact which was not taken into consideration by the detaining authority who was under the wrong impression that the case against the petitioner was still pending. While quashing the order the Division Bench observed :- "The fact of acquittal of the petitioner was a material fact which was not taken into consideration by the detaining authority who was under the wrong impression that the case against the petitioner was still pending. The order of detention being based on subjective satisfaction of the District Magistrate, we are not in a position to speculate as to whether he would have passed the detention order or not if the correct position had been taken into account by him. As such, the detention order cannot be sustained." To the same effect are the decisions of this Court in re : 1. Asfaq v. State of U.P., 1984 Cri LJ 999 and 2. Mohammad Ismail v. State of U.P., 1985 Cri LJ 266. 11. The learned counsel for the State tried to distinguish the above decisions by submitting that in the present case the District Magistrate has filed his own affidavit asserting therein that he would have passed the order of detention even if it had been brought to his notice that the charge-sheet had not been filed in Court and the case is not pending in a Court of law. According to the learned counsel such an explanation can be given in the counter-affidavit filed in opposition to the writ petition. For this submission he has relied upon the observations contained in paras 12 and 14 of the judgment of their Lordships of the Supreme Court as reported in Sadhu v. State of West Bengal, AIR 1975 SC 919 : (1975) 1 SCC 660 , We are unable to agree with the submission of the learned counsel that any such proposition has been laid down by their Lordships in this case. In this case it was not clear as to how subjective satisfaction had been obtained by the District Magistrate on the basis of the material on record. The District Magistrate did not file his own affidavit and instead counter-affidavit was filed by the Deputy Secretary in the Home Department. The Deputy Secretary in the Home Department explained the absence of District Magistrate's counter-affidavit by saying that he had been transferred to another State, namely, State of Sikkim. Thereafter he tried to explain as to how subjective satisfaction had been acquired by the District Magistrate. The Deputy Secretary in the Home Department explained the absence of District Magistrate's counter-affidavit by saying that he had been transferred to another State, namely, State of Sikkim. Thereafter he tried to explain as to how subjective satisfaction had been acquired by the District Magistrate. In respect of this, their Lordships of the Supreme Court observed that subjective satisfaction of the District Magistrate could be explained only by the District Magistrate who acquired the satisfaction and that the said satisfaction could not be explained by the Deputy Secretary in the Home Department. This judgment is not authority for the proposition that the District Magistrate can, through his return filed to the petitioner's challenge, convert a non-existent fact into an existent f act. Through the counter-affidavit filed in the present case the District Magistrate has tried to convert a non-existent fact into an existent fact which, in our opinion, he was not entitled to do. 12. Jainal Sk. v. District Magistrate, West Dinajpur, AIR 1975 SC 229 was also relied for the proposition that explanation could be given in the counter-affidavit. In this case the petitioner's name did not figure in the first information report. It appears that on behalf of the petitioner it was submitted that if his name did not figure in. the first information report there was no material for ordering his preventive detention. Through the counter-affidavit filed on behalf of the State it was pointed out that although the petitioner's name was not mentioned in the first information report, his complicity in the incident transpired in the course of investigation. It is, therefore, not a case where a non-existent fact had been considered by the detaining authority while passing the detention order which he tried to convert into an existent fact. This authority is. therefore, of no assistance to the learned counsel. This is a case where on existing facts the petitioner's challenge was sought to be controverted and the detention order was sought to be explained. 13. This authority is. therefore, of no assistance to the learned counsel. This is a case where on existing facts the petitioner's challenge was sought to be controverted and the detention order was sought to be explained. 13. Another authority relied upon for the same proposition is Jadunandan Sah v. District Magistrate, Dhanbad, 1983 SCC (Cri) 840 : AIR 1983 SC 1130 , In this case it was urged on behalf of the petitioner that in the first information report no allegation of disturbance of public order had been made and, therefore, the detaining authority was not entitled to invent ground regarding apprehension from the petitioner about the disturbance of public order in the counter-affidavit. It was stated on behalf of the detaining authority that apart from the first information report there was the supervision note of the Deputy Superintendent of Police, Dhanbad, and on the basis of this' note and other material on record, the detaining authority was satisfied that there was apprehension of breach of public order from the petitioner. This again is not a case where a non-existent fact was sought to be converted into an existent fact. The supervision note of the Deputy Superintendent of Police was already on the record of the detaining authority. Through the counter affidavit the detaining authority only explained the material which had been taken into consideration for forming the subjective satisfaction referred to in S. 3(2). 14. The learned counsel for the State cited certain authorities in support of the proposition that filing of charge-sheet in Court and pendency of case in Court was not sine qua non for passing an order of preventive detention under the Act. According to the learned counsel the District Magistrate could acquire satisfaction referred to in S. 3(2) even though no charge-sheet had been submitted in Court. So far as the proposition of law is concerned, we accept the same. The position, however, would be entirely different where subjective satisfaction is acquired on the basis that charge-sheet has been filed in Court and case is pending there. The authority cited by the learned counsel is Israilsk. v. District Magistrate, West Dinajpur, AIR 1975 SC 168 . 15. So far as the proposition of law is concerned, we accept the same. The position, however, would be entirely different where subjective satisfaction is acquired on the basis that charge-sheet has been filed in Court and case is pending there. The authority cited by the learned counsel is Israilsk. v. District Magistrate, West Dinajpur, AIR 1975 SC 168 . 15. Anil Dey v. State of West Bengal, AIR 1974 SC 832 was relied upon for pressing that veil of subjective satisfaction of the detaining authority cannot be lifted by the Courts with a view to appreciate its objective sufficiency. In the present case we are lifting the veil of subjective satisfaction for the purpose of making an objective assessment of the sufficiency. We are lifting the veil for the limited purpose of finding whether the subjective satisfaction was acquired on existent ground or non-existent ground. We are not at all entering into the question of sufficiency of the grounds of detention. This authority, therefore, is of no assistance to the learned counsel. 16. The learned counsel for the petitioner has also submitted that the facts stated in ground No. I could not be related to public order and, therefore, also the first ground could not be relied upon for passing the impugned order. In view of the fact that we are of the opinion that the impugned order of detention cannot be sustained on the grounds already discussed, it is not necessary to consider this submission of the learned counsel. 17. In view of the above the petition is allowed and the order of preventive detention dated 25-1-1985, annexure 1, is hereby quashed. The petitioner shall be released forthwith unless required in connection with any other case. The cost of the petition shall be easy.