H. K. RATHOD, J. ( 1 ) HEARD Mr. A. S. Dave learned advocate on behalf of the petitioner and Mr. H. L. Jani learned AGP on behalf of the respondents. ( 2 ) IN the present petition the petitioner has challenged the order of detention dated 21. 7. 2000 under Article 226 of the Constitution of India. The order of detention has been passed by the District Magistrate, Bhavnagar against the present petitioner and the petitioner has been detained in District Jail, Junagadh as Class-II detenu. The grounds of detention have been communicated and supplied to the present petitioner under section 9 (1) of the Gujarat Prevention of Anti-social Activities Act 1985 (hereinafter referred to as PASA Act) on 21. 7. 2000 and the order of detention has been passed by detaining authority under section 3 (1) of the PASA Act. In all 3 offences were registered against the present petitioner dated 4. 6. 1997, 14. 11. 1998 and 3. 11. 1999. This matter has been argued at length before this Court (Kundan Singh. J) and this court has decided the said matter on 14. 12. 2000. While deciding the said matter finally, this court has referred the matter for the decision of the Larger Bench in respect of the following questions:"1. Which of the decisions taken by the Division Benches in the cases of Nasimbanu M. Shaikh vs. Commissioner of Police reported in 1998 (2) GLH 478 or in the case of Zubedabibi Rasid Khan Pathan vs. State of Gujarat reported in 1995 (2) GLR 1134 and/or in the case of Unusbhai Hasanbhai vs. District Magistrate in LPA No. 1056 of 1999 decided on 15. 9. 99 and/or in the case of Sagar Shrikrishna vs. Commissioner, Ahmedabad is correct one ? 2. Whether it is necessary for the detaining authority before resorting preventive detention to take steps for cancellation of bail under section 437 (5) of the Criminal Procedure Code in the cases in which the detenu has already been granted bail ? 3. Where the detaining authority has taken into consideration that the cancellation of bail under section 437 (5) of Criminal Procedure Code would take long process and not resorting to take action for cancellation of bail under section 437 (5) of Criminal Procedure Code in the registered cases in order to prevent anti-social activities of the detenu, action for preventive detention is required. Even then will the satisfaction of the detaining authority be deemed to be impaired if any action for preventive indulging in anti-social activities ?" ( 3 ) AFTER referring the matter to Larger Bench by Kundan Singh. J by order dated 14. 12. 2000, the Larger Bench has given the answers in respect of the 3 questions which have been raised by the learned single Judge on 4. 5. 2001 as under:" 1. Division Bench decision in Nasimbanu M. Shaikh vs. Commissioner of Police 1988 (2) GLH 478 as stated in our reasons, is the correct decision. 2. No. Not necessary. It is not obligatory. Resort to section 437 (5) Cr. P. C. not required. 3. No Subjective satisfaction of the detaining authority shall not be deemed to have been impaired. " ( 4 ) THEREAFTER the Larger Bench of this Court has passed final order with a direction to the registry of this court to place this writ petition before the learned Single Judge for the disposal of the petition. ( 5 ) THE respondent-State has filed affidavit in reply through K. A. Patel, District Magistrate, Bhavnagar. After notifying the present petition before this Court, Mr. A. S. Dave learned advocate appearing on behalf of the petitioner has raised a contention before this Court challenging the order of detention that the statement of secret witnesses has been recorded by the concerned PSI at Alang on 29. 6. 2000 and said statement of secret witnesses has been verified by Dy. Superintendent of Police, Mahuva on 4. 7. 2000 and the District Magistrate, Bhavnagar endorsed the said statement on 20. 7. 2000. Thereafter on 21. 7. 2000 the order of detention has been passed. Therefore, advocate Mr. A. S. Dave for the petitioner has raised a contention that in reality looking to the original record itself is enough to come to the conclusion that subjective satisfaction of the District Magistrate is not established. Simply considering the record as it is it is clear that the statement of secret witnesses was recorded on 29. 6. 2000, the same has been verified by the Dy. Superintendent of Police on 4. 7. 2000 and without calling the said witnesses, the District Magistrate, Bhavnagar the detaining authority has simply made an endorsement that he has verified the contents of the said statement. 6. 2000, the same has been verified by the Dy. Superintendent of Police on 4. 7. 2000 and without calling the said witnesses, the District Magistrate, Bhavnagar the detaining authority has simply made an endorsement that he has verified the contents of the said statement. Meaning thereby, the District Magistrate has not called the secret witness and not verified the genuineness of the statement which has been made before the PSI, Alang. It is the duty of the District Magistrate to verify the genuineness of the statement which has been made by the secret witnesses. But merely endorsing the statement by making a note that the contents of the statement has been verified by the District Magistrate, is not enough to satisfy the test of subjective satisfaction of the detaining authority. Therefore, learned advocate Mr. A. S. Dave for the petitioner has submitted that without examining or without calling the secret witnesses before the District Magistrate, merely making an endorsement on the statement by the detaining authority to the effect that "verified the contents" is not enough to establish and prove the subjective satisfaction of the detaining authority and therefore the order of detention is required to be quashed and set aside. He has further raised a contention that on 20. 7. 2000 the District Magistrate has verified the contents and on the next day, in a mechanical manner the order of detention has been passed and therefore, the detaining authority has passed the order of detention without application of mind and he relied upon the decisions of this court reported in 2000 (3) GLR 2696 . Therefore, according to Mr. A. S. Dave learned advocate for the petitioner, these two contentions are enough to vitiate the order of detention. Mr. A. S. Dave learned advocate for the petitioner has also submitted that earlier this matter was argued fully before this court (Coram: Kundan Singh. J) but these two points were not raised by the petitioner and there was no decision on these two points by the earlier court (Coram:kundan Singh. J ). Therefore, according to Ms. A. S. Dave, learned advocate for the petitioner these two contentions can be examined before this court to decide the legality and validity of the detention order. This submission of Mr. A. S. Dave has not been disputed by Mr. J ). Therefore, according to Ms. A. S. Dave, learned advocate for the petitioner these two contentions can be examined before this court to decide the legality and validity of the detention order. This submission of Mr. A. S. Dave has not been disputed by Mr. H. L. Jani learned AGP and he fairly submitted that earlier when the matter was fully argued before this court (Coram:kundan Singh. J) these two contentions were not raised by the petitioner and these are new contentions raised on behalf of the petitioner before this court and the same can be considered in accordance with law. In light of the above submissions of both the learned advocates, when the earlier bench has not decided finally the present matter in respect of these two contentions, which were not raised before the earlier bench and when the Larger Bench has sent the back the petition to the learned Single Judge for disposal, I have heard the matter at length and I am considering the legality and validity of the detention order while considering the 2 contentions which have been raised by Mr. . Dave learned advocate for the petitioner challenging the order of detention. ( 6 ) MR. H. L. Jani learned AGP for the respondent - State submitted that no doubt from the record, one fact is established that on 29. 6. 2000 the statement of secret witnesses has been recorded by the PSI, Alang and the same has been verified by the Dy. Superintendent of Police on 4. 7. 2000 and on 20. 7. 2000 the detaining authority has simply endorsed the statement to the effect that he has verified the contents of the said statement and therefore, looking to the record at the time of verification the detaining authority has not call the secret witnesses for examining the genuineness of the statement made by the secret witnesses. Mr. H. L. Jani learned AGP has also submitted that after verifying the statement or contents of the statement by the detaining authority, on the next day when the order has been passed, then the view taken by this court in the above referred case of Ranubhai B. Bharwad vs. State reported in 2000 (3) GLR 2696 covers the contentions which have been raised on behalf of the petitioner. ( 7 ) I have considering the submission of both the learned advocate and according to my opinion, while considering the original record, admittedly the detaining authority is not able to justify or satisfy the subjective satisfaction from the record because on 29. 6. 2000 the statement of secret witnesses has been recorded by PSI , Alang and the same has been verified by the Dy. Superintendent of Police on 4. 7. 2000 and without calling the secret witness for examining the genuineness of the statement, the detaining authority merely endorsed the statement by making a note "verified the contents" is not enough to satisfy the subjective satisfaction of the detaining authority. It is the duty of the detaining authority to have subjective satisfaction as to the genuineness of the statement made by the secret witnesses. In absence of such subjective satisfaction from the record, the natural effect would be that the detention order is bound to be set aside. The established procedure is that the statement of secret witnesses which has been recorded by the PSI is required to be verified by detaining authority with a view to see that genuineness of the statement cannot be doubted when the same has been examined by the highest authority. Therefore, such a procedure has been established but merely endorsing the statement which has been recorded by the PSI to the effect that "verified the contents" is not enough and therefore, without examining the secret witnesses by the detaining authority or without calling the secret witnesses by the detaining authority if such endorsement has been made, then it is not proved that subjective satisfaction to claim privilege which is required under section 9 (2) of the PASA Act has been established and therefore, while claiming privilege which is required under section 9 (2) of the PASA Act not to supply the details, name and addresses of the witnesses which otherwise adversely affect the legal right of the petitioner for making effective representation against the statement of secret witnesses. Therefore, if the detaining authority claiming privilege not disclosed the names and address of such witnesses then he should have taken utmost care to examine the genuineness of such statement carefully instead of endorsing merely while making a note without verifying the contents and therefore, on this ground also according to my opinion the order of detention is required to be quashed and set aside. The second contention which has been raised is that on 20. 7. 2000 the detaining authority has verified the contents and on the very next day the detaining authority passed the order of detention mechanically without application of mind and therefore, considering the observations made by this Court in the case of Ranubhai B. Bharwad vs State reported in 2000 (3) GLR 2696 . The relevant observations made on page 2696 reads as under:" After referring to Kalidas C. Kahar vs. State of Gujarat 1993 (2) GLR 1659 the Court observed: The statements of the three witnesses in the instant case which were recorded before the Police Inspector on 17th August 1999,21st August 1999 and 25th August 1999 with regard to the incidents dated 10th July 1999, 13th June 1999 and 26th June 1999 were the material along with the proposal which is said to have been made on 27th August 1999 and it is clear from the record that it was on 29th August 1999 that the detaining authority has recorded its verification of all these three statements. There is nothing on record to show that the detaining authority had considered the proposal dated 27th August 1999 at any time prior to 29th August 1999 and on 29th August 199, all that has been done is that the concerned witnesses have stated before the detaining authority that the statements as had been made on the respective dates were correct and immediately thereafter on the following today i. e. on 30th August 1999 the detention order has been passed. The manner in which the verification has been recorded of the statements made by these three witnesses for the purpose of Sec. 9 (2) shows that the same has been done only as an empty formality inasmuch as the same witnesses had been called before the detaining authority and the detaining authority had recorded that whatever the statements made by the witnesses were correct. Thus, the whole exercise appears to have been done as a mechanical exercise and it is not borne out that there is an active application of mind on this aspect of the matter by the detaining authority for the purpose of verification of the facts as had been disclosed by the witnesses so as to express the fear and to invoke the privilege under Sec. 9 (2) against the disclosure of the names and addresses of the witnesses and it thus appears on the basis of the ratio of the decision of the Division Bench that it is a case of wrong exercise of power under Sec. 9 (2) and it is established that in such cases, the wrong exercise of power under Sec. 9 (2) adversely affects the detenus right of making an effective representation guaranteed under Art. 22 (5) of the Constitution of India. Once the materials are placed before the detaining authority with the proposal by the sponsoring authority it must have reasonably sufficient time for the purpose of verification of the facts and the consideration of the entire material with an active application of mind and the order has to be passed at the earliest opportunity but in this process to strike the balance between the public interest and the right of the detenu either of the two should not be defeated in any manner and the whole process must indicate that the detaining authority had applied its mind with the requisite approach and it had also devoted sufficient time before arriving at the decision to claim the privilege under Sec. 9 (2) of the Act and also to come to the conclusion that the detenu was required to be detained immediately. In the facts of the present case, I find that this requirement of maintaining the balance has been defeated and the detention order has been passed on 30th August 1999 i. e. on the next day to the date on which the materials were considered by the detaining authority. " ( 8 ) IN the light of the above observations which have been made and considering the entire facts on record when subjective satisfaction of the detaining authority has not been established and mechanically without application of mind the order of detention has been passed after verifying the statement of secret witnesses and therefore, according to my opinion the order of detention dated 21. 7. 2000 is required to be quashed and set aside. ( 9 ) IN the result, present petition is allowed. the order of detention dated 21. 7. 2000 passed by the District Magistrate, Bhavnagar is quashed and set aside and the detenu Koli Bharatbhai Ukabhai Vegad who is detained in District Jail, Junagadh is ordered to be set at liberty forthwith if he is not required in any other cases. Rule is made absolute. No order as to costs. .