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2012 DIGILAW 462 (MP)

Prabhu @ Prabhu Singh v. State of M. P.

2012-04-30

S.C.SHARMA, SHANTANU KEMKAR

body2012
ORDER 1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 27.07.2011 passed by District Magistrate, Ujjain detaining him under section 3(2)(3) of the National Security Act, 1980. 2. 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 provisions of law and without giving an opportunity of hearing to the petitioner. 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 in the order are still pending as the petitioner has not been convicted in any of the cases registered against him. 3. Today when the matter came up for hearing learned counsel for the petitioner has pointed out that inspite of seeking time to file affidavit of District Magistrate 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 vs. State of M.P. and others, the impugned order is liable to be set aside. 4. We have gone through the order sheet dated 9.02.2012 and 21.03.2012 by which time to file the affidavit of District Magistrate was granted. However, till date, no such affidavit has been filed. 5. In the case of Usman son of Gani Khan vs. State of M.P. and others (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. 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. The reply also does not show that all procedural steps, as required under the Act, were taken within the specified time. Except for newspaper 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 of this Court 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.” 6. In the light of the aforesaid order passed by the Division Bench, we are of the view that the submissions of learned counsel for the petitioner deserves to be accepted. 7. In the present case, the affidavit which has been filed by the respondents is of SDOP, Tarana, District, Ujjain. The allegations made by the petitioner against the respondents in writ petition have not been replied parawise. The affidavit which has been filed in support of reply does not say that the SDOP, Tarana, 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 District Magistrate. The affidavit which has been filed in support of reply does not say that the SDOP, Tarana, 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 District Magistrate. The allegations levelled in the writ petition that there is 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 District Magistrate. 8. In the circumstances, having regard to the law laid down in the case of Usman son of Gani Khan vs. State of M.P. and others (supra) in our considered view, the petition deserves to be and is hereby allowed. As a result, the impugned order of detention and the order of State Government affirming the detention are quashed. The petitioner be set at liberty forthwith, if not required in any other case.