RUPA DULICHAND KHARE Vs. DISTRICT MAGISTRATE JALNA

JUDGEMENT

(1.) THIS writ petition is filed by the petitioner challenging the order of detention passed against him on 22nd of March, 1989 under the provisions of Section 3 of National Security Act by the learned District Magistrate, Jalna, which is confirmed by the respondent nos. 2 and 3 subsequently. Shri Bora, learned Counsel for the petitioner, challenged the order of detention on several grounds. His first contention is that the order suffers from non-application of mind inasmuch as at least in two cases referred to in grounds supplied to him the petitioner was acquitted and the acquittals are not considered by the detaining authority. His second contention is that the petitioner was arrested on 16th of March 1989 under the provisions of Section 151 (3) of Criminal Procedure Code on practically the same allegations. The order of arrest was challenged by the petitioner before the Additional Sessions Judge, Jalna, and his representation was allowed by the learned Judge. on 21st of March, 1989. The present order of detention is passed on 22nd of March, 1989. The order setting aside the arrest of the petitioner under Section 151 (3)Criminal Procedure Code was not brought to the notice of the detaining authority nor the detaining authority had considered the decision passed by the Additional Sessions Judge while allowing the representation of the petitioner on 21st of March, 1989. The order, therefore, suffers from material irregularity and the order is therefore vitiated. His third contention is that though the order of detention was passed by one district Magistrate named Mr. Surve, the affidavit-in-reply is filed by another District Magistrate one Mr Anand B. Kulkarni who is presently working as District Magistrate who is not competent to file the affidavit-in-reply in such matters. The affidavit-in-reply, therefore, cannot be the basis for consideration of the subjective satisfaction of the learned district Magistrate who passed the order of detention His fourth contention is that the order is mala fide inasmuch as the order is passed because of the political activity of the petitioner and also because of inimical attitude of the Police Department towards the petitioner. His further contention is that the instances quoted relate to the problem of law and order and do not relate to public order.

(2.) IT is unnecessary to go into all the questions raised by Shri Bora in this petition. We have seen the affidavit-in-reply filed in the present case. Admittedly the order of detention is passed by Sbri Surve who was working as District Magistrate, Jalna, then. The affidavit is filed by one mr. Anand B. Kulkarni who is now working as District Magistrate, Jalna in view of the ratio laid down by the Supreme Court in Mohinuddin v. Dist. Magistrate, Beed, (AIR 1987 SC 1977) the Supreme Court has held that in return to a rule nisi issued by the Supreme Court or the High court in a habeas corpus petition, the proper person to file the affidavit is the District Magistrate who had passed the impugned order detention and he must explain his subjective satisfaction and the grounds therefor and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters. In the present case the affidavit is not filed by the concerned District Magistrate but was filed by different Magistrate who had not passed the order of detention. We have gone through the affidavit-in-reply. The affidavit does not show any reason as to why the District Magistrate who had passed the order cannot file affidavit. The affidavit, therefore, suffers from material irregularity and fails to explain the subjective satisfaction which is required for passing the order of detention under Section 3 of National Security act.

(3.) THE petitioner has averred in the petition that he was arrested on 16-3-1989 under Section 151 (3) Criminal Procedure Code his representation was allowed by the learned Additional Sessions Judge, Jalna, on 21 st of march, 1989. The petitioner has contended that the detaining authority has not taken into consideration this circumstance while detaining the petitioner under the provisions of National Security Act. We have perused the affidavit-in-reply, for whatever its worth, even though it is not filed by the same District Magistrate. What we find in this connection from the affidavit is that the District Magistrate has merely stated that it is irrelevant and it is not required to be considered while passing the detention order regarding the non-consideration of orders of acquittals passed in favour of the petitioner in two crime mentioned in the grounds at Sr. Nos. 3 and 4. What is mentioned in the affidavit-in-reply is that the acquittal of the petitioner does not mean that the petitioner was not involved in any illegal activities It is clear from the statements made in the affidavit-in-reply that the detaining authority was not made aware of the acquittals recorded in favour of the petitioner nor while satisfying itself the detaining authority has taken into consideration the fact of acquittal. In view of the ratio laid down by the Supreme court in D. S. Agarwal v. Police Commissioner, (AIR 1989 SC 1282) the supreme Court has held that the requisite subjective satisfaction of the detaining authority, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order, the satisfaction is vitiated and detention invalid. In view of this ratio laid down by the Supreme Court, in the present case, two of the cases mentioned in the grounds resulted in acquittal of the petitioner. This material was not placed before the detaining authority. The satisfaction will have to be treated as vitiated The order of detention, therefore, is required to be quashed.