SAZID KHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE challenge in this writ application was to the order of detention dated 2.10.2000 passed under sub -section (2) of section 3 of the National Security Act, 1980 (in short, "the Act"). The order was passed by the then District Magistrate Mr. Basant Charan Swain, who had been conferred powers under the said provision of the Act in terms of the Home Department Order No. 5386/C dated 14.09.2000.

(2.) AFTER the necessary statutory safeguards were followed and the representations having been rejected and considering the opinion of the Advisory Board that there was sufficient ground for detaining the petitioner, the order of detention was confirmed by the State Government on 27.11.2000.

(3.) THE learned counsel for the petitioner placed reliance on a decision of the Apex Court in Biru Mahato V. District Magistrate, Dhanbad, . In support of his contention that as the District Magistrate who had passed the impugned order of detention had not filed an affidavit, which in fact was filed by the subsequent incumbent in the said office of the District Magistrate the impugned order of detention was liable to be quashed. Per contra, the State has placed reliance on the decision of the Apex Court in State of Punjab and others V. Jagdev Singh Talwandi, . In support of his contention that in absence of any mala fide against the District Magistrate passing the order of detention, his failure to file a counter affidavit will not vitiate the order of detention. In this context, we may also make a reference to the decision of the Apex Court in Shaik Hanif and others V. State of W. Bengal, , wherein it has been held that failure to file a counter affidavit by the District Magistrate who had passed the order of detention, may be an impropriety though in most of the cases it may not be of much consequence; moreso when there is no allegation of mala fide against the detaining authority.