2008 ALL MR (Cri) 2443
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

K.J. ROHEE AND B.P. DHARMADHIKARI, JJ.

Devanand @ Deva Radhakrishna Mishra Vs. State Of Maharashtra & Anr.

Criminal Writ Petition No.297 of 2008

25th July, 2008

Petitioner Counsel: Mr. S. A. SACHIN JAISWAL
Respondent Counsel: Mr. Y. B. MANDPE

(A) Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3(1) - Constitution of India, Art.22(5) - Detention order - Certificate showing that petitioner was learning in 10th standard and had taken education in Marathi medium school - Held, only on basis of the said certificate it is difficult to hold that the petitioner was fluent in Marathi or understood Marathi fully so as to comprehend the implications of detention order and papers. 2004(4) Mh.L.J. 81 - Ref. to. (Para 18)

(B) Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3(1) - Order of detention - Subjective satisfaction - Person whose subjective satisfaction is in issue shall file an affidavit and successor in office cannot file his affidavit to substantiate such satisfaction of earlier occupant. AIR 1982 SC 1539 - Rel on. (Para 20)

Cases Cited:
Biru Mahato Vs. District Magistrate, Dhanbad,, AIR 1982 SC 1539 [Para 5,20]
Suresh Vadilal Vyas Vs. Union of India, 1997 ALL MR (Cri) 1130=1997(3) Crimes 547 [Para 6]
Piara Singh Vs. State of Punjab, AIR 1987 SC 2377 [Para 6]
Vijaya Raju Gupta Vs. R. H. Mendonca, 2001 ALL MR (Cri) 48=2001(1) Mh.L.J. 449 [Para 6,17]
Smt. Phulwari Jagdambaprasad Pathak Vs. Shri. R. H. Mendonca, 2000 ALL MR (Cri) 1503 (S.C.)=JT 2000[8] SC 209 [Para 7,16]
Anand Hanumathsa Katare Vs. Additional District Magistrate, 2007 ALL SCR 778 : 2007 Cri.L.J. 30 [Para 7,19]
Nasibullah Khan Vs. M. N. Singh, 2002 ALL MR (Cri) 521=2002(1) Mh. L.J. 572 [Para 8]
T. V. Sravanan @ S.A.R. Prasana Vs. State through Secretary, (2006)1 SCC 593 [Para 9]
Kamarunnissa' case, (1991)1 SCC 128 [Para 9]
Sattar Abdul Menon Vs. State of Maharashtra, 2004(4) Mh.L.J. 81 [Para 18]


JUDGMENT

B. P. DHARMADHIKARI, J. :- Rule returnable forthwith. Heard finally by consent of parties.

2. The present petition has been filed both under Articles 226 and 227 of the Constitution of India by the detenu Devanand challenging the order of detention dated 07.03.2008 passed by the District Magistrate, Yavatmal (Respondent no.2) under section 3[1] of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "the 1981 Act" for short) and its continuation thereafter. The respondent no.1 before this Court is State of Maharashtra through its Secretary, Home Department (Special) i.e an authority competent to confirm the detention after receipt of report of Advisory Board under S.12 of the 1981 Act.

3. The order of detention passed by respondent no.2 has been approved by the State Government within time and the papers were also forwarded to the Advisory Board in terms of Section 10 of the 1981 Act. The Advisory Board has heard the detenu on 05.04.2008 and submitted its report to respondent no.1. The said report of the Advisory Board is dated 15.04.2008 and it is approved by respondent no.1 on 19.04.2008. Thus, the reference to Advisory Board was made within a period of three weeks from the date of detention and the Advisory Board has also submitted its recommendation within 7 weeks thereof. The detention is for a period of one year as per order of respondent no.1 dated 19.04.2008. It is an admitted position that in pursuance of the detention order dated 07.03.2008 the detenu has been taken in custody on 11.03.2008, thus period of one year is to be counted from 11.03.2008.

4. In this background we have heard Advocates Shri. S. A. Jaiswal and Sachin Jaiswal, for petitioner and Shri. Y. B. Mandpe, Additional Public Prosecutor for respondents. The Superintendent working in the office of the Collector at Yavatmal i.e District Magistrate has filed affidavit in reply on behalf of respondent no.2 with certain documents. At the final hearing of the matter, the learned A.P.P. has handed over a communication dated 07.03.2008 forwarded by the District Magistrate, Yavatmal to the respondent no.1 seeking its approval for action taken by him; communication dated 13.3.2008 by respondent no.1 to respondent no.2 with order dated 13.3.2008 granting approval in terms of Section 3[3]; copy of the confidential communication dated 15.4.2008 forwarding report of the Advisory Board to the State Government with copy of report [part-I and part-II]. He has also produced copy of order dated 19.04.2008 passed by the State Government confirming the detention after receipt of the opinion of the Advisory Board.

5. Advocate Shri. Jaiswal, at the outset has contended that the present petitioner is already in jail in connection with crime No.267/2007 registered against him for the offence punishable under Sections 302, 307, 147, 148, 149 of Indian Penal code read with Section 135 of the Bombay Police Act and Sections 4 and 25 of the Indian Arms Act. He states that there was no compelling reason to pass such detention order as the petitioner is in magisterial custody and the impugned order does not disclose any compelling circumstance for ordering such detention of petitioner or any satisfaction in that respect reached by respondent no.2. He relies upon various judgments in support of his contention. He further argues that the language of the order is Marathi and the petitioner does not understand Marathi. He states that the petitioner's mother tongue is Hindi and he studied in Marathi medium school upto 10th standard. He points out that in 1998 the petitioner left the school after he failed in 10th standard and thereafter, he totally lost contact with Marathi language. He therefore states that the documents and impugned order ought to have been served upon the present petitioner in Hindi, or ought to have been explained to him in Hindi. He points out that the officers of the government have while communicating the order of approval dated 13.3.2008 passed by the State Government explained the same in Hindi to the present petitioner. He states that the said order dated 13.3.2008 and communication of the State Government to him dated 13.3.2008 are both in English language and the jailer has placed it on record that the contents thereof have been explained to the petitioner in Marathi and Hindi. He states that as the petitioner does not understand Marathi the said officer has explained the contents in Hindi. He points out that as this has not been done in relation to the order of detention dated 07.03.2008 & its accompaniments, the petitioner could neither understand its contents nor its implication. He urges that as the order is in Marathi the opportunity to make representation offered by the said order to the present petitioner was never communicated to him and he could not and did not utilize it . He therefore, urges that even the constitutional right of the petitioner has been violated and therefore, the detention has to fail. He further points out that even some important documents relevant for reaching the legal satisfaction are not looked into by the respondents and this has also vitally affected the case of the petitioner. He points out that this is a case of total non application of mind. According to him after the year 2004 the petitioner has not committed any offence falling under Chapter XVI or Chapter XVII of Indian Penal Code and therefore he cannot be termed as 'dangerous person'. within the meaning of Section 2[b][i] of the 1981 Act. By placing reliance upon the judgment in the case of Biru Mahato Vs. District Magistrate, Dhanbad (AIR 1982 SC 1539), he states that in such circumstances when there was challenge to recording of subjective satisfaction of the respondent no.2 in person i.e. Shri. Anil Bansod himself ought to have filed the affidavit in support of the action and the affidavit filed by the Superintendent in his office needs to be ignored.

6. He further urges that after the petitioner was produced before the Advisory Board, the petitioner contacted his Advocate on 15.04.2008 and the Advocate for the petitioner has forwarded the representation on his behalf to the respondent no.2 about failure to explain the documents and order so as to enable him to make representation. He further states that extra copies of this representation were also forwarded to respondent no.2 for transmitting the same to the Secretary, Home Department; to the Advisory Board and to the Chief Minister, but the representation has not been decided so far. He relies upon the judgment delivered by the Division Bench in the case of Suresh Vadilal Vyas Vs. Union of India and others, [1997[3] Crimes 547] : [1997 ALL MR (Cri) 1130] to state that when the representation is not replied to or considered, the detention deserves to be quashed. Judgment of Hon'ble Apex Court in the case Piara Singh Vs. State of Punjab [AIR 1987 SC 2377] is also relied upon to state that delay in deciding the representation is fatal to detention of the detenu. The judgment of Division Bench in the case of Vijaya Raju Gupta Vs. R. H. Mendonca and others, [2001[1] Mh.L.J. 449 : (2001 ALL MR (Cri) 48)] is relied upon to point out that in-camera statement allegedly recorded by the police authorities and allegedly verified by the S.D.P.O. have been mechanically relied upon by respondent no.2 and therefore, the order as also the detention needs to be quashed and set aside.

7. Shri. Mandpe, learned A.P.P. on the other hand states that respondent no.2 has produced school leaving certificate issued by the Headmaster of Shri. Shivaji Vidhyalaya, Yavatmal which shows that the petitioner was studying in Marathi medium school and therefore, he has got knowledge of Marathi. He further states that there are no personal allegations against the respondent no.2 or incumbent Shri. Anil Bansod, and therefore the affidavit filed on his behalf by the responsible officer like Superintendent deserves to be accepted. He further invites attention to the order of detention to point out that subjective satisfaction has been recorded by the respondent no.2 and as such all the objections and arguments of the petitioner are misconceived. He points out that respondent no.2 has also found that the petitioner was in magisterial custody and can be released on bail and therefore, his detention was essential. He invites attention to the judgment in the case of Smt. Phulwari Jagdambaprasad Pathak Vs. Shri. R. H. Mendonca and others, [JT 2000[8] SC 209 : (2000 ALL MR (Cri) 1503 (S.C.))] to contend that in-camera statement as recorded can be used for ordering detention of the present petitioner. He has also relied upon the judgment of Hon'ble Apex Court in the case of Anand Hanumathsa Katare Vs. Additional District Magistrate and others, [2007 Cr.L.J. SC 30] : [2007 ALL SCR 778] to state that when representation is received after the detention of the petitioner is confirmed or approved by the State Government in exercise of the powers conferred under Section 12 of the 1981 Act, such representation cannot be looked into. He states that on 15.04.2008 the Advisory Board submitted its recommendation and report to respondent no.1, and respondent no.1 accepted and approved it and ordered detention for a period of one year on 19.04.2008. Till 19.04.2008 no representation was made by the petitioner. He urges that the representation dated 15.04.2008 forwarded by the Advocate for petitioner was received on 19.04.2008 i.e. after respondent no.2 or respondent no.1 have became functus officio. He therefore, states that failure to decide the said representation immediately does not in any way affect the order of detention dated 07.03.2008 or continuation of detention. He further points out that the petitioner appeared in person before the Advisory Board and at that time he did not make any grievance about the language or about not extending to him any opportunity. He therefore, states that the petition as filed is without any merit and needs to be dismissed.

8. 2002[1] Mh.L.J. 572 : [2002 ALL MR (Cri) 521] (Nasibullah Khan Vs. M. N. Singh), is the Division Bench judgment of this Court in which it has been held that, when a person sought to be detained is already in custody, compelling reasons justifying detention are necessary. The Division Bench has found that the grounds of detention therefore must show that the detaining authority was aware of the fact that the detenu is already in detention and that there were compelling reasons justifying his detention inspite of he already being in custody. It is further observed that the compelling reasons in the context of making an order for detention of a person already in custody may be - [a] the detenu was likely to be released from custody in near future; and [b] taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities.

9. We find that the Hon'ble Apex Court has in judgment in the case of T. V.Sravanan @ S.A.R. Prasana Vs. State through Secretary and another [2006]1 SCC 593] considered the said aspect and has laid down that the conditions prescribed in Kamarunnissa case-(1991)1 SCC 128 must be followed. In paragraph no.9 the relevant portion of Kamarunnissa judgment is reproduced. In paragraph no.14 the Hon'ble Apex Court has found that the imminent possibility of detenu coming out on bail was in facts before it merely ipse dixit of the detaining authority unsupported by any material whatsoever. There was no material before the said Authority to conclude that the detenu was likely to be released on bail. The Hon'ble Apex Court has also noticed that the bail applications moved by the detenu before it were already rejected by the courts and there was no material whatsoever to apprehend that he was likely to move bail application and / or that there was imminent possibility of his prayer for bail being granted.

10. In this light when the impugned order of detention dated 7.3.2008 passed by respondent no.2 is looked into, in paragraph no.4[e], respondent no.2 Authority has mentioned that the question whether the present petitioner would be granted bail after filing of charge-sheet, was placed before the Government Advocate (P.P.) and the Public Prosecutor opined that grant of bail was exclusively within the domain of the Court which deals with it after hearing both the sides by imposing conditions upon the accused and if the accused accepts those conditions and fulfills the same, he can be released on bail. It is also mentioned in next sentence that as during investigation more than sufficient evidence was collected against the detenu, charge sheet has been filed and the detenu is in Magisterial Custody as he was not granted bail till then. In paragraph no.6, it is mentioned that respondent no.2 was certain that the detenu would be indulging in similar activities if released in future. We have referred to Marathi document because the original order of detention dated 07.03.2008 is in Marathi language and we have noticed certain mistakes in its English translation. The certainty of release of detenu in future mentioned in paragraph no.6 of the original detention order is not translated at all into English.

11. The certainty mentioned above is of release in future. In Marathi document it is expressed that the detenu will be released on bail by the Competent Court. In order to find out what was the opinion given by the Public Prosecutor as requested by Shri. Mandpe, A.P.P. we have also perused the communication dated 01.03.2008 sent by the Police Inspector of Wadgaon Police Station to Assistant Public Prosecutor working at J.M.F.C. Court no.2 Yavatmal. In the said letter the Police Inspector has written that the detenu was in Magisterial custody in connection with crime no.267/2007 under section 147, 148, 149, 307 of Indian Penal Code read with section 135 of the Bombay Police Act and Sections 4 and 25 of the Arms Act. The learned A.P.P. was requested to give his opinion whether the detenu would be able to get bail and whether he could be released on bail. The learned A.P.P. has given reply on the same day and communicated that on going through the crime and the sections involved i.e. Sections 307 and 324 Indian Penal Code, if the accused applied for bail and, if the court thought it fit and accused fulfilled the conditions imposed on him, he could get bail and be released. Thus the learned A.P.P. has mentioned Section 324 of Indian Penal Code for which no offence is registered against the detenu. The learned A.P.P. has not pointed out the facts and circumstances of the matter which according to the learned A.P.P. may result in grant of bail. This communication by the learned A.P.P. is not considered by the Police Inspector who forwarded the proposal to the District Magistrate, Yavatmal on 03.03.2008. He has also mentioned that the detenu was in Magisterial Custody since 12.12.2007. This proposal is then looked into by the S.D.P.O. Yavatmal who again mentions that the detenu was in Magisterial Custody. He has also mentioned that looking to the tendency or inclination of the detenu, if he was released on bail he would again indulge in similar activities. The proposal is then considered on 5.3.2008 by the Superintendent of Police, Yavatmal and he also has only mentioned that the detenu was in Magisterial Custody. Thus the opinion expressed by the Government Advocate i.e A.P.P. is only reproduced by respondent no.2 competent authority, in the mode and manner mentioned above. Respondent no.2 thus, has not recorded any compelling reason warranting passing of detention order and has also not given any imminent possibility of release of the detenu on bail. Here the opinion expressed by the learned A.P.P. is in general words and can be expressed in all Criminal cases. It can not constitute a reason for impugned order.

12. While perusing the communication dated 01.03.2008, sent by the Police Inspector and the opinion given by the learned A.P.P., we have noticed that the said opinion was sought only on the basis of the F.I.R. as lodged. We are saying so because in the F.I.R. dated 13.09.2007 only sections reflected are Sections 147, 148, 149 and 307 of Indian Penal Code. However, it appears that one of the injured victims Amol Ghugare expired in the hospital on 14.09.2007 and Section 302 of Indian Penal Code therefore came to be added. Final report under section 173 of Criminal Procedure Code filed by the police in the court i.e. charge sheet dated 11.12.2007 clearly mentions Section 302 of Indian Penal Code also. The said section or its effect is not looked into by the A.P.P. while expressing his opinion on 1.3.2008. It is apparent that the A.P.P. has formed his opinion only on the basis of the communication received by him from the Police Inspector. Non application of mind is apparent from the fact that the learned A.P.P. has mentioned Section 324 of Indian Penal Code, which is not at all relevant in the matter and has not mentioned Section 302 thereof, which is very vital. Thus the wordings in the opinion of the learned A.P.P. are read "going through the above crime and section applied i.e. 307, 324 I.P.C." clearly reveals non application of mind by the learned A.P.P. Respondent no.2 has also not applied his mind independently to these aspects and has not recorded any positive opinion about imminent possibility of release of the detenu on bail from Magisterial Custody. Respondent no.2 on the other hand has ignored the general language used in the opinion of the learned A.P.P.

13. In view of this, it is apparent that the fact of existing Magisterial Custody of the petitioner and its impact or relevance in so far as the preventive detention is concerned, is not at all evaluated in accordance with law by respondent no.2. There is no finding recorded by respondent no.2 that there was or there is imminent possibility of release of detenu on bail in crime no.267/2007 under sections 147, 148, 149, 307 and 302 of Indian Penal Code read with Section 135 of the Bombay Police Act and Sections 4 and 25 of the Arms Act. The said order therefore stands vitiated.

14. The various offences looked into by the respondent no.2 are mentioned in the impugned order. The most recent offence is vide Crime No.267/2007 on 13.09.2007. The sections under which the said crime is registered are already mentioned by us above. Even the involvement in earlier offences is mentioned by the police inspector in his proposal for detention dated 03.03.2008. Prior to crime no.267/2007 the earlier offence under Indian Penal Code is Crime no.548/2005 under sections 147, 148, 149 and 302 of Indian Penal Code. Offence prior thereto is Crime no.37/2005 under section 399 of Indian Penal Code. There is one offence under section 324 read with section 34 of Indian Penal Code in the year 2000-2001. Other offence of the year 2001 is under sections 148, 149, 323 and 307 of Indian Penal Code. Next offence thereafter is of the year 2004, which is under sections 147, 148, 149, 452, 323 and 427 of Indian Penal Code. All these offences are covered by Chapter 26 and Chapter 27 of the Indian Penal Code. In any case all offences committed in the year 2005 and crime no.267/2007 are also falling in Chapter 26 and 27 of Indian Penal Code. We are, therefore, not in a position to accept the contentions of Advocate Shri. Jaiswal that the petitioner is not a "dangerous person" as defined in Section 2[b-1] of the 1981 Act.

15. In order to show the live link with the detention the authorities have relied upon Crime no. 267/2007. Superintendent of Police, Yavatmal has in his observations recorded on 05.03.2008, while recording his satisfaction that the petitioner is a dangerous person and fit for detention under 1981 Act, mentioned that the proposal was based on offence registered vide Crime no.267/2007. The Superintendent of Police has also mentioned that as Sections 147, 148, 149, 307, 324 and 302 of Indian Penal Code along with Section 135 of the Bombay Police Act and Sections 4 and 25 of the Arms Act, are involved proposal has been moved on 03.03.2008 after completing the formalities. We are, therefore, not in a position to accept the arguments of the learned counsel for the petitioner about absence of live link in the matter.

16. For the purpose of proposal the authorities have also relied upon two in-camera statements. The witnesses whose in-camera statements are recorded are mentioned as Witness-A and Witness-B. We have perused the text of those statements as reproduced by the Police Inspector in his proposal dated 03.03.2008 and also as considered by respondent no.2 in the impugned order of detention. The statements support the action of the department. However, the challenge of petitioner is to the satisfaction recorded by respondent no.2 in relation to those in-camera statements. The learned A.P.P. has relied upon the judgment of Hon'ble Apex Court in the case of Smt. Phulwari Pathak [2000 ALL MR (Cri) 1503 (S.C.)] (supra), to contend that, in-camera statement can be used as material on the basis of which respondent no.2 can reach the findings. It is not in dispute before us that respondent no.2 can base its conclusions on such in-camera statements.

17. In the judgment in case of Vijaya Raju Gupta [2001 ALL MR (Cri) 48] (supra), the Division Bench of this Court has held that the detaining authority must be satisfied about the truthfulness of the statement. In paragraph no.6 it has been observed that, as detention order or grounds of detention no where state that the detaining authority was satisfied about the truthfulness of the statements made by such in-camera witnesses, the detention was vitiated. In that case the defence was that in-camera statements were false and fabricated and those were denied by the detaining authority by filing its affidavit. It was further mentioned that the in-camera statements were verified by high grade police officer of the rank of Assistant Commissioner of Police. The Division Bench there found that the Assistant Commissioner of Police had only verified whether the statement made by the witness was recorded as orally stated by him. The Division Bench also found that therefore, there was nothing by way of any contemporaneous document or material to hold that in-camera statements were true and as such the finding of the detaining authority that those statements were true and genuine, stood vitiated. In facts before us, the ground that in-camera or secret complaints are false and concocted to support the detention order and in fact in-camera statements have not been verified in accordance with the law, has been expressly raised by the petitioner. The perusal of the in camera statements produced before us reveal that both the statements are recorded by the Inspector of Police and were submitted to the S.D.P.O. On 04.03.2008. The S.D.P.O has stated that the person giving in-camera statement was present before him and his statement was read over to the said witness. The witness accepted that it has been recorded correctly as told by him. S.D.P.O. felt satisfied that the incidence narrated by him and fear of detenu perceived by the witnesses were true. Thus here, the S.D.P.O. has on 04.03.2008 expressly mentioned after personal verification that he was satisfied that the incidences or events disclosed by the witnesses were true. The above Division Bench judgment therefore, has no application in the present facts and it cannot be said that respondent no.2 has committed any error, as here, he has not recorded his own finding in the absence of any contemporaneous material. Respondent no.2 has mentioned that he was satisfied that the in-camera statements were true.

18. The petitioner has made a grievance that the detention order and other documents with it were not supplied to him in the language understood by him. A Division Bench of this Court has in the case of Sattar Abdul Menon Vs. State of Maharashtra (2004 [4] Mh.L.J. 81), held that if the detenu was not knowing the said language, he is deprived of his right to make an effective representation and therefore, the impugned order of detention was liable to be set aside. In the present case, respondent no.2 has produced certificate issued by Shri Shivaji Vidhalaya, Yavatmal which mentions that the petitioner was learning in 10th standard in that school in the year 1997-98. On the basis of this document it is sought to be contended that the petitioner was taking education in Marathi medium school and therefore, was fluent in Marathi. Only on the basis of the said certificate it is difficult to hold that the petitioner was fluent in Marathi or understood Marathi fully so as to comprehend the implications of detention order & papers. The two documents produced by respondent no.2 on record both dated 13.03.2008 contain endorsements made by the jailer of Central Prison, Nagpur that those orders in English have been explained to the petitioner in Marathi and Hindi. It is, therefore, apparent that the said jailer found that the petitioner was not understanding Marathi and has therefore, mentioned that the same were explained in Hindi also. This grievance is also made by the petitioner in his representation dated 15.04.2008 which the respondent claims to have received on 19.04.2008. The petitioner has not made any representation either to the detaining Authority or to the State Government or before the Advisory Board. He was present before the Advisory Board on 05.04.2008 and was heard by the Advisory Board. The Advisory Board has only recorded that he had not made any representation, but has not verified whether he was aware of his constitutional rights. No documents are placed before us to show that the petitioner understood Marathi and chose not to make any representation as communicated to him by the order of detention dated 07.03.2008. We are, therefore, not in a position to hold that no prejudice has been caused to the petitioner because of supply of detention order or documents in Marathi. In view of the Division Bench judgment mentioned above, it is apparent that the impugned order of detention cannot be sustained even on this count.

19. The next contention of Advocate Shri. Jaiswal is that representation dated 15.04.2008 has not been considered either by the respondent no.2 or by any other authority, and therefore, the continuation of detention is illegal . The representation admittedly has reached the Government on 19.04.2008, after it confirmed the order of detention under section 12 of the 1981 Act. In view of the judgment of the Hon.ble Apex Court in the case of Anand Hanumathsa Katare, 2007 ALL SCR 778 (supra), it is apparent that the representation which has been made after action upon the report of Advisory Board was completed could not have been considered. However, the petitioner was free to move the application for revocation of detention as contemplated under section 14 of the 1981 Act, and he has not moved any such application.

20. In the judgment of Biru Mahato (supra), the Hon'ble Apex Court has held that in preventive detention matters affidavit filed by the deponent describing himself as District Magistrate could not have been accepted as he was not the District Magistrate whose subjective satisfaction was in issue. Mere occupation of the said office is not sufficient and successor in office cannot file his affidavit to substantiate such satisfaction of earlier occupant. Before the Hon'ble Apex Court subjective satisfaction of holder in office was put in issue. Even before us the said satisfaction has been put in issue by contending that the compelling reason to order detention of petitioner or imminent possibility of his release on bail has not been looked into by respondent no.2. The other ground on which such subjective satisfaction is assailed is in relation to in-camera statements and verification thereof. Though it has been argued before us that the affidavit in reply has been filed on behalf of respondent no.2, we find that there is no such authority filed on record or mentioned in the affidavit sworn by Shri. R. J. Rathod, Superintendent in the office of the Collector, Yavatmal. We therefore, find that the judgment of the Hon'ble Apex Court mentioned above is clearly applicable in the present facts and the affidavit of Shri. R. J. Rathod needs to be ignored. It is to be noted that this issue was raised before us on 11.07.2008 itself, and thereafter the matter was adjourned to 15.07.2008 and then to 16.07.2008. Thus though the respondents got opportunity to file appropriate affidavit of respondent no.2 Shri. Bansod on record, no such affidavit has been placed before us till date. It is therefore, apparent that the affidavit in reply filed by Shri. R. J. Rathod cannot be looked into at all. It is, therefore, apparent that the requirement of recording a compelling reason to order detention of petitioner already in custody or imminent possibility of his release on bail can not be said to have been looked into by respondent no.2

21. We, therefore, find that the order of detention dated 07.03.2008 passed by respondent no.2 District Magistrate, Yavatmal is unsustainable and the same is accordingly quashed and set aside. Writ Petition is accordingly allowed. Rule is made absolute in aforesaid terms with no order as to costs.

Petition allowed.