ABDUL RAG\HEMAN MUNNO ABDUL AZIZ SHAIKH v. DISTRICT MAGISTRATE

has challenged the order of detention on number of grounds, inter alia on the ground that the genuineness of the claim of privilege made by the Detaining Authority u/S. 9(2) of the PASA Act vis-a-vis the statements of the witnesses is under doubt. According to his submission in fact the witnesses in their statements have said that their addresses, names, place of business, etc. should not be disclosed to the detenu as they were apprehending danger to their lives and the property. Such apprehension or fear expressed by the witnesses in their statement was before the Authority who recorded the same. The Detaining Authority has not recorded the statements. The Detaining Authority itself was required to be subjectively satisfied with the claim of privilege which it was seeking to make was justified. Unfortunately, below every statement the concerned authority has written one word, namely, "verified" and based on such endorsement made by the authority concerned, the Detaining Authority has claimed privilege.

6.(cid:9)In support of the aforesaid submission to the effect that there is no satisfaction on the part of the concerned Authority as also the Detaining Authority about the genuineness regarding the claim of privilege made by the Detaining authority u/S. 9(2) of the PASA Act, reference has been made to a decision of this Court in Jakirbhai Rahimbhai Nagori V/s. District Magistrate, Mehsana and ors. reported in 1996 (1) G.L.H. 300, which in turn has made reference to a decision of the Division Bench of this Court in the case of Koli Ashwin v/s. State of Gujarat in Special Criminal Application No. 1812 of 1993 dated 12/9/1994. The observations of the Division Bench have been reproduced in Jakirbhai's case (supra) and they also might be referred to here :- "However, as is well established, for exercising the power under section 9(2) what is required for a detaining authority is that he must come to a subjective satisfaction himself and for that purpose, he must be able to point out either in the grounds or in the contemporaneous record that he had sufficient material before him to come to that subjective satisfaction. In the instant case, in the aforesaid background of the statement of each of the witnesses, when we turn to the statements for further material, which the detaining authority can make use of for arriving at a subjective satisfaction except for one word "verified" used by the Dy.S.P., who apparently has put it pursuant to an instruction received from the detaining authority for verifying the statement, there is no other material. About what has been verified, what were the instructions and to what extent the verifying authority himself was satisfied about the apprehension expressed, there is nothing either in the grounds of detention along with its compilation or in the contemporaneous record from the office of the detaining authority. "

7.(cid:9)Having heard the learned AGP for the State, I am of the opinion that the aforesaid decision clinches the issue in favour of the petitioner. The result is that it shall have to be found that the continued detention of the detenu is, therefore, required to be snapped by declaring it illegal