- (1.) THE detention order has been admittedly passed by the District Magistrate, Giridih, but the counter -affidavit, despite opportunity granted, has not been filed by the District Magistrate i.e., the Detaining Authority, but by one Sri Awadhesh Kumar Pandey who is the Circle Officer, Giridih Sadar.
(2.) IN paragraph 11 of the writ application, the specific allegation or the petitioner is that the detention order has been passed with total non - application of mind. Paragraph 11 of the writ application reads thus : - - "11. That there has been non -application of mind by respondent No. 2 in ordering detention pf this petitioner." Paragraph 11 of the writ application has been replied by the aforesaid Circle Officer in paragraph 9 of his counter - affidavit. Paragraph 9 of the counter - affidavit reads thus : - - "9. That with regard to the statement made in para 11 of the writ application, it is stated that the same are wrong and hereby denied. It is further stated that the order of detention passed by the answering respondent is not arbitrary or illegal rather it is quite legal and justified. The answering respondent was fully satisfied on the materials available on record while passing the order of detention against the petitioner to safeguard the law and order problem and the petitioner can be brought under the ambit of anti -social element. The grounds were such that there were imminent danger to the society at the hands of the petitioner. The detention order is not violative of Article 21 of the Constitution of India." As already mentioned above, the Detaining Authority has not filed his counter -affidavit. Whenever in a Preventive Detention case, there is an allegation that the detention order has been passed without the requisite application of mind by the Detaining Authority, the mandatory requirement of law is that the Detaining Authority has to file his personal affidavit. Article 21 of the Constitution of India clearly lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 of the Constitution of India dealing with arrest and detention in certain specified types of cases clearly lays down, suggests and prescribes certain safeguards and protections with respect to a person with respect to his detention under the preventive detention law.
(3.) THE petitioner in this case has been detained under Section 12(2) of the Bihar Control of Crimes Act, 1981. In such a situation, therefore, the only established procedure to rebut and refute the allegation of issuing the detention order without application of mind, was the filing of a counter affidavit by the Detaining authority but for totally unexplained reasons, the Detaining Authority has chosen not to file his counter affidavit and in his place, the counter affidavit has been filed by the Circle Officer which cannot be substituted for the Detaining Authority. We are specifically saying so because in paragraph 9 of the counter affidavit filed by the Circle Officer, he has mentioned that : "the answering respondent was fully satisfied on the material available on record while passing the order of detention against the petitioner to safeguard the law and order problem and the petitioner can be brought under the ambit of anti -social element.";