ORDER

Heard finally with the consent of both the parties.

1. In this petition under Article 226 of the Constitution of India, the petitioner has assailed the illegality, validity and propriety of the order dated 22.9.2022(Annexure P-1) passed under the National Security Act, 1980(hereinafter referred to as the ‘Act of 1980’) by the respondent No. 3 whereby the petitioner has been ordered to be detained in the Central Jail, Indore.

2. The brief facts of the case are that the petitioner is a businessman and income tax payee and carrying on the business of transport and scrap through the registered firm namely S.P. Brothers. The firm is registered under the M.P. Shops and Establishment Act, 1958. The petitioner is also filing the GST returns. Moreso, he is an active member of a political party and due to political pressure from the ruling party, the respondent No.3 has passed the detention order under the Act of 1980. Earlier also, the order dated 17.7.2017 passed by the respondent No.3 was assailed in W.P. No. 6103/2017. This Court vide order dated 13.10.2017 had set aside the order and allowed the writ petition. Again on 28.1.2019, the respondent No.3 passed an order of detention under the Act of 1980 with the purpose of harassing him. The said order was also assailed by filing W.P. No. 3154/2019. Vide order dated 28.3.2019, this Court has quashed the order passed by respondent No.3 holding it to be illegal and against the rule of law and as also on the ground that the order of detention under the Act of 1980 cannot be passed for an indefinite period. The present impugned order is also issued by the respondent No.3 without following the provisions of the Act of 1980 and without there being any basis, therefore, there is no reason to believe that the petitioner is a threat for maintaining the public peace, law and order. Admittedly, the petitioner has not yet been arrested. Thus, the question which arises for consideration is that challenge to the order of preventive detention at pre-detention stage would not be maintainable.

3 . Learned counsel for the petitioner contended that no affidavit of the District Magistrate, who had passed the detention order has been filed. This question was considered in the case of Usman v. State of M.P. & Others [ILR(2012) MP 1549]. Para 5 of which reads as under :

‘5. In the instant case, the District Magistrate who passed the order of detention has not filed his affidavit. It is well established by catena of decisions of the Supreme Court that in answer to a Rule issued in a habeas corpus petition, the counter affidavit on behalf of the State should be sworn by the District Magistrate who had passed the detention order. In the present case, there is a direct allegation that the detention order was passed without application of mind and there was no material before the detaining authority to reach the subjective satisfaction. There is no para-wise reply. The affidavit in support of the reply does not say that the City Superintendent of Police personally dealt with the matter. He has merely sworn the affidavit on the information gathered from the record. No explanation has been offered for not filing the affidavit of the District Magistrate. The reply also does not show that all the procedural steps, as required under the Act, were taken within the specified time. Except for newspaper cutting (which have no evidentiary value), no other cogent material has been placed before us to judge the legality of the detention order. In this unsatisfactory state of affairs, we have no hesitation to hold that the District Magistrate passed the detention order in a most cavalier manner without any application of mind, and was confirmed by the State Government in equally callous manner as such, it is difficult for us to sustain the detention order. yet there is another ground which makes the detention order unsustainable. In this connection, we may refer to the earlier Division Bench, decision of this Court in W