S.S. Byas, J.
1. In this petition under Article 226 of the Constitution for a writ of habeas corpus the petitioner challenges his detention under the National Security Act, 1980 (here in after to be referred to as 'the Act' or 'NSA'). As per averments, the petitioner is residing in the city of Ajmer. He was involved in some criminal cases pending trial in courts.
2. On 1-31989, a false case under Section 8 of the Narcotics Drugs and Psychotropic Substances Act was concocted against him. He was arrested on that day. He challenged his arrest and detention by filing a writ of habeas corpus in this Court making serious allegations against the Dy. Superintendent of Police, Ajmer. This Court passed an order directing the Judicial Magistrate No. 5, Ajmer to make investigation into the matter. The Dy. Superintendent of Police got irked and annoyed with this stop of the petitioner against him and he approached him to pressurise him to withdraw his petition. The petitioner did not oblige him and as a result he incurred wrath of the Dy. Superintendent of Police. A case under Section 4/25 of the Arms Act was concocted and he was arrested on 9-2-1989. He was produced before the Judicial Magistrate on 10-2-1989 and he was remanded to Judicial custody. He was again arrested on 10-2-1989 in a case registered against him and others under Sections 307/149, 147 etc. of the Penal Code in respect of an incident alleged to have taken place on 10-11-1988. He was taken in police custody. He was again arrested on 14-2-1989 in a case under Section 307/148, 149 etc. of the Indian Penal Code in respect of an incident alleged to have taken place on 10-11-1988. He was later on remanded to police custody and was lodged in Central Jail, Ajmer. While he was in Central Jail, Ajmer as an under trial prisoner, he was served with an order, Annexure 1 dated 18-2-89 informing him that he was also detained Under Section 3(2) of the Act. The order, Annxure 1 was passed by the District Magistrate, Ajmer by virtue of the powers granted to him under Sub-section (3) of Section 3 On 20-2-1989 he was communicated grounds of detention, Annexure 3 along with Annexure 2 issued by the District Magistrate. The State Government accorded its approval on 27-2-1989 by order Annexure 5. He made representation & the matter was placed before the Advisory Board. The Advisory Board held that there was sufficient cause for his detention under the Act. His representation was consequently, rejected. He also addressed a representation in writing to the Central Government on 27-2-1989, which was rejected on 10-4-1989.
3. The detention is challenged on the following grounds:
(1) The detenu was already in custody on 18-2-1989 when the detention order was served on him in Central Jail, Ajmer. This fact was not taken into consideration by the District Magistrate, so much so that these facts his of already being under arrest in custody were not mentioned in the grounds of detention or the order of deduction, by the Detaining Authority. This reveals the non-application of mind on the part of Detaining Authority;
(2) There was inordinate delay on the part of the Central Government in disposing of his representation. He has submitted his representation in writing on 27-2-1989 and the same rejected by the Central Government on 10-4-1989. The delay is enexplicable and unexcusable ;
(3) The detention disclosed in Annexure 3 have no nexus or corelation with the maintenance of 'public order'. The grounds contained in Annexure 3 relate to the commission of crimes against individuals. They do not furnish any material to show that the activities of the detenue were, in any manner, prejudicial to the maintenance of 'public order';
(4) The impugned order of detention is motivated and mala-fide.
4. In the return filed by the respondents, the facts were admitted. It was averred that the petitioner took a life of criminal and started his criminal activities right from July, 1978 and continued upto February, 1989 as is revealed in the grounds of detention. His criminal activities, his past conduct and his antecedents were taken into consideration by the Detaining Authority and the Detaining Authority was thereafter satisfied that his detention had become necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It was admitted that the petitioner was already under arrest and in custody as an under trial prisoner when the detention order was passed. The Detaining Authority took this matter into consideration and was of the opinion that the petitioner was likely to be released on bail. Taking a note of this fact the Detaining Authority passed the impugned order to prevent the petitioner from acting in any manner prejudicial to the maintenance of 'public order'. It was also denied that there was delay on the part of the Central Government in considering the representation of the detenu. As to how the delay had occurred has been stated at length in reply. It was further denied that the detention of the petitioner was motivated or actuated with malice.
5. We have heard Shri Ashok Verma, learned Counsel for the petitioner and the learned Addl Advocate General Shri M.I. Khan. We shall take up Ground No. 1 to start with.
6. The facts are not in dispute. The detenu was arrested in a criminal case under the Arms Act on 9-2-1989. He was lodged in the Central Jail on 10-2-1989 under the orders of remand passed by the Chief Judicial Magistrate. He was again arrested on 10-2-1989 by the Police in a case Under Section 307/149 etc. of the Indian Penal Code, mentioned in Ground No.22. He was again arrested on 14 2-1989 by the police in connection with another case under Section 307/149 etc of the Penal Code, vide Ground No. 23. He was thus arrested on 10-2-89 and thereafter remained under arrest and detention. On 18-2-1989 when the impugned order of detention was served on him, he was in Central Jail, Ajmer as an under trial prisoner.
7. The contention of Mr. Verma is that the fact of the detenu's being already in custody was not at all taken into consideration by the District Magistrate and that shows non-application of mind on his part. It was argued that when the petitioner was already in jail, there was no sense in keeping him under deduction under NSA. It was further argued that the Detaining Authority failed to take into consideration the very fact of the detenu being already in custody and that is sufficient to vitiate the impugned order.
8. It was on the other hand contended by the learned Additional Advocate General that the detenu was certainly arrested on 9-2-1989 and was lodged in the Central Jail, Ajmer. When the detention order who passed and served on the detenu, he was in Central Jail, Ajmer as an under trial prisoner. The Detaining Authority while passing the impugned order was quite alive of this fact and after taking it into consideration was of the opinion that the petitioner was likely to be enlarged on bail by the court. Taking this matter into consideration, the Detaining Authority passed the impugned order under NSA.
9. We have taken the respective submissions into consideration.
10. Normally, a person who is already in jail custody, is not in a position to participate in activities which may be prejudicial to the maintenance of the public order. In such a situation, the detention under the NSA is hardly necessary because the detenu is not free to act at all. How ever, if the possibility of his being released on bail in the near future is there and that possibility is taken into consideration by the Detaining Authority, the person can be detained under Section 3(2) of the NSA. If the fact of detention and the possibility of his being released on bail has not been taken into consideration by the Detaining Authority, it reveals the non-application of mind. The position has been examined by the Hon'ble Supreme Court from time to time.
11. In Devi Lal v. State of Bihar 1982 Cr. LR (SC) 485, it was observed:
The Detaining Authority must show awareness of this fact that the person against whom the detention order is proposed to be made is already in jail and is capable of acting in a manner prejudicial to the maintenance of public order and yet for the reason which may appeal to the District Magistrate on which his subjective satisfaction is grounded a preventive detention order is required to be made. It clearly discloses the non-application of mind and following the aforementioned decisions, it must be held that the order of preventive detention having been mechanically made and suffering from the vice of non-application of mind is vitiated.
12. In Vijay Kumar v. State of Jammu and Kashmir : [1982]3SCR522 it was observed:
Preventive detention is restored to, to thwart future act on. If the detenue is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the Detaining Authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.
13. In Berru Mehto v. District Magistrate Dhanbad : [1982]3SCR522 , it was observed:
Preventive order may be made against a person already confined to Jail or detained. But in such a situation it must be present to the mind of the Detaining Authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary. The subjective satisfaction of the Detaining Authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact, the detention order is likely to be vitiated.
14. In Surajpal Sahu v. State of Maharashtra : 1986CriLJ2047 , the same view has been taken.
15. Recently, in Gulab Mehra v. State of UP 1987-III-SVLR (Cr.) 188, all the available authorities the point were noticed and discussed and it was observed that the awareness should there be on the part of the Detaining Authority that the detenu was already in jail, the prospects of his being released on bail soon were there and his activities are likely to prejudice the maintenance of the public order. If that awareness is not there on the part of the Detaining Authority, the detention order stands vitiated. The non-awareness reveals the non-application of mind on the part of the Detaining Authority. It was observed in Gulab Mehra's case (supra),
There is nothing to show that there was awareness in the mind of the District Magistrate, the Detaining Authority of the fact that the appellants was in Jail at the time of claiming of the order of detention and the Detaining Authority was satisfied in considering his antecedents and previous criminal acts, that there is likelihood of his indulging in criminal activities jeopardizing public order if he is enlarged on bail and that there is very likelihood that the appellant well be released on bail within a short time. On this ground alone, the order of detention is invalid. It may also be stated in the connection that the respondents can very well oppose the bail application when it comes for hearing and if at all the appellants is released on bail the respondents are not without any remedy They can also file application in revision for cancellation of the bail application In such circumstances we cannot but hold that passing of the order of detention of the appellants who is already in custody is fully bad and such the same is invalid in law.
16. In Vijay Kumar v. Union of India : 1988CriLJ951 the detenu was already under detention. It was observed by their Lordships:
When the detenu is already under detention for an offence, whether-bailable or non-bailable the Detaining Authority will take into his consideration the fact of detention of the detenu and, there must be compelling reasons to justify his preventive detention inspite of the fact that he is already under detention on a charge of a criminal offence. There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words, two facts must appear from the grounds of detention, namely, (1) awareness of the Detaining Authority of the fact that detenu is already in detention and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention. It is not necessary that in the order of detention such awareness of the Detaining Authority has to be indicated. It is enough if it appears from the grounds of detention that the Detaining Authority is aware of the fact that the detenu is already in detention.
17. In Abdul Razak v. S N. Sinha and Ors. : 1989CriLJ2303 , the detenu was already under detention in connection with the trial of some criminal cases. His application for bail was rejected and thereafter no fresh application for bail was moved by him This fact was not taken into consideration by the Detaining Authority before passing the order of detention under the Act. Their Lordships held that it amounts to non-awareness on the part of the Detaining Authority and that vitiates the order of detention.
18. Recently in S. Meerakani v. Government of Tamil Nadu and Ors. 1989-III-SVLR (Cr.) 1182, the position was again examined and it was observed:
We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order his preventive detention and the decision must depend on the facts of the particular case, preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the Detaining Authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the Detaining Authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be correct legal position.
19. Now, whether awareness was there on the part of the Detaining Authority and be took the matter of the detenu's already being in jail into consideration or not, can be found out in two ways, namely, (1) the order of detention speaks about the detenu's already being in jail and the possibility of his being released on bail; and (2) from the return filed by the Detaining Authority that he bad taken this fact into consideration and thereafter passed the detention order. The return must be accompanied with an affidavit of the Detaining Authority to satisfy the court that the jurisdictional requirement was fulfilled before the detention order was passed.
20. Turning to the case in hand, the situation is highly starting. The petitioner was admittedly arrested on 9-2-1989 and was lodged in the Central Jail, Ajmer, where he was detained as an under trial prisoner in three cases, the first under the Arms Act and the remaining two for the offences under Section 307/149 etc. of the Penal Code When the impugned order of detention under the Act was served on him he was in Central Jail, Ajmer as an under trial prisoner Curiously enough, this fact of the petitioner being under detention as an under trial prisoner did not come to the knowledge of the Detaining Authority, namely, the District Magistrate, Ajmer . In the grounds of detention, Annexure-3, Grounds Nos. 22, 23 & 24 relate to the cases under the Arms Act and under Section 307/149 etc of the Penal Code The petitioner was already under arrest. The grounds of detention do not mention this fact that the petitioner was already lodged in Central Jail as an under trial prisoner. So also, the order of detention Annexure-1 does not show that the District Magistrate was aware of the arrest and detention of the petitioner in connection with the aforesaid 3 cases In support of the return filed by the respondents, an affidavit has been filed by one Sahib Ram Chaudhary, Deputy Superintendent of Police. The Detaining Authority Shri Rajeev Sharma also filed his affidavit, which is at page 60 of the record. No where in his affidavit, Shri Rajeev Sharma has disclosed that be was aware of the arrest and detention of the petitioner in connection with the cases under the Arms Act and the Penal Code. The affidavit also does not disclose that this fact of arrest and detention of the petitioner was taken into consideration by him before he passed the detention order. Shri Rajeev Sharma was in fact not in a position to file such an affidavit disclosing his awareness of the petitioner's being already under detention in connection with the trial of criminal cases, for the simple reason that this fact was not in his knowledge. When the fact was not in his knowledge, there was no occasion for him to disclose the awareness on his part. Awareness postulates a conscious act on the part of the Detaining Authority. This awareness must show that the Detaining Authority was alive to the fact of the detenu's already being under detention and yet his detention under the Act was necessary We have thus the absence of complete awareness on the part of the Detaining Authority and that is sufficient to show the non-application of mind. Neither the order of detention nor the grounds of detention nor the affidavit of the Detaining Authority disclose that there was awareness on the part of the Detaining Authority and he took the matter of the petitioner's already being in jail into consideration before he passed the impugned order under the Act. This want of awareness is sufficient to vitiate the impugned order, Annexure-1.
21. Since we are following this petition on ground discussed above, we need not examine the other contentions raised by Mr. Ashok Verma.
22. In the result, the petition is allowed and the respondents are directed to forthwith release the detenu Kanhiya Lal alias Kanhiya Bhatiya, if not wanted in any other case.