- (1.) G. Malviya. J. This petition of habeas corpus has been filed by Nazar Mohammed son of Noor Mohammed alias Munshi resident of Mohalla Shyam Nagar, Police Station Kotwali Orai. District Jalaun against his detention under the National Security Act, in pursuance of the order dated 4-4-1989 passed by the District Magistrate, Jalaun at Orai under Section 3 (2) of the National Security Act.
(2.) ACCORDING to the grounds of detention furnished to the detenu the petitioner was alleged to be having a criminal history which were mentioned in grounds Nos. I. to IV, which the detaining authority claims to be the activity of the petitioner in the back ground of which the retention order was passed against the petitioner on grounds Nos. V and VI. Learned counsel for the petitioner has contended that the activities mentioned in grounds Nos. and VI are not activities relating to the maintenance of public order but are activities merely confined to the problems of law and order. His contention is that even if the other four grounds are taken to be merely back-grounds, the detention of the petitioner in pursuance of the ground mentioned in grounds Nos. V and VI cannot be enough for detention of the petitioner as according to him they do not cons titute any problem of public order. Learned counsel for the petitioner also con tents that in any case neither the order of detention nor the ground of detention nor the patters supplied to the petitioner showed that the detaining authority was aware of the fact that the petitioner was already in custody on 4-4-1989 when the order of detention had been passed against him and consequently the detention order was without the knowledge of the fact that the detenu was already in custody which vitiates the order, as the satisfaction of the detaining authority would be treated as merely a Technical satisfaction inasmuch as the detaining authority had not acted as already prudent person in detaining the person presently, if he knew that the petitioner was already under custody, unless he further knew that there was possibility of the petitioner being released on bail in near future. It is contended that in the absence of any such indication in the grounds of detention, the detention of the petitioner in pursuance of the detention order is bad in the eyes of law. Since we are inclined to accept the contention of the petitioner on the second point viz. that the detaining authority was in every probability not aware about the fact that the petitioner was already in custody. We do not intend to examine the point whether grounds mentioned in grounds Nos. V and VI relate to law and order or public order and we are confining our order on the basis of the contention whether the detaining authority was justified in passing the detention order if the petitioner was already in jail custody. It will be relevant to refer to paras 16 and 17 of the petition which deal with this point In para 16 of the petition, it was specifically stated that by the impugned detention order dated 4-4-1689, the detaining authority had directed the police of district Jalaun to arrest the petitioner. It is asserted that the petitioner was in custody since 20-2-1989 and was confined in District Jail, Orai since 4-3-1989. It is consequently urged that the detaining authority was not aware of the whereabouts of the petitioner nor did he knew that the detenu was already in jail when he had passed the order of detention on 4-3-1989. In para 17 of the petition, it is specifically stated that the detaining authority passed the impugned order without showing his awareness of the said fact.
(3.) THE counter affidavit which has been filed in this case by the detaining authority himself, however, tries to say that the fact about the petitioner being in custody was in the knowledge of the detaining authority. In para 9 of the counter affidavit filed by Prem Krishna Misra, District Magistrate, Jalaun at Orai who is the detaining authority after enumerating some circumstances it is stated that those circumstances amply established that the detaining authority was fully aware that the petitioner was in jail and the orders and grounds of detention were to be served upon him in jail. THE counter affidavit further says in the order of detention due to inadvertence or oversight of typing inaccuracy has crept in whereby the petitioner is trying to take benefit by asserting that the peti tioner was directed to be arrested and kept in District Jail, Orai. This inaccuracy in describing the facts which is merely a typing error is extremely regretted. However, the orders which are written in the deponent's own hand writing would be produced before this Hon'ble Court during the course of hearing of the instant petition, which would show that the fact was in the deponent's awareness that the petitioner was in jail from before and the order of detention was accordingly considered to be essential only with a view to irnmobalise him Iron acting in a similar manner which is prejudicial to the maintenance of public order. Although we do not intend to say that the assertion of the District Magistrate is not correct, all that we may say is that no such record has been produced before us as was contemplated to be produced in the averments made in para 9 of the counter affidavit quoted above In any case the record of the State Government has been produced before us and we find that even in the intimation which had been sent to the State Government, this fact was neither mentioned in the report of the District Magistrate nor in the reports of the Station Officer or the Superintendent of Police that the petitioner, at the time when the detention order was sought to be passed against him as in jail or that there was any likelihood on his being released from jail in the near future. The report of the police station recommending the case to the Senior Superintendent of Police for forwarding the matter for consideration by the District Magistrate, as also the letter of the Senior Superintendent of Police to the detaining authority both said that if the petitioner was permitted to remain free YADDI SWATANTRA RAHA. then the public order in the district would be badly effected. This also shows that neither the police station nor the Senior Superintendent of Police knew that the petitioner was already in custody in the criminal case. If that was the situation there was no question of recommending the case of the petitioner to be considered for passing a detention order under the National Security Act as the petitioner was already prevented to act prejudicial on account, of his being inside the jail. If the police authorities knew this fact they would have made the proposal to the detaining authority only in case they thought that the petitioner had made any application for bail for being released from jail. Neither any report of the police nor in the counter affidavit nor in any other docu ment there is any indication that the petitioner had made any application for bail. This also shows that there was no question of passing any order of detention against the petitioner with a view to prevent him to act prejudicially for the maintenance of public order so the petitioner was already so prevented on account of his being in jail in the criminal case. Even the order of detention mentions the fact that the police officers should arrest the petitioner and send him to jail. The plea in the counter affidavit that this was a typing error is not acceptable. Even the ground of detention specifically say that in case the petitioner remained at large. YADDI AAP SWATANTRA RAHE then the detenu would indulged in activities prejudicial to the maintenance of public order. At' this indicates that the police authorities or detaining authority were not aware that the petitioner was already in jail and was thus, prevented to act prejudicially for the maintenance of public order. The exercise to pass detention order under the National Security Act was therefore, an exercise in futility and in any case this order would be deemed to be bad as the detaining authority was not specifically informed about the fact that there was any necessity to pass a detention order against the petitioner as there was any possibility of the petitioner being enlarged on bail in the criminal case.;