- (1.) G. Malaviya, J. This petition of habeas corpus has been filed by Akhilesh Kumar Gupta, son of Kundan Gupta, resident of Mohalla Gandhi Nagar, Police Stetion-Kotwali, Orai, District Jalaun against his detention under the National Security Act, in pursuance of the order dated 4-4-89 passed by the District Magistrate, Jalau, 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 involved in 12 cases history of which were mentioned in ground Nos. (1) to (12) and which the detaining authority claims to be the activity of the petitioner in the background of which the detention order was passed against the petitioner on grounds xi and xii. Learned counsel for the petitioner has contended that the activities mentioned in grounds No. xi and xii are not activities relating to the maintenance of public order but are activities merely confined to the problem of law and order. His contention is that even if the other ten grounds are taken to be merely the backgrounds, the detention of the petitioner in pursuance of the ground mentioned in ground Nos. xi and xii cannot be enough for detention of the petitioner as according to him they do not constitute any problem of public order. Learned counsel for the peti tioner also contends that in any case neither the order of detention nor the ground of detention nor the papers supplied to the petitioner showed that the detenu 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 mechanical satisfaction inasmuch as the detaining authority could not act as a prudent person in detaining the person prevently 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 neap 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 not 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 ground xi and xii 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 paragraphs 17 and 18 of the petition which deal with this point, in which it was specifically stated that by the impugned detention order dated 4-4-89 the detaining authority had directed the police of district Jalaun to arrest the petitioner. It is asserted that the petitioner was in custody since 20-2-89 and was confined in District Jail, Orai since 4-3-89. It is consequently urged that the detaining authority was not aware of the where abouts of the petitioner nor did he knew that the detenu was already in jail when he had passed the order of detention on 4-3-89 and 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 paragraph 7 of the counter-affidavit filed by Prem Krishna Mishra, District Magistrate, Jalaun who is the detaining authority after enumerating some circumstances 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 that in the order of detention due to inadvertance or oversight the typing inaccuracy has crept in whereby the petitioner was trying to take benefit of asserting that the petitioner was directed to be arrested and kept in district jail, Orai. This in accuracy in describing the facts which was merely typing error was extremely regretted. However the order which was written in the deponent's own handwriting was sought to be produced before this Court during the course of hearing of the instant petition which could show that the District Magistrate was aware that the petitioner was in jail from before and the order of detention was accordingly considered to be essential only with a view to immobalise him from acting in a similar manner which was 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 as per averment made in paragraph 7 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 bed 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 Supdt. of police that the petitioner, at the time when the detention order was sought to be passed against him, was in jail or that there was any likelihood of 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 autho rity, both said that if the petitioner was permitted to remain free (YADI SWATANTRA RAHA) then the public order in the district would be badly affected. 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 cons dared for passing a detention order under the National Security Act as the petitioner was already prevented to act prejudicially 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 in any report of the police nor in the counter-affidavit nor in any other document 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 pre judicially for the maintenance of public order as 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 sent to 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 remaind at large (YADI AAP SWATANTRA RAHE) then the detenu would indulge in activities prejudicial to the maintenance of public order. All this indicates that the police authorities or the detaining authority were not aware that the petitioner was already in jail and was thus prevented to act prejudically for the maintenance of public order. The exercise to pass the deten tion 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 for passing a detention order against the petitioner as there was no possibility of the peti tioner being enlarged on bail in the criminal case.;