S. N. BHARGAVA, J. - (1.) THIS is a habeas corpus petition filed by one Abdul Rashid, who is brother of Mod. Rizwan one has been detained by an order of the District Magistrate, Kota dated 14. 4. 1986, under section 3 (2) of the National Security Act, 1980 (Act No. 65 of 1980) (hereinafter referred to as "nsa" ).
(2.) EARLIER also the petitioner was detained under NSA by order of the District Magistrate Kota dated 12th August, 1981, under sec. 3 (2) of the NSA. A writ petition filed in this court and the same was allowed by order dated April 28, 1982 as the court came to the conclusion that there was no ground or justific -ation to hold that the activities of the detenus were such as to disturb the public order. All the grounds mentioned in the detention order at the best, make out a case of disturbance of law and order. The order of District Magistrate dated 14. 4. 1986 (Annex. 4) was confirmed by the State vide order dated 25. 4. 1986, under section 3 (4) of the NSA. The detenus filed a representation, which was considered by the Advisory Board and the State Government rejected the same vide its order dated 7th June, 1986 (Annex. 5 ). The State Government confirmed the detention order under sec. 12 (1) of the NSA and it was ordered that the detenus be detained till 13. 4 1987 by a separate order dated 7th June, 1986 (Annex. 6 ). The present writ petition was filed on 27. 1. 86. Notices were issued to the State, but no return was filed by the State and the arguments were heard on 6. 2. 1987 and the return was also filed on the same day, which was supported by an affidavit of one Shri Ramesh Chand Jain, Addl. Collector and District Magistrate Kota. The arguments were concluded and the writ petition was posted for dictation of judgment for 9th February, 1987. Mean -while, the additional affidavit of Mr. Dharam Veer, Collector and District Magistrate, Kota who had passed the detention order, was also filed on 9. 2. 1987. Since we were hearing other habeas corpus petitions, the judgment was not dictated of 9. 2. 1987 and it has being dictated today. Learned counsel for the petitioner has challenged the detention order mainly on the ground that the grounds which have been given for passing the detention order are of no avail. There is no continuity or proximity. Moreover, the detenus was under arrest since 23. 11. 1985 and therefore, the detention order is bad. He has further submitted that the instances, before the earlier detention order dated 12th August 1981, should not be considered, as this court has already held that the instances mentioned therein do not amount to disturbing the public order, but only a case of disturbance of law and order. He has further submitted that other instances after 12th August, 1981 also do not amount to disturbing the public order. He has also contended that the last case registered against him was on 13. 10. 1984 and there after, there is no criminal case registered against him. The Superintendent of Police, Kota has submitted a report on 31. 1. 86 to the Dist. Magistrate but the detention order was passed by the District Magistrate on 14. 4. 86, which also shows that there was no valid ground to pass the detention order. Shri K. K. Sharma, learned counsel for the petitioner has placed reliance on Abdul Munaf Vs. State of W. B. (1), wherein it has been observed that in a given case the time lag between the prejudicial activity of a detenue and the detention order made because of that activity is ex -facie -long, the detaining authority should explain the delay in the making of detention order with a view to show that there was proximity between the prejudicial activity and the detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order. In this case a period of 9 months had lapsed between the time of arrest and order of detention. Learned counsel has placed reliance on Laxman Khatik Vs. State of West Bengal (2) wherein the delay of 7 months in making the order for detention after the incident, was held fatal. He has also placed reliance on Ravindra Kumar Vs. State of W. B. (3 ). In this case the District Magistrate passed the order of detention after about 3 months of the incident and the order was quashed as the delay was not explained. In the case of S. K. Seraju Vs. State of W. B. (4) the last incident occurred on 15th January, 1972 and the order of detention was passed on 24th August. 1972 i. e. nearly 7 months The Supreme court found that the undue delay was not explained and hence the order of detention was quashed. Again in Mohd. Sahabuddin vs. District Magistrate (5) where the delay was of 7 months and since no explanation was furnished, the order of detention was quashed.
(3.) RELIANCE has also been placed on Harnek Singh vs. State of Punjab (6), where a case under Section 307, 411 and 414 IPC was registered on 17th February, 1980. He was ordered to be detained on 4. 11. 1980 and was put behind the bars on 10th July, 81. During those proceedings the detenue was on bail and was appearing on every hearing till he was put behind the bars. It was held that since there was a gap of more than a year and a half and no explanation was furnished, the detention order was bad. Learned counsel for the petitioner has also submitted that since the petitioner was already in jail, there is no necessity of passing a detention order under the N. S A. and in this connection he has placed reliance on Haradhan Saha vs. State of W. B. (7) wherein it was held that the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It is not a parallel proceeding. The pendency of prosecution is no bar to the order of preventive detention. An order of preventive detention is also not a bar to prosecution. It was further observed that where a detenue is actually in jail custody at the time when the order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the Slate of the public order. In this connection, he has also placed reliance on Ramesh Yadav v. District Magistrate (8) wherein the Supreme Court observed that where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released he will again come on his criminal activities in the area, the same was not proper. In Bondd Singh Vs. Distt Magistrate Dhanbad (9) their Lordships of the Supreme Court observed that if a man is in custody and there is no possibility of his being relsa -sed, the power preventive detention should not be exercised. Learned counsel for the petitioner has also submitted that the petitioner was charged with some offences, which were related to law and order and not the public order and in this connection he has placed reliance on Dipak Bose vs. State of W. B. (10 ). He has also invited our attention to the case of Kishan Mohan vs. State of W. B. (1 l)wherein it was observed that one act may affect individuals in which case it would be said to affect law and order while another act though of a similar kind may have such an impact that it would disturb the even tempo of life of the community in which case it would be said to affect public order, the test being not the kind but the potentiality of the act in question. ;