BYAS, J. - (1.) BY this petition under Article 226 of the Constitution for a writ in the nature of haheas corpus, the petitioner challenges his detention under the National Security Act, 1980 (hereinafter to be referred to as 'the Act' or 'nsa' ).
(2.) AS per averments of the petitioner, he was arrested by Police, Jodhpur on February 24, 1987 for an offence under section 25 of the Arms Act and was lodged in Central Jail, Jodhpur on February 25, 1987. On March 19, 1987, while he was in Central Jail, Jodhpur, he was served with order Annexure-1 issued by the District Magistrate, Jodhpur, communicating him that he was detained under section 3 (2) of the Act. On March 27, 1987 he was delivered order Annexure-2 alongwith the grounds of detention enumerated in a separate sheet. The State Government approved the order of the District Magistrate on March 26, 1987. His case was placed before the Advisory Board. The petitioner submitted representation to the State Government against his detention. The Advisory Board took the view that there is sufficient cause for the detention of the petitioner. Thereafter the State Government passed the order Annexure-5 on May 13, 1987 and fixed the period of one year for the petitioner's detention. The detention is challenged on the following three grounds: (1 ). the detenu was already in custody on March 19, 1987. This fact was not taken into consideration by the District Magistrate and that reveals the non-application of mind of the detaining authority; (2 ). the detention order of the District Magistrate was approved under section 3 (4) of the Act by the State Government on March 26, 1987. The State Government, however, failed to report the fact to the Central Government, together with the grounds on which the order was passed, within seven days from March 26, 1987. This contravene the mandatory provisions of section 3 (5) of the Act. The communication of the approval was received, by the Central Government on April 3, 1987; and (3 ). the grounds of detention disclosed in Annexure-2 accompanied the letter have no nexus or co-relation with the maintenance of 'public order'. The grounds contained in Annexe 2 relate to the commission of the crimes against the individual persons. They do not furnish any material to show that the activities of the detenu were, in any way, prejudicial to the maintenance of public order. In the return filed by the respondent, the facts were admitted, but it was denied that the fact of the arrest of the detenu and his being in jail on March 19, 1987 was not taken into consideration by the detaining authority. It was submitted that the fact of the arrest of the detenu was taken into consideration and the detention order was passed keeping in view the fact that the detenu was arrested in a case under section 25 of the Arms Act and the possibility of his being released in the near future. As regards the non-compliance of the provisions of section 3 (5) of the Act, the stand taken was that the report was sent to the Central Government by the State Government on March 31, 1987 by a registered post. It was, no doubt, received by the Central Government on April 3, 1987. Section 3 (5) of the Act does not lay down that the report should be received by the Central Government within seven days of the date of approval. It was also alleged that the activities of the detenu were not only creating problem of law and order, but also of public order. We have heard Mr. M. D. Purohit, learned counsel for the detenu and the learned Additional Advocate General Mr. J. P. Joshi. We will deal with the contentions of Mr. Purohit at seriatim. Re: 1 - Admittedly, the detenu was arrested in a case under the Arms Act and was lodged in the Central Jail, Jodhpur. The order of detention was served on him on March 19, 1987 while we was still in Central Jail Jodhpur in connection with his arrest in the criminal case under section 25 of the Arms Act. The contention of Mr. Purohit-learned counsel appearing for the detenu is that the fact of his arrest was not taken into consideration by the District Magistrate and that shows the non application of the mind of the detaining authority. It was argued that when the detenu was already in jail, there was no sense in keeping him in detention under the NSA. It was, on the other hand, contended by the learned Additional Advocate General that the detenu was arrested in a case under section 25 of the Arms Act. There was every possibility of his being released on bail in the near future. The detaining authority took this matter into consideration and passed the detention order under the NSA. We have taken the respective submissions into consideration.
(3.) 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. However, 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. In Devi Lal vs. State of Bihar (1) 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 incapable 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 afore-mentioned 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. " In Vijay Kumar vs. State of Jammu and Kashmir (2) it was observed:-"preventive detention is restored to, to thwart future action. If the detenu 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. " ;