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 (hereinafter 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. 3. 1989, a false case under Sec. 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 step 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 Deputy Superintendent of Police. A case under Sec. 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 Sec. 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 Sections 307/149, 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. 1989 informing him that he was also detained under Sec. 3 (2) of the Act. The order, Annexure-1 was passed by the District Magistrate, Ajmer by virtue of the powers granted to him under Sub Sec. 3 of Sec. 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 and 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. The detention is challenged on the following grounds:- "1. The detenue 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 of his already being under arrest and in custody were not mentioned in the grounds of detention or the order of detention, by the detaining authority. This reveals the non-application of mind on the part of the 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 was rejected by the Central Government on 10. 4. 1989. This delay is inexplicable and unexcusable; 3. The grounds of 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 individual 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'; 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 detenue. 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. We have heard Shri Ashok Verma, learned counsel for the petitioner and the learned Additional Advocate General Shri M. I. Khan. We shall take up ground No. 1 to start with. The facts are not in dispute. The detenue 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 Sec. 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 Sec. 307/149 etc. of the Penal Code, vide ground No. 23. He was thus arrested on 10. 2. 1989 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.
(3.) THE contention of Mr. Verma is that the fact of the detenue'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 detention under NSA. It was further argued that the detaining authority failed to take into consideration the very fact of the detenue being already in custody and that is sufficient to vitiate the impugned order. It was on the other hand contended by the learned Additional Advocate General that the detenue was certainly arrested on 9. 2. 1989 and was lodged in the Central Jail, Ajmer. When the detention order was passed and served on the detenue, 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. We have taken the respective submissions into consideration. ;