NAZER MOHAMMAD Vs. DISTRICT MAGISTRATE JALAUN AT ORAI

JUDGEMENT

(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.

(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.