BIPUL MAHANTA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India for a writ in the nature of Habeas Corpus filed by the detenu, Sri Bipul Mahanta, challenging the order of detention dated 7 -1 -83, made by the State Government under Sub -section (2) of Section 3 of the National Security Act, 1980.

(2.) THE detenu is a student of B. Barooah College, Gauhati, and while he was preparing for his B. A. Compartmental Examination as a candidate from B. Barooab College, he was arrested on 5 -1 -83 under Section 151, Cr. P. C. He was lodged in the District Jail, Gauhati and thereafter he has been transferred to Dhubri District Jail, as submitted by the learned Counsel for the detenu. On 7 -1 -83, the order of detention was passed and the grounds were supplied to him on the same day. On the date when the order of detention was made, he was in confinement in jail. The order of detention reads as:

(3.) IN our view, the contention of the counsel for the detenu is well founded. It has been laid down by the Supreme Court in series of cases that where a preventive order is made against a person already confined to jail or detention, it must be present to the mind of the detaining authority that keeping in view the fact that the person is already in detention, a preventive order is still necessary. The subjective satisfaction of the detaining authority must comprehend that the person sought to be detained is already in jail or under detention and yet a preventive order is a compelling necessity. It has been further held that this awareness must find its place either in the detention order or in the affidavit at least justifying the detention order when challenged. (1) : [1982]3SCR522 : Vijay Kumar v. State of J. and K.; (2) : 1982CriLJ2354 , Biru Mahato v. District Magistrate, Dhanbad; (3) : 1982CriLJ2357 , M. Satyanarayana v. State of Andhra Pradesh; and (4) : 1982CriLJ2363 , Devi Lal Mahto v. State of Bihar.