DAVENDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.