KANHIYALAL ALIAS KANHAYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.