JUDGMENT

D. A. DESAI, J. :— By our order dated Oct. 8, 1982, the order of detention dated Feb. 5, 1982, made by the District Magistrate, Dhanbad, against detenu Biru Mahato was quashed and set aside by us further stating that the reasons would follow. Here are the reasons.

2. Detenu Biru Mahato was arrested on Jan. 13, 1982, on the allegation that he was involved in two incidents which occurred, first at 5. p. m. and the second at 5.30 p. m. on Jan. 12, 1982. In the first occurrence detenu and his associates appear to have committed offences under Ss. 341, 323 and 506 read with Sec. 34 of the Penal Code. F. I. R. led to registration of the offences at Bagmara Police Station numbered as 25 (1)/82. F. I. R. No. 24 (1)/82 has been registered at Bagmara Police Station for offences under Ss. 307 and 323, I. P. C. After his arrest the detenu was confined in prison. In respect of the first occurrence bail application of the detenu was accepted but in respect of the second occurrence the bail application was rejected by the learned District & Sessions Judge, Dhanbad on Feb. 12 1982. In the meantime the District Magistrate, Dhanbad, made an order on Feb. 5, 1982, in exercise of powers conferred by sub-sec. (2), read with sub-sec. (3) of S. 3 of the National Security Act, 1980 (Act for short), directing that the detenu be detained so as to prevent him from acting in any manner prejudicial to the maintenance of public order. On Fob. 10, 1982, grounds of detention were served on the detenu in jail where he was already detained. The grounds of detention referred to the two incidents which occurred on Jan. 12, 1982. The detenu made a representation on Feb. 15, 1982, which was rejected by the State Government on Feb. 16, 1982. Case of the detenu was referred to the Advisory Board and after receipt of its report the State Government confirmed the order of detention.

3. Detenu preferred a petition for a writ of habeas corpus in the High Court at Patna which was dismissed in limine by a Division Bench of the High Court. Detenu has filed this writ petition under Art. 32 as also appeal by special leave under Art. 136. Both the appeal and writ petition are being disposed of by this common judgment.

4. Two contentions were canvassed on behalf of the detenu: (i) the date on which the detention order came to be made the detenu was already deprived of his liberty as he was arrested and was confined in jail and, therefore, he was already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order hence no order of detention could be made against him; (ii) the detaining authority was not even aware that the detenu was already in jail and the order suffers from the vice of non-application of mind. In our opinion both the grounds are weighty and go to the root of the matter and would vitiate the detention order.

5. Sub-section (2) of S. 3. of the Act confers power on the Central Government or the State Government to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order, etc. In this case the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity prejudicial to the maintenance of public order. In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated. This is the postulate of the section. And this indubitably transpires from the language employed in sub-section (2) Which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicia