JUDGMENT

DESAI, J.:— On October 4, 1982, we quashed and set aside the impugned detention order dated April 20, 1982, in respect of detenu Devi Lal Mahto, reserving the giving of the reasons for our order to a later date. Here are the reasons.

2. This is a petition under Article 32 for a writ of habeas corpus filed by detenu Devi Lal Mahto challenging the order of preventive detention dated April 20, 1982, made by the District Magistrate, Dhanbad.

3. Detenu Devi Lal Mahto was arrested on March 2, 1982, and was produced before the Chief Judicial Magistrate, Dhanbad, who remanded him to jail custody till March 17, 1982. On March 18, 1982, detenu moved an application for bail which was fixed for hearing on March 24, 1982. On March 25, 1982, the bail application was rejected. On April 20, 1982, the District Magistrate, Dhanbad, made the impugned order of detention in exercise of the power conferred by sub-section (2) read with sub-section (3) of Section 3 of the National Security Act, 1980 (Act for short). The District Magistrate stated in his order that with a view to preventing the detenu from acting in a manner prejudicial to the maintenance of public order he be detained. Grounds of detention were served upon the detenu on April 23, 1982. Another application for bail moved by the detenu was rejected on April 23, 1982. On May 13, 1982, the detenu submitted his representation to the State Government which came to be rejected by the State Government on June 3, 1982. The order of detention was confirmed by the State Government on June 10, 1982.

4. Mr. V. J. Francis, learned counsel who appeared for the petitioner canvassed three contentions before us. They are : (i) the detenu being already deprived of his personal liberty having been confined in jail from March 2, 1982, and his bail application having already been rejected on March 25, 1982, he was not even if so inclined, in a position to repeat his activity and therefore, the preventive detention order could not be made against him with a view to preventing him from indulging into activity prejudicial to the maintenance of public order; (ii) the detaining authority was not even aware that the detenu was already in jail when he made the impugned detention order and, therefore, the order suffers from the vice of non-application of mind which would vitiate the order; and (iii) there was inordinate delay which has remained unexplained in considering the representation of the detenu and, therefore, the detention order is vitiated.

5. Undoubtedly, for a period of one month and 18 days the detenu was in jail, his bail application having been rejected nearly 25 days before the date of the impugned detention order. It is difficult to appreciate how the District Magistrate was subjectively satisfied that a detention order in respect of the detenu was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. This aspect we have most meticulously examined in four decisions of this Court, and therefore, we need not examine the same again. As early as in Rameshwar Shaw v. District Magistrate, Burdwan, (1964) 4 SCR 921 and as late as Vijay. Kumar v. State of J. & K., AIR 1982 SC 1023 the two recent most decisions in Biru Mahato v. District Magistrate, Dhanbad, W. P. No. 1125/82, decided on 15-10-1982 : and M. Satyanarayana v. State of Andhra Pradesh W. Ps. 1166 and 1167/82, decided on 18-10-1982: (reported in AIR 1982 SC 1543) it has been held that one can envisage a hypothetical case in which a preventive detention order may have to be made against a person already deprived of his personal liberty by being confined or detained in jail but in such a situation the detaining authority must show awareness of this fact that the person against whom the detention order is proposed to be made is already in jail and is incapable of acting in a manner prejudicial to the maintenance of public order and yet for the reasons which may appeal to the District