JUDGMENT - Per H.D. PATEL, J.:---This is a petition under Article 226 of the Constitution of India filed by Dilip alias Jogya Wamanrao Jog challenging the validity of the order dated 14-6-1991 passed under sub-section (2) of section 3 of the National Security Act, 1980.

2. Though the order of detention is shown as dated 14-6-1991, the actual detention of the detenu was dated 15-6-1991 as per counter-affidavit filed by the respondent No. 1---the State of Maharashtra. In the preface, the detaining authority has set out the antecedents or background facts preceding the grounds on which the detaining authority is satisfied that the petitioner must be detained to prevent him from acting in a manner prejudicial to the maintenance of public order.

3. The petitioner was earlier detained by order dated 10-9-1990 and duly confirmed by Advisory Board on 16-10-1990. A Writ Petition No. 145 of 1990 came to be filed but during the pendency of that petition, the detention order came to be revoked by order dated 21-1-1991, consequent upon revocation of powers of detention under the National Security Act delegated to Commissioner of Police vide order dated 10th January, 1990. It is alleged in the order of detention that the petitioner was an under trial prisoner in Nagpur Central Jail in pending Criminal Cases. Straightaway the detention order jumps to the date 8-6-1991 when release of the petitioner on bail was ordered in the pending cases and starts describing the grounds of alleged criminal activities said to have taken place in between 5 P.M. on 8-6-1990 to 7.30 A.M. on 10-6-1990. The developments in between 21-1-1990 till the time the petitioner was an under-trial prisoner are not disclosed in the order of detention. Taking advantage of this fact, it was urged on behalf of the petitioner that the impugned order suffers from non-application of mind because on the date, i.e. 8-6-1991 when the petitioner was ordered to be released on bail as an under trial prisoner the order of externment was in force and instead of implementing that order, the detention order is passed in order to detain the petitioner under the National Security Act. It was also further urged that the breach of externment order is an offence under section 142 of the Bombay Police Act and the petitioner could have been held for that offence, the punishment for which can be imprisonment upto two years. There is much force in the submission canvassed. Actually there was no necessity of passing the impugned order.

4. It is not in dispute that the order of externment dated 1-9-1990 was passed by the Competent Authority and was served upon the petitioner while he was in jail custody. The period of externment is two years. Therefore, when the impugned detention order was issued, the order of externment was still in force. Therefore, immediately upon the release of the petitioner on bail on 8-6-1991 he should have been called upon to stay away from the city as per boundaries specified in the order of externment. That would have automatically prevented the petitioner from carrying on with the so-called criminal activities. No attempt was also made to prosecute the petitioner for violating the order of externment. Obviously, the fact that such an order of externment was made against the petitioner and was still in force on the date the detention order was passed appears to have escaped the notice of the respondents altogether. It was necessary for the detaining authority to have considered the order of externment before passing the impugned order. Not doing so vitiates the order of detention on the ground of non-application of mind by the detaining authority, as is canvassed before us.

5. It is a settled principle of law that a detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution. Correspondingly, there is a constitutional mandate commanding the concerned authority, to whom the detenu forwards his representation questioning

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