An order of detention passed under the National Security Act, 1980 against a person already in jail is invalid if the detaining authority was not aware of the fact that the person was already in jail when the order of detention was passed.

N. Ibotombi Singh, J. :- This is an application under Art.226 of the Constitution of India for a writ in the nature of Habeas Corpus filed by the detenu, Sri Bipul Mahanta, challenging the order of detention dated 7-1-83, made by the State Government under sub-section (2) of S.3 of the National Security Act, 1980.

2. The detenu is a student of B. Barooah College, Gauhati, and while he was preparing for his B.A. Compartmental Examination as a candidate from B. Barooah College, he was arrested on 5-1-83 under S.151, Cr.P.C. He was lodged in the District Jail, Gauhati and thereafter he has been transferred to Dhubri District Jail, as submitted by the learned counsel for the detenu. On 7-1-83, the order of detention was passed and the grounds were supplied to him on the same day. On the date when the order of detention was made, he was in confinement in jail. The order of detention reads as :

"Whereas Government of Assam are satisfied with respect of the person known as Shri Bipul Mahanta S/o Late Phanidhar Mahanta, Railway Station Colony, Gauhati that with a view to preventing him from acting in a manner prejudicial to maintenance of public order it is necessary to detain him under the National Security Act, 1980.

Now, therefore, in exercise of the powers conferred by sub-section (2) of S.3 of the National Security Act, 1980 the Govt. of Assam direct that the said Shri Bipul Mahanta, S/o Late Phanidhar Mahanta be detained in the District Jail, Gauhati.

By order etc.

A. Gopalakrishna

Commr. and Secretary to the Govt. of Assam,

Political Department."

3. The detenu in due course made representation to the State Government but the State Government rejected it. At the time of hearing, a number of contentions were advanced by the learned counsel for the detenu but we propose to deal with only one contention which, in our opinion, goes to the root of the matter, and which, when accepted, would invalidate the order of detention. The contention raised is that the order of detention does not show ex facie that when the order of detention was made, the detaining authority was aware of the fact that the detenu was already arrested and confined in jail and yet a preventive detention order was a compelling necessity. As the subjective satisfaction is reached without the awareness of this very relevant fact, it is a case of non-application of mind to the relevant fact for exercise of the power under sub-section (2) of S.3 of the Act, and as such, the order of detention is liable to be set aside.

4. In our view, the contention of the counsel for the detenu is well founded. It has been laid down by the Supreme Court in series of cases that where a preventive order is made against a person already confined to jail or detention, it must be present to the mind of the detaining authority that keeping in view the fact that the person is already in detention, a preventive order is still necessary. The subjective satisfaction of the detaining authority must comprehend that the person sought to be detained is already in jail or under detention and yet a preventive order is a compelling necessity. It has been further held that this awareness must find its place either in the detention order or in the affidavit at least justifying the detention order when challenged. (1) AIR 1982 SC 1023 : (1982 Cri LJ 988) : Vijay Kumar v. State of J.and K.; (2) AIR 1982 SC 1539 : (1982 Cri LJ 2354), Biru Mahato v. District Magistrate, Dhanbad; (3) AIR 1982 SC 1543 : (1982 Cri LJ 2357), M. Satya narayana v. State of Andhra Pradesh; and (4) AIR 1982 SC 1548 : (1982 Cri LJ 2363), Devi Lal Mahto v. State of Bihar.

5. Mr. Chowdhury, Senior Government Advocate for the State, submits before us that the detenu was arrested under Sec.151 of the Code of Criminal Procedure and detained in jail. The detaining authority, after taking into consideration of the relevant facts, passed the impugned order of deten tion with a view to preventing him from act ing in a manner prejudicial to