The detaining authority must be aware of the fact that the person against whom an order is contemplated is a man at large on that date or even if he is under some restraint for the time being he is likely to be freed therefrom so as to pose a possibility of indulging in prejudicial activities which the law empowers the detaining authority to prevent and that it is necessary for that purpose to effectively interdict him by detaining him under the Act.

The detenu has approached this Court to secure his liberty from detention made under section 3 (2) of the National Security Act, 1980 (shortly "the Act") by the Govern­ment of Assam. By this application for a writ of Habeas Corpus the legality of the order is challenged. We heard the matter at length and by a short order passed on 1.3.83 allowed the petition holding the detention order to be illegal and without jurisdiction and directed release of the detenu. This judgment contains the reasons for our order.

2. It is stated in the petition that on 28.11.82 the detenu was attending with others a meeting of the State Committee of the All Assam Gana Sangram Parishad. The detenu along with others, was "gheraoed" by the police at 11 a. m. when the meeting was in session and eventually at 10.30 p.m. he was arrested and taken to Tezpur Police Station. Next day, on 29.11.82, at 11 a.m. he was produced before the Sub -Divisional Judicial Magis­trate and on his inquiry he was told by the learned Magistrate that the following cases had been registered against him:

(1) G. R. Case No. 1428 of 1982 of Mangaldoi Police Station, under section 4(A) E.S. Act.

(2) G. R. Case No. 1431 of 1983 of Mangaldoi police Station under section 5 E. S. Act.

(3) G. R. Case No. 382/75 under section 342/34 IPC

(4) G. R. Case No. 822/75 under section 34(5) D.I.R. 1971.

The learned Sub-Divisional Judicial Magistrate allowed the detenu to be taken into police custody for 72 hours. Thereafter, on 30.11.82, at about 3a.m. he was moved from Tezpur and brought to Gauhati Jail where he was served with the impugned detention order at 4.45 a.m. He was detained in Gauhati Jail until 3.12.82 but was eventually brought back to Mangaldoi.

3. It appears that a representation against the detention was made by the detenu to the State Government on 24.12.82 which was rejected on 1.1.83. It is averred in the petition that a specific request was made by the detenu to forward a copy of his repesentation to the Central Govt. and it appears that the repre­sentation was in fact forwarded to the Central Government on 3.1.83 although the stand taken by the detaining authority in the return filed in this Court was that it was not the duty of the State Government to forward the representation; all that the State Government had to do under section 3(5) of the Act was to make a report of the detention to the Central Government and to send therewith a copy of the grounds of detention as contem­plated under section 3 (5) of the Act, which it had done on 29.11.82 in due compliance with the said provisions.

4. The order of detention states that it was necessary to detain him "with a view to prevent him from acting in a man­ner prejudicial to the maintenance of public order". The order is bottomed on three grounds but challenge is made against the order mainly with respect to ground No. 2 and it is submitted that, as the settled law is, the order is liable to be struck down if even this single ground is found to be invalid. The ground is as follows:

Some arms and explosives were supplied to Shri Mahendra Mohan Choudhury, a known extremist of Mangaldoi by you just before August 15, 1982 for subversive/sabotage activities. These arms and explosives were kept concealed in a jungle situated in between the residential quarters of the principal of Mangaldoi High School and Mandal Office of Mangaldoi town. On receipt of the information a search was conducted in the night of September 24, 1982 and a tin slab fitted with detenator and fuse wire were recovered from inside an abandoned latrine in the said Jungle. The detonators were obviously supplied by you to cause explosions and thereby disturb public order.

5. Several contentions were raised to substantiate the challenge to the order but those which are material for the purpose of disposal of this application are as follows:

(1) The facts of ground No. 2 are subject matter of a criminal prosecution in G.R. Case No. 1428/82 of Man-galdoi Polic