The power conferred by Section 12(1) of the NSA dealing with the period of detention also requires due application of mind.

"Law deals with the facts of life. In law as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but depotic formulae". These observations had fallen from Chinnapa Reddy, J. in Ummu Saleema vs. B. B. Gujaral AIR 1981 SC 1191, while dealing with the ques­tion as to whether there was any reasonable delay in consider­ing the representation of the detenu. It had been observed earlier that the occasional observations made by the Court that each day's delay must be explained were meant to emphasize the expedition required in such a matter, and not that it is a magical formula, the slightest breach of which must result in release the detenu. Thinking on the same wave length, may we say that though the procedural safeguards must be made available to a detenu to the greatest extent, at the same time the inner object and intent behind the framing of such, laws which are sanctioned by the constitution itself cannot be allowed to be totally frustrated by over playing the safeguard too much.

2. These thoughts have occurred to us because in this application challenging the detention of the petitioner under Nati­onal Security Act (for short, the Act) as unconstitutional and illegal, one of the points urged is that as the petitioner was under arrest when the order of detention had been passed, the same has to be struck down showing either non-awareness of this fact, or because of non-supply of vital facts to the detaining authority. It is impressed upon us by referring to three recent decisions of the Supreme Court in Biru Mahato vs. District Magistrate, AIR 1982 SC 1539; M. Satyanarayana vs. State of Andhra Pradesh, AIR 1982 SC 1543 and Devi lal Mahto vs. State of Bihar, AIR 1982 SC 1548 that where a person is already in jail or under detention, the detaining authority must show awareness of this fact and must further consider that a preven­tive detention order is yet a compelling necessity. An alterna­tive argument is that if the fact of arrest is not made known to the detaining authority, the same would amount to withhold­ing of vital fact which is not permissible on the part of the ''machi­nery of detention". To support the latter aspect in particular, reference has been made by Shri Goswami to a decision of this Court in Joy Nath Sarma vs. State of Assam (Civil Rule (HC) No. 13 of 1983 disposed of on 7.3.83.) since reported in (1983) 1 GLR 283

3. The facts relating to the arrest of the petitioner as reve­aled from the two affidavits filed by the Officer-in-Charge of Panbazar Police Station and Officer-in-Charge of Jalukbari Police station are that the petitioner was taken in custody on 27.1.83 when he was kept in the thana lock-up at Panbazar Police Station. On the following day he was sent to Gauhati Medical College for examination and was discharged therefrom the next day, that is, on 29.1.83. On that day the petitioner was released from custody on the strength of an order passed by the court. Immediately after his release, the detention order, which had been passed on 28.1.82, was served on him. As such, it is correct that when the detention order had been passed the petitioner was in custody. The question is whether on the ratio of the aforesaid decisions, the detention order can be set aside on the twin grounds urged by Sri Goswami in this connection.

4. Reference to the aforesaid three decisions, all of which are by a Division Bench of Desai and Misra, JJ. would show that the rationale behind requiring the detaining authority to show awareness of the fact of earlier confinement and of the compelling necessity is that if a person is already in jail or under detention he is not a free man to indulge in any prejudicial activity. To put it differently, such a person is sufficiently pre­vented from acting in a prejudicial manner. Despite this, an order of preventive detention may be necessary where it is known that a person undergoing imprisonment would soon be released in which case a vali