Honble Yatindra Singh, J.—An incident took place in village Chaingravati district Bulandshahar at about 4.30 p.m. on 13.6.2007; a person was killed. An FIR was registered on the same date. On the basis of it a case, crime No. 176 of 2007 under Sections 302/34, 147, 148, 149, 120-B, IPC at Police Station Siyana, District Bulandshahar was instituted.

2. The petitioner was arrested in connection with the aforesaid criminal case on 25th June, 2007. A bail application was filed. It was rejected on 23.7.2007. Subsequently a detention order was passed against the petitioner on 31.7.2007 under Section 3(2) of the National Security Act, 1980 (the Act). It was approved by the State Government on 9.8.2007.

3. The petitioner filed a representation on 11.8.2007 before the State Government as well as Central Government. The Central Government and the State Government rejected the representation of the petitioner on 31.8.2007 and 6.9.2007 respectively.

4. The case of the petitioner was also considered by the Advisory Board. On the basis of the report of the Advisory Board, the detention was confirmed by the State Government. The petitioner was informed about the confirmation by the radiogram dated 28.9.2007.

5. The petitioner has filed the present habeas corpus writ petition challenging his detention under the Act.

Petitioners Submissions

6. We have heard Sri M.P. Yadav, Counsel for the petitioner; Sri S.K. Katiyar, Counsel for the Union Government; and the AGA for the State Government and State officials. We also wish to record our appreciation for Sri D.S. Misra who has made submissions as the friend of the Court. The Counsel for the petitioner submitted that the detention of the petitioner is illegal for the following reasons :

(i) No bail application was pending on the date of the detention and there was no possibility of the petitioner being released on bail. The satisfaction of the detaining authority in this regard is vitiated.

(ii) The grounds of detention relate to law and order rather than to public order.

(iii) There is delay in deciding the representation of the petitioner.

Ist submission : Satisfaction is vitiated

7. There is no dispute on the question whether a detention order can be passed or not if a person is in custody. The Courts have laid down the principle as to when such a detention order can be passed. In this regard, the leading case is reported in (1991) 1 SCC 128; Kamarunnissa v. Union of India and another (the Kamarunnissa case), JT 1994 (1) SC 350. This has been followed in Veeramani v. State of Tamil Nadu, (2006) 2 SCC 664; T.V. Sravanan alias SAR Prasana Venkatachaariar Chaturvedi v. State through Secretary and another, JT 2003 (Suppl 2) SC 503; Union of India v. Paul Manickam and another.

8. The Supreme Court in paragraph 13 of the Kamarunnissa case has held :

"From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question if before a higher Court."

9. The aforementioned conditions should be satisfied before a valid detention order can be passed against a person in custody. One of the conditions is that there should be possibility of the person being released on bail. According to the Counsel of the petitioner,

? The bail application of the petitioner