S.K. Seth, J. -- 1. The short question which this petition raises for our decision is whether the order of detention passed against and served on the petitioner Chhenu alias Yunus is sustainable under section 3 (2) of the National Security Act, 1980 (hereinafter called the 'Act'). The answer to this question would naturally depend upon a fair and reasonable construction of the relevant clause of the said section.

2.The District Magistrate, Ujjain, passed the detention order on the March 3, 2010 directing that the petitioner should be detained. The order recites that the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. This order was served on the petitioner on March 3, 2010. The grounds of detention were served on 4.3.2010. After getting positive report from the Advisory Board, State Government passed the Order dated April 19, 2010 under section 12 of the Act confirming the detention order for a period of twelve months vide Annexure P-6.

3. At the outset, it may be stated that there is dispute about the date of arrest of detenu. According to learned counsel for petitioner the detenu was already in jail when he was served with the detention order. On the other hand learned Additional Advocate General appearing for respondents stoutly maintained that detenu was taken into custody on April 16, 2009. No attempt was made either in the reply or during the course of arguments to reconcile conflicting dates of detention. The counter affidavit does not indicate how the case of detenu was dealt with by the Advisory Board, therefore, we directed production of original record for our perusal.

4. We have gone through the original record and find that on the basis of FIR dated 21.2.2010 Crime No. 128/2010 was registered against the detenu in the Police Station Chimangunj Mandi Ujjain for offences punishable under sections 307, 327, 506/34 of the Indian Penal Code. Petitioner was granted bail by the learned Sessions Judge, Ujjain on 22.4.2010 on the ground of parity because co-accused were granted bail on 7.4.2010, as is clear from Annexure PA. Yet, not only the reply but the separate affidavit of the District Magistrate is capaciously silent on this aspect. Offences under sections 307 and 327 are non-bailable offences, therefore, in all fairness respondent ought to have disclosed the date of actual arrest of the detenu in connection with said crime. In fact in the record of the District Magistrate, we came across an application moved by the wife seeking permission to meet the detenu wherein she stated that detenu was in custody since 27.2.2010. We see no reason to disbelieve that the detenu was in custody since 27.2.2010 in the backdrop of the bail order.

5. Now the further question arises for consideration is whether a detention order is valid when detenu is already in custody?

6. Sub-section (2) of section 3 of the Act confers powers to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order, etc. In this case, the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge in an activity prejudicial to the maintenance of public order. In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged in is likely to be repeated. This is the postulate of the section. And this undoubtedly transpires from the language employed in sub-section (2) which says that the detention order can be made with a view to, prevention the person sought to be detained from ac