The main legal point established in the judgment is the requirement for the detaining authority to be aware of the detainee's existing custody and to consider the possibility of their release on bail and engagement in prejudicial activities when passing a detention order.

The petitioner being aggrieved with the orders dated 7th July, 2011 and 30th August, 2011 passed by the respondent No. 1 and 2 under the provisions of the National Security Act, 1980 (for short "the Act") has filed the present Writ Petition.

2. In brief, the petitioner's case is that an FIR was registered against the petitioner on 12-4-2011 on the basis of which the petitioner was arrested on 2-7-2011 and was kept in Bherugarh Jail, Ujjain. When the petitioner was in custody, the order dated 7-7-2011 was passed by the respondent No. 2, District Magistrate, Ujjain under section 3(2) read with (3) of the Act, directing the detention of the petitioner. The petitioner was supplied the grounds of detention showing that said detention order was passed on the basis of the FIR registered on 12-4-2011 and three rojnamcha entries dated 16-6-2011, 29-6-2011 and 30-6-2011. The petitioner had submitted the representation before the Advisory Board constituted under section 9 of the Act and on the basis of the report of the Advisory Board, the respondent No. 1 has passed the order dated 30-8-2011, confirming the order of detention passed by respondent No. 2 and directing the detention of the petitioner for a period of 12 months till 6-7-2012.

3. A reply has been filed by the respondents taking the plea that the petitioner has criminal background and is involved in the anti social activities thereby causing fear and terror to the general public. It has further been stated that various FIRs have been lodged against the petitioner, his brother and other co-accused persons since 2006 and cases are pending against them and though reports have been received in respect of the commission of offence by the petitioner but due to his terror general public is afraid to lodge FIR against him. The order of detention is sought to be justified on the ground that the activities of the petitioner had led to the problem of public order.

4. Learned counsel appearing for the petitioner has attacked the order of detention primarily and substantially on the ground that the impugned detention order has been passed without considering the fact that at the time of passing of the detention order, the petitioner was already in custody, therefore, such a detention order cannot be upheld in view of the judgments of the Supreme Court as well as of this Court.

5. Learned counsel for respondents has supported the impugned detention order by submitting that the sufficiency of the material on the basis of which the order of detention has been passed cannot be gone into by this Court and that since the activities of the petitioner had created the problem of public order, therefore, the order of detention has rightly been passed.

6. We have heard the learned counsel for parties and perused the record.

7. The arrest memo (Annexure P.6) filed along with the Writ Petition indicates that the petitioner was arrested on 2-7-2011 in connection with the FIR No. 216/2011 dated 12-4-2011 for alleged commission of offence under section 307/120-B/34 of the Penal Code and 25/27 of the Arms Act. In the Writ Petition, a clear averment has been made that the petitioner was arrested during investigation of Crime No. 216/2011 on 2-7-2011 and since then he is suffering incarceration in Bherugarh Jail, Ujjain and that the impugned detention order has been passed when the petitioner was already in jail. The said fact has not been disputed by the respondents in their reply. A perusal of the impugned order also indicate that the respondents have not taken into account the fact that the petitioner was already in custody when the impugned detention orders were passed. Therefore, the sole question which arises for consideration is as to whether the impugned detention order could have been passed by the respondents without considering the fact and the effect of the petitioner being in jail at the time of passing of the impugned detention order?.

8. The law in this regard is well settled by various pro