The central legal point established in the judgment is that a detention order under the National Security Act can be valid only if the detaining authority is aware of the detenu's custody status and has reason to believe that there is a possibility of his being released on bail and indulging in prejudicial activities.

Shantanu Kemkar, J.:-

By filing this petition under Article 226/227 of the Constitution of India, the petitioner has challenged his detention order dated 26.09.2013 (Annexure P/1) passed by District Magistrate, Ratlam exercising his powers under Section 3 (2) of the National Security Act, 1980 (for short, the Act) as also the order dated 28.11.2013 (Annexure P/2) passed by the State Government by which the order of detention passed by the District Magistrate, Ratlam has been confirmed.

2. The District Magistrate, Ratlam passed the impugned order dated 26.09.2013 (Annexure P/1) directing detention of the petitioner. As per the said order, the District Magistrate was satisfied that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order, it is necessary to detain him under Section 3 (2) of the Act.

3. During the course of the arguments, the only contention raised by learned counsel for the petitioner is that in view of the law laid down by the Supreme Court in the case of Vijay Kumar v. State of J & K (AIR 1982 SC 1023), Merugu Satyanarayana v. State of Andhra Pradesh (AIR 1982 SC 1543) as also in the case of Rameshwar Shaw v. District Magistrate, Burdwan, (AIR 1964 SC 334), that the preventive detention, which has been ordered when the petitioner was already in jail and the fact that the detaining authority has not disclosed awareness of the fact that he is in the knowledge of the said fact that the petitioner is already in jail and yet for the reasons, the preventive detention order need to be passed, the order is liable to be quashed.

4. He submits that in the various judgments passed by Supreme Court including the judgments passed in the case of Sanjay Kumar Agarwal v. Union of India (1990) 3 SCC 309, N. Meera Rani v. Government of Tamil Nadu (1989) 4 SCC 418, Dharmendra Suganchand Chelawat v. Union of India AIR 1990 SC 1196, Kamarunnissa v. Union of India AIR 1991 SC 1640, Abdul Sathar Ibrahim Manik v. Union of India (1992) 1 SCC 1, Veeramani v. State of Tamil Nadu JT 1994 (1) SC 350 and also by a Division Bench of this Court in Chandan s/o Ramchandra Dagoriya v. State of MP & another [2012 (3) MPLJ 663], it is clear that even in case of a person in custody, a detention order can validly be passed, if the authority passing the order is aware of the fact that he is actually in custody and if he has reason to believe on the basis of reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording such satisfaction, the same cannot be struck down. But according to him, in the present case, no such awareness in the mind of detaining authority has been brought on record and the impugned detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in jail and yet on the material placed before him, he was satisfied that a detention order ought to be passed.

5. Ms. Mini Ravindran did not dispute that the detenu was in jail, when the detention order was passed. We find that there is not a slightest indication in the order that the authority passing the order was aware of the fact that the detenu is already in custody and that he had reason to believe that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities.

6. In the circumstances, in view of the law laid down by the Supreme Court referred to above, the impugned detention order and the subsequent confirmation order are liable to be and are hereby quashed. The detenu be released from custody, if he is not required in any other case.

C. c. within three days.