Ram Labhaya, J.
1. This order will dispose of petitions Nos. 34 and 36 of 1950. The petitions are under Section 491, Criminal P.C.
2. Labaram Deka Barua. petitioner in case No. 84 of 1960 and Ranjit Dutta petitioner in case no. 36 of 1950, were detained by two separate orders signed by Mr. I, Majid, Secretary to the Government of Assam, and passed on 2-3-1950 under Section 3, Sub-section (1), Preventive Detention Act, 1960 IV  of 1960.
3. The orders of detention in both the cases were passed with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of public order. The grounds of detention were supplied to the petitioners along with the orders and they were informed that they were at liberty to make any representation they desired, to the Government at any time before 30-3-1950. The grounds of detention supplied to the petitioners were in substance identical.
4. The grounds supplied to Labaram were as follows:
(1) That you are natively connected with the Communist party of India, the aim and object of which la to overthrow the present order by forcible methods and mass demonstrations.
(2) That you participated in the joint I.P.T.A. and Peace Conference in the Natiapool Railway Colony. Dibrugarh, on 15th, 16th, and 17th July 1949, and a large number of volunteers organised by you in the villages also participated. You contacted underground Communist and other overwing Communist leader) and adopted necessary measures to guard the Colon; by volunteers and were also a party in deciding to 'resist Police and unauthorised infiltration of outsiders. As a result of malicious and violent propaganda against the Government and Police, the volunteers and other participants resisted Polios and brutally murdered Police Sub-Inspector Govinda Chandra Das and you and other organisers of the Conference incited the participants, both males and females, to be armed with lathis, brickbats, acid bulbs, etc., to resist Police and the Deputy Commissioner. Accordingly the mob with the women and other girls in the front attacked Police with above-mentioned weapons of offence.
(3) That you are acting in a manner prejudicial to the public safety and maintenance of public order at Dibrugarh.
5. In the case of Ranjit Dutta also there were three grounds. Grounds 1 and 3 are exactly in the same terms as grounds 1 and 3 in the case of Labaram. Ground 2 though substantially the same is not in identical terms. It is reproduced below:
(2) That you came to participate in the joint I.P.T.A. and Peace Conference of the Communist Party in Naltapool Railway Colony Dibrugarh, as a delegate from Karimganj. You attended both delegate and other meetings held in the Colony on the 15th, 16th and 17th July, 1949, were a party to all decisions. You came In touch with the Communist leaders of the province and, outside during the sessions. You are one of the leading members who incited the volunteers and others to resist Polios and unauthorised visitors. You were aware of the collection of acid, acid bulbs, lathis, brickbats, etc., in the Colony and of the purpose, but instead of preventing the same, you rather encouraged them 10 boldly resist Police. On 17-7-1949 you were among the mob who resisted and attacked Police with lathis, brickbats, acid, etc., when they came with the Deputy Commissioner in search of Police Officers and men who were reported to be assaulted. It was discovered later that S. I. Gobinda Chandra Das was brutally murdered and it was done at the instance of leaders including you.
6. The petitioners challenge the validity of these orders. They have pointed out in their petitions that they are under-trial prisoners and are in custody in connection with the case arising out of the alleged attack on the Police on 17-7-1949. This incident forms the subject-matter of grounds 9 in the case of each of the two petitioners. The learned Government Advocate admits that both are under-trial prisoners and were in custody as such when the detention orders were passed against them on 2 3.1950.
7. Under Section 3, Preventive Detention Act, 1950, a State Government if satisfied that it is necessary to make an order that a person be detained with a view to preventing him from acting in a manner prejudicial to the maintenance of public order may make an order directing that he be detained. It is necessary that the detaining authority should feel satisfied that detention of an individual is necessary in order to prevent him from acting in a manner prejudicial to the maintenance of public order. A man can act in a manner prejudicial to the maintenance of public order if be is at large. Detention prevents him from acting in a manner which may interfere with the maintenance of public order. When a person is already in detention, it is obvious that another order of detention is not necessary. He is not in a position to act in a manner prejudicial to the maintenance of public order. The detaining authority, in these circumstances, cannot feel statisfied that an order of detention is necessary for any of the purposes mentioned in Section 3 of the Act, for by serving the order of detention on him, the situation does not improve at all, the person on whom the order is served being already in confinement.
8. The orders of detention though they speak of the satisfaction of the Government have no relation to the realities of the situation. No detention order could have been considered necessary on 2-3-1960 in the case of these petitioners in order merely to prevent them from acting in a manner prejudicial to the maintenance of public order, and if the object was as stated in the order the satisfaction of the detaining authority spoken of in the detention orders was neither real nor could it be said to have been felt after due care and caution. The words 'if satisfied' in Section 3 of the Act occurred in almost all the Provincial Public Safety or Maintenance of Public Order Acts. They have been interpreted as meaning 'reasonably satisfied.' An arbitrary or an irrational state of being satisfied does not appear to have been contemplated, in my opinion. As held in In re Venkataraman A. I. E. (36) 1919 Mad. 629:(50 Cr. L.J. 748), the satisfaction has to be honest, careful and deli. berate arrived at by the detaining authority after exercising due care and caution. Where the purpose for which a detention order is passed is not at all advanced by the order, it is obvious that the satisfaction stated in the order of detention was not the result of due care and caution and the order could not be regarded as covered by or within the scope of B. 3 of the Act.
9. In the two petitions before us it is apparent that the fact that the petitioners were in detention already was overlooked. The satisfaction, therefore, of the detaining authority in these cases cannot be regarded as real; and these petitions should succeed on this ground alone.
10. There is another interesting point which arises in these oases. The petitioners are undertrial prisoners. They are being prosecuted for alleged participation in an attack on the police on 17-7-1949. Their alleged participation in this affair is the only important ground on which the detention orders are based. Grounds 1 and 3, which are exactly in the same terms in both the oases, standing by themselves, would not have justified the detention of the petitioners. The first ground in each case merely states that the petitioner was connected with the Communist Party, the aim and object of which is to overthrow the present order by forcible methods and mass demonstrations. There is nothing in this ground to indicate that the petitioners were engaged in any activity for the furtherance of the purpose of the Communist Party or that they were inciting people to overthrow the present Government by violent methods. Ground 3 gives no information at all. All that it says is that the petitioners were acting in a manner prejudicial to public safety and the maintenance of public order. This is merely borrowing the language of the Act. It is not at all shown in that manner, where and when they have been acting in a way that was regarded as prejudicial to public safety. Ground 2, thus, is the only foundation of the order and the subject-matter of ground 2, viz., the alleged participation of the pertitioners in an attack on the Police or their abetment of it is also the subject-matter of a criminal case pending before a Special Magistrate at Dibrugarh. Thus, what is alleged against the petitioners in this ground of detention has still to be proved by the prosecution in the Criminal case pending against them. The matter is clearly 'sub judice' and the decision of the Court as regards individual accused including the petitioners cannot be anticipated,
11. Preventive action which the Preventive Detention Act, 1950 seeks to legalise may not be based on a matter which is the subject matter of a pending prosecution. As held in Kamla Kant v. Emperor A.I.R. (31) 1914 pat. 864: (23 Pat. 252), in a case under the Defence of India Rules, when a man is arrested and brought before the Court on some definite and specific charge it seems very undesirable and quite wrong for an order of detention to be made against him before he has been tried on the charge and his guilt or innocence finally determined. The order of detention in such circumstances may result in serious prejudice to the person detained.
12. The orders effectively prevent, the detenus from asking for bail in order to defend themselves and thus easily expose themselves to the attack that they are beyond the scope of Section 3 of the Act. The detention orders in question are unsustainable and the petitioners cannot be held to be in lawful custody. The learned Government Advocate has stated that be is unable to support these orders.
13. These petitions, therefore, must be allowed. The orders of detentions are set aside. The petitioners shall be set at liberty forthwith unless they have to remain in custody under some other order of a competent Court.
14. The petitioner in case No. 34 has complained that by reason of the fact that he is an under, trial prisoner, he has been deprived of the privileges of a detenus. In view of the order that we make consideration of his complaint that privileges of a detenu are denied to him is not necessary.
15. Thadani C.J.—I am content to allow the two petitions on the sole ground that it is not desirable that the detention of a person under a Detention Act should run concurrently with his detention in pursuance of his being accused of a non-bailable offence.
16. I should not be understood as being a party to any of the observations which have been made by my learned brother in the course of his judgment.