N. Ibotombi Singh, J.
1. This is an application under Article 226 of the Constitution of India for a writ in the nature of Habeas Corpus filed by the detenu, Sri Bipul Mahanta, challenging the order of detention dated 7-1-83, made by the State Government under Sub-section (2) of Section 3 of the National Security Act, 1980.
2. The detenu is a student of B. Barooah College, Gauhati, and while he was preparing for his B. A. Compartmental Examination as a candidate from B. Barooab College, he was arrested on 5-1-83 under Section 151, Cr. P. C. He was lodged in the District Jail, Gauhati and thereafter he has been transferred to Dhubri District Jail, as submitted by the learned Counsel for the detenu. On 7-1-83, the order of detention was passed and the grounds were supplied to him on the same day. On the date when the order of detention was made, he was in confinement in jail. The order of detention reads as:
Whereas Government of Assam are satisfied with respect of the person known as Shri Bipul Mahanta S/o Late Phanidhar Mahanta, Railway Station Colony, Gauhati that with a view to preventing him from acting in a manner prejudicial to maintenance of public order it is necessary to detain him under the National Security Act, 1980.
Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980 the Govt. of Assam direct that the said Shri Bipul Mahanta, S/o Late Phanidhar Mahanta be detained in the District Jail, Gauhati.
By order etc.
A. Gopalakrishna Commr. & Secretary to the Govt. of Assam, Political Department.
3. The detenu in due course made representation to the State Government but the State Government rejected it. At the time of hearing, a number of contentions were advanced by the learned Counsel for the detenu but we propose to deal with only one contention which, in our opinion, goes to the root of the matter, and which, when accepted, would invalidate the order of detention. The contention raised is that the order of detention does not show ex facie that when the order of detention was made, the detaining authority was aware of the fact that the detenu was, already arrested and confined in jail and yet a preventive detention order was a compelling necessity. As the subjective satisfaction is reached without the awareness of this very relevant fact, it is a case of non-application of mind to the relevant fact for exercise of the power under Sub-section (2) of Section 3 of the Act, and as such, the order of detention is liable to be set aside.
4. In our view, the contention of the counsel for the detenu is well founded. It has been laid down by the Supreme Court in series of cases that where a preventive order is made against a person already confined to jail or detention, it must be present to the mind of the detaining authority that keeping in view the fact that the person is already in detention, a preventive order is still necessary. The subjective satisfaction of the detaining authority must comprehend that the person sought to be detained is already in jail or under detention and yet a preventive order is a compelling necessity. It has been further held that this awareness must find its place either in the detention order or in the affidavit at least justifying the detention order when challenged. (1) : 3SCR522 : Vijay Kumar v. State of J. & K.; (2) : 1982CriLJ2354 , Biru Mahato v. District Magistrate, Dhanbad; (3) : 1982CriLJ2357 , M. Satyanarayana v. State of Andhra Pradesh; and (4) : 1982CriLJ2363 , Devi Lal Mahto v. State of Bihar.
5. Mr. Chowdhury, Senior Government Advocate for the State, submits before us that the detenu was arrested under Section 151 of the Code of Criminal Procedure and detained in jail. The detaining authority, after taking into consideration of the relevant facts, passed the impugned order of detention with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. It is, therefore, submitted that the principle laid down in these cases does not apply to the instant case.
6. We are unable to accept this contention. The detenu was arrested on 5-1-83 under Section 151, Cr. P. C. Under Sub-section (1) of Section 151, Cr. P. C. a Police Officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. Sub-section (2) of Section 151, Cr. P. C, however, provides that no such person arrested under Sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force. Obviously, the detenu having been arrested on 5-1-83 under Section 151(1) of the Code, he could not be detained longer than twenty-four hours in view of Sub-section (2) above. He was, therefore, to be detained in jail thereafter for some other offences.
7. In para 22 of the affidavit-in-reply filed by Sri M. Gopalakrishna, Commissioner & Secretary to the Government of Assam, it is stated : 'The order of detention under the National Security Act, 1980, was passed in accordance with the law and with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order and the same is independent of the petitioner's arrest on 5-1-83 on other charges. There has been no lack of awareness on the part of the detaining authority'. These statements, according to the deponent, are to his information derived from the official records of the case.
8. In the counter-affidavit in reply, nowhere it is mentioned that the detaining authority was aware of his arrest and confinement in jail Under Section 151, Cr. P. C. and/or other offences from 5th Jan., 1983, and that he was in jail on the date when the order of detention was passed. It is not stated in clear terms that the other charges are, as mentioned in the affidavit, since the detenu could not be detained in jail after 6-1-83, by virtue of Sub-section (2) of Section 151 of the Code.
9. It is hardly necessary to point out that when Rule Nisi is issued in a writ of Habeas Corpus, it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of law authorising such detention. There should be precision and perspicuity in the affidavit filed by the detaining authority to the Court. Care and clarity are particularly important in such matters, since Court is concerned with the questions of personal liberty guaranteed under our Constitution. The Court is sentinel qui viva of the freedom of an individual guaranteed under our Constitution, It is the area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law and even where the requirement of law is breached in the slightest measure, the Court will not hesitate to strike down the order of detention as invalid.
10. On perusal of the order of detention and the entire affidavit-in-reply filed on behalf of the State Government, we are satisfied that there is no slightest indication that the detaining authority was aware of the fact that the detenu was already in jail and yet it became a compelling necessity to pass the detention order on 7-1-83. It is conspicuously silent on the vital fact either in the order of detention or the affidavit filed on behalf of the State. We have also perused the dossier produced by the Senior Govt. Advocate for the State to see if anything was mentioned in the history-sheet that the detenu was already in jail being detained under Section 151, Cr. P. C. and/or in connection with other offences but we do not find anything. That there was complete unawareness of this vital fact on the part of the detaining authority is manifest from the fact that in the detention order, he was regarded as a free man stationed at Railway Station Colony, Gauhati. The above facts lead to the inescapable inference that the detaining authority mechanically proceeded to pass the order which unmistakably indicate that there was non-application of mind to the most relevant fact as pointed out above. In our opinion, the subjective satisfaction of the detaining authority is tainted with the vice of non-application of mind to the relevant and vital facts. The case is covered by the ratio laid down by the Supreme Court in the cases referred to above. We, therefore, hold that the order of detention illegal.
11. For reasons given above, we quash and set aside the order of detention impugned in the present proceeding, and we direct the detenu to be released forthwith. Rule is made absolute. The petition is allowed.