Charanjit Talwar, J.
(1) Jagmohan @ Jaggu has challenged his detention under Section 3(2) of the National Security Act (herein called 'the Act'). The order of detention bearing (No. F. 91/D/LA/Judl.) 81/1161-63 was pas. sed by the then Commissioner of Police on 17th September, 1981, and was confirmed by the Administrator on 31st October, 1981, whereby under Section 13 of the Act it was directed that the petitioner be detained for 12 months from the date of his detention, namely 21st September, 1981.
(2) At the outset it may be noticed that the petitioner's allegations are that he was arrested from his residence at Modinagar where he had been living for the last over three years. Accroding to him he has not been involved in any criminal case in Delhi after 9th July, 1980. The respondents admit that the petitioner was arrested from Modinagar and that no case after 9th July, 1980, was registered against him at Delhi.
(3) It is the admitted case of the parties that the last two cases mentioned in the Appendix annexed with the grounds of detention were registered against the petitioner at Police Station Modinagar (UP)-one was registered vide Fir No. 733 on 30th November, 1980, for an offence under Sections 399/402/307, Indian Penal Code and the other vide Fir No. 786 on the same day for an offence under the Arms Act. Both these cases are pending under investigations.
(4) The main argument of the petitioner is that he is no longer residing in Delhi; he has taken up a permanent residence along with his family at Modinagar where he is living as a peace-loving citizen and thereforee the order to detain him in Delhi is bad. The respondents while admitting that he lived in Modinagar where his wife is employed as a school teacher state that nevertheless the petitioner continued to operate in Delhi in his criminal activities.
(5) On merits the case of the respondents appears to be that the petitioner is a roost desperate character. He was involved in as many as 34 criminal caies and was convicted in 22 cases. Apart from the two cases which are pending investigation at Modinagar as per the appendix annexed with the grounds of detention, three or four cases are pending against him for trial in Delhi Courts. In the counter-affidavit it is averred that the petitioner's activities were prejudicial to the maintenance of public order and hence the order of detention under the Act.
(6) The averment of the petitioner that after his arrest by Police Station Modinagar on 30th November, 1980, in the two cases mentioned ear- Her, he was lodged in judicial custody at Abdullapur and District Mecrut till 30th June, 1981, on which date he was transferred to Central Jail, Tihar, Delhi, is not disputed. That he was released on bail in July, 1981, in the cases which are pending in Delhi and thereafter had been residing at Modinagar till his impugned detention is also not disputed. As noticed above, the respondents' case appears to be that although he has shifted his residence from Delhi yet he continued to indulge in criminal activities at Delhi. However, it is admitted that no case after 9th July, 1980, has been registered against the petitioner within the Union of Territory of Delhi.
(7) We have gone through the list of cases annexed with the grounds of detention.
(8) PETITIONER'S criminal activities came to light in the year 1965. Most of the cases registered in that year and in the following two years related to theft of scooters/bicycles. No case was regiltered against him in the years 1968 and 1969. The only F.I.R. in the year 1970 against the petitioner was for the offence of lurking house trespass and theft of Rs.475.00 . This case was filed as untraced. In the two cases which were registered in the year 1971 at Police Station Paharganj-one under the Arms Act and the other for the offence under Sections 394 and 325, Indian Penal Code, he was acquitted. One other case registered on 22nd May, 1972, for an offence under Section 457 read with Section 380, Indian Penal Code is still pending. In the year 1973, eight more cases were registered against him mentioned at items 15 to 22 in the appendix attached to the grounds of detention. Most of them related to offences of theft and house trespass. He was convicted in four of them, acquitted in one and discharged in the remaining three cases. He has further been convicted in ten other cases mentioned at items 23 to 30 of the said appendix. It is admitted by the learned counsel for the respondents that most of the convictions are based on plea of guilt. The cases which are mentioned at items 31 and 32, one registered on 28th March, 1979, and the other on 9th July, 1980, are still under investigation. The last two cases mentioned in the appendix, as noticed above, pertain to Police Station, Modinagar.
(9) The details of the criminal cases clearly bring out that the petitioner from the year 1966 to 9th July, 1980, has been leading the life of a thief. Most of the time he has been in Jail. Yet after undergoing the sentence, he could not resist the temptation of committing another criminal act. For the last about 1' years he is not involeed in any criminal act in Delhi and that he has shifted his residence to Modinagar where, according to the respondents, his wife is employed as a teacher, which fact is being denied by the petitioner as, according to him, his wife has since expired is also established. In view of these facts the assertion of the respondents that the petitioner has merely changed his residence but in fact he continued to indulge in his criminal activities at Delhi is not made out. The respondents have not been able to establish (1) that the petitioner continued to indulge in his criminal activities at Delhi and (2) that he cannot be effectively dealt with under the ordinary criminal law of the land.
(10) In this view of the matter, we are unable to agree with the learned counsel for the State that the petitioner though living in Modinagar yet because of his past conduct in Delhi, his detention is justified on the ground that if he is allowed to be at large, his activities would be prejudicial to the maintenance of public order in Delhi. In any case, as has been noticed above, having been dealt with effectively in Delhi under the ordinary crimi nal law, as he has been convicted in as many as 22 cases, we are satiafied that the petitioner is not such a desperate character whose activities in Delhi are a great menace and hazard to the community as has been alleged by the respondents.
(11) The order of detention is also challenged by the petitioner on the ground that, in the first instance, it could only be passed for detention of the petitioner for three months. According to the learned counsel for the petitioner the period of detention could be extended from time to time by any period not exceeding three months at any one time subject, however, to the maximum period of detention of one year.
(12) The submission is entirely misconceived and is based on a misreading of Section 3 of the Act. Mr. Kapur's reliance on proviso to Subsection (3) of Section 3 is misplaced. Under Sub-section (3) of Section (3) the State Government is empowered to delegate its power to the District Magistrate or Commissioner of police, conferred on it by Sub-section (2) of the said Section. However, the delegation in the first instance, has to be for three months. Under the proviso to Sub-section (3) of Section 3 'the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time'. By this proviso, the delegated power to the District Magistrate or the Commissioner of Police, has to be extended from time to time by a period not exceeding three months at any one time. This limitation has no bearing as far as the detention order itself is concerned. After having been approved by the Advisory Board it is open to the Administrator and to confirm it for a total period of 12 months. It was not disputed before us that the power of the Commissioner of Police was extended beyond three months after the first order. The order of detention itself shows that it was being passed by the then Commissioner of Police in exercise of the powers conferred upon him under the Act and vide notification of the Delhi Administration dated 17thJuly, 1981. The order of detention was passed within two months of the notification. It is apparent, thereforee, that the Commissioner of Police was duly empowered to pass the detention order.
(13) The result is that the detention of the Petitioner is set aside as the order of detention dated 17th September, 1981, as confirmed on 31st October, 1981, is bad. The petition is granted.