JUDGMENT
S.M. Daud, J.
1. This is a petition under Article 226 impugning the order of detention made against the petitioner on 6-6-1988.
2. From the grounds supplied to the petitioner, it appears that on 4-2-1985 he was detained under an order of detention passed on that date vide the National Security Act, 1980. The detention order in that case was confirmed by the Government on the recommendation of the Advisory Board on 28-3-1985. Completion of the prescribed period of detention for 12 months over, petitioner was released and thereafter he revived his prejudicial activities. These took place on 10-1-1987 and 29-4-1987. The offences committed in these two incidents over, petitioner absconded. Again he figured in two incidents dated 6-11-1987 and 21-2-1988. In the first incident, i.e. the one which took place on 6-11-1987, the petitioner is alleged to have come to an open site in front of the house of Smt. Kamu Narayan Makwana set fire to the said house and when people came out in response to the cries raised by Smt. Kamu, threatened them from making any effort to stamp out the fire making it clear that ignoring his warning would have the consequences of the rescuers being flung into the flames. The effect of this was that the neighbours, who had come either to watch the hut in flames or attempt a rescue, went back into their homes and closed the doors and windows of their apartments. The fire started by the petitioner caused a loss of Rs. 10,000/- to Smt. Kamu. The matter was reported to the Bandra Police, but the petitioner remained at large. It was on 21-2-1988 that while going by the Kurla-Kalina road in an auto-rickshaw, the petitioner was stopped. He was searched and found armed with a country-made revolver, five cartridges and a knife. The articles were seized and the petitioner was being taken towards the police jeep for being transported to the police station at Vakola. While so being taken, the detenu became violent and assaulted Police Constable-Bamne and jeep driver Mane. With some difficulty, the petitioner was overpowered. An offence of the resistance and causing of hurt to constable engaged in the discharge of their official duties was registered against him. The petitioner moved the Bandra Magistrate on 21-2-1988 for grant of bail. Despite an objection raised by the police, the applications moved by the petitioner were acceded to and he was directed to be released on bail in the event of security in the required sums being furnished. The Senior Inspector of Policy, Bandra, on 19-4-1988 addressed a letter to the Commissioner of Police pointing out the antecedents of the petitioner, the happenings on 6-11-1987 and 21-2-1988, and the order for his release on bail despite objection. It was prayed that an order of detention be passed against the detenu under section 3(2) of the National Security Act, 1980 (No. 65 of 1980). The Commissioner had the proposal processed and on 6-6-1988 passed the order of detention impugned in this petition. A copy of the said order, together with the grounds, was served on the petitioner.
3. Mr. Sardar appearing for the petitioner canvassed four grounds to challenge the order of detention. These are considered below:—
The first contention is that the petition at page-10 (xviii) refers to the grant of bail, subject to certain conditions, to the petitioner. The Commissioner of Police, while passing the order of detention, did not take into consideration the fact that there had been no violation of the conditions. This shows a non-application of mind. While replying to the ground, the Commissioner in his return avers that he was aware of the conditions imposed upon the petitioner and that despite this, he thought it necessary to pass the order of detention. Admittedly, no conditions were imposed by the Magistrate in the bail orders passed by him. Mr. Sardar argues that the non-application of mind should be inferred from the reply irrespective of the fact that the petition incorrectly asserted the imposition of conditions, etc. It is not possible to agree with this submission. In fact, the petitioner has deceived the Court as also the respondents by averring in the petition a set of facts far divorced from reality. This, of course, does not excuse the rely given by the Commissioner. On the contrary, it was for him to point out that the petition falsely referred to the imposition of conditions for availing of bail by the petitioner. But the Commissioner cannot be wholly blamed for the deviations from the facts appearing in the return.
This second contention is that the two incidents referred to in the grounds were both old ones and had no nexus to the subjective satisfaction necessary for the passing of a valid order of detention. The first event took place on 6-11-1987 and the second on 21-2-1988. Nearly 4 months later the order of detention was passed. We do not agree that the date on which the order was passed, is so distant from the prejudicial activities specified in the grounds as to vitiate the order on the grounds of staleness. The sponsoring authority could apprehend the petitioner only on 21-2-1988. Thereafter, it had to encounter the request for bail made by the petitioner. Though the request for bail was opposed, the learned Magistrate having jurisdiction passed orders acceding to the request made on behalf of the petitioner. It was only on 19-4-1988 that the sponsoring authority moved the Commissioner for taking appropriate action under the National Security Act of 1980. The detaining authority did not take much time in processing the papers. Within less than 2 months, the order of detention was passed and the time spent in the processing was not unduly long.
Mr. Sardar argues that the two incidents taken into consideration, viz., those of 6-11-1987 and 21-2-1988, were instances where the law and order have been affected and that it could not be said that there had been a breach of public order requiring resort to the draconian measure of detention under the National Security Act. 1980. The first incident was the one where the petitioner set fire to the hut of Smt. Kamu. The act was done in broad daylight and those desirous of coming to the rescue of the unfortunate woman were threatened and intimidated by the petitioner. It is not as if the petitioner was making empty threats. At the time he made the threats, he was armed with a sword and the threat was that if anyone dared to interfere, he or she would be flung into the leaping flames, which were consuming Kamu’s hut and her belongings. The result of the act, brazen in itself, was to scare the neighbours, who rushed back into their homes and closed the doors and windows thereof. It was argued that this incident showed the commission of a crime against one individual. We cannot agree with this submission. It is not that only Kamu was injured by the acts of the petitioner. An arsonist setting fire in broad daylight and giving threats to deter rescuers is an example of a flagrant breach of public peace, and anyone who acts on this scale is committing a breach of public order. The first part of the incident which occurred on 21-2-1988 may not be said to give rise to a disturbance of public order. Petitioner was travelling in a rickshaw and he was armed with dangerous weapons. The rickshaw was stopped and the petitioner searched, and the dangerous weapons found on his person, seized. But the resistance which the petitioner put up to being taken towards the jeep in which the police had come and his assaulting constable Bamne and jeep driver Mane were acts of lawlessness visible to the public and likely to not only frighten law abiding persons but also inspire the lawless to take recourse to violent measures to resist the police and impede public servants in the discharge of their official duties. By acting, as he did, the petitioner had disturbed the public order.
The last and most important contention advanced by Mr. Sardar is that the petitioner had not availed of the orders of bail made in his favour by the Magistrate before whom the petitioner had been placed on 21-2-1988. True, the request for bail made on behalf of the petitioner had been opposed by the prosecution and also true that the objections raised on behalf of the prosecution had been overruled by the Magistrate. These facts were within the awareness of the detaining authority when it passed the order of detention. None- the- less, it was necessary for the detaining authority to bear in mind the non-availment or inability of the petitioner to furnish security in order to secure his release. This vital factor was not taken into consideration and the fact that the detaining authority has a different story to tell in his return, is of no avail. In the return, it is contended that the detaining authority was aware of the petitioner continuing to be in custody because he could not furnish security. However, he was apprehensive that the petitioner would furnish security as desired, and after release resume his career of lawlessness. The legal position is set out in Rameshwar Shaw v. District Magistrate, Burdwan, , and Vijay Kumar v. State of Jammu & Kashmir, . The relevant excerpts from these two decisions read thus:—
Rameshwar Shaw
“As an abstract proposition of law, there may not be any doubt that section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.”
Vijay Kumar
“If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the “knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.”
A large number of decisions were considered by the Supreme Court in Smt. Poonam Lata v. Wadhawan and another, . The conclusion of Their Lordships is formulated thus:—
“It is thus clear that the fact the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the Court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary……….”
4. It is in the light of the formulation aforementioned that we will have to examine the position in the instant case. The relevant recitals from the grounds furnished to the petitioner are to the following effect:—
“On 21-2-1988 in spite of police objection, Metropolitan Magistrate, 21st Court, Bandra, offered you bail in the sum of Rs. 1,000/- with one surety in the like amount in “L. A.C. No. 458/88. On 29-2-1988 in spite of police objection, M.M. 21st Court, Bandra, offered you bail in the sum of Rs. 1,500/- with one surety in the like amount in L.A.C. No . 459/88 mentioned at Sr. Ground No. II above on 25-3-1988 in spite of police objection, Addl. Ch. M. M., 9th Court, Bandra, offered you bail in the sum of Rs. 1,500/- with one surety in the like amount in C.R. No 32/87 mentioned in the preamble. On 6-4-1988. in spite of police objection, Addl. Ch. M. M, 9th Court, Bandra, offered you bail in the sum of Rs. 1,500/- with one surety in the like amount in C. R. No. 338/87 mentioned in the preamble and Rs. 2,000/- with one surety in the like amount in C.R. No. 1031/87 mentioned at Sr. Ground No. I above.”
x x x x x x
“As a result of your above-mentioned activities, the peace loving and law-abiding citizens in the localities of Bazar Road and adjoining areas in the jurisdiction of Bandra Police Station are experiencing a sense of insecurity and are living under a constant shadow of fear, which activities of yours are prejudicial to the maintenance of public order in Greater Bombay.”
5. Learned Counsel contends that having regard to the continuance of the custody pursuant to the inability of the petitioner to furnish security, it was not necessary to pass an order of detention against him. There was nothing in the grounds to indicate that the detaining authority was apprehensive of the likelihood of the petitioner, at some date, being in a position to and actually furnishing the security. The apprehension spoken of in the return is totally missing in the grounds and can be of no avail to sustain the order of detention. He relies upon Mahmood Medhar Khan v. Government of Maharashtra, being C.R. Writ Petition No. 36 of 1987 decided on 7-9-1987 by the Nagpur Bench of this Court. The decision is . The Judges at Nagpur do not appear to have been made cognizant of the Supreme Court’s decision in Poonam Lata’s case. That is why they observed:—
“In our view, there is no substance in the above submission. Para 24 of the grounds reproduced Supra only shows that the Detaining Authority considered the fact that the petitioners were arrested on 25-8-1986 and that thereafter they were remanded to the judicial custody from time to time. The Detaining Authority has also considered the facts that the petitioners were ordered to be released on bail subject to certain conditions, but since the petitioners did not avail of the bail, their remand period was extended from time to time till 4-12-1986. There is nothing in the grounds to indicate that the Detaining Authority considered the events after 4-12-1986. There is also nothing in the grounds to indicate that the Detaining Authority knew that even on 16-2-1987 the petitioners were in jail and yet it was necessary to pass the impugned order, detaining them under provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Mr. Jaiswal contended that the Detaining Authority was made aware of the fact that the petitioners were in jail on 16-2-1987 and yet the Detaining Authority thought it necessary to pass the impugned order Even assuming that necessary documents were placed before the Detaining Authority showing that the petitioners were in jail on 16-2-1987, but since there is nothing in order to indicate that they have been taken into consideration by the Detaining Authority, the only conclusion which could be drawn is that such documents have not been considered by the Detaining Authority. Even then the impugned order would be bad for non application of mind. The impugned order does not show as to why the Detaining Authority thought it necessary to pass the impugned order even though the petitioners were already in jail on 16-2-1987.”
6. Learned Counsel is right when he submits that the facts of the present case are on par with those occurring in Mahmood’s case. But the distinction between the two cases is our being made aware of the Supreme Court’s decision in Poonam Lata’s case. As indicated by their Lordships in Poonam Lata’s case, the mere fact that the detenu is in jail does not mean that an order of detention passed against him is per se bad. All that the authority has to satisfy itself about is the necessity for the making of an order of detention against one who, though in jail, is likely to be released. The necessity of passing the impugned order of detention is clear from the grounds. They speak of the petitioner having succeeded in obtaining orders for his release on bail in different cases lodged against him, despite police objection. Next, there is a reference to the terror created in the minds of the public as a result of the doings of the petitioner. The file pertaining to the entire case has been made over to us by the learned Public Prosecutor and therefrom we find a reference in the proposal to the petitioner being in custody on the date on which the letter of the sponsoring authority was addressed to the Commissioner of Police, Mr. Sardar argues that there should have been some material before the Commissioner on 6-6-1988 to indicate that he was aware of the petitioner being in jail and the likelihood of his getting released by furnishing security. The very fact that the order of detention was made, would imply the knowledge of the detaining authority that the petitioner, though in custody on the date of making of the order of detention, was yet in a position to take advantage of the bail orders passed in his favour, get released and resume his career of crime. Everything need not be spelt out in so many words in the grounds. Some scope for reasonable inferences has to be given and thus considered, we hold that the detention order impugned in this petition does not suffer from the vice attributed to it by Mr. Sardar.
7. Having considered all the grounds canvassed on behalf of the petitioner, we see no merit in the petition and dismiss it. Rule discharged.