JUDGMENT
V.A. Mohta, C.J.
1. This is a habeas corpus petition filed by a detenu under Section 3(2) of the National Security Act, 1980. The Impugned order of detention and the grounds of detection were served on the detenu when he was in jail custody in connection with an offence under Section 395, IPC, which is one of the grounds of detention.
2. The petitioner had contended that he continues to be In jail custody and no application for release on bail has been filed by him To ascertain this fact, the opposite parties had taken time. The factual aspect is not disputed.
3. It is a common ground that the sponsoring authority has not brought to the notice of the detaining authority the above feature of the detenu being in Jail custody. The detaining authority was also not aware of this position.
4. Law is well settled that the absence of awareness to the fact of the detenu being in custody vitiates the subjective satisfaction of the detaining authority.
5. Leading case on the point is the decision of a constitution Bench in Rameswar Shaw v. District Magistrate, Burdwan, AIM 1964 SC 334. This decision was followed in several cases including Vijay Kumar v. State of Jammu and Kashmir. AIR 1982 SC 1023. In the case of N. Meera Rani v. Govt. of Tamilnadu, AIR 1989 SC 2027, a review of all the decisions on the point was taken and the legal position was summarised thus :
“22. We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but. even so, if the detaining authority is responsibly satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validity made even in anticipation to operate on his release. This appears to us to be the correct legal position”
6. The gist of the ratio Is that the detention order can be validly passed even against a person In actual jail custody. There has to be an awareness of the detaining authority of to the fact that the detenu was in custody. It not, this vitiates the subjective satisfaction and demonstrates non-application of mind to the relevant factor.
7. To conclude, the petition is allowed. The impugned order of detention is quashed and set aside. We direct release of the detenu from the prison forthwith if not required for any other reason.
R.K. Patra, J.
8. I agree.