JUDGMENT Honble Vinod Prasad, J.—Challenge in this Habeas Corpus Petition, by the detenu petitioner Anjani Kumar Srivastava, is the order of his detention under National Security Act, 1980 (hereinafter referred as the Act) dated 25.9.2008 passed by District Magistrate, Jaunpur/Detaining Authority, respondent No. 2, vide Annexure 2 to this petition. 2. The prejudicial activities which are the grounds for detaining the petitioner are contained in Annexure 4 and a perusal of the same reveals that, on 28.5.2008 Yashwant Pandey along with his elder cousin brother Prem Chandra Pandey had gone to the office of Sri Dinesh Chandra Pandey, the then District Inspector of Schools, Jaunpur, to meet him and was having a family chat with him, on the second floor of his office, when at 2.30 p.m., two people came in the said office. The petitioner vituparising District Inspector of Schools Dinesh Chandra Pandey informed him that his name is Anjani Kumar Srivastava and he is a teacher in Raj Inter College and how dare he (DIOS) had stopped his salary and college grant. By the time Dinesh Chand Pandey, DIOS, could pacify, the other accompanied person Sri Prakash Singh, abusing the DIOS uttered that DIOS will not understand like this and now they will tell the result of stoppage of salary. He also instigated to shoot dead the DIOS. No sooner thereafter whisking their country made pistols from their pants both, the petitioner and his fellow culprit, opened indiscriminate firing at DIOS, causing him injuries on the head and in the abdomen. Petitioner had shot the DIOS in his head. Brothers of the victim Yashwant Pandey and Prem Chandra Pandey, raised hue and cry and tried to apprehend the shooters but they were kept at bay at pointed gun and threatening utterances. Both the accused, thereafter, made their escaped good. Hue and cry attracted Ram Jawahar Kanaujiya, Assistant Inspector of School, Madan Chandra, Clerk and many other persons at the spot who all had witnessed the incident. Injured Dinesh Chandra Pandey informed his brother Yashwant Pandey that the petitioner was serving because of fraud and he had stopped his salary because of which he (Petitioner) had dealt with him like that. Prem Chandra Pandey and Yashwant Pandey along with other people transported injured Dinesh Chandra Pandey to the district hospital. Injured Dinesh Chandra Pandey informed his brother Yashwant Pandey that the petitioner was serving because of fraud and he had stopped his salary because of which he (Petitioner) had dealt with him like that. Prem Chandra Pandey and Yashwant Pandey along with other people transported injured Dinesh Chandra Pandey to the district hospital. Because of day light incident in the office of DIOS an atmosphere of terror and fear engulfed the locality, and shop owners pulled down their shutters. 3. Yashwant Pandey lodged the FIR of the incident at 3.30 p.m. at P.S. Kotwali, district Jaunpur as Crime No. 897 of 2008, under Sections 307, 504, 506, IPC and Section 7, Criminal Law Amendment Act, naming the petitioner and one unknown person (Later on came to be known as Sri Prakash Singh) as accused. Investigation of the crime was commenced by Sub-lnspector Sagir Ahmad, who was in-charge Inspector, and he immediately rushed to the spot. Reaching martiar Uma Nath Singh District Hospital, I.O. found, besides informant and Prem Chandra Pandey, many photographers, Officers and employees and a lot of crowd. Injured was lying on a stature in emergency ward and was reeling in pain. In the presence of all those people, injured Dinesh Chandra Pandey, informed that the petitioner was a teacher in Raj Inter College, Jaunpur and he along with one other person, whose name he did not know, had shot him. When asked for the motive he informed that the motive was stoppage of salary of the petitioner along with many other teachers. Besides aforesaid statement, injured also wrote in the yearly diary of the I.O. following words “DIOS Dinesh Chandra Pandey s/o Nagwa, Brijmanganj, Anjani Shankar, Sonkar R/o Pistol Raj College is a teacher in that college” and had signed it. 161 Cr.P.C. statement of informant was recorded the same day and at his pointing out spot inspection was conducted and a site plan was prepared. Three empty cartridges, two pieces of bullets, blood stained mat and table etc. was recovered by the I.O., from the spot, who prepared its recovery memos and thereafter recorded the statements of witnesses of recovery namely Virendra Nath, Rati Ram and got their signatures on it. Three empty cartridges, two pieces of bullets, blood stained mat and table etc. was recovered by the I.O., from the spot, who prepared its recovery memos and thereafter recorded the statements of witnesses of recovery namely Virendra Nath, Rati Ram and got their signatures on it. While investigation was still on injured lost his life in the District Hospital Jaunpur regarding which information was given by the ward boy Harish Chandra, at the police station on 28.5.2008, at 7 p.m. and hence crime was converted from 307 IPC to one under Section 302, IPC, regarding which a G.D. entry No. 47 was also made. Information was sent to Sub-Inspector P.K. Pandey for conducting the inquest on the dead body and a copy of the converted GD was also dispatched to the I.O. through a home guard. The I.O., thereafter recorded the statements of Prem Chandra Pandey and scribe of the FIR, Raj Kumar Pandey, at the mortuary itself. 4. On 29.5.2008 Yogendra Prasad Shukla took the charge as S.O. and he himself started conducting the investigation. 5. On 30.5.2008 the said S.O. Kotwali recorded 161 Cr.P.C. statements of Vijai Kumar Ram, Akhilesh Maurya, Keshav Kumar Singh, Ram Jawahar Kanaujiya, Madan Chandra and Madhav Ram. The aforesaid statements, revealed complicity of Sanjay Singh, Ravi Singh, Vinay Singh, Shishu Srivastava, Jitendra Kumar Prajapati and Satya Prakash Singh as conspirators socio criminalises in the crime besides complicity of Sri Prakash Singh which fact was further established through the statement of Prem Chandra Pandey. I.O. looked into the inquest and post mortem report which indicated the cause of death to be fire arm injuries. Cross checking of the already recorded call details in the case diary indicated telephonic contacts between the petitioner and his associates during the entire episode (prior to the incident, at the time of the incident and subsequent thereto). Thereafter 161 Cr.P.C. statements of Prem Kumar Pandey and other constables were recorded, who had got the inquest conducted and had carried the dead body to the mortuary. 6. Thereafter 161 Cr.P.C. statements of Prem Kumar Pandey and other constables were recorded, who had got the inquest conducted and had carried the dead body to the mortuary. 6. On 2.6.2008, co-accused Sriprakash Singh and Jitendra Kumar Prajapati were arrested by the police and the former accused confessed committing the crime and from his possession, the weapon of assault, a pistol of .32 bore was recovered and on such basis FIR of Crime No. 913 of 2008 under Section 3/25 Arms Act was registered at P.S. Kotwali against him, in which, after investigation charge-sheet was also submitted. Statements of inquest witnesses Dinesh Singh, Sudarshan Singh, Jai Prakash Singh and Manoj Singh, were subsequently recorded. 7. On 21.6.2008, detenu petitioner surrendered in the Court of CJM, Jaunpur and his statement was recorded by the I.O., on 23.6.2008, in which statement the detenu petitioner confessed his guilt. While on police remand, on 27.6.2008, one 9 m.m. Pistol along with two live cartridges were got recovered by the petitioner from his house. The said recovery resulted in registration of FIR of crime No. 1148/08, under Section 3/25 Arms Act, at P.S. Kotwali, against the petitioner in which charge-sheet, after due investigation, had already been submitted. 8. On 15.7.2008, DIG Varanasi Zone, transferred the investigation to R.N. Pandey, S.O. Phoolpur, district Varanasi and entry in that respect was made in CD No. 21. Commencing the investigation, on 30.7.2008, the said S.O. again recorded the statement of informant Yashwant Pandey on 6.8.2008, and copied his affidavit in CD. I.O. also recorded the statement of Prem Chandra Pandey also that day, who denied involvement of Satya Prakash Singh, Ravi Singh, Vinay Singh and Sanjay Singh in the said crime but implicated Rakesh Srivastava and Salim, hereto unknown persons, in the crime. On 19.8.2008, I.O. copied the letter of Assistant Inspector of Schools in CD and thereafter recorded the statements of the present DIOS along with Chhabban Vishwakarma, head clerk. Thereafter the I.O. again recorded the statements of petitioner, co-accused Sriprakash Singh and Jitendra Kumar Prajapati and of witness Satya Prakash Singh. 9. On 20.8.2008, I.O. recorded the statement of Mohd. Anish Ali and Ram Bahadur Yadav and three days thereafter, on 23.8.2008, he recorded the statement of Om Ji Verma and penned down criminal history of accused Rakesh Srivastava. Thereafter the I.O. again recorded the statements of petitioner, co-accused Sriprakash Singh and Jitendra Kumar Prajapati and of witness Satya Prakash Singh. 9. On 20.8.2008, I.O. recorded the statement of Mohd. Anish Ali and Ram Bahadur Yadav and three days thereafter, on 23.8.2008, he recorded the statement of Om Ji Verma and penned down criminal history of accused Rakesh Srivastava. Investigation of the crime ultimately resulted in filing of a charge-sheet against the petitioner and his associates Sriprakash whereas against rest of the accused persons it continued. The report of the Forensic Science Laboratory was also awaited. 10. It is mentioned in the grounds that, because of the criminal activity done by the petitioner, a sense of fear and terror embedded in the minds of the officers and employees of DIOS office to such an extent that even shifting of said office was mooted for consideration. It is further recorded that because of the activity of the detenu petitioner, it was difficult to maintain public order regarding which news items were published in daily news papers on 29.5.2008 and 17.6.2008, which established prevailing of an atmosphere of terror and fear in the society. To maintain law and order additional police force was deployed at the office of DIOS Jaunpur and arrangements for regular police picket was being made from the police out post Bhandari. The detenu petitioner was detained in jail along with his other co-accused Jitendra Kumar Prajapati, who had filed his bail application before the High Court through his counsel on which instructions had been sent by the I.O. The detenu petitioner was waiting for bail to be granted to Jitendra Prajapati, and as soon as his bail was allowed that the petitioner will file his bail application and will make a successful endeavour to be released on bail. After being released on bail, there was every likely hood that the petitioner will indulge in activities prejudicial to the maintenance of public order. 11. Detaining Authority/District Magistrate Jaunpur on the above grounds formed an opinion that it is not safe to keep the petitioner free, as his activities had disturbed the public order therefore he ordered for petitioner’s detention on 25.9.2008, vide Annexure 2, which detention order is now under challenge in the instant petition. 12. Grounds for detention further indicates that the right to make representation, right of personal hearing and assistance of next friend etc. 12. Grounds for detention further indicates that the right to make representation, right of personal hearing and assistance of next friend etc. were all communicated to the detenu petitioner along with the grounds of the detention through jail authorities. 13. All the respondents were noticed and they had filed their counter affidavits to which rejoinder affidavits have also been filed by the petitioner’s counsel. 14. The Detaining Authority/District Magistrate, Respondent No. 2, in his counter affidavit has averred that she had passed the detention order on 25.9.2008, which was approved by the State Government on 6.10.2008, which communication was given to the detenu vide Radiogram No. 165, through Jail Authorities. She has further taken the stand that the detenu’s representation, dated 6.10.2008, was received in her office and on such representation comments from police were called for by her. The family members of the detenu were informed about his detention through district jail authorities. It is further averred that due to the barbaric act of the petitioner, public order was disturbed and moral of the officers were seriously affected. First Information Report already registered for an attempt to commit murder but was later on converted in a charge of murder after the death of the DIOS. It further mentions that the petitioner had surrender on 21.6.2008 and since then he is in jail. It is further mentioned that the incident occurred in broad day light therefore public order and even tempo of social life was disturbed. Counter affidavit further records that the detention order dated 25.9.2008 was confirmed by the State Government on 20.11.2008 and the case of the petitioner squarely falls within the purview of public order and not law and order. Counter affidavit further mentions that the detention order was sent through Special Messenger for approval of the Principal Secretary Home, Government of U.P. Lucknow and to the Union of India on 26.9.2008. The counter affidavit further records that the detention order dated 25.9.2008 was served on the detenu on the following day 20.6.2008 through jail authorities. It is further averred that the approval of the detention order, by the State Government, dated 6.10.2008, was received on 7.10.2008, by the Detaining Authority, through a Radiogram which was got communicated to the detenu petitioner on the same day. It is further averred that the approval of the detention order, by the State Government, dated 6.10.2008, was received on 7.10.2008, by the Detaining Authority, through a Radiogram which was got communicated to the detenu petitioner on the same day. Representation of the detenu was received by the Detaining Authority on 6.10.2008, on which Detaining Authority had called for the comments from Sponsoring Authorities on 7.10.2008, who had submitted the same on 13.10.2008 and thereafter the case was sent to S.P.O. Jaunpur for his para wise comments. After receipt of para wise comments, the Detaining Authority prepared her comments on 17.10.2008 and thereafter, dispatched his reply along with detenu’s representation to the State Government on 18.10.2008. In the counter-affidavit it is further mentioned that 22.10.2008 was the date fixed for consideration of detenu’s case before the Advisory Board, Lucknow which intimation was furnished to the detenu. The rejection of the representation by the State Government was communicated to the detenu on the following day 28.10.2008. In para 29 of the said counter affidavit it is averred that "on 22.11.2008 after receiving the representation from the Advisory Board the detention order of the petitioner has been confirmed by the State Government and communication to this effect has been received in the office of answering respondent on 22.11.2008 through radiogram dated 20.11.2008 which was communicated to the petitioner through jail authority on 24.11.2008.” It is further mentioned in the counter affidavit that the representation of the detenu petitioner was rejected by the Union of India on 5.11.2008 and the same was also communicated to the detenu. 15. Respondent No. 1, State of U.P., in its counter affidavit has averred that the detention order along with grounds and other connected papers forwarded by the Detaining Authority, vide her letter dated 25.9.2008, was received in concerned section on 29.9.2008, and after examining the case from every aspect, the State had approved the detention order on 30.10.2008, which approval was communicated to the petitioner through district authorities through radiogram and a letter both dated 6.10.2008, within 12 days as is required under Section 3 (4) of the Act. It is further mentioned that the detention order along with the grounds and other connected papers were also dispatched to the Central Government by speed post on 7.10.2008 within seven days as is required under Section 3 (5) of the Act. It is further mentioned that the detention order along with the grounds and other connected papers were also dispatched to the Central Government by speed post on 7.10.2008 within seven days as is required under Section 3 (5) of the Act. State Government further mentioned that the detenu’s representation dated 6.10.2008 was received to the State Government on 20.10.2008 which was forwarded to the Advisory Board and to the Union of India by speed post on 21.10.2008. It is further averred that the State Government examined detenu’s case and representation and prepared detailed notes on 21.10.2008 which was examined on 22.10.2008 by the Joint Secretary. The Special Secretary examined it on the following day 23.10.2008 and thereafter submitted it to the Secretary the same day. Secretary on 23.10.2008 forwarded it to the higher authority for final orders by the State Government who in turn rejected the said representation on 25.10.2008. 26.10.2008 was a holiday being a Sunday therefore rejection of the detenu’s representation was communicated to the petitioner through District Authorities by radiogram dated 27.10.2008. It is further averred, in the State Government’s counter affidavit that the case of the detenu was referred to the Advisory Board well within the time stipulated under Section 10 of the Act. Advisory Board vide its letter dated 26.10.2008 informed the State Government that it will consider petitioner’s case on 21.10.2008 which information was relayed to the detenu petitioner vis-a-vis his right to carry his next friend non advocate in the said hearing. Detenu petitioner was heard in person by the Board. Finding sufficient reasons for detention, Advisory Board reported it’s opinion to the State Government, which was received through Registrar, U.P. Advisory Board’s letter dated 12.11.2008 by the State Government, on 14.11.2008, within seven weeks in consonance with Section 11 (1) of the Act. After receiving Advisory Board’s report , State Government considered petitioner’s case afresh and thereafter confirmed the detention order for a period of 12 months from the date of actual detention i.e. 25.9.2008. 16. Respondent No. 3 Jail Authority in his counter affidavit averred that detention order was received in jail on 26.9.2008 and was served on the detenu on the same day. Detenu’s representation dated 6.10.2008 was received in nine sets which was forwarded to the District Magistrate/Detaining Authority by the Jail Authorities. 16. Respondent No. 3 Jail Authority in his counter affidavit averred that detention order was received in jail on 26.9.2008 and was served on the detenu on the same day. Detenu’s representation dated 6.10.2008 was received in nine sets which was forwarded to the District Magistrate/Detaining Authority by the Jail Authorities. It is further averred that the detention order and the grounds of detention along with other relevant materials running in 120 pages, were served to the detenu in full. The counter affidavit further records that the State Government had confirmed the detention order on 20.11.2008 and the order dated 22.11.2008 and radiogram dated 20.11.2008 was received in office of answering respondent on 22.11.2008, which was served to the detenu on 22.11.2008. It further records that detenu’s representation to the Principal Secretary Home, was rejected by the Union of India on 5.11 .2008, regarding which a radiogram message was received on 13.11.2008 and the same was intimated to detenu petitioner the same day. 17. The Union of India, respondent No. 4, in its counter affidavit mentioned that the information by the State Government under Section 3 (5) of the Act, dated 6.10.2008, was received to the Union of India on 15.10.2008 and was immediately put up to Director (S) on 16.10.2008. It is, further, stated that a representation dated 6.10.2008 from the detenu along with para wise comments of the Detaining Authority was received by the Central Government on the concerned Desk of Ministry of Home Affairs on 27.10.2008 through District Magistrate Jaunpur vide letter No. 1032 (1)/JA-08 dated 18.10.2008. The said representation was processed and the same was put up for consideration before Under Secretary, Ministry to Home Affairs, on 27.11.2008, itself. Under Secretary after due consideration of it placed it before Director (S) on the same day. Director (S) further forwarded it to the Joint Secretary on the same day. The Joint Secretary considered the case and along with his opinion forwarded it to the Union Home Secretary on 29.10.2008, who after due consideration rejected detenu’s representation on 5.11.2008, which file was received back in the concerned section on 10.11.2008. It is further averred that the rejection of the detenu’s representation dated 10.11.2008 was communicated to the detenu through crash wireless message on 11.11.2008 through Home Ministry, Government of U.P. This message was succeeded by a letter for the said purpose dated 12.11.2008. 18. It is further averred that the rejection of the detenu’s representation dated 10.11.2008 was communicated to the detenu through crash wireless message on 11.11.2008 through Home Ministry, Government of U.P. This message was succeeded by a letter for the said purpose dated 12.11.2008. 18. In rejoinder affidavit filed by the petitioner, grounds taken by various respondents have been refuted. In reply to the counter affidavit, filed by the Detaining Authority, it is averred that the case under Section 302, IPC was due to local rivalry and party politics. It is further averred that detention order was passed without any application of mind and without thoughtful consideration. It is further mentioned that there was no compelling circumstances to pass the impugned detention order, as the detenu was already in jail. Para 23 of the rejoinder affidavit is reproduced below : "23. That the answering respondent have passed the impugned detention order without application of mind and further without having thoughtful consideration that there was no compelling circumstances to pass the impugned detention order inasmuch as the petitioner was already in custody/jail and till date, no bail application has been moved on behalf of the petitioner before any Court and further the bail application of the co-accused, Sri Prakash was rejected by the learned Sessions Judge, Jaunpur on 22.12.2008. Bail application of the co-accused Sri Prakash was moved before the Honble Court on 22.1.2009, which was registered as Crl. Misc. Bail Application No. 2091 of 2009, Sri Prakash v. State of U.P. and this Honble Court having heard the learned counsel for the parties on 2.2.2009 called for the counter and bail was not granted till date." 19. It is further averred that the Advisory Board had not considered at all the fact that there was no chance of detenu being released from custody in near future and therefore the petitioner could not have indulged in any prejudicial activities for maintenance of the public order. The aforesaid averments have been made in para 24 and 25 of the rejoinder affidavit which are as follows : "24. The aforesaid averments have been made in para 24 and 25 of the rejoinder affidavit which are as follows : "24. That, the answering respondent as well as Hon’ble Advisory Board would not considered the fact that the detenu is likely to be released from the custody in near future and further it has not been taken into account that after release from the custody, the petitioner would indulge in any prejudicial activities and it is necessary to detain him in order to prevent him from indulging in such activities." "25. That the answering respondent as well as the other authorities could not consider the relevant fact that there is any basis of release of the petitioner in near future meaning thereby there is real possibility of the petitioner to be released on bail. On the date of impugned detention order, even the bail application of the co-accused Sri Prakash has not been moved and further the consideration of the bail application of Jitendra Prajapati, who was only accused under Section 120-B, IPC does not have any relevancy to pass the detention order by the answering respondent as well as its confirmation by the Advisory Board." 20. In the rejoinder affidavit to the counter affidavit filed by Superintendent Jail, it is averred that the petitioner is a handicapped person and he cannot work without the help of crutches nor could he discharged his routine activities without the help of other persons. In another rejoinder affidavit, to the counter affidavit filed by the State of U.P., it is averred that the detention order has been confirmed without any application of mind and consideration of relevant facts. In the rejoinder affidavit filed to the counter affidavit of Union of India averments made in the petition have been reiterated along with the fact that the Union of India has also not considered the fact that the petitioner was in jail and no bail application was moved by him nor the same was pending in any Court of law. Co-accused Sriprakash had moved the bail application and so far as the bail of Jitendra Prajapati was concerned, the same had got no relevance with the detention of the petitioner. 21. On the aforesaid facts, we have heard Sri Anil Kumar Singh learned counsel for the petitioner, learned AGA and learned Standing Counsel for the Union of India in opposition. 22. 21. On the aforesaid facts, we have heard Sri Anil Kumar Singh learned counsel for the petitioner, learned AGA and learned Standing Counsel for the Union of India in opposition. 22. Learned counsel for the petitioner contended that the detention order of the petitioner is bad in law and is not sustainable at all. It is submitted that the grounds, on which the petitioner has been detained were relatable only to law and order problems and not public order. It is further submitted that the grounds on which the petitioner was detained were stale grounds and for that reason the petitioner could not have been detained. It is pointed out that the prejudicial activity alleged against the detenu petitioner was dated 28.5.2008, regarding which the FIR was registered at the police station and thereafter investigation was conducted on 29.5.2008, 30.5.2008, 31.5.2008, 2.6.2008. It was on 21.6.2008 that the detenu petitioner had surrender in the Court. In between 28.5.2008 till 21.6.2008, there was no activity by the detenu petitioner albeit it is alleged that he was at large. It is further contended that on 23.6.2008, the I.O. recorded the statement of detenu and on 27.6.2008 even the recovery of the weapon of assault was alleged to have been made from him by the I.O. It is further contended that on 15.7.2008, under the orders of DIG, Varanasi range, the investigation was transferred to S.O. Police Station Phoolpur, district Varanasi, who again commenced the investigation on 30.7.2008 and thereafter he again recorded the statement of the informant on 6.8.2008 along with the statements of Prem Chandra Pandey and other witnesses. It is further argued that Prem Chandra Pandey in his affidavit and statement denied the complicity of other four accused persons namely Satya Prakash, Ravi Singh, Vinay Singh and Sanjay Singh and added two other accused persons namely Rakesh Srivastava and Salim. Thereafter the I.O. recorded the statements of other persons. It is further submitted that on 20.8.2008 the statement of witnesses Mohd. Anish Ali, Ram Bahadur Yadav, Omji Verma were recorded and criminal history of another accused Rakesh Srivastava was noted down by the I.O. and charge-sheet was submitted only against detenu petitioner and Sriprakash, whereas investigation, in respect of other accused Rakesh Srivastava, Shishu Srivastava and Salim was still in progress. Anish Ali, Ram Bahadur Yadav, Omji Verma were recorded and criminal history of another accused Rakesh Srivastava was noted down by the I.O. and charge-sheet was submitted only against detenu petitioner and Sriprakash, whereas investigation, in respect of other accused Rakesh Srivastava, Shishu Srivastava and Salim was still in progress. Learned counsel therefore, contended that, from 28.5.2008 till the date of detention, 25.9.2008, there was no activity by the detenu petitioner and the detenu petitioner was already incarcerated in jail since 21.6.2008, without any attempt to come out, and therefore detaining the petitioner after a gap of three months, was based on stale ground. It is pointed out that the date, on which the detenu was detained by the Detaining Authority, he had filed no bail application before any Court to be released on bail nor any bail application, on behalf of the petitioner was pending. It is therefore submitted that the detention order resultantly is based on non existent ground. 23. Elaborating first contention learned counsel for the petitioner contended that after a gap of four months there was no public order problem and the investigation continued. Learned counsel submitted that addition of accused, statement against some of the accused regarding their participation in crime, transfer of investigation at the behest of DIG Varanasi etc. all are indicative of the fact that there was no public order problem but the grievance was against only law and order. Learned counsel contended that in the representation it has been pleaded that the petitioner is a handicapped person and unable to move without the help but the State has not cared to consider that aspect and therefore, also the detention order is liable to be set aside. Further contention of the learned counsel is that, since the petitioner was not endeavouring to come out on bail planting National Security Act on him is nothing but a malafide exercise based on non existent ground and therefore the detention order of the petitioner is also liable to be set aside. It is further contended that the District Magistrate/Detaining Authority had not considered detenu’s representation at all nor has decided it and therefore also the impugned order of detention is indefencible. 24. It is further contended that the District Magistrate/Detaining Authority had not considered detenu’s representation at all nor has decided it and therefore also the impugned order of detention is indefencible. 24. Learned counsel for the petitioner, on all the above submissions, submitted that the present Habeas Corpus Petition be allowed and the detention order of the petitioner be set aside and the petitioner be set at liberty. 25. Learned AGA as well as learned Standing Counsel on behalf of Union of India, contrarily, refuted all the contentions raised by the petitioner and contended that activity of the detenu petitioner in shooting DIOS in his office, in day light, was such a daring act which falls within the realm of public order. It had created an atmosphere of fear and terror in the minds of officers and employees of the DIOS office. They further contended that it was not law and order problem simplicitor. It is also contended that the detention order has not been passed on stale ground, and therefore, the detention cannot be set aside. They further contended that it is wrong to say that the petitioner was handicapped. They further pointed out that there was likely hood of the detenu petitioner being released on bail and hence the detention order has been clamped on him. They also refuted the argument that the applicant was implicated due to personal and political rivalry. They concludingly submitted that the writ petition is bereft of merits and is liable to be dismissed. 26. We have cogitated over all aspects of the submissions and have perused the entire record. 27. We take up the points canvassed before us in a seriatim. Firstly, it was contended that the activity of the detenu petitioner was related to law and order and not public order. Coupled with the said contention, it was contended that the detention order was passed on stale ground. We deal with both these aspects together. The activity which necessitated the detention of the petitioner occurred on 28.5.2008. In respect of the said activity FIR of Crime No. 897/08 was lodged at Police Station Kotwali. Grounds for detention is a reproduction of date wise steps taken by the investigating officer in resolving the crime which period runs from 28.5.2008 till 19.8.2008, for three months. Interregnum, the petitioner surrendered before CJM, Jaunpur on 21.6.2008 and he was lodged in jail. Grounds for detention is a reproduction of date wise steps taken by the investigating officer in resolving the crime which period runs from 28.5.2008 till 19.8.2008, for three months. Interregnum, the petitioner surrendered before CJM, Jaunpur on 21.6.2008 and he was lodged in jail. In between 28.5.2008 to 21.6.2008, no activity at all has been mentioned in the grounds undertaken by the detenu which had disturb the public order. There is absolutely nothing on record to indicate that after 8.5.2008, police force etc. were deployed to maintain public order or that any other incident to disturb the public peace and order occurred. Whole activity is only of one date 28.5.2008. Detenu petitioner does not have any criminal history. According to the grounds, petitioner addressed himself as a teacher. There is nothing on record to indicate that the social reputation of detenu petitioner was that of an anti social element. The perusal of the grounds, to the contrary, indicates that the incident occurred at the spur of the moment motivated by the fact that the salary of the detenu petitioner was stopped by the DIOS. There is no other reason mentioned in the grounds for committing the crime. No body else was injured nor any attempt was made to cause injury to any other person present inside the room or outside in the said incident. The perusal of the grounds further indicates that it was a case of personal grudge harboured by the petitioner without any element of public order being attached with it. Whatever transpired on the fateful day, was only in between the detenu and the DIOS. Merely because an incident of murder took place in the office of DIOS, it cannot be said that the activity of the detenu was detrimental to the public order which he was likely to breach in future also. National Security Act can be resorted to only as a preventive measure and not as a punitive exercise. The grounds, severally and collectively, does not indicate that there was likelihood of the petitioner to undertake any activity to breach public order in times to come. According to the grounds, the petitioner absconded after the incident and surrendered after 23 days. During this period of 23 days he had not done anything which could have disturb the public peace. 28. After 21.6.2008, the petitioner was lodged in jail. According to the grounds, the petitioner absconded after the incident and surrendered after 23 days. During this period of 23 days he had not done anything which could have disturb the public peace. 28. After 21.6.2008, the petitioner was lodged in jail. It has been averred in para 23 of the writ petition that till date the bail application of the petitioner has not been moved even before the Courts below and that the case of Jitendra Prajapati stands on a different footing altogether. This para 23 has been replied by the Detaining Authority, Respondent No. 2/District Magistrate in para 16 of her counter affidavit wherein only this much has been averred that the contents of para 23 and 24 of the petition are misconceived and hence denied. For the purpose of clarity, we reproduce para 23 of the writ petition which is as follows : "23. That till date the bail application of the petitioner has not been moved before the learned Court below and further the case of Jitendra Prajapati is different to that of the petitioner and as such no benefit of the bail of Jitendra Prajapati would go to the petitioner." 29. We also reproduce para 16 of the counter affidavit filed by the District Magistrate/Detaining Authority, in reply to above para 23 and 24 of the petition which is as follows : "16. That the contents of paragraph 23 and 24 of the petition are misconceived so denied." 30. Thus there remains no doubt that after surrendering, detenu petitioner was not endeavouring at all to come out from jail, on bail. Jitendra Prajapati was also not allowed bail, on the date on which detention order was passed. He was attached with the crime as a conspirator only and his name had surfaced during investigation, whereas, the detenu was named in the FIR itself as the main shooter. There was no parity between the case of Jitendra Prajapati vis-a-vis that of the petitioner detenu. Grant of bail to Jitendra Prajapati could not have affected consideration of bail of the petitioner as neither the case of the petitioner was at par with Jitendra Prajapati nor parity is a rule of law. Once there was no attempt by the petitioner to come out on bail there, does not arise any question of his indulging in any activity to dislocate public order. Once there was no attempt by the petitioner to come out on bail there, does not arise any question of his indulging in any activity to dislocate public order. A natural corollary of the said fact is that there was total absence of material before the Detaining Authority which could have indicated that the detenu was likely to indulge in an activity detrimental to the public order in future also. The said aspect of the matter has not been considered by the Detaining Authority while ordering for petitioner’s detention and hence, we are of the view that the subjective satisfaction of the detaining Authority is vitiated being based on non-existent material. We are also of the view that detention order has been passed as a proxy measure to detest the detenu from coming out from jail, even though, no such attempt was made by him. Resultantly it cannot be said that there was any likely hood of the petitioner being indulged in any activity to dislocate the public order. Hence we conclude that the subjective satisfaction of the Detaining Authority was vitiated for consideration of non-existent ground and hence the impugned order of detention suffers from such a vice. 31. Another reason for us, to take the above view is that the detention order was passed after a gap of nearly four months. During this period, detenu petitioner remained in jail for more than two and half months and he had not filed any bail application at all. There is nothing in the grounds to show that the effect of the activity, occurred four months prior, had it’s potentiality to affect even tempo of public life after such a long gap. In fact respondent No. 2 was also conscious of the said fact and that is why she had mentioned in the grounds that after the bail is allowed to the conspirator, the detenu will attempt to come out on bail. This reasoning by the Detaining Authority is purely conjectural and hypothetical, without any basis whatsoever. We think that prospective threat to dislocate public life was inside jail without chances of him being released on bail in near future and hence the detention order should not have been passed. The apex Court in the case of Kamarunnissa v. Union of India, AIR 1991 SC 1640 had dealt with this aspect of the matter in the followings words : "13. The apex Court in the case of Kamarunnissa v. Union of India, AIR 1991 SC 1640 had dealt with this aspect of the matter in the followings words : "13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this Court stated in the case of Ramesh Yadav, AIR 1986 SC 315 (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This stems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody." (Underline Emphasis supplied) 32. From above extracted passage it is evident that a detention order can be passed while a person is in custody if there are likelihood of his being released on bail in near future. The words likelihood does not imply fanciful ipse dixit. From above extracted passage it is evident that a detention order can be passed while a person is in custody if there are likelihood of his being released on bail in near future. The words likelihood does not imply fanciful ipse dixit. Likelihood connotes cogent relevant material, which is missing in the present case. The Act should not to be utilised as a substitute to the penal provision. It is not a power which has been conferred on the authority to be utilised as a punitive measure. Passing of the detention order on hypothetical reasons without concrete material is wholly unjustified. We do not know, as to whether Jitendra Prajapati was allowed bail or not? To venture in a realm of suppositions to clamp NSA is wholly illegal and cannot be sanctified. Without volumnesing this judgment, we only refer some other authoritative pronouncements of the apex Court which were the guiding pointers for us to take the above view. In T.V. Saravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and another, AIR 2006 SC 1462 , it has been held by the apex Court as follows : "10. The order of detention itself notices the fact that the appellant had moved an application for grant of bail before the Principal Sessions Court which was rejected on November 17, 2004. The appellant had moved another bail application before the High Court which was withdrawn on December 3, 2004. The detaining authority noticed that the appellant had not moved any bail application subsequently but it went on to state that there was imminent possibility of appellants coming out on bail by filing another bail application before the Sessions Court or the High Court since in similar cases bails are granted by the Sessions Court after a lapse of time. The order of detention was passed on December 15, 2004 i e. merely 12 days after the dismissal of the bail application by the High Court. There is nothing on record to show that the appellant had made any preparation for filing a bail application, or that another bail application had actually been filed by him which was likely to come up for hearing in due course. 11. A somewhat similar reasoning was adopted by the detaining authority in Rajesh Gulati v. Govt. of NCT of Delhi and another (supra). This Court noticing the facts of the case observed : "13. 11. A somewhat similar reasoning was adopted by the detaining authority in Rajesh Gulati v. Govt. of NCT of Delhi and another (supra). This Court noticing the facts of the case observed : "13. In this case, the detaining authority’s satisfaction consisted of two parts—one; that the appellant was likely to be released on bail and two; that after he was so released the appellant would indulge in smuggling activities. The detaining authority noted that the appellant was in custody when the order of detention was passed. But the detaining authority said that “bail is normally granted in such cases”. When in fact the five applications filed by the appellant for bail had been rejected by the Courts (indicating that this was not a ‘normal’ case), on what material did the detaining authority conclude that there was ‘imminent possibility’ that the appellant would come out on bail? The fact that the appellant was subsequently released on bail by the High Court could not have been foretold. As matters in fact stood when the order of detention was passed, the “normal” rule of release on bail had not been followed by the Courts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail. [See : in this context Ramesh Yadav v. District Magistrate, (1985) 4 SCC 232 ]. 12. We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The “imminent possibility” of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenue was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated December 13, 2005." 33. In Amritlal and others v. Union Government through Secretary, Ministry of Finance and others, AIR 2000 SC 3675 it has been observed by the Apex Court as follows : “4. In Agustin’s decision (1994 Supp (1) SCC 597) (supra) this Court also placed strong reliance on an earlier but oft-cited decision of this Court in Binod Singh v. District Magistrate, Dhanbad, (1986) 4 SCC 416 : ( AIR 1986 SC 2090 : 1986 Cri LJ 1959) wherein it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It is in this perspective as above, that the recording of the concerned officer in the matter under reference ought to be noticed and the same reads as below : “Even though prosecution proceedings under Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against Shri Amritlal I am satisfied that there is compelling necessity in view of the likelihood of his moving an application for bail and in the event of his being granted bail, the likelihood of his indulging in illicit traffic in narcotic drugs as is evident from the trend of his activities, to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.” 5. It is this reasoning which the learned advocate contended that the High Court should have held to be completely erroneous in the matter of being the basis of an order of detention. 6. It is this reasoning which the learned advocate contended that the High Court should have held to be completely erroneous in the matter of being the basis of an order of detention. 6. The requirement as noticed above in Binod Singh’s case ( AIR 1986 SC 2090 ) that there is ‘likelihood of the petitioners being released on bail that however is not available in the reasonings as provided by the concerned officer. The reasoning available is the ‘likelihood of his moving an application for bail’ which is different from ‘likelihood to be released on bail.’ This reasoning, in our view, is not sufficient compliance with the requirements as laid down. 7. The emphasis however, in Binod Singh’s case (supra) that before passing the detention order the concerned authority must satisfy himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material. Available cogent material is the likelihood of having a bail application moved in the matter but not obtaining a bail order." 34. Further we are of the opinion that the impugned detention order, after a gap of peaceful four months, is based on stale ground. There was no live link existed on the date on which detention order was passed, which link had snapped and there was no proximity in the prejudicial activity and passing of the detention order and therefore to resort to such stringent measure, by respondent No. 2, was not a desirable necessity. This, in our opinion, makes further detention of the petitioner illegal. 35. Coming to the last ground, it was urged before us that the Detaining Authority has not considered detenu’s representation at all vide Annexure 3. In the said representation detenu has specifically pleaded that the detention order has been passed by misusing the power and is violative of Articles 14 and 21 of the Constitution of India and the same has been passed without any application of mind in a mechanical manner. It was further mentioned that the detention order was passed after an inordinate delay without any valid reason. It was also mentioned that the detenu was a handicapped person and was unable to move freely and while inside the jail he had suffered a heart stock for which he was admitted in the hospital as well. It was further mentioned that the detention order was passed after an inordinate delay without any valid reason. It was also mentioned that the detenu was a handicapped person and was unable to move freely and while inside the jail he had suffered a heart stock for which he was admitted in the hospital as well. There are other averments made in the said representation including averments that the detenu petitioner was implicated falsely in the crime. It is clear from the counter affidavit filed by the respondent No. 2 Detaining Authority, that she had not considered and decided the detenu’s representation at all and all these aspects of the matter remained unconsidered and this in our opinion makes further detention invalid. Further, in the counter affidavit of the District Magistrate, it is nowhere mentioned that she had considered the representation filed by the detenu. The law on this aspect has already been crystallised and now there cannot be two opinions about this that failure to decide the representation by the detenu makes the detention order indefensible and invalid. This is another and further reason which compels us to invalidate the detention order. 36. Concluding our discussion we are of the opinion that the present petition is one such case, which was related with law and order and not public order. It was a case of personal grudge and there was absence of element of public order. The Detaining Authority had considered non-existent material to detain the petitioner, and hence her subjective satisfaction was vitiated for the said reason, there was no likelihood of the petitioner being released on bail in near future and hence there was absence of material for likelihood repetition of prejudicial activity by the petitioner and consequently exercise of power under Section 3(3) of the Act by the respondent No. 2, was not in consonance with the Act, the impugned order has been passed after a great delay of four months and hence is based on stale ground, and non-consideration of detenu’s representation makes detention order invalid. All these reasons jointly and severally invalidates impugned order of detention. 37. Resultantly, this Habeas Corpus Petition is allowed. Detention order of the petitioner under National Security Act, 1980, dated 25.9.2008, passed by respondent No. 2, District Magistrate, Jaunpur vide Annexure 2, is hereby quashed. All these reasons jointly and severally invalidates impugned order of detention. 37. Resultantly, this Habeas Corpus Petition is allowed. Detention order of the petitioner under National Security Act, 1980, dated 25.9.2008, passed by respondent No. 2, District Magistrate, Jaunpur vide Annexure 2, is hereby quashed. The corpus of detenu is directed to be released from jail forthwith unless he is in jail under legal orders of remand in other case besides detention order. ————