AWADH KUMAR SHUKLA Vs. SUPERINTENDENT OF CENTRAL JAIL

JUDGEMENT

(1.) PETITI ­oner Avadh Kumar Shukla is detained in pursuance of the detention order dated 9 -8 -1982 of the District Magis ­trate, Allahabad, passed under Sec ­tion 3 (2) of the National Security Act. The detenu was already in jail in connection with a criminal case when this detention order was passed and he was served with the order along with grounds and materials on 10 -8 -1982. The order was approved by the State Government on 16 -8 -1982. The detenu submitted his re ­presentation in triplicate to the Superintendent, Central Jail, Naini on 27 -8 -1982 and the Superintendent, Central Jail. Naini, sent the represen ­tation to the District Magistrate on 27 -8 -1982 and the State Government as well as the Advisory Board direct on 28 -8 -1982. The petitioner further claims that Sri Laxmi Narain Dwi -vedi Advocate, Allahabad delivered an application and a copy of the re ­presentation to respondent No. 3, namely, the District Magitrate, Alla ­habad on 25 -8 -1982 who directed him to approach respondent No. 2 i,e. the City Magistrate and Sri Laxmi Narain Dwivedi then contacted res ­pondent No. 2 and ultimately the re ­presentation was delivered to respon ­dent No, 3 on 26 -8 -1982. This is refuted by the District Magistrate. In between the State Government refer ­red the matter to the Advisory Board on 19 -8 -1982 as required under Section 10 of the National Security Act (hereinafter referred to as N.S.A, The representation was rejected by the State Government on 8 -9 -1982.

(2.) THE petitioner has challenged his detention on a number of grounds. The first ground urged before us is that as the detenu was already in jail as under trial since much before the order of detention was passed he could not be a risk to public security and public order and his detention is vitiated on that ground. The stand of the District Magistrate, Allahabad is that the detenu was likely to be released on bail in Crimiminal case in question, hence to pre ­vent him from action in future in a manner prejudicial to public order it was necessary to pass the detention order under N. S. A.

(3.) IT is implicit in the observa ­tions made in that case that in case it is not laid down in the grounds itself the detaining authority can explain the matter in his counter affidavit. In that case the matter was not explained in the counter -affidavit also and on the facts of the case it was apparent that any such materials were not before the detain ­ing authority which could satisfy him that the detenu is likely to be released on bail and the detaining authority did not exercise its mind on the point hence the detention was held vitiated. It is the proposition of law laid down in a ruling whether expressly or im ­plicit which have importance and which were to be weighed. In the light of the facts of that case the de ­tention was held vitiated but as the Supreme Court considered whether the matter has been explained in the counter -affidavit or not though not mentioned in the grounds, for coming to its finding it would itself indicate that if the position stood explained though not satisfactorily explained in that case the detention cannot be held to be had simply because those facts were not stated in the grounds of detention itself. We are bound by the observations of the Supreme Court in that case and the implied proposi ­tion laid down therein. It is a settled law that even the obiter in Supreme Court pronouncement is binding un ­less there is a direct authority to the contrary of the Supreme Court. In fact, in that case the observations were not made simply as obiter and whatever has been observed in that case and was taken into consideration related to the matter of detention of detenu who was already in jail from before. In the case of Gopi Ram v. State of Rajasthan A.I.R. 1967 S.C. 241, the following observations were made and would indicate that while determining the validity of the detention of a detenu who is already in jail custody the surrounding circumstances have to be borne in mind :