AJAY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) On the following two questions, this Bench is required to submit its opinion, but the questions are evidently framed with reference to the factual contentions raised with the object evidently, of final decision on the petition, to be rendered by this Bench :

(2.) Therefore, it is necessary to state first the few admitted facts appertaining the questions aforesaid albeit, with reference to pleadings. Petitioner has challenged his detention under the National Security Act, for short, the 'Act', in this petition and in ground No. (2), he has stated, "While he was in Jail the order of his detention Annexure-P/1 was passed", and in that regard, he has raised the contention in that ground, adding. "The detaining authority N.P. No. 2 owed a duty to consider this fact and further more, the order was served upon on (sic) 13-11-88 while the order of detention was passed on 1-9-88". At para 1 of the petition, the averment is that the petitioner "was arrested on 11-11-88 and put to Central Jail, Gwalior on 13-11-88". What is clear, therefore, is that the petitioner was at large when he was arrested, to enforce the impugned order. Indeed, in the return, in reply to statement made in Ground No. (2), the Detaining Authority has admitted, "Pursuant to the said order of detention, the petitioner was taken into detention on 13-11-88."

(3.) On pleadings, it is rightly contended that the Detaining Authority has not placed any material for the satisfaction of the Court that the two-fold contention raised in Ground No. (2) cannot succeed. There is nothing in the return and otherwise also, we have not been satisfied by the Detaining Authority that on 2-9-1988, when the impugned detention order was passed, the petitioner was not confined in jail. The awareness of Detaining Authority of petitioner's confinement is manifested neither in the detention order nor in the grounds of detention and the very fact that the Detaining Authority has not cared to deny specifically petitioner's contention about his confinement in Jail on 2-9-1988 buttresses the conclusion that the Detaining Authority has only tried to avoid a decision on the issue of its awareness of petitioner's confinement on the relevant date. Admittedly also, there is no explanation to be read in the return as to why action was taken to detain the petitioner under the Act only on 13-11-1988 though the impugned detention order was passed against him on 2-9-1988. There is no whisper about that to be read in the return.