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1. This writ petition has been referred to us for decision in pursuance of an order dated 20-11-1985 passed by a Division Bench of this Court consisting of Hon'ble S. S. Ahmad and Hon'ble Brijesh Kumar, JJ. In order to appreciate the circumstances in which the petition has been referred to this Full Bench, facts will have to be stated in detail.

2. The petition has been filed by Ram Prasad Chaudhary against his detention under the National Security Act, 1980 (hereinafter to be referred to as the Act). The order of detention is dated 3-2-1985 and is Annexure 1 to the petition. The ground, containing the reasons for detention are dated 3-2-1985 and have been filed as Annexure 2 to the petition. The petitioner's case is that he has been the President of D.M.K. Party and had contested the election to Lok Sabha in December, 1984 against Chandra Shekhar Tripathi, a Congress candidate. The petitioner was defeated in the election but, after the elections were over in December, 1984, he intended to contest Uttar Pradesh Assembly Election to be held in March, 1985. For this purpose he declared his intention to contest the election from Kaptanganj Constituency of District Basti. The petitioner further stated that as soon as he came from Delhi on 5-2-1985 to file his nomination papers from Kaptanganj Constituency, he was arrested at Basti and sent to jail and was served with the detention order under the National Security Act. As stated earlier, Annexure 1 is the detention order. Annexure 2 is a copy of the grounds of detentions and the documents which were supplied to him. The petitioner's case is that he was previously detained under the provisions of National Security Ordinance, 1980 on 11-1-1982 but the detention order was revoked on the advice of the Advisory Board and he was released from jail on 27-2-1982. The petitioner further states that a perusal of the grounds of detention reveals that the first ground mentioned in the grounds of detention relates to an incident dated 3-3-1981 which gave rise to Crime No. 31 of 1981. The incident relating to Crime No. 31 of 1981 which is ground No. 1 in the present detention order was also one of the grounds for his previous detention under the provisions of the Act vide detention order dated 3-8-1981. The grounds of previous detention order are filed as Annexure 3 to the Writ Petition. A perusal of Annexures 2 and 3 indicates that ground No. 6 of the previous detention order contained in Annexure 3 is ground No. 1 of the present detention order dated 3-2-1985. The petitioner's case is that as the Advisory Board quashed his detention in regard to the incident dated 3-3-1981, the said ground is irrelevant for the purpose of his second detention. In regard to ground No. 2 of the detention order, the petitioner's case is that one Ram Ugrah Singh lodged a first information report in respect of incident dated 20-1-1985 which was registered as Crime No. 18 of 1985. The petitioner's case is that Ram Ugarah Singh is not an eye-witness to the murder case of Gomti Singh and it has been falsely alleged in the first information report that he was a witness in the case. A true copy of the first information report regarding the murder of Gomti Singh is filed as Annexure 4 to the writ petition to prove that Ram Ugrah Singh was not a witness in that case. The contention of the petitioner is that the incident dated 20-1-1985 does not, in any manner, affect the public order and, therefore, the detention on that ground is liable to be set aside. In regard to third ground which relates to an incident dated 31-1-1985 which gave rise to Crime No. 15 of 1985, the petitioner's case is that it has been initiated due to political rivalry. In regard to third ground Ram Tej, who was informant in the case, has filed an affidavit in the Court of Judicial Magistrate, Basti stating that he never lodged any report against the petitioner. According to the petitioner, the police authorities had coerced Ram Tej to sign a blank paper and he never lodged any first information report against the petitioner. The petitioner contends that even if this ground is taken as it is, it does not, in any way affect public order and the order of detention is liable to be quashed. The petitioner further contends that the District Magistrate passed the order of detention without considering the fact that he was previously detained under the Act and the detention was revoked on the advice of the Advisory Board. This fact was also not considered by the State Government either at the stage of passing the detention order or at the stage of confirming the order of detention. The detention order passed against the petitioner was approved on 3-2-1985 and the same was confirmed by the State Government on the advice of the Advisory Board on 25-3-1985. A copy of the confirmation order is Annexure 5 to the writ petition. The petitioner's case is that the confirmation order passed by the State Government indicates that the fact that he was detained earlier was not taken into consideration by the State Government. In regard to ground No. 2, it is also maintained that it is similar to the one in previous detention order and this fact was also not considered either by the District Magistrate at the time of passing the detention order nor was it considered by the State Government while approving and confirming the detention order. The main ground in the writ petition is that the District Magistrate passed the detention order in an arbitrary manner and all the relevant material was not considered either by the District Magistrate or by the State Government. On these facts the petitioner prayed that the detention of the petitioner be quashed on the ground that the fact that he was previously detained and the detention order was revoked on the advice of the Advisory Board was not considered by the District Magistrate or by the State Government. The detention order is also challenged on the ground that the facts indicated in Annexure 2 do not make out a case of public order and, therefore, the petitioner's detention is illegal. The order was also challenged on the ground that ground No. 2 was intimately related to ground No. 1 and since ground No. 1 related to an incident dated 3-3-1981, grounds Nos. 1 and 2 are liable to be ignored as they are stale grounds.

"In view of the provisions of Section 5A of the COFEPOSA even if one of the grounds was held to be valid, relevant and germane, the detention order could be upheld. That being so, this second ground has to be examined."

Ultimately, the ground was examined but the detention order was quashed on the ground that the material piece of evidence connecting the petitioner with the second incident had not been supplied to the petitioner and on that account it was held that the order of detention was illegal. It is, however, clear that the Division Bench relied upon Section 5A of the Act.

In regard to Section 5A of the Act the Division Bench observed :

"Section 5A of the Act only saves the grounds of detention other than the grounds which are found to be invalid; it does not save the detention order itself."

16. Before the Division Bench reliance was placed upon Santosh Kumar v. State of U.P., (Writ Petition No. 3120 of 1984) decided on 31-8-1984 : (reported in 1986 Cri LJ 557). By reference to that decision it was contended that by resort to Section 5A of the Act, the detention order would be sustained on other grounds mentioned in the detention order. The Division Bench in Om Prakash Gupta's case distinguished that decision on the ground that the observations were in the nature of obiter dicta. The Division Bench after recording a finding that the detention order was invalid as in respect of ground No. 1 constitutional and procedural safeguards had not been observed. The detention order was quashed on that ground. A perusal of Om Prakash Gupta's case would indicate that the decisions rendered by the Supreme Court based on Section 5A of the Act were not brought to the notice of the Division Bench and the detention order was quashed on account of non-observance of constitutional and procedural safeguards provided by the Constitution of India and the National Security Act. On 18-9-1984 Writ Petition No. 31% of 1984 filed by Om Prakash Gupta was allowed and on 22-9-1984 by another order he was detained under the National Security Act. This detention order was challenged by Om Prakash Gupta in Writ Petition No. 5534 of 1984. The writ petition was dismissed by a Division Bench consisting of Hon'ble Kamleshwar Nath and Hon'ble Parmeshwar Dayal, JJ. by order dated 21-12-1984 : (reported in 1985 All LJ 1331). A perusal of the judgment indicates that on the basis of Section 5A of the Act, the detention of the petitioner was upheld. The Division Bench discussed the import of Section 5A of the Act in detail and held that the detention of Om Prakash Gupta was valid as the detention order could be upheld on the grounds other than those which had failed. It has to be noticed that Kamleshwar Nath, J. was a member of the Division Bench which decided the earlier Om Prakash Gupta's case (Writ Petition No. 3196 of 1984) and was also a member of the Bench deciding the latter writ petition filed by him (Writ Petition No. 5534 of 1984).

20. This brings us to the question whether the detention of the petitioner can be sustained on three grounds indicated in Annexure 2 of the writ petition. The first ground relates to an incident which took place on 3-3-1981. The incident took place in the year 1981 and this incident was also the subject-matter of detention in Annexure 3 which is a detention order passed against the petitioner on 3-8-1981. It is not disputed between the parties that detention order was quashed on the recommendation of the Advisory Board and by means of Annexure 2 dated 3-2-1985 this incident was also included as one of the grounds for detention.