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4. In Writ Petition No. 1597 of 2005 the detention order is dated 8.4.2005 ( Annexure "A"). Grounds of detention are of the even date (Annexure "B"). Paragraph 5 is the specific paragraph. One C.R. No. 13/05 was registered against the petitioner on 16.1.2005 under Section 384, 387, 504 IPC, and, then there are two in-camera statements. Grounds of detention are mentioned in paragraph 5(b)(i) and 5(b)(ii), on the basis of which detention orders were passed.

5. It was the main contention of Mr. Chitnis that in-camera statements, as such, cannot be used for detention, because according to him, if in-camera statements disclose a cognizable offence, then there is no option to police but to register FIR and investigate the offence. If no offence is registered and no investigation is done, then those in-camera statements, cannot be considered for coming to the conclusion that the petitioner "habitually commits any of the offences punishable under Chapter XVI and XVII of I.P.C." According to Mr. Chitnis, the word "punishable" means "punished" and no punishment is possible unless the offence is registered or FIR is registered. Mr. Chitnis made this submission on the basis of the judgment of the Supreme Court in case of State of Haryana and Ors. v. Bhajan Lal and Ors. reported in 1992 SCC (Cri) 426, and further contended that even though this judgment of Bhajan Lal is considered by the Division Bench of this Court in the case of Sachin Sudhakar Nikam v. A.N. Roy Commissioner of Police and Ors. reported in 2005 All MR (Cri) 1684, the judgment in Sachin Nikam's case is per incurriam, because important paragraphs of the Supreme Court Judgment in Bhajan Lal's case, viz. paragraph Nos. 28, 29, 32, 34 to 39, 41 to 48, 50 to 60, 75, 83 and 95, were not at all considered. According to him the judgment in Sachin Nikam's case is also sub-silentio on this ground. In support of his contention that "punishable" means "punished", he relied upon the judgment of the Supreme Court Sube Singh and Ors. v. State of Haryana and Ors. Mr. Chitnis, therefore, in this background stated that in-camera statements, cannot, in law be considered as offence punishable under Chapter XVI and XVII of IPC for want of registration of FIR, investigation, and filing of police report, and, if in-camera statements are ruled out or not considered, then nothing remains with the police in these two cases to show that the petitioners - detenus were habitual offenders as defined under Section 2(b-1) of MPDA Act. Therefore, according to him, the detention order was liable to be quashed.

8. According to Mr. Chitnis, the judgment of Division Bench (Sachin Nikam's case) is per incurriam or sub-silentio, and therefore, not a bar in reconsidering the same arguments, by us. It is therefore necessary to find out what these two terms per incurriam and sub-silentio mean. He relied upon a judgment of the Supreme Court State of U.P. and Anr. v. Synthetic & Chemicals Ltd. and Anr., therein Supreme Court has discussed these two doctrines. Paragraphs 40 and 41 of the Judgment, are as under:

41. Does this principle extend and apply to Does this principle extend and apply to Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. " A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point out of law involved in the decision is not perceived by the court or present to its mind". (Salmond on Jurisprudence 12th Edn. p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. The bench held that, 'precedents sub-silentio and without argument are of no moment.' The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedent. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Sharma Rao v. Union Territory of Pondicherry it was observed, "it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein.' Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be a declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law."

In short, the judgment is per in curriam if it is in an ignorance of a statute or Authority and it is sub-silentio when a particular point of law involved in the decision is not perceived by the court or present to its mind.

9. According to Mr. Chitnis, the judgment in Sachin Nikam's case is both per incurriam or sub-silentio. It will have therefore to be seen and tested whether in fact and in reality the Judgment in Sachin Nikam's case is per incurriam or sub-silentio. At this juncture, it is necessary, to give a background of the judgment of the Supreme Court in Bhajan Lal's case. The matter before the Supreme Court was by way of S.L.P. at the instance of State of Haryana and two others assailing the judgment of the Division Bench of the Punjab and Haryana High Court dated 8.9.1988 referred to in Writ Petition No. 9172 of 1987, by which the entire criminal proceedings inclusive of registration of FIR was quashed and respondent No. 2 Dharam Pal was directed to pay costs to the respondent No. 1 Bhajan Lal.