1981 (1) TMI 251 - SC - FEMA

Whether or not the documents demanded by the detenu were relevant was decided not by the Minister who was the detaining authority but by the Secretary? Held that - it is absolutely clear to us that whether the documents concerned are referred to relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention. This not having been done in the present case the continued detention of the petitioner must be held to be void. The representation made by the detenu on 3-10-1980 has been rejected on 14-10-1980 not by the Home Minister but by the Secretary thus the representation has been rejected by an authority which had no jurisdiction at all to consider or pass any orders on the representation of the detenu. Allow this petition and direct the detenu to be released

Issues Involved:
1. Non-supply of documents to the detenu.
2. Decision-making by the Secretary instead of the detaining authority.
3. Application of the doctrine of constructive res judicata.
4. Jurisdiction of the authority rejecting the detenu's representation.

Issue-wise Detailed Analysis:

1. Non-supply of documents to the detenu:
The detenu challenged the detention order on the grounds that certain materials referred to in the order were not supplied to him, thereby impeding his ability to make an effective representation to the Government. The High Court dismissed this contention, stating that the documents were not relevant and consisted of statements of other persons. However, the Supreme Court disagreed, emphasizing that the relevance of documents should be determined by the detaining authority, not the Court. The Supreme Court held that all documents referred to in the grounds of detention must be supplied to the detenu to enable an effective representation, as established in previous cases like Ram Chandra A. Kamat v. Union of India and Shri Tushar Thakker v. Union of India.

2. Decision-making by the Secretary instead of the detaining authority:
The detenu argued that the decision on the relevance of documents was made by the Secretary, not the detaining authority (the Home Minister). The Supreme Court found merit in this argument, noting that the endorsement on the file showed that the Secretary, not the Home Minister, decided the relevance of the documents. This procedural lapse rendered the detention order void because the subjective satisfaction of the detaining authority must be based on all documents referred to in the grounds of detention.

3. Application of the doctrine of constructive res judicata:
The State raised a preliminary objection, arguing that the additional points raised in the writ petition were barred by the principles of constructive res judicata as they were not raised in the High Court. The Supreme Court rejected this objection, stating that the doctrine of constructive res judicata does not apply to habeas corpus petitions. The Court cited previous decisions, including Ghulam Sarwar v. Union of India and Shri Lallubhai Jogibhai Patel v. Union of India, to support the view that successive petitions under Article 32 are maintainable if they raise new grounds.

4. Jurisdiction of the authority rejecting the detenu's representation:
The detenu's representation dated 3-10-1980 was rejected on 14-10-1980 by the Secretary, not the Home Minister. The Supreme Court held that the rejection of the representation by an authority other than the detaining authority violated the constitutional safeguard under Article 22(5). The Court referred to Smt. Santosh Anand v. Union of India, where it was held that the representation must be considered by the detaining authority.

Conclusion:
The Supreme Court allowed the petition, quashed the High Court's decision, and directed the immediate release of the detenu. The Court found that the procedural lapses, including the non-supply of documents and the decision-making by the Secretary, rendered the detention order void. The doctrine of constructive res judicata was deemed inapplicable to habeas corpus petitions, and the rejection of the detenu's representation by an unauthorized authority further invalidated the detention.

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