2014 (8) TMI 1126 - HC - Indian Laws

Challenge orders of detention passed against two detenus under Section 3(1) of the COFEPOSA Act, 1974 - permissibility of successive habeas corpus petitions under Article 226 of the Constitution of India and the parameters to be considered by the Writ Court whilst entertaining such petitions - Held that - As far as the High Courts are concerned, a division bench of the court cannot ordinarily entertain a second petition for the writ of habeas corpus against a detention order when another division bench has already dismissed a challenged to the same detention order unless (i) fresh and new ground of attack against the legality of the detention or custody, which was not available to the Petitioner earlier, has arisen after the decision on the first petition or (ii) a ground, which was available earlier, could not be taken or urged in the earlier petition for some exceptional reason. As we examine the present petition merits a consideration on the touchstone of the law explained above. The case of the Petitioners is that 25 out of 807 pages of documents supplied to the Petitioners were fully or partly illegible. This ground was certainly available to the Petitioners when the earlier petitions were filed. In fact, in the synopsis to one of the petitions, the ground that illegible documents were given to the detenu was in fact raised. There is absolutely no reason even alleged in the petition leave aside any exceptional reason why this ground could not be urged in the earlier petitions. The ground, thus, does not fall within the two exceptions noted above. There is no reason why the ordinary principle of public policy concerning finality to be attached to a decision of the court, should not be applied to the present case. So also the ground of non-availability of Assay Report was a ground very much available to the detenus when the earlier petitions were filed and there is no reason much less an exceptional reason why it could not be urged earlier. No reason is either alleged or established. As for the subsequent representations to the detaining authority and the Central Government, there being no new ground or fresh material placed before the authorities in the subsequent representations, which was either not available earlier or being available could not be placed due to some exceptional reason, the detaining authority or the government is not bound to consider the new representation and pass separate order disposing of the same. There is no changed or new factor in the present case and fresh materials cannot be those that were available earlier and could very well have been brought to the notice of the authorities earlier. No merit in petition.

Summary

Issues Involved:
1. Permissibility of successive habeas corpus petitions under Article 226 of the Constitution of India.
2. Grounds for challenging the orders of detention.
3. Application of the principles of res judicata or constructive res judicata to habeas corpus petitions.

Detailed Analysis:

Issue 1: Permissibility of Successive Habeas Corpus Petitions
The primary issue revolves around whether successive habeas corpus petitions under Article 226 of the Constitution of India are permissible. The court examined the principles of res judicata and constructive res judicata as they apply to habeas corpus petitions. It was noted that the principles of res judicata generally do not bar successive habeas corpus petitions if they are based on fresh and new grounds that were not available or could not be raised in the earlier petition due to exceptional reasons.

Issue 2: Grounds for Challenging the Orders of Detention
The petitioners raised five new grounds to challenge the detention orders:
1. Non-response to Representations: The detaining authority and the State and Union Governments did not respond to the representations sent by the detenus, and the delay was unexplained.
2. Fresh Representations: Fresh representations requesting certain vital documents and reconsideration of the detention order were not responded to.
3. Illegible Documents: About 25 pages out of 807 supplied documents were wholly or partially illegible, depriving the detenu of the right to make an effective representation.
4. Non-availability of Assay Report: The detaining authority did not consider the Assay Report to determine the exact nature of the contraband, which could have affected the legality of the detention order.

Issue 3: Application of Res Judicata or Constructive Res Judicata
The court analyzed whether the new grounds raised in the present petitions were barred by the principles of res judicata or constructive res judicata. The court found that:
- The ground of illegible documents was available to the petitioners when the earlier petitions were filed, and there was no exceptional reason why it was not urged earlier.
- The ground of non-availability of the Assay Report was also available at the time of the earlier petitions and could have been raised then.
- Subsequent representations to the detaining authority and the Central Government did not present any new grounds or fresh material that was not available earlier.

Conclusion:
The court concluded that the new grounds raised in the present petitions were either already available at the time of the earlier petitions or did not constitute fresh material or new grounds. Therefore, the principles of res judicata and the need for finality in judicial decisions applied, and the petitions were dismissed. There was no merit in the petitions, and no order as to costs was made.