9911796707
TMI Blog1997 (9) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... the second respondent - detaining authority. Shri K.L. Verma, Joint Secretary (COFEPOSA) to the Government of India, who was specially empowered under section 3(1) of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA). The order has been passed since the detaining authority was satisfied with respect to the detenu Mahesh Kantilal Zaveri that, with a view to preventing him in future from acting in any manner prejudicial to the augmentation of foreign exchange, it was necessary to make the order detaining him in custody in the Central Prison, Pune. In execution of the said order, the detenu was detained on the 10th October 1995 and since the period of detention was one year, he has been released from detention on 9th October 1996. The only ground of challenge in this petition is that the petitioner's representations dated 6th December and 15th December 1995, addressed to the Advisory Board, were rejected by the Central Government on 25th January 1996. It is, therefore, alleged that there was delay on the part of the Central Government in considering the said representations. In fairness to Shri Kotwal, it must be stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 923 of 1996 was filed by the petitioner in the first petition on 12th April 1996 for parole. During the pendency of this parole application, the petitioner's Counsel Shri Kotwal wrote to the Deputy Director, Directorate of Enforcement, Bombay Zonal Unit, Bombay, on 18th April 1996 calling upon him to inform the date on which three sets of documents relied upon were sent to the Advisory Board. This information was stated to be necessary to find out whether the Advisory Board had sufficient time to consider the case of the detenu. Copy of this letter was forwarded to Shri Agrawal, Counsel for the respondents. In reply to this letter dated 18th April 1996, Shri K.L. Verma, Joint Secretary, filed his affidavit in the first petition setting out the details and contended that the three sets of documents were forwarded to the Advisory Board well in advance of the scheduled meeting and the Advisory Board had sufficient time to consider the said material and the case of the detenu. 4. Pending Criminal Application No. 923 of 1996, which was filed in this Court for parole on 12th April 1996, the detenu's wife Smt. Anjana Zaveri filed Criminal Writ Petition No. 307 of 1996 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention has been considered in para 16 of the judgment. (iii) The pre-detention representation made by the detenu on the 5th October 1995 to the detaining authority was not considered by the detaining authority and this violated the guarantee enshrined in Clause (5) of Article 22 of the Constitution. This contention has been considered in paragraphs 17 18 of the judgment. (iv) Non-consideration of the prior detention order issued on the 3rd June 1991, which was passed with a view to preventing the detenu from indulging in smuggling activities in respect of which he had obtained an ad-interim stay from the Calcutta High Court on 21st June 1991, which was only operative for a period of one week, after which it was not continued. This contention has been considered in paragraph 19 of the judgment. (v) The annexure to the letter dated 22nd July 1995 sent by the petitioner to the Deputy Director of Enforcement, Bombay, was not placed before the detaining authority. This contention has been considered in paragraph No. 20 of the judgment. (vi) Some documents furnished to the detenu alongwith the grounds of detention contained Gujarathi writings and were not intelligible to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court for the same relief of parole. On 18th April 1996 his Counsel wrote to the Deputy Director, Directorate of Enforcement, calling for some information which was furnished by way of affidavit dated 13th June 1996 filed by Shri Verma in the first petition. The detenu had also filed Criminal Application No. 1658 of 1996 in the first petition on 5th July 1996 for expediting the hearing of the petition. Since, however, the petition was already on Board, this application was rejected on 11th July 1996. The petition itself was finally disposed of on 24th July 1996. As stated earlier, one of the grounds taken in the first petition was that there was non-consideration of the earlier order of detention issued on the 3rd June 1991, which was passed with a view to preventing the detenue from engaging in smuggling activities and the petitioner had moved the High Court, at Calcutta, and had obtained an ad-interim stay on 21st June 1991, which was operative only for a week. 7. It is in these peculiar facts that Shri Agrawal has contended that, in the first place, this is no longer a Habeas Corpus petition since the detenu has already been released on 9-10-1996. He then contends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time to time . Then, in para 13 of the judgment, the Court dealt with the petitioner's endeavour to have her application re-opened on merits contending again that the grounds of detention were vague for which she relied upon the decision delivered in her husband Shamrao Parulekar's case. The Apex Court did not permit her to do so on the ground that her petition had already been rejected on merits and she was only allowed to appear on constitutional points. We find it convenient to reproduce para 13 of the judgment as under :- 13. The petitioner endeavoured to have her application reopened on the merits contending again that the grounds of detention are vague. She relies on Shamrao V. Parulekar v. The State of Bombay, Petn. No. 86 of 1952 : 1952CriLJ1503 , where another detenu was released by an other Bench of this Court in circumstances which, according to her, are very similar. We are unable to allow this as her petition has already been rejected on the merits. She was only allowed to appear on con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise modified or reversed in appeal or by other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move the Apex Court even under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. These observations have been made while dealing with a petition under Article 32 held to be not maintainable after the High Court had decided a petition under Article 226, despite the difference in the approach to the remedy available under the two provisions as indicated in para 16 of the judgment earlier. 10. In P.L. Lakhanpal v. Union of India and another [1967] 1 SCR 433 , the Constitution Bench headed by K. Subba Rao, C.J., was considering the question of a second petition under Article 32 challenging the detention under the Defence of India Rules, 1962. The petitioner was detained under the order dated 10th December 1965.He filed a petition under Article 32 on 24th December 1965 raising certain contentions. Though the petition was dismissed on 19-4-1966 1967CriLJ282 , on 11th June 1966 the Central Government passed an order continuing the said detention und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in a writ of habeas corpus earlier by another Division Bench. But this principle will not apply to different Court. The High Courts of Allahabad, Bombay, Madras, Nagpur and Patna and East Punjab have accepted this view, though the Calcutta High Court took the view that successive applications of habeas corpus could be filed . It is evident from the above ratio that as far as the High Court in India are concerned, the position would be the same as accepted by the English Court viz. a successive petition cannot be filed to the same High Court. This is because when the High Court functions as a division, it speaks for the entire Court and it, therefore, cannot set aside the order made by it in a writ of habeas corpus in an earlier petition. This was the view taken consistently by the High Courts of Allahabad, Bombay, Madras, Nagpur, Patna and East Punjab, though the Calcutta High Court had taken the view that successive applications for habeas corpus could be filed to the same High Court. The Apex Court then added that unlike the position in England, a person could, however, approach the Apex Court under Article 32 after he had approached the High Court under Article 226 since ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ram Kumar Pearay Lal v. District Magistrate Delhi to which we will make a brief reference after we deal with the Apex Court decisions. Suffice it to say that the view expressed by the Full Bench of the Punjab High Court is that no second writ petition for habeas corpus can lie to the same High Court on a ground on which a petition had already been dismissed. However, a second petition will lie (i) when a fresh and new ground of attack against the legality of detention has arisen after the decision of the first petition, or (ii) where, for some exceptional reason, the ground had been omitted in the earlier petition. In such appropriate circumstances, the High Court will hear, the second petition on such ground for ends of justice. The Apex Court then referred to Daryao's case in paragraphs 8 and 9, which related to civil matters. In para 10, the Court referred to Ghulam Sarvar's case and then in para 13, at page 731 the Court concluded by saying that the application of the doctrine of constructive res judicata is confined to civil action and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaining of illegal detention under order passed on 11th July 1980 under the COFEPOSA. The first petition was dismissed on 24th September 1980. Thereafter, a representation was made by the detenu in January 1981, through his wife, to the detaining authority, which was rejected on 25th April 1981. In the meanwhile, a second petition was filed under Article 32 on 3rd April 1981 and two grounds were raised, viz. (i) non-supply of all the documents which were relied upon or referred to in the grounds of detention; and (ii) unexplained delay of more than four months in the matter of consideration of the representation made through his wife after the first petition was dismissed. The Court upheld the first contention of the petitioner, which had resulted in violation of Article 22(5) of the Constitution and allowed the petition. 15. While elaborating his preliminary objection, Shri Agrawal invited our attention to the very vigilant outlook of the detenu in this case, as reflected by the steps taken by him from time to time in his first petition in this Court, as also in Delhi High Court. We have narrated the same in paras 3 and 4 above. The detenu had also approached the Calcutta H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when the detenu was in custody, a second petition under Article 32 may be maintainable in the Apex Court having regard to the high pedestal on which a petition under Article 32 is placed by virtue of Clause (1) of Article 32 of the Constitution, which reads as under :-- 32. Remedies for enforcement of rights conferred on this part - (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed. This has been emphasised by the Apex Court in para 16 of its judgment in Daryao's case at page 1464 of [1962]1SCR574 , and reiterated in para 10 of the judgment, at page 1624, in Kirit Kumar's case, [1981]2SCR718 . Thus, it is clear to us that granting relief to a petitioner under Article 226 is a matter of discretion. However, right to move the Apex Court under Article 32 is a matter of fundamental right of the detenu and in a second petition under Article 32, as compared to a second petition under Article 226, once the Court finds that there is violation of fundamental right, the detenu stands on a higher footing. However, in a later judgment of the Apex Court even in respect of successive pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on 9th October 1996 and, therefore, this has ceased to be a petition or a writ of habeas corpus. Further, there is a distinction in the approach while dealing with successive petitions under Article 32 to the Apex Court as against successive petitions to the High Court under Article 226. This is clear from the above mentioned pronouncements of the Apex Court. The last judgment in Abdul Sattar's case indicates a change in thinking on the ground of public policy of having some finality to the proceedings. As stated by the Apex Court in Prakash Chandra Mehta's case, there is no rule of law that commonsense should be kept in cold storage while considering the constitutional provisions for safeguards against misuse of powers by the authorities, though these constitutional provisions should be strictly construed. We are dealing with a detenu, who in respect of the earlier order of his detention dated 3rd June 1991, had approached the Calcutta High Court and had obtained a temporary stay. In respect of the present order of detention dated 5th October 1995 he had earlier filed Criminal Writ Petition No. 1238 of 1995 in this Court. In that, he had taken steps for amendment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision on the first petition and (ii) where for some exceptional reason, the ground has been omitted in an earlier petition. In either of these two circumstances, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice. It is also clear to us that in the second case mentioned above it is only the ground which existed at the time of earlier petition and which was omitted for some exceptional reason that will be considered in the second petition but the second petition will not be competent on the same ground merely because an additional argument is available to urge with regard to the same. We will presently demonstrate that this appears to be the consistent view taken in a number of decisions in England and India. 21. In Re Hastings (No. 2) reported at 1958(3) AN England Law Reports 625, the applicant Edward Thomas Hastings had moved for a writ of habeas corpus against the respondent the Governor of Liverpool Gaol in respect of a sentence for four years' corrective training. The ground of application was that no valid sentence had been passed on the applicant. The second application was made by the applicant to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o entertain the application. 22. Since the writ of Habeas Corpus had its origin in England, we may mention here that in England the law has been codified now and section 14 of the Administration of Justice Act, 1960, provides as under :-- 14(1) On a criminal application for habeas corpus an order for the release of the person restrained shall be refused only by a Divisional Court of the Queen's Bench Division, whether (he application is made in the first instance to such a Court or to a Single Judge in accordance with rules of Court. (2) Notwithstanding anything in any enactment or rule of law, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or in respect of that person on the same grounds, whether to the same Court or Judge or to any other Court or Judge, unless fresh evidence is adduced in support of the application: and no such application shall in any case be made to the Lord Chancellor. (3) In every case where the person by or in respect of whom an application for habeas corpus in made is restrained as a person liable, or treated by virtue of any enactment as li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip then was) A.I.R. 1948 Bom 326, this Court was dealing with the case of a detenu Malhari Chikate who was detained on 5th June 1947 under a detention order issued under section 2(1)(a) of the Bombay Public Security Measures Act, 1947. He applied to the High Court for an order in the nature of habeas corpus. The application was heard by the Division Bench of Rajadhyaksha and Jahagirdar, JJ., and was rejected on 9th October, 1947. On 5th November, 1947 one Bhaiyaji Kulkarni, friend of the detenu, applied for release of the detenu under section 491 of the Code of Criminal Procedure, 1898. In para 3 of the judgment, this Court expressed its anxiety to see that nothing was done which would impair or curtail the liberty but clearly laid down that the Common Law Practice of English Courts permitting successive identical applications for writ of habeas corpus to be made to the Judges, one after another, of the High Court of Justice, was not applicable in case of applications under section 491 of the Code of Criminal Procedure, 1898. The learned Chief Justice referred to the view taken by Allahabad and Lahore High Courts and in para 4 of the judgment agreed with the said view. We are boun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as only the High Court which can issue a writ for the enforcement of the fundamental rights. Jurisdiction was conferred upon the High Court as such and not upon any Judge or Judges of that Court and, therefore, when the Division Bench of this Court is hearing the application under Article 226, it is hearing that application as the High Court and its ultimate decision is not the decision of the Division Bench but it is the decision of the High Court. It was, therefore, held that when earlier Bench of Dixit and Shah, JJ., rejected the previous application of the detenu under section 491 of the 1898 Code on 12th June. 1950, it was the decision of the High Court and the question was whether it was open to the applicant to approach any other Judge of the High Court for the similar purpose notwithstanding the decision of the High Court to the contrary. In para 6 of the judgment, the learned Chief Justice observed that the effect of the argument of the applicant was that the decision of the High Court on an application for a writ for the enforcement of the fundamental rights under Article 226 was subject to review by the High Court. However, it was pointed out that no Court had inherent p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 1948. Since the second application also came up before Wanchoo, J., on 20th July 1948, he referred the question to a larger Bench as to whether the second application can be heard in the circumstances mentioned above. Reliance was placed by the applicants on the old rule of English common law that successive applications for a writ of habeas corpus could be made to different Judges of the same Court. We have already indicated in para 22 above that this position in England has undergone a change after the enactment of the Administration of Justice Act, 1960. Before the Full Bench of the Allahabad High Court, it was contended that just as bail applications could be moved successively as the circumstances alter, an application for a writ of habeas corpus can also be moved on fresh grounds. Rejecting the contention, it was held that in the case of an application under section 491 of the Code, the Court has to determine whether the detention order is legal and once the Court has pronounced on the legality of the detention order, section 369 of the 1898 Code barred the reconsideration of the same matter. If an order is held to be valid, the Court, after it has signed its judgment, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same, except to correct a clerical or arithmetical error. In the Madras case, the petitioner had filed an application under section 491 of the old Code for the issue of a writ of habeas corpus for the custody of his minor daughter Kum Girija, who was kidnapped by the respondents from his lawful custody. That application was dismissed by a Division Bench of the Madras High Court on 1st May 1961 on the ground that the petitioner had an alternate remedy under section 100 and 552 of the Code of Criminal Procedure, 1898. The petitioner then filed another application praying for a similar relief of habeas corpus reiterating his contention that his daughter was minor and was improperly detained by the respondents. It was held on merits that the medical reports showed that the daughter was not a minor and hence the application for a writ of habeas corpus was dismissed. The third petition was filed for a writ of habeas corpus reiterating his case that his daughter was a minor. The Court held that it had no jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say that a defeated litigant can, in the name of liberty and under the slogan of fundamental right, file petition after petition to the same High Court in the hope of succeeding eventually at some time before some Judge. This is nothing but a Sisyphean task and the learned Judges deprecated and condemned such practice. We are in respectful agreement with these observations. There is no doubt, in our mind, as has happened in the case before the Madras High Court that, at times, detenus prefer to file repeated applications in the hope of succeeding eventually at some time before some Judge, may be before different Benches of the same High Court. We are afraid, permitting such a practice would encourage forum shopping also. 28. In Ram Kumar Pearay Lal v. District Magistrate, Delhi, a Full Bench of Five learned Judges (Mehar Singh, A.N. Grover, D.K. Mahajan, H.R. Khanna and S.K. Kapur, JJ.) was dealing with the question of second petition under Article 226 for writ of habeas corpus by the detenu who was detained under Rule 30(1)(b) of the Defence of India Rules, 1962. The District Magistrate had, by his order dated 25th July, 1964, detained the detenu with a view to preventing hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and validity of detention or custody could not be impugned. The Full Bench then answered the question referred to it saying that no second petition for writ of habeas corpus lies to the same Court on a ground on which similar petition had already been dismissed by that Court. It was, however, stated that the second petition will lie if (i) a fresh and new ground of attack against the legality of detention or custody has arisen after the decision on the first petition and (ii) where for some exceptional reason, a ground had been omitted in an earlier petition. In such a situation the Court will hear the second petition on such a ground for ends of justice. It was further clarified that in the second category mentioned above, it is only a ground which existed at the time of earlier petition and was omitted from it, that will be considered but merely because an argument was missed at the time of hearing of the earlier petition in support of the ground, that will not justify entertainment of the second petition. In other words, the Full Bench said that, the second petition for writ of habeas, corpus will not be competent on the same ground merely because additional argument is av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re for some exceptional reason the ground has been omitted in the earlier petition, we must hasten to add that no such circumstance has been pleaded in the one page petition which was filed on 16th August, 1996 as soon as the assignments had changed. No attempt was even made before us by the learned Counsel to offer any explanation for failure to raise the contention in the earlier petition which was so elaborately argued and decided on 24th July, 1996. A perusal of the judgment in the earlier petition shows that the matter was argued threadbare. 30. Similar view has been taken by the Full Bench of Calcutta High Court in Ram Narayan Gupta v. District Magistrate Midnapore and others. This was a case where Ram Narayan Gupta was detained under the order dated 7th April, 1972 passed under section 3(2) of the Maintenance of Internal Security Act, 1971. He was arrested on 13th April, 1972. On 23rd May; 1992 he obtained a Rule from the Calcutta High Court under section 491 of the 1898 Code but the rule was discharged by the Division Bench on 3rd August, 1972. On 25th August, 1972 the son of the detenu, namely, Chunilal Gupta obtained another rule from the Calcutta High Court under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detained under an order issued by the State Government on 18th March, 1983 in exercise of the powers under section 3(1) of COFEPOSA. He was supplied the grounds in Gujarathi as well as in English. The wife of the detenu filed earlier petition for writ of habeas corpus challenging the order of detention. The said petition was dismissed by a Division Bench of Gujarat High Court by its judgment and order dated 21st July, 1983. The second petition was, however, filed by the detenu on grounds which he claimed to be fresh grounds. The grounds were (i) denial by the Advisory Board of the assistance of a lawyer at the time of hearing of his representation before the Board, (ii) non supply of material documents namely log book maintained on Board the Vessel 'Krishnaprasad' which was a fishing trawler and (iii) refusal to summon witnesses and permitting their cross-examination. On the question as to whether successive writ petitions for writ of habeas corpus were competent before the same High Court, even on the fresh grounds, assuming that the grounds were fresh, the Gujarat High Court considered the judgments of the Apex Court and several High Courts including the Full Bench judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the order made in a petition for habeas corpus earlier by another Division Bench. While holding that dismissal of a petition under Article 226 by the High Court would not bar the maintainability of a petition under Article 32 by the Apex Court, in our view, it has been clearly held in Ghulam Sarwar's case that the High Court cannot entertain repeated petitions for a writ of habeas corpus under Article 226 on the same set of facts where grounds were available to the detenu at the time of decision of the earlier petition. In P.L. Lakhanpal's case, [1967]1SCR433 another Constitution Bench headed by K. Subba Rao, C.J., took the view that the earlier petition having been dismissed, the contentions which were raised earlier could not be permitted to be re-agitated since it was not the case of the petitioner that any new circumstance had arisen justifying their re-agitation. In Lallubhai Patel's case, 1981CriLJ288 in the peculiar facts and circumstances mentioned in para 12 above, the Apex Court had itself earlier permitted a second petition under Article 32 being filed. This liberty was granted after the order was pronounced before the Summer Vacation and before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that a latter Bench of lesser number of Judges cannot be construed to have said anything at variance with an earlier larger Bench decision of the Apex Court. Mrs. Godavari Parulekar's case was decided by the Constitution Bench headed by Patanjali Sastri, C.J.; Lakhanpal Patel case was decided by a Constitution Bench headed by K. Subba Rao, C.J., and Ghulam Sarwar's case was also decided by another Constitution Bench headed by K. Subba Rao, C.J. It is, therefore, clear to us that any observations in Lallubhai Patel's case decided by a Bench of two learned Judges where, while dismissing the first petition, liberty was granted by the Apex Court itself to file a second petition must be read in the light of the ratio laid down by the earlier three Constitution Bench decisions of the Apex Court. We can do no better than to quote the observations of the Supreme Court in para 13 of the judgment in N. Meera Rani v. Government of Tamil Nadu and another [1989]3SCR901 :-- 13. We may now refer to the decisions on the basis of which this point is to be decided. The starting point is the decision of a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan. All su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the reason or the principle on which a question before the Court has been decided, is alone binding as a precedent. 36. Bearing in mind these observations and the law laid down by the Apex Court in a series of decisions referred to above and the Full Bench decisions of this Court and decisions of other High Courts, we will consider the decisions of this Court where at. the instance of a detenu who was still in custody, a second petition for habeas corpus was entertained under Article 226. As indicated earlier, the present petition is no longer a petition for a writ of habeas corpus since the detenu has been released on 9-10-1996 and all the cases on which Shri Kotwal has placed reliance are cases, where, admittedly, the detenu was in detention and the second petition was very much a petition for a writ of habeas corpus under Article 226. At the time of delivery of the judgment, the detenu was very much in custody and, therefore, the approach was different, as is usually the case in a habeas corpus petition. 37. In Jeihamal Kapurchand Kothari v. Union of India and others,1986 Criminal Law Journal pg. 1645, the detenu was detained under section 3 of the COFEPOSA His fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (2) of section 14 of the Administration of Justice Act, 1960 where it is provided that the second application for issuance of the writ of habeas corpus will not lie to the same Court or Judge unless fresh evidence was adduced in support of the application. The Division Bench in Kochu Krishnan Shashidharan's case - (Kurdukar, J., as His Lordship then was) after laying down the above proposition allowed the petition on merits. With respect, we do not think that ratio of the decision in Kochu Krishnan's case can apply to the facts of the case before us where --- the detenu has already been released and no fresh facts have been alleged and what has been alleged is a ground which was very much available to the detenu at the time of hearing of the first petition in July, 1996. In Ashok Kumar Jatia's case, Cri.Writ Petition No. 173 of 1987 decided on 7th July, 1987, this Court had dismissed the first petition under Article 226 and the second petition was entertained. It was not disputed before the Division Bench in Ashok Kumar Jatia's case that the point which formed the bedrock of the petition was not put forth in the earlier proceedings either before the High Court or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .K. Batabyal and others, Cri. Writ Petition No. 623 of 1990 decided on 6th November, 1990, the second petition was held maintainable under Article 226 since it was admitted before the Court that the contention raised was not available to the detenu at the time the earlier petition was decided. It was a fresh ground arisen after the decision of the first petition which was permitted to be raised. We are in respectful agreement with the view expressed by the Division Bench. 41. In Smt. Deepa Ramesh Pai v. The Union of India and others, reported at 1991(1)MhLj1119 , the second petition was held maintainable under Article. 226 on fresh grounds. It was not disputed that the grounds were fresh grounds, as stated in para 6 of the judgment. In Mangilal Nathamalji Jain v. The Union of India and others, Criminal Writ Petition No. 1383 of 1991 decided on 7th February, 1992 the second petition was held maintainable under Article 226 since the ground which was placed before the subsequent Bench was not placed before the earlier Division Bench. With respect, however, the issue of maintainability of the second petition under Article 226 in the light of the law laid down by the Apex Court had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore some Judge or before another Bench of the same High Court. In this behalf, we must bear in mind the observations of the Apex Court in Prakash Chandra Mehta's case (supra) that there is no rule of law that common sense should be kept in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. 1986CriLJ786 . The Constitution Bench decisions of the Apex Court in (i) Mrs. Godavari Parulekar's case para 8 above, (ii) P.N. Lakhanpat's case (para 10 above), and (iii) Ghulam Samar's case (para 11 above) leave no doubt in our minds that a second petition under Article 226 to the High Court on the same facts without any fresh ground being made out as indicated above, is not maintainable. 44. In addition to the law settled by the Apex Court, in our view, the decisions of the Full Benches of this Court leave no doubt in our mind that what we have indicated above is the correct legal position. It is true that Malhari Chikate's case decided by the Full Bench of Chagla, Ag. C.J., Rajadhyaksha, J., and Gajendragadkar, J., (as His Lordship then was) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was heard on merits and disposed of by a detailed judgment on 24th July, 1996. The contention which is now sought to be urged before us about the non consideration of his representations dated 6th and 15th December, 1995 by the detaining authority and non communication of the reply was very much available to the detenu at the time when the first petition was heard and disposed of in the month of July, 1996. A period of seven months had elapsed after the making of the said representations and before this Court heard and decided the first petition. ii) there is no fresh fact or fresh evidence which has become available to the detenu after the decision in the first petition on 24th July, 1996. No exceptional circumstance has been pleaded in this petition, much less was anything argued at the bar to suggest that the petitioner could not raise the contention of non consideration of his representations dated 6th and 15th December, 1995 in the earlier writ petition heard seven months after the making of the said representations. iii) During the pendency of the earlier writ petition, the petitioner had taken several steps which clearly indicate that he was very much vigilant about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on 21st June, 1991 which had expired after one week. Fifth contention was that certain documents annexed to the letter dated 22nd July 1995 sent by the petitioner to the Deputy Director of Enforcement at Bombay were not placed before the detaining authority. The last contention was regarding some writings in Deonagari script being not intelligible to the detaining authority though they were intelligible to the detenu namely Ro in Devanagari script with the word cash , mentioned in brackets in English; the word Ro meant Rokad which means 'cash'. (v) It is also relevant to note that the representations dated 6th and 15th December, 1995 made by the detenu were considered by the Government of India and were rejected and communication to that effect was issued on 25th January 1996 and was received by the detenu as far back as on 29th January, 1996. This is evident from Annexure E to the present petition. Despite this, however, the detenu did not raise the contention about non consideration of these very representations dated 6th and 15th December, 1995 by the detaining authority till 24th July, 1996 when the earlier petition was disposed of seven months after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition is accordingly dismissed. Rule is discharged. 50. At this stage Shri Kotwal prays for issuance of a certificate under Article 134(1)(c) read with Article 134-A of the Constitution on the ground that this is a fit case for appeal to the Apex Court. We have decided the limited question about the maintainability of the second writ petition under Article 226 of the Constitution where the detenu has already been released from custody and where no fresh facts are averred nor is any circumstance pointed out which had occurred after the decision of the first petition. We have held that the ground sought to be urged in this petition was very much available to the detenu in July, 1996 when the first petition was decided, but was not raised and no exceptional circumstance has been pleaded either in the petition or orally at the bar. We have decided the issue on the basis of the legal position settled by three Constitution Bench decisions and the last decision in Abdul Sattar's case, (1990)1SCC480 , as also two Full Bench decisions of this Court. We, therefore, do not think that this is a fit case for appeal to the Apex Court. Hence prayer rejected. 51. Petition dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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