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TMI Blog2014 (8) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, arriving from Dubai by flight at Chhatrapati Shivaji International Airport at Mumbai, and Uday Singh Meena, Sub-Inspector of CISE were apprehended at the Airport on 10 August 2012 in connection with smuggling of gold. A bag containing 5.804 kgs of gold jewellery and gold bars of an estimated value of ₹ 1.60 crores was found with Uday Singh Meena. Sagar Chheda, apprehended on the same day, was found to be carrying an identical bag. Next morning, i.e. on 11 August 2012, one more passenger Atul Mangilal Bafna, who arrived at the Mumbai Airport from Dubai, was apprehended with the same make of bag containing 4.717 kgs of gold jewellery. After investigations, the authorities claimed to have busted a smuggling racket with Sandeep as the kingpin of the syndicate and Jayant as a co- conspirator for smuggling of gold bars / gold jewellery from Dubai. Sandeep was found to be the financier of the smuggling activities, sending money through illegal channels, visiting Dubai and purchasing gold for carrying the same through his carriers. The carriers, who included Sagar Chheda, Jayant and others, would carry the contraband in bags of specified makes from Dubai to Mumbai and then exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners, are fresh and new. They are as follows: (i) A representation of the detenu (representation dated 20.11.2013 in the case of Sandeep and dated 11.2.2014 in case of Jayant) was sent to the detaining authority, and the State and Union Governments through the Superintendent of Prison, but there was no response and the delay was not explained; (ii) A fresh representation (dated 30.1.2014 / 11.2.2014) was sent to the detaining authority on behalf of the detenu on fresh grounds for consideration and revocation of the order of detention, where the detenu also requested to furnish certain vital documents (on which reliance was placed in the order) to enable the detenu to make a further representation, but there was neither any response nor any explanation for delay; (iii) A similar representation sent to the Secretary to the Government of India (dated 31.1.2014 / 11.2.2014) also elicited no response; (iv) Out of the compilation of 807 pages of documents furnished to the detenu along with the grounds of detention (which documents were relied upon), there were about 25 pages which were wholly and/or partially illegible and could not be understood by the detenu, depriving him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition under Article 226 of the Constitution after hearing the matter on merits, on the ground that no fundamental right was proved or contravened and that its contravention was constitutionally justified. The Petitioner in that case did not appeal from the decision of the High Court but filed an independent petition under Article 32 to the Supreme Court on the same facts and for the same reliefs. The Supreme Court held the petition to be barred by the general principles of res judicata. 10 Daryao's case (supra) was cited before the Supreme Court in Ghulam Sarwar vs. Union of India(1967) 2 SCR 271 where the Court was concerned with the question of maintainability of a second writ petition for habeas corpus . In that case, a habeas corpus petition of the petitioner, a Pakistani National who entered India without any travel document and who was detained in connection with smuggling of gold, was dismissed by the Delhi High Court and the petitioner had come to the Supreme Court by way of a petition under Article 32. The Supreme Court noted that in Daryao's case, the writ of habeas corpus was treated as a separate class and the question as to whether repeated applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principle of constructive res judicata cannot also govern the said application, for the rule of constructive res judicata is only a part of the general principles of the law of res judicata, and if that be applied the scope of the liberty of an individual will be considerably narrowed. The present case illustrates the position. Before the High Court the petitioner did not question the constitutional validity of the President's order made under Art. 359 of the Constitution. If the doctrine of constructive res judicata be applied, this Court, though is enjoined by the Constitution to protect the right of a person illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection. 11 Thus, in Ghulam Sarwar's case (supra), the Supreme Court, dealing with the plea of an order of the High Court in a habeas corpus petition under Articles 226 operating as res judicata for a petition under Article 32 before the Supreme Court, negatived the plea and held that the Supreme Court would have to decide the matter on merits. But it still accepted the English principle of a Division Bench of a High Court not entertaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b High Court quoted above. The Supreme Court held as follows : 13. The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief. In Lallubhai's case, the new and additional grounds included the following : (i) Non-supply of all the documents relied upon by the detaining authority. It was submitted that after the rejection of the Petitioner's first petition, the Petitioner learnt about this fact from an order passed in an allied writ petition filed on behalf of other detenus. (In particular, it was submitted that 236 documents were not supplied at all.) This fact had been admitted in the counter of the detaining authority; (ii) A representation was made on behalf of the detenu after his first petition was dismissed, which was not disposed of. No counter was filed by the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verride the express constitutional mandate to the Supreme Court enshrined in Article 32 of the constitution. In a recent decision in the case of Smt. Santosh Anand v. Union of India W. P. No. 1097/79 (decided on 31-10-1979) this Court has pointed out that the concept of liberty has now been widened by Maneka Gandhi's case where Article 21 as construed by this Court has added new dimensions to the various features and concepts of liberty as enshrined in Articles 21 and 22 of the Constitution. For these reasons, therefore we overrule the preliminary objection taken by the respondents. 15 In Abdul Sattar Abdul Kadar Shaikh vs. Union of India (1990) 1 SCC 480 , the detenu had filed an Article 32 petition which was dismissed. A second petition was filed for the same relief, but on the basis of some grounds which, according to the petitioner, were not urged in the first petition. The Supreme Court referred to the merits of the contentions while rejecting the second petition, observing as under : We may also point out that though the principle of res judicata or constructive res judicata cannot be made applicable to a case of detention yet there should be some finality. The pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Article 32 of the Constitution made in Kirit Kumar's case (supra) by the Supreme Court, and finally held as follows : 45. The law laid down by the Apex Court in Kirit Kumar's case, makes a clear distinction between the discretionary jurisdiction under Article 226 and the fundamental right guaranteed under Article 32(1) of the Constitution which must be borne in mind since we are dealing with a second petition to the High Court under Article 226 of and that too at the instance of a detenu who has been released and who has alleged no fresh ground whatsoever nor has he pleaded any exceptional circumstance which prevented him from raising the ground earlier at the time of hearing of the first petition though the same was very much available to him in the facts of the present case. Indeed, the approach of the Apex Court in Mrs. Godawari Parulekar's case decided on 5th December, 1952 and in Abdul Sattar's case (supra) decided on 24th January, 1990 clearly indicates that even a second petition under Article 32 of the Constitution would not be maintainable on the ground of public policy that there should be finality to the proceedings. 18 The principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid judgment that even the statutory power vested in the Central Government to revoke the order of detention may be exercised in its discretion only in cases where fresh materials or changed or new factors call for the exercise of that power, and there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. This principle finds affirmation in a judgment rendered by a constitution bench of this Court in Makhan Lal Gokul Chand v. administrator, Union Territory of Delhi and another (1999) 9 SCC 504 in which this Court found that the petitioner challenged the order of detention and failed thrice, and yet filed another representation which did not disclose any fresh material, nor were any subsequent events pointed out which may have warranted a fresh consideration of the representation made by the detenu. It was only a change in the language of the representation. The Delhi Administration was, therefore found, justified in rejecting the representation since there were no fresh grounds nor any fresh material or subsequent events brought out in the last representation. There was, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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