LALLUBHAI JOGIBHAI PATEL versus UNION OF INDIA & ORS.

SARKARIA, J.-By our order dated October 3, 1980, we had allowed this writ petition for the issue of a writ of Habeas Corpus and directed the release of the detenu. We are now giving the reasons in support of that order.

p. 354, margin B

On January 30, 1980, the petitioner, Lallubhai Jogibhai Patel was served with an order of detention, dated January 30, 1980, passed by Shri P. M. Shah, Deputy Secretary to the Government of Gujarat (Horne Department) under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA).

p. 354, margin B

The grounds of detention were also served on hirn on the sarne day. The petitioner challenged the order of his detention by Writ Petition No. 449 of 1980 in this Court. That petition was dismissed by this Court by an order dated May 9, 1980, but the reasons for that order were announced later on Augnst 4, 1980. After the dismissal of his petition, he on July 21, 1980, filed additional grounds. He was on July 30, 1980, informed that he rnay, if so advised, file a fresh petition on those additional grounds. That is how this subsequent petition carne to be filed on additional grounds which were not urged in the previous Writ Petition 449 of 1980.

p. 354, margin C

A preliminary objection was raised on behalf of the respotident- State that this subsequent petition is barred as constructive res judicata. In this connection, reference has been made to the decision of this Court in Ghulam Sarwar v. Union of India & Ors.( and Seervai's Constitutional Law(').

p. 354, margin E

In reply, Shri Ram Jethmalani, counsel for the petitioner, contended that this Court caunot refuse to entertain a second petition for habeas corpus on a fresh ground which could not, for good reasons, be taken ih the earlier writ petition, on the ground that it is barred by any doctrine of estoppel or constructive res judicata. It is stressed that a preventive detention illegally continued is a continuous wrong and furnishes a continuous cause of action to the detenu to challenge the same on fresh grounds. In this connection, reference has been (I) made to a Full Bench decision of the Punjab High Court in Ram Kumar Pearay Lal v. District Magistrate, Delhi(!). On facts, counsel has tried to distinguish the decisions of this Court in Da!Yao v. State of Uttar Pradesh(') and Niranjan Singh v. State of Madhya Pradesh(8).

pp. 354–355, margin F

The preliminary question, therefore, to be considered is, whether the doctrine of constructive res judicata applies to a subsequent petition for a writ of habeas corpus on a ground which he "might and ought" to have taken in his earlier petition for the same relief. In England, before the Judicature Act, 1873, an applicant for habeas corpus had a right to go from court to court, but not from one Bench of a court to another Bench of the same Court. After the Judicature Act, 1873, this right was lost, and no second application for habeas corpus can be brought in the same court, except on fresh evidence. In re Hastings (No. 3)( Lord Parker, C.J., after surveying the history of the right of habeas corpus, arrived at the conclusion that it was never the law that in term time, successive writs of habeas corpus lay from Judge to Judge. In re Hastings (No. 4)( ). Harman, J. pointed out that since the Judicature Act had abolished the three independent courts, namely, the Court of Exchequer, the King's Bench Division, and the Common Pleas, and had constituted one High Court, when an application for writ of habeas corpus has been disposed of by one Divisional Court, no second application on the same ground lies to another Divisional Court of the High Conrt. This position was given statutory recognition in the Administration of Justice Act, 1960.

p. 355, margin A

In a Full Bench decision of the Punjab High Court, which purports to follow these English decisions and two decisions of this Court in Daryao v. State of U.P. (ibid) and Calcutta Gas Co. (Proprietary) Ltd. v. State of West Benga/( ), it was held as follows :

p. 355, margin E

"No second petition for writ of habeas corpus lies to the Higl1 Court on a ground on which a similar petition had already been dismissed by the Court. However, a second such petition will lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition, and also where for some exceptional reason a ground has been omitted in an earlier

p. 355, margin F

A.I.R. Punjab (2) A.I.R.1961S.C.1457~[1962]1S.C.R.574

p. 355, margin F

[1973] 1 S.C.R. (4) [1958] 3 All E.R. 625 (5) [1959] 1 All E.R.

p. 355, margin F

A.I.R. 1965 S.C. 596 petition, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice. In the last case, it is only a ground which existed at the time of the earlier petition, and was omitted from it, that will be considered. Second petition will not be competent on the same ground merely because an additional argument is available to urge with regard to the same."

pp. 355–356, margin F

In Daryao's case (ibid), Gajendragadkar, J. (as he then was), speaking for the Constitution Bench, held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata. It was further clarified that the rule of res judicata, as indicated in Section 11 of the Code of Civil Procedure, has no doubt some technical aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata, they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32. It was also noted that the liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitutian, and it is the privilege and the auty of this Court to uphold those rights. Though a right is given to the citizen to move this Court by a petition under Article 32 and to claim an appropriate writ against the unconstitutional infringement of his fundamental rights, yet, in dealing with an objection based on the principle of res judicata may even apply to a successive petition. The Court was careful enough to add : "We propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution. That is a matter with which we are not concerned in the present proceedings".

p. 356, margin B

It may be noted that the petitions which were before the Court in IDaryao' s case were civil matters and not petitions for issue of a writ of habeas corpus. Even so, it was clarified in that case that the principle of constructive res judicata, as embodied in Section 11 of the Code of Civil Procedure, was of a technical character and this principle was 'not one of universal application.

pp. 356–357, margin E

In Ghulam Sarwar's case (ibid), the Constitution Bench of this Court wa5 dealing with a petition under Article 32 of the Constitution which had raised the question of the validity of the detention of the petitioner under Section 3 of the Foreigners Act, 1946.' The petitioner was a Pakistani national, who entered India without any travel documents. On May 8, 1964, he was arrested in New Delhi by the Customs Authorities under Section 135 of the Customs Act, 1962 . When he was about to be enlarged on bail, he was detained by an order under Section 3 (2)(g) of the Foreigners Act. It was said that he had to be detained, as police investigation was in progress in respect of a case of conspiracy to smuggle gold, of which he was a member. On May 29, 1965, he was convicted by the Magistrate, of an offence under the Customs Act and sentenced to imprisonment. His appeal was dismissed by the Sessions Judge. Before his term of imprisonment expired, the petitioner filed a writ of habeas corpus in the Circuit Bench of the Punjab High Court, challenging his detention. The petition was dismissed by Khanna, J., on merits. Before the learned Judge, the constitutional validity of Section 3 (2) (g) of the Act was not canva,ssed. The learned Judge held that the section authorised the Government to make the said order of detention on its snbjective satisfaction and that the Court could not question its validity in the absence of any mala {ides. In short, he dismissed the petition on merits. Thereafter, Ghulam Sarwar filed a petition under Article 32 of the Constitution for issue of a writ of haberu corpus against the respo'ndents on the ground that the provisions of the Act were invalid. On behalf of the respondents, a preliminary objection was raised tlrat the decision of Khanna, J. of the Punjab High Court operated as res judicqta and barred the maintainability of the subsequent petition under Article 32. Reliance was placed on the decision of this Court in Daryao's case. After observing that Daryao's case was no authority in regard to the repeated applications for habeas corpus, and examining English 21nd American decisions, the learned Chief Justice (Mr. Justice Subba Rao) summed up the position, thus :

p. 357, margin A

"But unlike in England, in India the person detained can file original petition for enforcement of his fundamental right to liberty before a court other than the High Court, namely, this Court. The order of the High Court in the

p. 357, margin G

said writ is not res judicata as held by the English and the 7-57 SC!/81 American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order. If the doctrine of res judicata is attracted to an application for a writ of habeas corpus, there is no reason why the 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 principle 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 constitutiomil validity of the President's order made under Article 359 of the Constitution. If the doctrine of constructive res judica~ be applied, this Court, though it is enjoined by the Constitution to protect the right of a person illegaJ!y detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional

pp. 357–358, margin H

protection." On these premises, it was held "that the order of Khanna, J., made in the petition for habeas corpus filed by the petitioner does not operate as res judicata and this Court will have to decide the petition on merits".

p. 358, margin C

In his concurring judgment, Bachawat, J ., while holding that the order of dismissal by the High Court does not operate as res judicata and does not bar the petition under Article 3 2 of this Court, asking for the issue of a writ of habeas corpus on the same facts, clarified that the petitioner would not have the right to move this Court under Article 3 2 more than once on the same facts.

p. 358, margin E

In Niranjan Singh's case (supra), the District Magistrate of Gwalior by his order dated May 26, 1971, passed under Section 2A of the Madhya Pradesh Public Security (Amendment Act) of 1970, detained the petitioner. The petitioner filed a writ petition under Article 226 of the Constitution, challenging his detention and praying for a writ of habeas corpus. The petition was rejected by the High Court. Thereupon, the detenu moved this Court by a petition under Article 32 of the Constitution, for the same relief. A preliminary objection was taken on behalf of the respondent that the petition was barred by res judicata. Following the earlier decision of this Court in Ghulam Sarwar's case (ibid), Jaganmohan Reddy, J., speaking for a Bench of two learned Judges, over-ruled this objection.

p. 358, margin F

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 3Z ol the Constitution on fresh grounds, which were not taken in the e'llflier petition for the same relief.

p. 359, margin A

In the p*nt petition fresh additional grounds have been taken, to challenge the legality of the continued detention of the detenu. We would therefore hold that the subsequent writ petition is not barred as res judicata and over-rule the preliminary objection raised by the respondents.

p. 359, margin B

The additional grounds which have been oressed into arguments by Shri Ram J ethmalani, are :

p. 359, margin C

( 1) The respondents failed to supply despite the request of the detenu, all the documents which were relied upon by the detaining authority while passing the order of his detention, that the detaining authority purported to give him 460 documents, but later on, the detenu discovered that their number was less and many of them were either incomplete or had been wholly withheld; that in particular 236 documents covering 236 pages were not supplied.

p. 359, margin C

This is alleged in ground No. 13 of the present petition. In reply to this, in para 17 of the counter-affidavit filed on behalf of the respondents, it is admitted that all the documents had not been given to the detenu, and he had been supplied enough documents which were thought to be sufficient to enable him to make an effective representation.

p. 359, margin E

The petitioner came to know about the non-supply of these documents from the copy of the judgment, dated May 13, 1980, of the Gujarat High Court passed in the allied writ petitions tiled on behalf of other detenus who were oalleged to be the associates of the present petitioner.

p. 359, margin F

(2) On July 17, 1980, a representation was made on behalf of the detenu with a request that the same be forwarded to the Central Government for exercise of its power of revocation of the detention under Section 11 of the Act. The Jailer forwarded that representation to the Central Government on July 18, 1980, but the same has not yet been disposed of. This plea is the subject of grounds 16, 17 and 26 of the Writ Petition.

p. 359, margin G

A reply to these allegations is to be found in paragraphs 20 and 21 of the counter filed on behalf of the respondents, wherein it is admitted that the jailor has sent the representation at the detcnu's request to the Central Govt.

p. 360, margin A

( 3) The grounds served oh the detenu were in English. The detcnu does not know English. It is stated in the affidavit of the person who served the 'grounds' that they were explained to the detenu in Gujm·ati which is the mother-tongue of the detenu. Admittedly, no translation into Gujarati of the grounds of detention ·.vas given to the detenu on March 11, 1980. This being the case, there was a breach of the .constitutional imperative which requires that the grounds should be communicated to the dctcnu. It can be spelled out therefrom that the grounds must be communicated in a language which the detcnu understands. .In support of this contention, reference has been made to Haribandhu Das v. District Magistrate, Cuttack & Anr. (') and the judgment dated June 23, 1980 in Bakshi's( case. Contention No. (1) :

p. 360, margin A

In the previous petition, though it was alleged that there was delay in supply of copies of the documents relied on by the detaining authority in passing impugned order of detention, no specific ground was taken that documents covering aboi;t 236 pages which were relied upon by the detaining authority in passing the order of detention, were suppressed and not supplied to the petitioner. Indeed this is not dc'nicd in the counter-affidavit. The petitioner has affinned in his affidavit that he came to know about the non-supply of these documents from the judgment of the Gujarat High Court subsequently to the dismissal of his earlier petition. This affirmation remains unchallenged.

p. 360, margin C

A catena of decisions of this Court has firmly established the rule that one of the constitutional imperatives embodied in Article 22(5) of the Constitution is that all the documents and materials relied upon by the deta;ning authority in passing the order of detention must be supplied to the detenu, as won as practicable, to enable him to make an effective representation. Recently, in Smt. lcchu Devi Choraria v. Union of India & Ors.,(') this Court reiterated the principle as follows :

p. 360, margin F

"One of the basic requirements of clause (5) of Article 22 is that the authority making the order of dctentfon must,

p. 360, margin G

as soon as may be, communicate to the detenu the grounds (I) I S.C.R. 227. (2) Smt. Razia Umar Bakshiv. Unian af India [1980] 3 SCR 1398, (rendered by

p. 360, margin G

Fazal (3) [1981] l S.C.R. 642.' on which the order of detention has been made and under sub-section ( 3) of Section 3 of the COFEPOSA Act, the Wl!rds "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention." The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any cveut it cannot be later than fifteen days from the date of detention. These are the two outside time limits provided by Section 3, subsection (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detenion and it is a basic requirement of clause, (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation cgainst his detention. If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continned detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of Section 3 sub-s,ection (3) of the COFEPOSA Act. Now it is obvious that when clause (5) ol Article 22 and sub-section ( 3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu, if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be commu"nicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them. It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention mnst also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order 1 S.C.R. to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act."

pp. 360–362, margin H

In the instant case, the materials and documents which wern not supplied to the detenu were evidently a part of those materials which had influenced the mind of too detaining authority in passing the order of detention. In other words, they were a part of the basic facts anJ materials, and therefore, according to !he ratio ot Smt. lcchu Deri's case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commellccment of detention. Jn the counter-affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu. Contention (2)

p. 362, margin A

The respondents have, in their counter-affidavit, stated that this represe'ntation was not addressed to the Central (io;ernment. It is, howev>"r, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him >hould be dealt with utmost ;expedition. This constitutional mandate has been honoured in breach 1egarding the representatio'n sent by the detcnu to the Central Government. Contention (3):

p. 362, margin C

It is an admitted position that the detenu does not know English. The grounds of detention, which were served the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of th•" Constitution, which requires that the grounds of detention must be "communicated'' to the detenu. "Communicate" is a stro'ng word. It means that suflicien: knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the dctcnu in writing in a language which he understan<)s. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with language which he understands, then that purpose is the constitutional mandate in Article 22(5) is infringed. authority is needed on this point, which is so obvious 22(5), reference may be made to the decisions of Harikishan v. State of Maharashtra('): and Haribandhu Dass. District Magistrate (ibid).

pp. 362–363, margin F

Thus all the three contentions canvassed by the counsel petitioner, on merits were sound. The conclusion inescapable that due to the aforesaid contraventions imperatives, the continued detention of the detenu was

p. 363, margin B

It was for these reasons that we had allowed Writ Petition No. 4349 of 1980 by our order dated October 3, 1980, and directed the release of the detenu . P.B.R.

p. 363, margin C

(1) [1962] Supp. 2 S.C.R. 918

p. 363, margin C