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PETITIONER:

LALLUBHAI JOGIBHAI PATEL

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT15/12/1980

BENCH:

SARKARIA, RANJIT SINGH

BENCH:

SARKARIA, RANJIT SINGH

REDDY, O. CHINNAPPA (J)

CITATION:

1981 AIR 728 1981 SCR (2) 352

1981 SCC (2) 427

CITATOR INFO :

R 1981 SC1621 (8)

RF 1981 SC2084 (1)

R 1982 SC1500 (8)

RF 1990 SC 605 (6)

ACT:

Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act 1974-Section 3-Scope of-Detenu if

could file a second petition for writ of habeas corpus after

dismissal of the first petition-First petition, if operates

as constructive res judicata-Constitutional imperatives

under Art 22(5)- What are.

Constructive res judicata-Grounds not taken in earlier

petition for writ of habeas corpus-Second petition if barred

by constructive res judicata-If applicable in illegal

detentions.

Words and phrases-Commnunicate-Meaning of-Explaining

the grounds of detention without giving them to the detenu

in writing-If amounts to communication.

HEADNOTE:

After dismissal by this Court of the petition impugning

the order of his detention under section 3 of the

Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 the petitioner filed the present

petition urging additional grounds which were not urged in

the previous petition. He alleged that (i) despite his

request for the supply of all the documents relied upon by

the detaining authority while passing the order of detention

the respondent failed to do so; (ii) that many of the

documents were either incomplete or had been wholly withheld

and in particular 236 documents out of 460 documents

purported to have been supplied to him were not supplied;

(iii) that though his representation dated July 17, 1980 for

revocation of the detention order was forwarded by the

jailer to the Central Government it had not been disposed of

and (iv) that lastly serving the grounds of detention in

English which is a language not known to him, without

supplying a translation in his mother tongue, was a breach

of the constitutional imperative embodied in Art. 22(5) and

that for these reasons the order of detention should be held

void.

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A preliminary objection was raised on behalf of the

respondent State that the present petition was barred as

constructive res judicata.

Overruling the preliminary objection,

^

HELD: In the present petition fresh additional grounds

had been taken by the detenu to challenge the legality of

his continued detention. Therefore the subsequent writ

petition is not barred as res judicata. [359 B-C]

1. By a long line of decisions this Court has held 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 in-applicable to

illegal detentions and does not bar a subsequent petition

for the writ of habeas corpus

353

under Art. 32 of the Constitution on fresh grounds which

were not taken in the earlier petition for the same relief.

[359 A-B]

Ghulam Sarwar v. Union of India & Ors. [1967] 2 S.C.R.

271, Daryao v. State of Uttar Pradesh A.I.R. 1961 SC.

1457=[1962] 1 S.C.R. 574, Niranjan Singh v. State of Madhya

Pradesh [1973] 1 S.C.R. 691 and Calcutta Gas Co.

(Proprietary) Ltd. v. State of West Bengal, A.I.R. 1965 S.C.

596 referred to.

2(a). One of the constitutional imperatives embodied in

Art 22(5) of the Constitution is that all the documents and

materials relied upon by the detaining authority in passing

the order of detention must be supplied to the detenu as

soon as practicable to enable him to make an effective

representation. [360 G]

In the instant case the materials and documents which

were not supplied to the detenu were a part of the basic

facts and materials which should have been supplied to him,

ordinarily within 5 days of the order of detention and for

exceptional reasons to be recorded, within 15 days of the

commencement of the detention. The respondent did not state

that the documents which were not supplied were not relevant

to the case of detenu. [362 C]

Smt. Icchu Devi Choraria v. Union of India & Ors.

[1981] 1 SCR 640 applied.

(b) In the first petition no specific ground was taken

by the detenu that documents covering 236 pages relied upon

by the detaining authority were suppressed and not supplied

to him. He had now stated that he had come to know about the

non-supply of these documents from the judgment of the

Gujarat High Court which was subsequent to the dismissal of

his earlier petition. This assertion has remained

unchallenged. [360 E-F]

(c) In matters touching the personal liberty of a

person preventively detained, the constitutional imperative

in Art. 22(5) is that any representation made by the detenu

should be dealt with the utmost expedition which in this is

has been honoured in breach. [362 E]

(d) Merely explaining the grounds of detention in the

mother tongue of the detenu would not be sufficient

compliance with the mandate of Art. 22(5) which requires

that the grounds of detention must be communicated to the

detenu. "Communicate" is a strong word. It means that

sufficient knowledge of the basic facts constituting the

grounds should be imparted effectively and fully to the

detenu in writing in a language understood by him. Its whole

purpose is to enable him to make a purposeful and effective

representation. If the grounds are only verbally explained

without giving them to him in writing in a language that he

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understands, its purpose is not served and the

constitutional mandate is infringed. [362G-H]

Haribandhu Das v. District Magistrate Cuttack & Anr.

[1969] 1 S.C.R. 227. Smt Razia Umar Bakshi v. Union of India

[1980] 3 S.C.R. 1398 and Harikisan v. State of Maharashtra

[1962] Supp. 2 S.C.R. 918 followed.

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 4349 of 1980.

(Under Article 32 of the Constitution.)

354

M/s. Ram Jethmalani, Anil Dewan, Harjinder Singh and S.

H. Sajanwala, for the Petitioner.

J. L. Nain, Sushil Kumar and M. N. Shroff for the

Respondents.

The Judgment of the Court was delivered by

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.

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 (Home Department) under Section 3 of

the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974 (for short, the COFEPOSA).

The grounds of detention were also served on him on the

same 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 August 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 may, if so advised,

file a fresh petition on those additional grounds. That is

how this subsequent petition came to be filed on additional

grounds which were not urged in the previous Writ Petition

449 of 1980.

A preliminary objection was raised on behalf of the

respondent 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.

In reply, Shri Ram Jethmalani, counsel for the

petitioner, contended that this Court cannot refuse to

entertain a second petition for habeas corpus on a fresh

ground which could not, for good reasons, be taken in 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

355

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 Daryao v. State of Uttar Pradesh and Niranjan

Singh v. State of Madhya Pradesh.

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

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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 Hostings (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 Court. This position was given

statutory recognition in the Administration of Justice Act,

1960.

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

Bengal, it was held as follows:

"No second petition for writ of habeas corpus lies

to the High 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

356

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."

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

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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 Constitution, and it is the privilege and the duty 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".

It may be noted that the petitions which were before

the Court in Daryao'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

357

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.

In Ghulam Sarwar's case (ibid), the Constitution Bench

of this Court was 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 canvassed.

The learned Judge held that the section authorised the

Government to make the said order of detention on its

subjective satisfaction and that the Court could not

question its validity in the absence of any mala fides. 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 habeas corpus against

the respondent on the ground that the provisions of the Act

were invalid. On behalf of the respondents, a preliminary

objection was raised that the decision of Khanna, J. of the

Punjab High Court operated as res judicata 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 and American decisions, the

learned Chief Justice (Mr. Justice Subba Rao) summed up the

position, thus:

"But unlike in England, in India the person

detained can file original petition for enforcement of

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his fundamental right to liberty before a court other

than the High Court, namely, this Court. The order of

the High Court in the said writ is not res judicata as

held by the English and the

358

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 constitutional validity of the President's order

made under Article 359 of the Constitution. If the

doctrine of constructive res judicata be applied, this

Court, though it is enjoined by the Constitution to

protect the right of a person illegality detained, will

become powerless to do so. That would be whittling down

the wide sweep of the constitutional 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".

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 32 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 32 more than once on the same facts.

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.

359

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 the present 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.

The additional grounds which have been pressed into

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arguments by Shri Ram Jethmalani, are:

(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.

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.

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 filed on behalf of other detenus who were alleged

to be the associates of the present petitioner.

(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 Jailor 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.

360

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 detenu's request to the Central

Govt.

(3) The grounds served on the detenu were in English.

The detenu 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 Gujarati which is the

mother-tongue of the detenu. Admittedly, no translation into

Gujarati of the grounds of detention was 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 detenu. It can be

spelled out therefrom that the grounds must be communicated

in a language which the detenu 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):

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 the impugned order

of detention, no specific ground was taken that documents

covering about 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 denied in the counter-affidavit. The petitioner has

affirmed 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.

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

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detaining authority in passing the order of detention must

be supplied to the detenu, as soon as practicable, to enable

him to make an effective representation. Recently, in Smt.

Icchu Devi Choraria v. Union of India & Ors., this Court

reiterated the principle as follows:

"One of the basic requirements of clause (5) of

Article 22 is that the authority making the order of

detention must, as soon as may be, communicate to the

detenu the grounds

361

on which the order of detention has been made and under

sub-section (3) of Section 3 of the COFEPOSA Act, the

words "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 event it cannot

be later than fifteen days from the date of detention.

These are the two outside time limits provided by

Section 3, sub-section (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

requirement against the order of detention 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 against his detention. If the

grounds of detention are not furnished to the detenu

within five or fifteen days, as the case may be, the

continued 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-section (3) of the

COFEPOSA Act. Now it is obvious that when clause (5) of

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 communicated 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 must also be furnished to the

detenu within the prescribed time subject of course to

clause (6) of Article 22 in order

362

to constitute compliance with clause (5) of Article 22

and Section 3, sub-section (3) of the COFEPOSA Act."

In the instant case, the materials and documents which

were not supplied to the detenu were evidently a part of

those materials which had influenced the mind of the

detaining authority in passing the order of detention. In

other words, they were a part of the basic facts and

materials, and therefore, according to the ratio of Smt.

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Icchu Devi'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 commencement of detention. In 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) :

The respondents have, in their counter-affidavit,

stated that this representation was not addressed to the

Central Government. It is, however, 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 should be dealt with utmost expedition. This

constitutional mandate has been honoured in breach regarding

the representation sent by the detenu to the Central

Government.

Contention (3) :

It is an admitted position that the detenu does not

know English. The grounds of detention, which were served on

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 the

Constitution, which requires that the grounds of detention

must be "communicated" to the detenu. "Communicate" is a

strong word. It means that sufficient knowledge of the basic

facts constituting the 'grounds' should be imparted

effectively and fully to the detenu in writing in a language

which he understands. 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

363

explained to the detenu and nothing in writing is left with

him, in a language which he understands, then that purpose

is not served, and the constitutional mandate in Article

22(5) is infringed. If any authority is needed on this

point, which is so obvious from Article 22(5), reference may

be made to the decisions of this Court in Harikishan v.

State of Maharashtra: and Haribandhu Dass. v. District

Magistrate (ibid).

Thus all the three contentions canvassed by the counsel

for the petitioner, on merits were sound. The conclusion was

therefore, inescapable that due to the aforesaid

contraventions of constitutional imperatives, the continued

detention of the detenu was illegal.

It was for these reasons that we had allowed Writ

Petition (Crl.) No. 4349 of 1980 by our order dated October

3, 1980, and directed the release of the detenu.

P.B.R. Petition allowed.

364