Preventive detention safeguards: non-supply of referred documents and decision by the wrong authority can invalidate detention.

In preventive detention matters, constructive res judicata does not bar a habeas corpus challenge under Article 32 from raising grounds not urged before the High Court. Documents referred to in the grounds of detention must be supplied to the detenu with reasonable expedition so that an effective representation can be made; failure to furnish them breaches Article 22(5) and vitiates the detention. The detenu's representation must also be considered and decided by the detaining authority itself, and rejection by an officer lacking that authority is a constitutional defect affecting the validity of the detention.

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Issues: (i) whether constructive res judicata barred a writ petition under Article 32 raising grounds not urged before the High Court; (ii) whether failure to supply documents referred to in the grounds of detention vitiated the detention order; (iii) whether rejection of the detenu's representation by an other than the detaining authority rendered the detention invalid.

Issue (i): Whether constructive res judicata barred a writ petition under Article 32 raising grounds not urged before the High Court.

Analysis: The constitutional remedy under Article 32 is distinct from the discretionary jurisdiction exercised by the High Court under Article 226. The doctrine of constructive res judicata was held inapplicable to habeas corpus matters and could not be used to prevent the detenu from urging additional grounds in a petition under Article 32. The Court treated the right to move the Supreme Court for protection of personal liberty as paramount and not curtailed by the earlier rejection of the High Court petition.

Conclusion: The preliminary objection was rejected in favour of the detenu, and the Article 32 petition was maintainable.

Issue (ii): Whether failure to supply documents referred to in the grounds of detention vitiated the detention order.

Analysis: The Court held that there is no real distinction between documents described as relied upon, referred to, or based on in the grounds of detention, because in each situation they form part of the material enabling the detenu to make an effective representation. The constitutional safeguard under Article 22(5) requires supply of such material with reasonable expedition. Since the documents were not furnished, the detenu was denied an effective opportunity to represent against the detention.

Conclusion: The detention was void for breach of Article 22(5).

Issue (iii): Whether rejection of the detenu's representation by an other than the detaining authority rendered the detention invalid.

Analysis: The counter-affidavit established that the detention order had been passed by the Home Minister, yet the representation was rejected by the Secretary. The Court held that the representation had to be considered and decided by the detaining authority itself, and rejection by an authority lacking jurisdiction amounted to a constitutional infirmity affecting the validity of the continued detention.

Conclusion: The detention was invalid because the representation was not decided by the detaining authority.

Final Conclusion: The order of detention could not be sustained because the detenu was denied the constitutional safeguards of effective representation and proper consideration by the competent authority, and the petition was therefore allowed.

Ratio Decidendi: In preventive detention matters, all materials referred to in the grounds of detention must be supplied to the detenu to enable an effective representation under Article 22(5), and the representation must be considered by the detaining authority itself.

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