TaxTMI 
TaxTMI 
1981 (1) TMI 251
X X X X Extracts X X X X
X X X X Extracts X X X X
.... India in this Court. Both the petition for special leave and the writ petition have been heard together. Before the High Court, the detenu assailed the order of detention mainly on the ground that certain materials relied upon or referred to in the order of detention were not supplied to the detenu and hence he was not in a position to make an effective representation to the Government. It was also pleaded by the detenu before the High Court that two of the documents which were referred to in the order of detention were not supplied to him because the Secretary thought that they were not relevant. The High Court while examining the contention of the detenu sent for the entire file from the Government and after examining the documents itself found that as the documents concerned were not relevant and consisted of statements of some other persons, the failure to supply the documents to the detenu did not vitiate the order of detention. Hence the petition in this Court for grant of special leave against the order of the High Court. A separate writ petition has also been filed by the detenu in this Court in which apart from the point canvassed before the High Court certain ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y. In this connection Subba Rao, C. J. observed as follows :- "If the doctrine of res judicata is attracted to an application for a writ of habeas corpus. there is no reason why the principles 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.....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 illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection." Bachawat, J., in his concurring judgment also endorsed the view of Subba Rao, C. J., and observed as follows : "The order of Khanna, J. dismissing the writ petition filed by the petitioner in the Punjab High Court challenging the legality of the detention order passed by the Central Government under s. 3(2) (g) of the Foreigners Act, 1946 and asking for the issue of a writ of habeas corpus is not a judgment, and does not operate as res judica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e has been a violation of Art. 22(5) of the Constitution, then it has no discretion in the matter but is bound to grant the relief to the detenu by setting aside the order of detention. The doctrine of res judicata or the principles of finality of judgment cannot be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Art. 32 of the Constitution. In a recent decision in the case of Smt. Santosh Anand v. Union of India & Ors. this Court has pointed out that the concept of liberty has now been widened by Maneka Gandhi's case where Art. 21 as construed by this Court has added new dimensions to the various features and concepts of liberty as enshrined in Arts. 21 and 22 of the Constitution. For these reasons, therefore, we overrule the preliminary objection taken by the respondents. We now come to the merits of the cases. So far as the writ petition filed in the High Court is concerned the only point taken was that two documents referred to in the order of detention were not supplied to the detenu. The High Court rejected this contention on the ground that the documents were merely referred to and not relied on by the detaining aut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....no particular charm in the expressions 'relied on', 'referred to' or 'based on' because ultimately all these expressions signify one thing, namely, that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention. The question whether the grounds have been referred to, relied on or based on is merely a matter of describing the nature of the grounds. Even so in the case of Ram Chandra A. Kamat v. Union of India & Ors. a three Judge bench decision of this Court to which one of us (Fazal Ali, J.) was a party, clearly held that even the documents referred to in the grounds of detention have to be furnished to the detenu. In this connection the Court observed as follows :- "If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law." The same view was taken in a later decision of this Court in Shri Tushar Thakker v. Union of India & Ors. where this Court observed as follows :- "This Court has repeatedly held that the detenu has a ....