TaxTMI 
TaxTMI 
1980 (12) TMI 182
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....tition 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 continu....
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.... reason a ground has been omitted in an earlier 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 constru....
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.... 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 K....
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....istrict 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. 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 reli....
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....ion 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 ....
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.... 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 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. Icchu Devi's case (ibid), should have been supplied to the detenu ordinarily w....