TMI Blog1981 (1) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... I AND A. VARADARAJAN, JJ. JUDGMENT By our Order dated 21-1-1981 we had already allowed the petition and directed the detenu to be released forthwith. We now proceed to set out the reasons for the Order which we passed on 21-1-1981. The writ petition and the criminal special leave arise out of the same subject matter, namely, that the petitioner (Kirit Kumar Chaman Lal Kundaliya) was detained by an order passed by the Home Minister of the State of Gujarat on 9-9- 1980 under s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. The Petitioner/detenu in the first instance filed a petition for habeas corpus in the High Court of Gujarat which was dismissed by the High Court by its order dated 25- 11-1980. The detenu thereafter filed a petition for special leave against the order of the High Court and also a writ petition under Art. 32 of the Constitution of 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 suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, countered the submission of the respondents on the ground that a writ under Art. 32 being guaranteed by the Constitution the doctrine of res judicata can have no application to a writ petition filed in this Court under Art. 32. Mr. Dewan, learned counsel for the detenu further submitted that the case relied upon by the respondents also does not decide that the writ petition was not maintaining as being barred by principles of res judicata. In our opinion, the contention raised by the learned counsel for the detenu is well founded and must prevail. Ghulam Sarwar s case (supra.) which was heavily relied on by the respondents does not at all support the contention raised before us by them. In that case this Court traced the history of habeas corpus writs and ultimately held that at least so far as petitions for habeas corpus are concerned, the doctrine of constructive res judicata could not apply. 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re points were not agitated before the High Court but were raised for the first time in this Court in a writ petition under Art. 32. Apart from the cases discussed above there is another ground on which the argument of Mr. Phadke for respondents must be rejected. The doctrine of finality of judgment or the principles of res judicata are founded on the basic principle that where a Court of competent jurisdiction has decided an issue, the same ought not to be allowed to be agitated again and again. Such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions. In the instant case, the High Court decided the petition of the detenu under Art. 226 which was a discretionary jurisdiction whereas the jurisdiction to grant relief in a petition under Art. 32 filed in the Supreme Court is guaranteed by the Constitution and once the Court finds that there 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of detention but did not form the basis of the subjective satisfaction of the detaining authority at the time when it passed the order of detention. It was, however, conceded by Mr. Phadke that before the grounds were served on the petitioner, the documents were placed before the detain- ing authority and were, therefore, referred to in the grounds of detention. It is manifest, therefore, that the subjective satisfaction could only be ascertained from or reflected in the grounds of the order of detention passed against the detenu otherwise without giving the grounds the mere subjective satisfaction of detaining authority would make the order of detention incomplete and ineffective. Once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or pari passu the grounds of detention. There is 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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