TMI Blog2004 (9) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 and the seized documents showed that petitioner Moideen Koya had dealt with 290 smuggled gold biscuits valued at ₹ 1.5. crores. He had transaction worth ₹ 18 crores with Kunjumon during the period 1.8.2001 to 15.8.2001. The Government of Kerala thereafter passed a detention order on 21.1.2001 for detaining the petitioner under Section 3(i)(iv) of the COFEPOSA. The petitioner absconded and proceedings under Section 7(1) of the Act had to be initiated. He surrendered before the court of Additional Chief Judicial Magistrate (Economic Offences), Emakulam on 4.9.2002 and was taken into custody. The detention order was then served upon him in jail on 12.9.2002. The wife of the petitioner, namely, Safiya filed a habeas corpus petition being O.P. No. 2956 of 2002 in the Kerala High Court seeking quashing of the detention order and for setting him at liberty. The High Court dismissed the habeas corpus petition on 11.2.2003. Safia then preferred Special Leave Petition (Criminal) No. 1215 of 2003 (re-numbered as Criminal Appeal No. 913 of 2003 after grant of leave) in this Court which was also dismissed by a detailed order on 28.7.2003. The judgment is reported in [2003] 7 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. The bar of res judicata against a petition filed under Article 32 of the Constitution on the same facts and praying for the same or similar relief where a petition filed under Article 226 of the Constitution had been dismissed by the High Court and the order had become final has been considered in several decisions of this Court. This question was examined in considerable detail by a Constitution Bench in Daryao and Others v. State of U.P. and Others, AIR (1961) SC 1457. Here, the petitioners had filed suit for ejectment under Section 180 of the U.P. Tenancy Act, 1939 which was decreed by the trial court and the decree was affirmed by the Additional Commissioner in appeal, but the Second Appeal preferred by the contesting respondent was allowed by the Board of Revenue and the suit was dismissed. The petitioners then filed a writ petition under Article 226 of the Constitution before the Allahabad High Court, which was dismissed on 29.3.1955 as not pressed as the relevant provisions of law, namely, Section 20 of the U.P. Zamindari Abolition and Land Reforms (Amendment) Act had been earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar, if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. It the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Another, AIR (1970) SC 898 (a decision rendered by a Constitution Bench) observed that Article 32 gives the right to move the Supreme Court by appropriate proceedings for enforcement of the rights conferred by Part III of the Constitution. The provision merely keeps open the doors or this Court, in much the same way, as it used to be said, the doors of the Chancery Court were always open. The State cannot place any hindrance in the way of an aggrieved person seeking to approach this Court. But the guarantee goes no further at least on the terms of Article 32. Having reached this Court, the extent or manner of interference is for the Court to decide. In paragraph 6 of the report, it was observed as under : Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be stated. In this connection, the principle of res judicata has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment or because the principle of res judicata is not applicable to a fundamentally lawless order. 10. In Nazul Ali Molla Etc. v. State of West Bengal, [1969] 3 SCC 698 the petitioners had challenged their detention under Section 3(2) of the Preventive Detention Act by filing a writ petition under Article 226 of the Constitution before the Calcutta High Court, but the petition was dismissed. Thereafter they filed a writ petition under Article 32 of the Constitution in this Court. The objections raised by the State regarding maintainability of the petition was repelled and it was held that a petition under Article 32 of the Constitution for the issue of writ of habeas corpus would not be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before the High Court has been decided and no appeal is brought up to the Supreme Court against that decision. Similar view has been taken in Niranjan Singh v. State of Madhya Pradesh, AIR (1972) SC 2215. 11. The principle which can be culled out from this authorities is that the bar of res judicata or constructive res judicata would apply even to a petition under Article 32 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a matter which has come to this Court by way of a petition under Article 136 of the Constitution. The view taken is Bhagubhai Dullabhbhai Bhandari v. District Magistrate, AIR (1956) SC 585 that the binding nature of the conviction recorded by the High Court against which a Special Leave Petition was filed and was dismissed can not be assailed in proceedings taken under Article 32 of the Constitution was approved in Daryao v. State of U.P. (supra) (see para 14 of the report). 14. While hearing a special leave petition against the judgment of the High Court dismissing a habeas corpus petition wherein a prayer has been made to set a detenu at liberty, the Court would normally examine the same grounds, namely, whether the detention order is in conformity with Article 22(5) of the Constitution and the provisions of the enactment under which the detention order has been passed, the procedural safeguards have been observed and also whether the continued detention of the detenu has not been rendered invalid on account of any breach of the duty cast upon the authorities. A decision rendered by this Court in proceedings under Article 136 of the Constitution which has attained finality, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Kerala High Court. The High Court examined the plea in considerable detail and rejected the same by the judgment and order dated 11.2.2003. Similar plea was also taken in Special Leave Petition (Criminal) No. 1215 of 2003 (vide para Nos. 2.3 and 2.4 and ground Nos. H to L). In fact, in para 7 of the present Writ Petition it is stated that a contention was raised and was specifically argued before this Court in the Special Leave Petition that the order of detention has been vitiated on account of the fact that the same was served upon the detenue while he was in jail, but the fact of his being in custody was not reflected in the detention order. However, a grievance is raised that the said contention has not been dealt with or decided in the judgment of this Court. It is, therefore, apparent that the only plea raised in the present petition had also been raised in the Special Leave Petition which had been filed earlier seeking quashing of the detention order and the release of the petitioner. It is neither a subsequent development nor a new plea which may not have been available at the earlier stage. If the plea raised has not been considered in the judgment rendered by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no immediate possibility of his being released. But in law there is no bar in passing a detention order even against such a person if the detaining authority is subjectively satisfied from the material placed before him that a detention order should be placed. A Constitution Bench in Rameshwar Shaw v. District Magistrate, AIR (1964) SC 334 held as under : As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. 20. In Vijay Kumar v. State of J K, [1982] 2 SCC 43, it was held : If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yadav, AIR (1986) SC 315 (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention......... 22. However, the above principle can have no application here for several reasons. The petitioner had already been released on bail by the order of ACJM on 17.11.2001 and the detention order was passed more than two months thereafter on 21.11.2002 when he was not in custody. As the petitioner absconded, the detention order could not be served immediately and proceedings under Section 7 of COFEPOSA were initiated and publication in gazette was made on 1.4.2002. A device for surrendering was adopted and the petitioner along with a surety appeared in the Court of ACJM where the surety withdrew his consent and the petitioner was remanded in custody till 17.9.2002. The authorities after coming to know of the said fact served the detention order in jail on 12.9.2002. A detention order which has been validly passed cannot be rendered invalid on account of the own conduct of the detenu of abs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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