TaxTMI 
TaxTMI 
2014 (8) TMI 1126
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....res judicata or constructive res judicata and ought to be decided on their own merits. The controversy in these Petitions, thus, concerns the permissibility of successive habeas corpus petitions under Article 226 of the Constitution of India and the parameters to be considered by the Writ Court whilst entertaining such petitions. 2 Writ Petition No. 506 of 2014 concerns the detenu, Sandeep Jayantilal Jain ("Sandeep"), and is filed by his wife, whereas Writ Petition No. 970 of 2014 concerns Jayant Rikhabchand Mehta ("Jayant") and is filed by his mother. The orders of detention in cases of both the detenus have been passed under Clause (ii) of Sub-section (1) of Section 3 of the COFEPOSA Act, i.e. with a view to prevent the detenus from abetting smuggling activities in future. 3 The case of the detaining authority against the detenus is this: On specific intelligence received in that behalf, one Sagar Chheda, arriving from Dubai by flight at Chhatrapati Shivaji International Airport at Mumbai, and Uday Singh Meena, Sub-Inspector of CISE were apprehended at the Airport on 10 August 2012 in connection with smuggling of gold. A bag containing 5.804 kgs of gold jewellery and gold bars ....
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.... was not furnished to the detenu; that there was gross delay in passing the orders of detention; that there was variance between the satisfaction of the Detaining Authority recorded in the detention orders and in the grounds of detention; that certain documents including the bail order on which the detenu was released, and the reply of the detenu to the show cause notice, were neither furnished to the detenu nor placed before the Detaining Authority; and that there was denial of the right conferred on the detenu under Clause (5) of Article 22 of the Constitution and at the same time, nonapplication of mind on the part of the Detaining Authority. 5 After an extensive hearing, the Writ Petitions were rejected by this Court and the Rule in both Petitions was discharged. 6 The present Petitions urge five grounds to challenge the detention orders, which according to the learned Counsel for the Petitioners, are fresh and new. They are as follows: (i) A representation of the detenu (representation dated 20.11.2013 in the case of Sandeep and dated 11.2.2014 in case of Jayant) was sent to the detaining authority, and the State and Union Governments through the Superintendent of Prison, ....
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....bmit that firstly, the ground of illegible documents is raised in the earlier petition by including it in the synopsis and secondly, this ground was at any rate available to the detenu when the first petition was filed and there being no explanation why the same could not be urged or pressed earlier, the same cannot be made the basis of a subsequent petition and urged to challenge the same order of detention. 8 Before we examine the facts of the present case, the law in this behalf may be noted so as to understand whether, and if so to what extent, the writ court can entertain successive habeas corpus petitions challenging the same order of detention. 9 The question of res judicata as applicable generally to writ proceedings was considered by the Supreme Court in one of its early decisions in Daryao vs. State of U.P. (1962) 1 SCR 574, 590. In that case, the High Court had dismissed a writ petition under Article 226 of the Constitution after hearing the matter on merits, on the ground that no fundamental right was proved or contravened and that its contravention was constitutionally justified. The Petitioner in that case did not appeal from the decision of the High Court but filed....
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....apply. When a High Court functions as a Division, it speaks for the entire court and therefore, cannot set aside the orders made in a writ of habeas corpus earlier by another Division Bench. But the Supreme Court said that this principle would not apply to different courts. The Supreme Court in Ghulam Sarwar (supra) stated the law as follows : "9. But unlike in England, in India the person detained can file original petition for enforcement of his fundamental right to liberty before a Court other than the High Court namely, this Court. The order of the High Court in the said writ is not res judicata as held by the English and the American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order. If the doctrine of res judicata is attracted to an application for a writ of habeas corpus, there is no reason why the principle 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. The prese....
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....f India (1981) 2 SCC 427, where the court was concerned with the application of the doctrine of constructive res judicata to a subsequent petition for a writ of habeas corpus. In that case, a petition filed by the detenu was rejected by the Supreme court. But between the dates of dismissal and furnishing of reasons, additional grounds were filed by the detenu. He was, however, informed that he may, if so advised, file a fresh petition on these grounds. That is how the subsequent petition came to be filed. The argument advanced before the Supreme Court on behalf of the detenu was that the court cannot deny a writ of 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. In this connection, a reference was made to the Full Bench decision of the Punjab High Court quoted above. The Supreme Court held as follows : "13. 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 entire....
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....iples of res judicata are founded on the basic principle that where a Court of competent jurisdiction has decided an issue, the same ought not 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 Article 226 which was a discretionary jurisdiction whereas the jurisdiction to grant relief in a petition under Article 32 filed in the Supreme Court is guaranteed by the Constitution and once the Court finds that there has been a violation of Article 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 Article 32 of the constitution. In a recent decision in the case of Smt. Santosh Anand v. Union of India W. P. No. 1097/79 (decided on 31-10-1979) this Court has pointed out that the concept of liberty has now been widened by Ma....
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....the legality of the detention or custody has arisen after the decision on the first petition and (ii) where for some exceptional reason, the ground has been omitted in an earlier petition. In either of these two circumstances, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice. It is also clear to us that in the second case mentioned above it is only the ground which existed at the time of earlier petition and which was omitted for some exceptional reason that will be considered in the second petition but the second petition will not be competent on the same ground merely because an additional argument is available to urge with regard to the same. 17 Our court in Deepesh Zaveri's case (supra) noted the clear distinction between the discretionary jurisdiction under Article 226 and the fundamental right guaranteed under Article 32 of the Constitution made in Kirit Kumar's case (supra) by the Supreme Court, and finally held as follows : "45. The law laid down by the Apex Court in Kirit Kumar's case, makes a clear distinction between the discretionary jurisdiction under Article 226 and the fundamental right gua....
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.... 20 So also the ground of non-availability of Assay Report was a ground very much available to the detenus when the earlier petitions were filed and there is no reason - much less an exceptional reason - why it could not be urged earlier. No reason is either alleged or established. 21 As for the subsequent representations to the detaining authority and the Central Government, there being no new ground or fresh material placed before the authorities in the subsequent representations, which was either not available earlier or being available could not be placed due to some exceptional reason, the detaining authority or the government is not bound to consider the new representation and pass separate order disposing of the same. In Abdul Razak Dawood Dhanani vs. Union of India AIR 2003 SC 4010, the Supreme Court held as follows : "8. It thus appears from the aforesaid judgment that even the statutory power vested in the Central Government to revoke the order of detention may be exercised in its discretion only in cases where "fresh materials" or "changed or new factors" call for the exercise of that power, and there is no right in favour of the detenu to get his successive represen....