Bombay High Court
Kochu Krishnan Shashidharan vs State Of Maharashtra And Others on 20 January, 1987
Equivalent citations: 1989(20)ECC75
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT Kurdukar, J.
1. The petitioner is himself a detenu who has filed this criminal writ petition for a writ of Habeas Corpus under Art. 226 of the Constitution of India challenging the validity of the declaration made under S. 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - hereinafter referred to as "the Act".
2. As disclosed in the grounds of detention, in the morning of 4th November 1984 the detenu along with his associates was involved in smuggling into India the contraband gold. It was found in the highlift van bearing Registration No. NMK 3733 of Ambassador flight kitchen. It was hidden in one toilet module. The detenu and two other associates who were sitting in the van were interrogated. The detenu in his statement recorded under S. 108 of the Customs Act confirmed that it was a joint operation under the instructions of one Vijay an ex-employee of Plaza Flight Kitchen. After completing the investigation, the sponsoring authority placed the material before the detaining authority for consideration and issuing detention order under the Act. The detaining authority (respondent No. 1) after considering the material placed before him on 27-3-1985 issued the detention order under S. 3(1) of the Act. This order was served on the detenu on 29th March, 1985. On 12th April, 1985 a declaration under S. 9(1) of the Act was made by the Additional Secretary to the Government of India - the 3rd respondent.
3. On 29th July 1985 the detenu sent a writ petition through jail which came to be numbered as Writ Petition No. 564 of 1985. In this writ petition the detenu had prayed for a writ of habeas corpus only against the State of Maharashtra. The very first paragraph of the said petition reads as under :
"That, the appellant abovenamed was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, vide Govt. Home Department Order No. SPL/3(A)/PSA-0184/278 dated 27th March, 1985.
Being aggrieved by the said order of detention the appellant prefers this humble appeal on the following amongst other grounds."
In the prayer clause the detenu has prayed that he be ordered to be released after revoking the said impugned order of detention under the Act.
3-A. Since this criminal writ petition was sent through jail the High Court appointed Shri V. G. Madhavi, Advocate, for and on behalf of the detenu to represent him in this criminal writ petition. This Court issued rule nisi on this criminal writ petition. Although the Union of India or the Additional Secretary to the Government of India, who made the declaration under S. 9(1) of the Act was not made a party, the concerned department of this Court sent a notice of rule nisi to the Union of India as a party and consequently the rule nisi was served on the Union of India. This is how the Union of India came to be joined as respondent to this Criminal Writ Petition No. 564 of 1985. After hearing both the parties the Division Bench of this Court vide its order dated 6th January, 1986 rejected the criminal writ petition and confirmed the order of detention.
4. After about 10 months, the detenu has filed this second writ petition on 7th November 1986 challenging the validity of the declaration made under S. 9(1) of the Act by the 3rd respondent.
5. Shri Agarwal, the learned counsel appearing on behalf of the Additional Secretary to the Government of India, the 3rd respondent and the Union of India, the 4th respondent, raised a preliminary objection in regard to the maintainability of this second writ petition. The objections to the maintainability of the petition are as follows :
(1) Rule nisi that was issued in the earlier petition upon the Secretary to the Government of India of Finance contains a prayer for setting aside the declaration made under S. 9(1) of the Act;
(2) In the petition or in the judgment though there is no reference in regard to S. 9(1) of the Act still no second petition would lie, because;
(a) this ground was available to the detenu in the first petition but not pleaded and, therefore, it is barred by constructive res judicata; and
(b) assuming that it is a new ground, no second writ petition would be maintainable in the same Court.
(3) The writ of habeas corpus is disposed of by this Court. It is not disposed of by Bench as such but by the High Court and, therefore, even on the fresh grounds no second petition for habeas will lie. The remedy available to the detenu under Art. 32 of the Constitution is different than the one available under Art. 226 of the Constitution. Both these articles operate in different spheres and in almost all the reported and unreported judgments of the Supreme Court such second writ petitions were held maintainable under Art. 32 of the Constitution. He, therefore, urged that second petition is not maintainable and it should be dismissed in limine.
6. It is not and cannot be disputed that the detenu in his first petition bearing Criminal Writ Petition No. 564 of 1985 has nowhere challenged the validity of the declaration made under S. 9(1) of the Act. The first paragraph of the Writ Petition No. 564 of 1985, which we have reproduced earlier, unmistakably indicates that what was challenged by the detenu in that writ petition was the order of detention bearing No. SPL/3(A)/PSA 0184/278-I dated 27th March, 1985 passed by the State of Maharashtra. Even in the body of memo of appeal i.e., writ petition we do not see any challenge whatsoever to the declaration made under S. 9(1) of the Act. In view of this fact, it is quite clear that there was no challenge whatsoever to the validity of the declaration made under S. 9(1) of the Act by the Union of India. We have gone through the judgment rendered by the Division Bench of this Court on 6th January, 1986 in Criminal Writ Petition No. 564 of 1985 and we find no contention and reference whatsoever to the declaration made under S. 9(1) of the Act. The operative portion of the order of this Court reads as under :
"We are therefore satisfied that the order of detention passed in this case does not suffer from any infirmity, nor are we satisfied that the continued detention of the petitioner is in any way illegal. The petition must therefore fail. Rule is discharged."
From the memo of Criminal Writ Petition No. 564 of 1985 as well as the judgment rendered by this Court in that criminal writ petition, it is quite clear that there was no challenge to the validity of the declaration made under S. 9(1) of the Act by the Union of India. In this present writ petition the detenu has challenged the validity of the declaration made by the Union of India under S. 9(1) of the Act.
7. Shri Agarwal, learned counsel appearing on behalf of respondents Nos. 3 and 4, in support of this preliminary objection firstly drew our attention to the Division Bench decision of Gujarat High Court in Ratilal v. State of Gujarat, 1985 Cri LJ 96. It is true that the Division Bench of the Gujarat High Court has held that under Art. 226 of the Constitution of India a citizen has no right to present successive applications for issuing writ of habeas corpus to different Judges of the same High Court. Such successive writ petitions are not permissible on the same grounds which have been urged, agitated and decided in the earlier petition by the High Court. The Division Bench further held that the second application for a writ of Habeas Corpus would not be competent before the same High Court even on fresh grounds.
8. Shri Agarwal also drew our attention to the Full Bench judgment of this Court in In re, Prahlad Krishna Kurne, and Malhari Ramaji Chikate v. Emperor, AIR 1948 Bom 326 : (1948 (49) Cri LJ 460).
9. Coming to the judgment of the Gujarat High Court in Ratilal v. State of Gujarat, (1985 Cri LJ 96) (supra) it may be stated that the said judgment is based upon the judgment of the Supreme Court in Ghulam Sarwar v. Union of India, . Mr. Agarwal therefore drew our attention to the judgment of the Supreme Court in Ghulam Sarwar's case in regard to the maintainability of second writ petition for habeas corpus. The Supreme Court in Ghulam Sarwar's case (supra) about the maintainability of the second petition for habeas corpus has observed as follows :
"8. On the question of res judicata, the English and the American Courts agreed that the principle of res judicata is not applicable in a writ of habeas corpus, but they came to that conclusion on different grounds. It was held in England that a decision in a writ of habeas corpus was not a judgment and, therefore, it would not operate as res judicata and on that basis it was thought at one time that a person detained could file successive application before different Judges of the same High Court. But subsequently the English Courts held that a person detained cannot file successive petitions for a writ of habeas corpus before different Courts of the same Division or before different Divisions of the same High Court on the ground that the Divisional Court speaks for the entire Court, and one Division cannot set aside the order of another Division of the same Court (See Re Hastings (No. 2), (1958) 3 All ER 625 and Re Hastings (No. 3), (1959) 1 All ER 698). The Administration of Justice Act, 1960 has placed this view on a statutory basis, for under the said Act no second application can be brought in the same Court except on fresh evidence. The American Courts reached the same conclusion, but on a different principle. In Edward M. Fav v. Charles Noia, (1835-38) 9 Law Ed 859, the following passage appears : "As put by Mr. Justice Holmes in Frank v. Mangum, (1915) 237 US 309 (348). If the petition disclosed facts that amount to loss of jurisdiction in the trial Court, jurisdiction could not be restored by any decision of law. It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas proceedings." The same view was expressed in Wong Doo v. United States, (1923) 68 Law Ed 999; Harmon Metz Waley v. James A. Johnston, (1941) 86 Law Ed 1302, Salinger v. Loisel, (1923) 265 US 224, United States v. Shaughnessy, (1954) 347 US 260 and others.
9. But coming to India, so far as the High Courts are concerned, the same principle accepted by the English Court will equally apply, as the High Court functions in Divisions not in Benches. When it functions as a Division, it speaks for the entire Court, and, therefore, it cannot set aside the orders made in a writ of habeas corpus earlier by another Division Bench. But this principle will not apply to different Courts. The High Courts of Allahabad, Bombay, Madras, Nagpur and Patna and East Punjab have accepted this view, though the Calcutta High Court took the view that successive applications of habeas corpus could be filed. 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 present case illustrates the position. Before the High Court the petitioner did not question the constitutional validity of the President's order made under Art. 359 of the Constitution. If the doctrine of constructive res judicata be applied, this Court, though 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."
10. In a later judgment on this topic in Lallubhai Jogibhai v. Union of India, , the Supreme Court has 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 entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Art. 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief."
11. Following the law laid down by the Supreme Court in Lallubhai's case (supra) at least three Division Benches of this Court held that the second petition for habeas corpus is maintainable on fresh grounds. Please see the judgments in (1) Criminal Writ Petn. No. 186 of 1982 decided on 6-11-1982 by Dharmadhikari and V. V. Joshi, JJ., (2) Criminal Writ Petn. No. 170 of 1985 decided on 19-7-1985 (reported in 1986 Cri LJ 1645) by Shah and Khatri, JJ., and (3) Criminal Writ Petn. No. 27 of 1986 decided on 19-6-1986 by Mohta and Loney, JJ. In view of the series of judgments of this court, we are unable to agree with the view taken up by the Division Bench of the Gujarat High Court.
12. Shri Agarwal then urged that all these judgments of the Supreme Court are rendered in a petition under Article 32 of the Constitution and there is no judgment of the Supreme Court wherein the Supreme Court has held that the second writ petition for a writ of habeas corpus is maintainable under Article 226 of the Constitution. We are also not inclined to accept this argument in view of the three judgments rendered by the Division Bench of this Court holding that the second petition under Article 226 of the Constitution on fresh grounds is maintainable for a writ of habeas corpus. No decision of the Supreme Court holding contrary has been pointed out to us.
13. It was then urged by Shri Agarwal that the ground which is sought to be urged in this second writ petition is also not a fresh ground inasmuch as the declaration under Section 9(1) was made much prior to the filing of the first writ petition by the detenu. He then urged that this declaration under section 9(1) of the Act was also served upon the detenu much before filing of the first writ petition. He also urged that in fact the detenu had filed the copy of the declaration issued under Section 9(1) of the Act along with the first writ petition. He therefore urged that it must be held that the detenu had challenged the validity of the declaration made under Section 9(1) of the Act. It is undoubtedly true that the copy of the declaration under section 9(1) of the Act also formed part of the compilation of the earlier writ petition. But as stated earlier in the memo of writ petition, the detenu had made no reference whatsoever to the declaration under section 9(1) of the Act nor there was any challenge to the validity of the said declaration in the memo of writ petition. Even the Court's attention was not drawn to this declaration and, therefore, there was no reference whatsoever in the entire judgment to the said declaration. Shri Kotwal was right in submitting that the challenge to the validity of the declaration made under Section 9(1) of the Act is a fresh ground and, therefore, the detenu can file second writ petition and challenge the said declaration in this second writ petition. In support of this submission Mr. Kotwal again laid emphasis on the judgment of the Supreme Court in Lallubhai (1981 Cri LJ 288) (supra) and he drew our attention to paragraph 20 of the said judgment. In our opinion, the petitioner can maintain the second writ petition under Art. 226 of the Constitution challenging the validity of the declaration issued under Section 9(1) of the Act by the Union of India being a fresh ground.
14. Coming to the challenge on merits to the declaration issued under section 9(1) of the Act, in view of the judgment of this Court in Criminal Writ Petition No. 815 of 1985 delivered on 10-1-1986, by R. A. Jahagirdar and A. D. Tated, JJ., Shri Agarwal for the Union of India was unable to support the declaration issued under section 9(1) of the Act. This Court in Criminal Writ Petition No. 815 of 1985 Smt. Roshanara Mohammed Akhtar Motivala v. Union of India & others has held as follows :-
"4. The right to make representation will be necessarily denied if while serving a copy of the declaration made under section 9(1) upon the detenu, the material on the basis of which that declaration is made is not supplied to the detenu. In the present case, from the declaration which we have reproduced above, it is clear that the authority making the declaration has not mentioned in the declaration itself the material on the basis of which he arrived at the subjective satisfaction on the basis of which the declaration was made. It is an admitted position that while serving the copy of the declaration upon the detenu, he was not told that any specific material was considered by the authority while making the declaration under section 9 of the COFEPOSA Act. In fact the affidavit made by the Under Secretary to the Government of India, Ministry of Finance, in the instant case only mentions that law does not require that the detention under section 3 and the declaration under section 9 of the COFEPOSA Act should be based on separate and distinct materials. Even if it is possible to infer from this that the declaration was made on the basis of the same material which formed the foundation of the order of detention, this fact itself was not brought to the notice of the detenu when the copy of the declaration under Section 9 was served upon him. It is thus clear to us that the right of the detenu to make a representation against the declaration made under section 9 of the COFEPOSA Act, which is now recognized in view of the judgment which we have referred to above, is denied to him. If this is so, the continued detention of the detenu must be held to be illegal."
15. In the present case the declaration issued under section 9(1) of the Act does not make even remote reference to the material that was considered by the Authority before issuing declaration under section 9(1) of the Act. In view of all these circumstances we are of the opinion that the declaration under Section 9(1) of the Act at Annexure 'D' made by the respondent No. 3 is unsustainable and consequently the same will have to be quashed and set aside. The continued detention of the detenu is bad and illegal and, therefore, cannot be sustained. The rule is accordingly made absolute. The detenu be set at liberty forthwith if not required in any other matter.
16. Petition allowed.