Full Judgment Text
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PETITIONER:
LALLUBHAI JOGIBHAI PATEL
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT15/12/1980
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1981 AIR 728 1981 SCR (2) 352
1981 SCC (2) 427
CITATOR INFO :
R 1981 SC1621 (8)
RF 1981 SC2084 (1)
R 1982 SC1500 (8)
RF 1990 SC 605 (6)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act 1974-Section 3-Scope of-Detenu if
could file a second petition for writ of habeas corpus after
dismissal of the first petition-First petition, if operates
as constructive res judicata-Constitutional imperatives
under Art 22(5)- What are.
Constructive res judicata-Grounds not taken in earlier
petition for writ of habeas corpus-Second petition if barred
by constructive res judicata-If applicable in illegal
detentions.
Words and phrases-Commnunicate-Meaning of-Explaining
the grounds of detention without giving them to the detenu
in writing-If amounts to communication.
HEADNOTE:
After dismissal by this Court of the petition impugning
the order of his detention under section 3 of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 the petitioner filed the present
petition urging additional grounds which were not urged in
the previous petition. He alleged that (i) despite his
request for the supply of all the documents relied upon by
the detaining authority while passing the order of detention
the respondent failed to do so; (ii) that many of the
documents were either incomplete or had been wholly withheld
and in particular 236 documents out of 460 documents
purported to have been supplied to him were not supplied;
(iii) that though his representation dated July 17, 1980 for
revocation of the detention order was forwarded by the
jailer to the Central Government it had not been disposed of
and (iv) that lastly serving the grounds of detention in
English which is a language not known to him, without
supplying a translation in his mother tongue, was a breach
of the constitutional imperative embodied in Art. 22(5) and
that for these reasons the order of detention should be held
void.
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A preliminary objection was raised on behalf of the
respondent State that the present petition was barred as
constructive res judicata.
Overruling the preliminary objection,
^
HELD: In the present petition fresh additional grounds
had been taken by the detenu to challenge the legality of
his continued detention. Therefore the subsequent writ
petition is not barred as res judicata. [359 B-C]
1. By a long line of decisions this Court has held 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 in-applicable to
illegal detentions and does not bar a subsequent petition
for the writ of habeas corpus
353
under Art. 32 of the Constitution on fresh grounds which
were not taken in the earlier petition for the same relief.
[359 A-B]
Ghulam Sarwar v. Union of India & Ors. [1967] 2 S.C.R.
271, Daryao v. State of Uttar Pradesh A.I.R. 1961 SC.
1457=[1962] 1 S.C.R. 574, Niranjan Singh v. State of Madhya
Pradesh [1973] 1 S.C.R. 691 and Calcutta Gas Co.
(Proprietary) Ltd. v. State of West Bengal, A.I.R. 1965 S.C.
596 referred to.
2(a). One of the constitutional imperatives embodied in
Art 22(5) of the Constitution is that all the documents and
materials relied upon by the detaining authority in passing
the order of detention must be supplied to the detenu as
soon as practicable to enable him to make an effective
representation. [360 G]
In the instant case the materials and documents which
were not supplied to the detenu were a part of the basic
facts and materials which should have been supplied to him,
ordinarily within 5 days of the order of detention and for
exceptional reasons to be recorded, within 15 days of the
commencement of the detention. The respondent did not state
that the documents which were not supplied were not relevant
to the case of detenu. [362 C]
Smt. Icchu Devi Choraria v. Union of India & Ors.
[1981] 1 SCR 640 applied.
(b) In the first petition no specific ground was taken
by the detenu that documents covering 236 pages relied upon
by the detaining authority were suppressed and not supplied
to him. He had now stated that he had come to know about the
non-supply of these documents from the judgment of the
Gujarat High Court which was subsequent to the dismissal of
his earlier petition. This assertion has remained
unchallenged. [360 E-F]
(c) In matters touching the personal liberty of a
person preventively detained, the constitutional imperative
in Art. 22(5) is that any representation made by the detenu
should be dealt with the utmost expedition which in this is
has been honoured in breach. [362 E]
(d) Merely explaining the grounds of detention in the
mother tongue of the detenu would not be sufficient
compliance with the mandate of Art. 22(5) which requires
that the grounds of detention must be communicated to the
detenu. "Communicate" is a strong word. It means that
sufficient knowledge of the basic facts constituting the
grounds should be imparted effectively and fully to the
detenu in writing in a language understood by him. Its whole
purpose is to enable him to make a purposeful and effective
representation. If the grounds are only verbally explained
without giving them to him in writing in a language that he
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understands, its purpose is not served and the
constitutional mandate is infringed. [362G-H]
Haribandhu Das v. District Magistrate Cuttack & Anr.
[1969] 1 S.C.R. 227. Smt Razia Umar Bakshi v. Union of India
[1980] 3 S.C.R. 1398 and Harikisan v. State of Maharashtra
[1962] Supp. 2 S.C.R. 918 followed.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 4349 of 1980.
(Under Article 32 of the Constitution.)
354
M/s. Ram Jethmalani, Anil Dewan, Harjinder Singh and S.
H. Sajanwala, for the Petitioner.
J. L. Nain, Sushil Kumar and M. N. Shroff for the
Respondents.
The Judgment of the Court was delivered by
SARKARIA, J.- By our order dated October 3, 1980, we
had allowed this writ petition for the issue of a writ of
Habeas Corpus and directed the release of the detenu. We are
now giving the reasons in support of that order.
On January 30, 1980, the petitioner, Lallubhai Jogibhai
Patel was served with an order of detention, dated January
30, 1980, passed by Shri P. M. Shah, Deputy Secretary to the
Government of Gujarat (Home Department) under Section 3 of
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (for short, the COFEPOSA).
The grounds of detention were also served on him on the
same day. The petitioner challenged the order of his
detention by Writ Petition 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 continued is
a continuous wrong and furnishes a continuous cause of
action to the detenu to challenge the same on fresh grounds.
In this connection, reference has been
355
made to a Full Bench decision of the Punjab High Court in
Ram Kumar Pearay Lal v. District Magistrate, Delhi. On
facts, counsel has tried to distinguish the decisions of
this Court in Daryao v. State of Uttar Pradesh and Niranjan
Singh v. State of Madhya Pradesh.
The preliminary question, therefore, to be considered
is, whether the doctrine of constructive res judicata
applies to a subsequent petition for a writ of habeas corpus
on a ground which he "might and ought" to have taken in his
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earlier petition for the same relief. In England, before the
Judicature Act, 1873, an applicant for habeas corpus had a
right to go from court to court, but not from one Bench of a
court to another Bench of the same Court. After the
Judicature Act, 1873, this right was lost, and no second
application for habeas corpus can be brought in the same
court, except on fresh evidence. In re Hastings (No. 3) Lord
Parker, C.J., after surveying the history of the right of
habeas corpus, arrived at the conclusion that it was never
the law that in term time, successive writs of habeas corpus
lay from Judge to Judge. In re Hostings (No. 4). Harman, J.
pointed out that since the Judicature Act had abolished the
three independent courts, namely, the Court of Exchequer,
the King’s Bench Division, and the Common Pleas, and had
constituted one High Court, when an application for writ of
habeas corpus has been disposed of by one Divisional Court,
no second application on the same ground lies to another
Divisional Court of the High Court. This position was given
statutory recognition in the Administration of Justice Act,
1960.
In a Full Bench decision of the Punjab High Court,
which purports to follow these English decisions and two
decisions of this Court in Daryao v. State of U.P. (ibid)
and Calcutta Gas Co. (Proprietary) Ltd. v. State of West
Bengal, it was held as follows:
"No second petition for writ of habeas corpus lies
to the High Court on a ground on which a similar
petition had already been dismissed by the Court.
However, a second such petition will lie when a fresh
and a new ground of attack against the legality of
detention or custody has arisen after the decision on
the first petition, and also where for some exceptional
reason a ground has been omitted in an earlier
356
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 constructive res judicata
may be said to be technical; but the basis on which the said
rule rests is founded on considerations of public policy. It
is in the interest of the public at large that a finality
should attach to the binding decisions pronounced by Courts
of competent jurisdiction, and it is also in the public
interest that individuals should not be vexed twice over
with the same kind of litigation. If these two principles
form the foundation of the general rule of res judicata,
they cannot be treated as irrelevant or inadmissible even in
dealing with fundamental rights in petitions filed under
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Article 32. It was also noted that the liberty of the
individual and the protection of his fundamental rights are
the very essence of the democratic way of life adopted by
the Constitution, and it is the privilege and the duty of
this Court to uphold those rights. Though a right is given
to the citizen to move this Court by a petition under
Article 32 and to claim an appropriate writ against the
unconstitutional infringement of his fundamental rights,
yet, in dealing with an objection based on the principle of
res judicata may even apply to a successive petition. The
Court was careful enough to add: "We propose to express no
opinion on the question as to whether repeated applications
for habeas corpus would be competent under our Constitution.
That is a matter with which we are not concerned in the
present proceedings".
It may be noted that the petitions which were before
the Court in Daryao’s case were civil matters and not
petitions for issue of a writ of habeas corpus. Even so, it
was clarified in that case that the
357
principle of constructive res judicata, as embodied in
Section 11 of the Code of Civil Procedure, was of a
technical character and this principle was not one of
universal application.
In Ghulam Sarwar’s case (ibid), the Constitution Bench
of this Court was dealing with a petition under Article 32
of the Constitution which had raised the question of the
validity of the detention of the petitioner under Section 3
of the Foreigners Act, 1946. The petitioner was a Pakistani
national, who entered India without any travel documents. On
May 8, 1964, he was arrested in New Delhi by the Customs
Authorities under Section 135 of the Customs Act, 1962. When
he was about to be enlarged on bail, he was detained by an
order under Section 3(2)(g) of the Foreigners 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 Khanna, J. of the
Punjab High Court operated as res judicata and barred the
maintainability of the subsequent petition under Article 32.
Reliance was placed on the decision of this Court in
Daryao’s case. After observing that Daryao’s case was no
authority in regard to the repeated applications for habeas
corpus, and examining English and American decisions, the
learned Chief Justice (Mr. Justice Subba Rao) summed up the
position, thus:
"But unlike in England, in India the person
detained can file original petition for enforcement of
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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
358
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 principle 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 Article 359 of the Constitution. If the
doctrine of constructive res judicata be applied, this
Court, though it is enjoined by the Constitution to
protect the right of a person illegality detained, will
become powerless to do so. That would be whittling down
the wide sweep of the constitutional protection,
On these premises, it was held "that the order of Khanna,
J., made in the petition for habeas corpus filed by the
petitioner does not operate as res judicata and this Court
will have to decide the petition on merits".
In his concurring judgment, Bachawat, J., while holding
that the order of dismissal by the High Court does not
operate as res judicata and does not bar the petition under
Article 32 of this Court, asking for the issue of a writ of
habeas corpus on the same facts, clarified that the
petitioner would not have the right to move this Court under
Article 32 more than once on the same facts.
In Niranjan Singh’s case (supra), the District
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.
359
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 relief.
In the present petition fresh additional grounds have
been taken, to challenge the legality of the continued
detention of the detenu. We would therefore hold that the
subsequent writ petition is not barred as res judicata and
over-rule the preliminary objection raised by the
respondents.
The additional grounds which have been pressed into
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arguments by Shri Ram Jethmalani, are:
(1) The respondents failed to supply despite the
request of the detenu, all the documents which were relied
upon by the detaining authority while passing the order of
his detention, that the detaining authority purported to
give him 460 documents, but later on, the detenu discovered
that their number was less and many of them were either
incomplete or had been wholly withheld; that in particular
236 documents covering 236 pages were not supplied.
This is alleged in ground No. 13 of the present
petition. In reply to this, in para 17 of the counter-
affidavit filed on behalf of the respondents, it is admitted
that all the documents had not been given to the detenu, and
he had been supplied enough documents which were thought to
be sufficient to enable him to make an effective
representation.
The petitioner came to know about the non-supply of
these documents from the copy of the judgment, dated May 13,
1980, of the Gujarat High Court passed in the allied writ
petitions filed on behalf of other detenus who were alleged
to be the associates of the present petitioner.
(2) On July 17, 1980, a representation was made on
behalf of the detenu with a request that the same be
forwarded to the Central Government for exercise of its
power of revocation of the detention under Section 11 of the
Act. The Jailor forwarded that representation to the Central
Government on July 18, 1980, but the same has not yet been
disposed of. This plea is the subject of grounds 16, 17 and
26 of the Writ Petition.
360
A reply to these allegations is to be found in
paragraphs 20 and 21 of the counter filed on behalf of the
respondents, wherein it is admitted that the jailor has sent
the representation at the detenu’s request to the Central
Govt.
(3) The grounds served on the detenu were in English.
The detenu does not know English. It is stated in the
affidavit of the person who served the ’grounds’ that they
were explained to the detenu in Gujarati which is the
mother-tongue of the detenu. Admittedly, no translation 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 remains unchallenged.
A catena of decisions of this Court has firmly
established the rule that one of the constitutional
imperatives embodied in Article 22(5) of the Constitution is
that all the documents and materials relied upon by the
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detaining authority in passing the order of detention must
be supplied to the detenu, as soon as practicable, to enable
him to make an effective representation. Recently, in Smt.
Icchu Devi Choraria v. Union of India & Ors., this Court
reiterated the principle as follows:
"One of the basic requirements of clause (5) of
Article 22 is that the authority making the order of
detention must, as soon as may be, communicate to the
detenu the grounds
361
on which the order of detention has been made and under
sub-section (3) of Section 3 of the COFEPOSA Act, the
words "as soon as may be" have been translated to mean
"ordinarily not later than five days and in exceptional
circumstances and for reasons to be recorded in writing
not later than fifteen days, from the date of
detention." The grounds of detention must therefore be
furnished to the detenu ordinarily within five days
from the date of detention, but in exceptional
circumstances and for reasons to be recorded in
writing, the time for furnishing the grounds of
detention may stand extended but in any event it cannot
be later than fifteen days from the date of detention.
These are the two outside time limits provided by
Section 3, sub-section (3) of the COFEPOSA Act because
unless the grounds of detention are furnished to the
detenu, it would not be possible for him to make a
requirement against the order of detention and it is a
basic requirement of clause, (5) of Article 22 that the
detenu must be afforded the earliest opportunity of
making a representation against his detention. If the
grounds of detention are not furnished to the detenu
within five or fifteen days, as the case may be, the
continued detention of the detenu would be rendered
illegal both on the ground of violation of clause (5)
of Article 22 as also on the ground of breach of
requirement of Section 3 sub-section (3) of the
COFEPOSA Act. Now it is obvious that when clause (5) of
Article 22 and sub-section (3) of Section 3 of the
COFEPOSA Act provide that the grounds of detention
should be communicated to the detenu within five or
fifteen days, as the case may be, what is meant is that
the grounds of detention in 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
362
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.
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Icchu Devi’s case (ibid), should have been supplied to the
detenu ordinarily within five days of the order of
detention, and, for exceptional reasons to be recorded,
within fifteen days of the commencement of detention. In the
counter-affidavit, it has not been asserted that these
documents, which were not supplied, were not relevant to the
case of the detenu.
Contention (2) :
The respondents have, in their counter-affidavit,
stated that this representation was not addressed to the
Central Government. It is, however, admitted that the Jailor
had, on the request of the detenu, forwarded the same to the
Central Government on July 18, 1980. No counter-affidavit
has been filed on behalf of the Central Government, showing
that this representation was considered and disposed of by
it. In matters touching the personal liberty of a person
preventively detained, the constitutional imperative
embodied in Article 22(5) is that any representation made by
him should be dealt with utmost expedition. This
constitutional mandate has been honoured in breach regarding
the representation sent by the detenu to the Central
Government.
Contention (3) :
It is an admitted position that the detenu does not
know English. The grounds of detention, which were served on
the detenu, have been drawn up in English. It is true that
Shri C. L. Antali, Police Inspector, who served the grounds
of detention on the detenu, has filed an affidavit stating
that he had fully explained the grounds of detention in
Gujarati to the detenu. But, that is not a sufficient
compliance with the mandate of Article 22(5) of the
Constitution, which requires that the grounds of detention
must be "communicated" to the detenu. "Communicate" is a
strong word. It means that sufficient knowledge of the basic
facts constituting the ’grounds’ should be imparted
effectively and fully to the detenu in writing in a language
which he understands. The whole purpose of communicating the
’ground’ to the detenu is to enable him to make a purposeful
and effective representation. If the ’grounds’ are only
verbally
363
explained to the detenu and nothing in writing is left with
him, in a language which he understands, then that purpose
is not served, and the constitutional mandate in Article
22(5) is infringed. If any authority is needed on this
point, which is so obvious from Article 22(5), reference may
be made to the decisions of this Court in Harikishan v.
State of Maharashtra: and Haribandhu Dass. v. District
Magistrate (ibid).
Thus all the three contentions canvassed by the counsel
for the petitioner, on merits were sound. The conclusion was
therefore, inescapable that due to the aforesaid
contraventions of constitutional imperatives, the continued
detention of the detenu was illegal.
It was for these reasons that we had allowed Writ
Petition (Crl.) No. 4349 of 1980 by our order dated October
3, 1980, and directed the release of the detenu.
P.B.R. Petition allowed.
364