Full Judgment Text
2014:BHC-AS:16721-DB
sat 1/18 cri.wp 5062014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 506 OF 2014
Smt.Khushbu Sandeep Jain …Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents
with
CRIMINAL WRIT PETITION NO. 970 OF 2014
Anjana Rikabchand Mehta …Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents
Mr.U.N. Tripathi i/b. Ms.Jayshree Tripathi for Petitioner in both petitions.
Mr.J.P. Yagnik, APP for Respondent Nos.1, 2 and 5 in both petitions.
Ms.A.S. Pai, APP for Respondent No.3 – DRI in both petitions.
CORAM : A.S. OKA & S.C. GUPTE, JJ.
RESERVED ON : 18 JULY 2014
PRONOUNCED ON : 01 AUGUST 2014
JUDGMENT (Per S.C. Gupte, J) :
These Petitions, under Article 226 of the Constitution of India, seek
to challenge orders of detention passed against two detenus under Section 3(1)
of the COFEPOSA Act, 1974. The Petitioners had earlier filed writ petitions
before this Court, being Criminal Writ Petition No. 3499 of 2013 and Writ Petition
No. 3436 of 2013, challenging the validity of the orders of detention. These
Petitions were rejected by this Court after hearing the Petitioners and the
detaining authority. The present Petitions are on the footing that they raise fresh
and new grounds of attack against the orders of detention and that successive
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petitions on such fresh and new grounds are not barred on the principles of 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 of an estimated value of Rs. 1.60 crores was found
with Uday Singh Meena. Sagar Chheda, apprehended on the same day, was
found to be carrying an identical bag. Next morning, i.e. on 11 August 2012, one
more passenger Atul Mangilal Bafna, who arrived at the Mumbai Airport from
Dubai, was apprehended with the same make of bag containing 4.717 kgs of gold
jewellery. After investigations, the authorities claimed to have busted a smuggling
racket with Sandeep as the kingpin of the syndicate and Jayant as a co-
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conspirator for smuggling of gold bars / gold jewellery from Dubai. Sandeep was
found to be the financier of the smuggling activities, sending money through
illegal channels, visiting Dubai and purchasing gold for carrying the same through
his carriers. The carriers, who included Sagar Chheda, Jayant and others, would
carry the contraband in bags of specified makes from Dubai to Mumbai and then
exchange the same with identical bags with a CISF Officer (Uday Singh Meena,
in the incident referred to above) who would clear the same through the staff
gate. The syndicate was claimed to have smuggled around 120 to 140 kgs of
gold bars / gold jewellery through this device over the last six months, i.e. from
February 2012. All the Accused connected with the syndicate were apprehended
and their statements recorded under Section 108 of the Customs Act, 1962.
Based on the statements as also the material collected during investigations, a
proposal for detention of the accused was placed before the screening
committee on 19 November 2012. The proposal was received by the Sponsoring
Authority on 23 November 2012 and forwarded to the Detaining Authority on 3
December 2012, who called for additional information. After screening all
material, orders of detention were issued on 22 August 2013.
4 The detention orders were challenged by the Petitioners on behalf
of the detenus by two writ petitions, namely, Criminal Writ Petition No. 3499 of
2013 on behalf of Sandeep and Criminal Writ Petition No. 3436 of 2013 on behalf
of Jayant, as noted above. At the hearing of the two petitions, Counsel for the
Petitioners made detailed submissions which were common in both the Petitions.
It was inter alia urged that the retraction of inculpatory statement of Sandeep,
which statement was used in both the cases, was not placed before the Detaining
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Authority; that the copy of the retraction 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, non-
application 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, but there was
no response and the delay was not explained;
(ii) A fresh representation (dated 30.1.2014 / 11.2.2014) was
sent to the detaining authority on behalf of the detenu on fresh
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grounds for consideration and revocation of the order of detention,
where the detenu also requested to furnish certain vital documents
(on which reliance was placed in the order) to enable the detenu to
make a further representation, but there was neither any response
nor any explanation for delay;
(iii) A similar representation sent to the Secretary to the
Government of India (dated 31.1.2014 / 11.2.2014) also elicited no
response;
(iv) Out of the compilation of 807 pages of documents furnished
to the detenu along with the grounds of detention (which documents
were relied upon), there were about 25 pages which were wholly
and/or partially illegible and could not be understood by the detenu,
depriving him of his right to make an affective representation
against the detention under Article 22 (5) of the Constitution of
India; and
(v) The detaining authority did not go through the most vital and
relevant document like Assay Report to determine the exact nature
of the contraband, namely, whether they were gold or other
materials and in the absence of an expert's opinion on the nature of
the goods, the detention order was vitiated and liable to be
quashed.
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7 Let us first take the ground of illegible documents (25 pages out of
807) supplied to the detenus. These illegible documents are annexed to the
petitions. It is submitted that supply of these illegible pages, on which the
detention order is purportedly based, denies the opportunity of effective
representation to the detenu, guaranteed under Article 22(5) of the Constitution. It
is submitted this ground was not raised earlier and hence not considered by this
Court in the earlier writ petitions. It is submitted that this being a fresh and new
ground, is not barred by the principles of res judicata or constructive res judicata .
The learned Counsel for the Petitioners relies upon judgments of the Supreme
Court as also of our court and contends that successive petitions for writ of
habeas corpus lie to the High Court under Article 226 on fresh and new grounds
of attack against the detention order. The learned APP for the Detaining Authority
and learned Counsel for the Sponsoring Authority refute this contention and
submit 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.
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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
1
Daryao vs. State of U.P. . 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 an independent petition under
Article 32 to the Supreme Court on the same facts and for the same reliefs. The
Supreme Court held the petition to be barred by the general principles of res
judicata.
10 Daryao's case (supra) was cited before the Supreme Court in
2
Ghulam Sarwar vs. Union of India where the Court was concerned with the
question of maintainability of a second writ petition for habeas corpus . In that
case, a habeas corpus petition of the petitioner, a Pakistani National who entered
India without any travel document and who was detained in connection with
smuggling of gold, was dismissed by the Delhi High Court and the petitioner had
come to the Supreme Court by way of a petition under Article 32. The Supreme
Court noted that in Daryao's case, the writ of habeas corpus was treated as a
separate class and the question as to whether repeated applications for habeas
corpus could be filed under our constitution, was kept open. That question fell to
be decided in Ghulam Sarwar's case. The Court noted that on the question of
res judicata , the English and American Courts were unanimous that the principle
1
(1962) 1 SCR 574, 590
2 (1967) 2 SCR 271
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of res judicata was not applicable to a writ of habeas corpus, though they came to
the conclusion on different grounds. The English Courts initially held that a
decision in a writ of habeas corpus was not a judgment and hence, would not
operates as res judicata and successive petitions before different judges of the
same High Court were permissible. Later the English Courts accepted that one
division court spoke for the entire court and could not set aside the order of
another division of the same court. The English Administration of Justice Act,
1960 placed this principle on a statutory footing inasmuch as under the Act no
second application could be brought before the same court except on fresh
evidence. The American Courts reached the same conclusion, but by a different
route. The American view was that it is of the very essence of the writ of habeas
corpus that it lies to test proceedings so fundamentally lawless that imprisonment
pursuant to them is not merely erroneous but void, and hence the familiar
principle that res judicata is inapplicable in habeas proceedings. The Supreme
Court then noted that insofar as the High Courts in India are concerned, the same
principle accepted by the English Courts would equally 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
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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."
11 Thus, in Ghulam Sarwar's case (supra), the Supreme Court,
dealing with the plea of an order of the High Court in a habeas corpus petition
under Articles 226 operating as res judicata for a petition under Article 32 before
the Supreme Court, negatived the plea and held that the Supreme Court would
have to decide the matter on merits. But it still accepted the English principle of a
Division Bench of a High Court not entertaining a fresh habeas corpus petition in
a matter decided by another Division Bench of the same High Court except on a
fresh evidence. Besides, in his concurring judgment in Ghulam Sarwar's case,
Bachawat, J. made it clear that the petitioner would not have the right to move the
Supreme court under Article 32 more than once on the same facts.
12 In a Full Bench decision of the Punjab High Court, which purports to
follow the English decisions considered in Ghulam Sarwar's case and the
decision of the Supreme Court in Daryao's case, it was held as follows :
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“7. 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
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."
13 All these decisions were surveyed by the Supreme court in the case
3
Lallubhai Jogibhai Patel vs. Union of India , 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 :
3 (1981) 2 SCC 427
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“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
Article 32 of the Constitution on fresh grounds, which
were not taken in the earlier petition for the same relief.”
In Lallubhai's case, the new and additional grounds included the following :
(i) Non-supply of all the documents relied upon by the detaining
authority. It was submitted that after the rejection of the Petitioner's first
petition, the Petitioner learnt about this fact from an order passed in an
allied writ petition filed on behalf of other detenus. (In particular, it was
submitted that 236 documents were not supplied at all.) This fact had
been admitted in the counter of the detaining authority;
(ii) A representation was made on behalf of the detenu after his first
petition was dismissed, which was not disposed of. No counter was filed
by the Central Government, showing that this representation was
considered and disposed of;
(iii) No translation of grounds in Gujarati (the language of the detenu)
was given to the detenu. The court found that translations were in fact
not supplied.
The Supreme Court found these to be contraventions of constitutional
imperatives and the continued detention of the detenu was held to be illegal. It is
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pertinent to note that the Supreme court was dealing with the case of an Article
32 petition and particularly, whilst dismissing the first petition, the court had
granted liberty to the detenu to raise additional grounds in a subsequent petition.
Secondly, it needs to be noted that two of the three additional grounds urged in
the subsequent petition were not available to the Petitioner when the earlier
petition was filed in that case.
4
14 In Kirit Kumar Chaman Lal Kundaliya vas. Union of India , the
detenu had in the first instance filed a petition for habeas corpus in the High Court
of Gujarat, which was dismissed by that court. The detenu preferred an SLP
against the order of the High Court as well as an Article 32 petition before the
Supreme Court. The Supreme Court after discussing the law of applicability of the
principles of res judicata to habeas corpus petitions, observed as follows :
“10. 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
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
4 AIR 1981 SC 1621
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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 Maneka
Gandhi's case where Article 21 as construed by this Court
has added new dimensions to the various features and
concepts of liberty as enshrined in Articles 21 and 22 of
the Constitution. For these reasons, therefore we overrule
the preliminary objection taken by the respondents.”
5
15 In Abdul Sattar Abdul Kadar Shaikh vs. Union of India , the
detenu had filed an Article 32 petition which was dismissed. A second petition
was filed for the same relief, but on the basis of some grounds which, according
to the petitioner, were not urged in the first petition. The Supreme Court referred
to the merits of the contentions while rejecting the second petition, observing as
under :
"We may also point out that though the principle of
res judicata or constructive res judicata cannot be made
applicable to a case of detention yet there should be some
finality. The petitioner having failed in his earlier attempts
has now again come forward with the present petition with
a highly belated plea that some documents, though he
made a request, have not been supplied. This request, as
we find from the records, was made after this Court
dismissed the Habeas Corpus Petition No. 302 of 1989.
He, however, justifies the filing of the present petition on a
plea that he was unaware of the existence of these
documents. But as noted above his petition itself shows
that he was aware of all these documents. Therefore, we
do not see any bona fides in this plea of his. Under these
circumstances, we are unable to say that the refusal to
supply the documents requested by him amounts to
violation of Article 22(5)".
16 On a review of the law stated by the Supreme Court in the above
mentioned judgments, which mostly dealt with Article 32 petitions, as also the
Punjab High Court Full Bench decision, and the various judgments of the High
5 (1990) 1 SCC 480
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Courts in India and the English authorities referred to in Ghulam Sarwar's case
(supra), a Division Bench of our court in the case of Deepesh Mahesh Zaveri vs.
6
Union of India , whilst dealing with the maintenability of a second petition under
Article 226 after dismissal of an earlier petition, held as follows :
“ In our view, a second petition for the writ of habeas
corpus at the instance of a detenu, who is in custody,
would lie to the High Court under Article 226 when (i) fresh
and new ground of attack against 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 guaranteed under Article 32(1) of the
Constitution which must be borne in mind since we are
dealing with a second petition to the High Court under
Article 226 of and that too at the instance of a detenu who
has been released and who has alleged no fresh ground
whatsoever nor has he pleaded any exceptional
6 1998(2) Mh.L.J. 634
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circumstance which prevented him from raising the ground
earlier at the time of hearing of the first petition though the
same was very much available to him in the facts of the
present case. Indeed, the approach of the Apex Court in
Mrs. Godawari Parulekar's case decided on 5th
December, 1952 and in Abdul Sattar's case (supra)
decided on 24th January, 1990 clearly indicates that even
a second petition under Article 32 of the Constitution
would not be maintainable on the ground of public policy
that there should be finality to the proceedings.”
18 The principles of law discussed in the foregoing paragraphs make it
clear that as far as the High Courts are concerned, a division bench of the court
cannot ordinarily entertain a second petition for the writ of habeas corpus against
a detention order when another division bench has already dismissed a
challenged to the same detention order unless (i) fresh and new ground of attack
against the legality of the detention or custody, which was not available to the
Petitioner earlier, has arisen after the decision on the first petition or (ii) a ground,
which was available earlier, could not be taken or urged in the earlier petition for
some exceptional reason.
19 Let us now examine if the present petition merits a consideration on
the touchstone of the law explained above. The case of the Petitioners is that 25
out of 807 pages of documents supplied to the Petitioners were fully or partly
illegible. This ground was certainly available to the Petitioners when the earlier
petitions were filed. In fact, in the synopsis to one of the petitions, the ground that
illegible documents were given to the detenu was in fact raised. There is
absolutely no reason even alleged in the petition – leave aside any exceptional
reason – why this ground could not be urged in the earlier petitions. The ground,
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thus, does not fall within the two exceptions noted above. There is no reason why
the ordinary principle of public policy concerning finality to be attached to a
decision of the court, should not be applied to the present case.
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
7
Razak Dawood Dhanani vs. Union of India , 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 representations based on the same
grounds rejected earlier to be formally disposed of again.
This principle finds affirmation in a judgment rendered by a
constitution bench of this Court in Makhan Lal Gokul
Chand v. administrator, Union Territory of Delhi and
another (1999) 9 SCC 504 in which this Court found that
the petitioner challenged the order of detention and failed
thrice, and yet filed another representation which did not
7 AIR 2003 SC 4010
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disclose any fresh material, nor were any subsequent
events pointed out which may have warranted a "fresh"
consideration of the representation made by the detenu. It
was only a change in the language of the representation.
The Delhi Administration was, therefore found, justified in
rejecting the representation since there were no "fresh
grounds" nor any "fresh material" or "subsequent events"
brought out in the last representation. There was,
therefore, no obligation on the part of the State to get that
representation considered by a "fresh Advisory Board"
and, therefore, the exercise of this discretion by the State
in rejecting the representation and not constituting a
"fresh" Advisory Board could not be faulted. The writ
petition was accordingly dismissed.
9. Faced with this situation counsel for the appellant
submitted that even if a detenu does not have a
constitutional right to make a second representation, in the
facts of this case it must be held that since the first
representation was pending when the second
representation was received, it was a part of, or
continuation of the first representation. In any case, it was
material before the Central Government which it was
bound to consider.
10. The learned Additional Solicitor General submitted
that the principle is well established that there is no
constitutional right of a detenu to make successive
representations, nor is there a corresponding obligation on
the competent authority to consider and dispose of such
representation by a separate order, unless the subsequent
representation discloses "fresh grounds" or "fresh
material" or any "subsequent event" which may justify the
consideration of another representation. A mere reiteration
of the same grounds on the same material is not sufficient,
and in such a case there is no legal obligation even to
consider such a representation. He further submitted that
Article 22(5) speaks of "a representation" and therefore
another representation can be considered only if new
grounds based on fresh materials are brought to the notice
of the competent authority. Having regard to the
authorities, we find considerable force in the submission
urged by the learned Additional Solicitor General.”
There is no “changed or new factor” in the present case and “fresh
materials” cannot be those that were available earlier and could very well have
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been brought to the notice of the authorities earlier.
22 There is, thus, no merit in the petitions. The petitions are dismissed.
There shall be no order as to costs.
(S.C. Gupte, J.) (A.S. Oka, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 506 OF 2014
Smt.Khushbu Sandeep Jain …Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents
with
CRIMINAL WRIT PETITION NO. 970 OF 2014
Anjana Rikabchand Mehta …Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents
Mr.U.N. Tripathi i/b. Ms.Jayshree Tripathi for Petitioner in both petitions.
Mr.J.P. Yagnik, APP for Respondent Nos.1, 2 and 5 in both petitions.
Ms.A.S. Pai, APP for Respondent No.3 – DRI in both petitions.
CORAM : A.S. OKA & S.C. GUPTE, JJ.
RESERVED ON : 18 JULY 2014
PRONOUNCED ON : 01 AUGUST 2014
JUDGMENT (Per S.C. Gupte, J) :
These Petitions, under Article 226 of the Constitution of India, seek
to challenge orders of detention passed against two detenus under Section 3(1)
of the COFEPOSA Act, 1974. The Petitioners had earlier filed writ petitions
before this Court, being Criminal Writ Petition No. 3499 of 2013 and Writ Petition
No. 3436 of 2013, challenging the validity of the orders of detention. These
Petitions were rejected by this Court after hearing the Petitioners and the
detaining authority. The present Petitions are on the footing that they raise fresh
and new grounds of attack against the orders of detention and that successive
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petitions on such fresh and new grounds are not barred on the principles of 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 of an estimated value of Rs. 1.60 crores was found
with Uday Singh Meena. Sagar Chheda, apprehended on the same day, was
found to be carrying an identical bag. Next morning, i.e. on 11 August 2012, one
more passenger Atul Mangilal Bafna, who arrived at the Mumbai Airport from
Dubai, was apprehended with the same make of bag containing 4.717 kgs of gold
jewellery. After investigations, the authorities claimed to have busted a smuggling
racket with Sandeep as the kingpin of the syndicate and Jayant as a co-
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conspirator for smuggling of gold bars / gold jewellery from Dubai. Sandeep was
found to be the financier of the smuggling activities, sending money through
illegal channels, visiting Dubai and purchasing gold for carrying the same through
his carriers. The carriers, who included Sagar Chheda, Jayant and others, would
carry the contraband in bags of specified makes from Dubai to Mumbai and then
exchange the same with identical bags with a CISF Officer (Uday Singh Meena,
in the incident referred to above) who would clear the same through the staff
gate. The syndicate was claimed to have smuggled around 120 to 140 kgs of
gold bars / gold jewellery through this device over the last six months, i.e. from
February 2012. All the Accused connected with the syndicate were apprehended
and their statements recorded under Section 108 of the Customs Act, 1962.
Based on the statements as also the material collected during investigations, a
proposal for detention of the accused was placed before the screening
committee on 19 November 2012. The proposal was received by the Sponsoring
Authority on 23 November 2012 and forwarded to the Detaining Authority on 3
December 2012, who called for additional information. After screening all
material, orders of detention were issued on 22 August 2013.
4 The detention orders were challenged by the Petitioners on behalf
of the detenus by two writ petitions, namely, Criminal Writ Petition No. 3499 of
2013 on behalf of Sandeep and Criminal Writ Petition No. 3436 of 2013 on behalf
of Jayant, as noted above. At the hearing of the two petitions, Counsel for the
Petitioners made detailed submissions which were common in both the Petitions.
It was inter alia urged that the retraction of inculpatory statement of Sandeep,
which statement was used in both the cases, was not placed before the Detaining
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Authority; that the copy of the retraction 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, non-
application 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, but there was
no response and the delay was not explained;
(ii) A fresh representation (dated 30.1.2014 / 11.2.2014) was
sent to the detaining authority on behalf of the detenu on fresh
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grounds for consideration and revocation of the order of detention,
where the detenu also requested to furnish certain vital documents
(on which reliance was placed in the order) to enable the detenu to
make a further representation, but there was neither any response
nor any explanation for delay;
(iii) A similar representation sent to the Secretary to the
Government of India (dated 31.1.2014 / 11.2.2014) also elicited no
response;
(iv) Out of the compilation of 807 pages of documents furnished
to the detenu along with the grounds of detention (which documents
were relied upon), there were about 25 pages which were wholly
and/or partially illegible and could not be understood by the detenu,
depriving him of his right to make an affective representation
against the detention under Article 22 (5) of the Constitution of
India; and
(v) The detaining authority did not go through the most vital and
relevant document like Assay Report to determine the exact nature
of the contraband, namely, whether they were gold or other
materials and in the absence of an expert's opinion on the nature of
the goods, the detention order was vitiated and liable to be
quashed.
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7 Let us first take the ground of illegible documents (25 pages out of
807) supplied to the detenus. These illegible documents are annexed to the
petitions. It is submitted that supply of these illegible pages, on which the
detention order is purportedly based, denies the opportunity of effective
representation to the detenu, guaranteed under Article 22(5) of the Constitution. It
is submitted this ground was not raised earlier and hence not considered by this
Court in the earlier writ petitions. It is submitted that this being a fresh and new
ground, is not barred by the principles of res judicata or constructive res judicata .
The learned Counsel for the Petitioners relies upon judgments of the Supreme
Court as also of our court and contends that successive petitions for writ of
habeas corpus lie to the High Court under Article 226 on fresh and new grounds
of attack against the detention order. The learned APP for the Detaining Authority
and learned Counsel for the Sponsoring Authority refute this contention and
submit 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.
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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
1
Daryao vs. State of U.P. . 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 an independent petition under
Article 32 to the Supreme Court on the same facts and for the same reliefs. The
Supreme Court held the petition to be barred by the general principles of res
judicata.
10 Daryao's case (supra) was cited before the Supreme Court in
2
Ghulam Sarwar vs. Union of India where the Court was concerned with the
question of maintainability of a second writ petition for habeas corpus . In that
case, a habeas corpus petition of the petitioner, a Pakistani National who entered
India without any travel document and who was detained in connection with
smuggling of gold, was dismissed by the Delhi High Court and the petitioner had
come to the Supreme Court by way of a petition under Article 32. The Supreme
Court noted that in Daryao's case, the writ of habeas corpus was treated as a
separate class and the question as to whether repeated applications for habeas
corpus could be filed under our constitution, was kept open. That question fell to
be decided in Ghulam Sarwar's case. The Court noted that on the question of
res judicata , the English and American Courts were unanimous that the principle
1
(1962) 1 SCR 574, 590
2 (1967) 2 SCR 271
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of res judicata was not applicable to a writ of habeas corpus, though they came to
the conclusion on different grounds. The English Courts initially held that a
decision in a writ of habeas corpus was not a judgment and hence, would not
operates as res judicata and successive petitions before different judges of the
same High Court were permissible. Later the English Courts accepted that one
division court spoke for the entire court and could not set aside the order of
another division of the same court. The English Administration of Justice Act,
1960 placed this principle on a statutory footing inasmuch as under the Act no
second application could be brought before the same court except on fresh
evidence. The American Courts reached the same conclusion, but by a different
route. The American view was that it is of the very essence of the writ of habeas
corpus that it lies to test proceedings so fundamentally lawless that imprisonment
pursuant to them is not merely erroneous but void, and hence the familiar
principle that res judicata is inapplicable in habeas proceedings. The Supreme
Court then noted that insofar as the High Courts in India are concerned, the same
principle accepted by the English Courts would equally 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
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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."
11 Thus, in Ghulam Sarwar's case (supra), the Supreme Court,
dealing with the plea of an order of the High Court in a habeas corpus petition
under Articles 226 operating as res judicata for a petition under Article 32 before
the Supreme Court, negatived the plea and held that the Supreme Court would
have to decide the matter on merits. But it still accepted the English principle of a
Division Bench of a High Court not entertaining a fresh habeas corpus petition in
a matter decided by another Division Bench of the same High Court except on a
fresh evidence. Besides, in his concurring judgment in Ghulam Sarwar's case,
Bachawat, J. made it clear that the petitioner would not have the right to move the
Supreme court under Article 32 more than once on the same facts.
12 In a Full Bench decision of the Punjab High Court, which purports to
follow the English decisions considered in Ghulam Sarwar's case and the
decision of the Supreme Court in Daryao's case, it was held as follows :
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“7. 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
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."
13 All these decisions were surveyed by the Supreme court in the case
3
Lallubhai Jogibhai Patel vs. Union of India , 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 :
3 (1981) 2 SCC 427
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“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
Article 32 of the Constitution on fresh grounds, which
were not taken in the earlier petition for the same relief.”
In Lallubhai's case, the new and additional grounds included the following :
(i) Non-supply of all the documents relied upon by the detaining
authority. It was submitted that after the rejection of the Petitioner's first
petition, the Petitioner learnt about this fact from an order passed in an
allied writ petition filed on behalf of other detenus. (In particular, it was
submitted that 236 documents were not supplied at all.) This fact had
been admitted in the counter of the detaining authority;
(ii) A representation was made on behalf of the detenu after his first
petition was dismissed, which was not disposed of. No counter was filed
by the Central Government, showing that this representation was
considered and disposed of;
(iii) No translation of grounds in Gujarati (the language of the detenu)
was given to the detenu. The court found that translations were in fact
not supplied.
The Supreme Court found these to be contraventions of constitutional
imperatives and the continued detention of the detenu was held to be illegal. It is
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pertinent to note that the Supreme court was dealing with the case of an Article
32 petition and particularly, whilst dismissing the first petition, the court had
granted liberty to the detenu to raise additional grounds in a subsequent petition.
Secondly, it needs to be noted that two of the three additional grounds urged in
the subsequent petition were not available to the Petitioner when the earlier
petition was filed in that case.
4
14 In Kirit Kumar Chaman Lal Kundaliya vas. Union of India , the
detenu had in the first instance filed a petition for habeas corpus in the High Court
of Gujarat, which was dismissed by that court. The detenu preferred an SLP
against the order of the High Court as well as an Article 32 petition before the
Supreme Court. The Supreme Court after discussing the law of applicability of the
principles of res judicata to habeas corpus petitions, observed as follows :
“10. 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
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
4 AIR 1981 SC 1621
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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 Maneka
Gandhi's case where Article 21 as construed by this Court
has added new dimensions to the various features and
concepts of liberty as enshrined in Articles 21 and 22 of
the Constitution. For these reasons, therefore we overrule
the preliminary objection taken by the respondents.”
5
15 In Abdul Sattar Abdul Kadar Shaikh vs. Union of India , the
detenu had filed an Article 32 petition which was dismissed. A second petition
was filed for the same relief, but on the basis of some grounds which, according
to the petitioner, were not urged in the first petition. The Supreme Court referred
to the merits of the contentions while rejecting the second petition, observing as
under :
"We may also point out that though the principle of
res judicata or constructive res judicata cannot be made
applicable to a case of detention yet there should be some
finality. The petitioner having failed in his earlier attempts
has now again come forward with the present petition with
a highly belated plea that some documents, though he
made a request, have not been supplied. This request, as
we find from the records, was made after this Court
dismissed the Habeas Corpus Petition No. 302 of 1989.
He, however, justifies the filing of the present petition on a
plea that he was unaware of the existence of these
documents. But as noted above his petition itself shows
that he was aware of all these documents. Therefore, we
do not see any bona fides in this plea of his. Under these
circumstances, we are unable to say that the refusal to
supply the documents requested by him amounts to
violation of Article 22(5)".
16 On a review of the law stated by the Supreme Court in the above
mentioned judgments, which mostly dealt with Article 32 petitions, as also the
Punjab High Court Full Bench decision, and the various judgments of the High
5 (1990) 1 SCC 480
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Courts in India and the English authorities referred to in Ghulam Sarwar's case
(supra), a Division Bench of our court in the case of Deepesh Mahesh Zaveri vs.
6
Union of India , whilst dealing with the maintenability of a second petition under
Article 226 after dismissal of an earlier petition, held as follows :
“ In our view, a second petition for the writ of habeas
corpus at the instance of a detenu, who is in custody,
would lie to the High Court under Article 226 when (i) fresh
and new ground of attack against 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 guaranteed under Article 32(1) of the
Constitution which must be borne in mind since we are
dealing with a second petition to the High Court under
Article 226 of and that too at the instance of a detenu who
has been released and who has alleged no fresh ground
whatsoever nor has he pleaded any exceptional
6 1998(2) Mh.L.J. 634
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circumstance which prevented him from raising the ground
earlier at the time of hearing of the first petition though the
same was very much available to him in the facts of the
present case. Indeed, the approach of the Apex Court in
Mrs. Godawari Parulekar's case decided on 5th
December, 1952 and in Abdul Sattar's case (supra)
decided on 24th January, 1990 clearly indicates that even
a second petition under Article 32 of the Constitution
would not be maintainable on the ground of public policy
that there should be finality to the proceedings.”
18 The principles of law discussed in the foregoing paragraphs make it
clear that as far as the High Courts are concerned, a division bench of the court
cannot ordinarily entertain a second petition for the writ of habeas corpus against
a detention order when another division bench has already dismissed a
challenged to the same detention order unless (i) fresh and new ground of attack
against the legality of the detention or custody, which was not available to the
Petitioner earlier, has arisen after the decision on the first petition or (ii) a ground,
which was available earlier, could not be taken or urged in the earlier petition for
some exceptional reason.
19 Let us now examine if the present petition merits a consideration on
the touchstone of the law explained above. The case of the Petitioners is that 25
out of 807 pages of documents supplied to the Petitioners were fully or partly
illegible. This ground was certainly available to the Petitioners when the earlier
petitions were filed. In fact, in the synopsis to one of the petitions, the ground that
illegible documents were given to the detenu was in fact raised. There is
absolutely no reason even alleged in the petition – leave aside any exceptional
reason – why this ground could not be urged in the earlier petitions. The ground,
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thus, does not fall within the two exceptions noted above. There is no reason why
the ordinary principle of public policy concerning finality to be attached to a
decision of the court, should not be applied to the present case.
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
7
Razak Dawood Dhanani vs. Union of India , 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 representations based on the same
grounds rejected earlier to be formally disposed of again.
This principle finds affirmation in a judgment rendered by a
constitution bench of this Court in Makhan Lal Gokul
Chand v. administrator, Union Territory of Delhi and
another (1999) 9 SCC 504 in which this Court found that
the petitioner challenged the order of detention and failed
thrice, and yet filed another representation which did not
7 AIR 2003 SC 4010
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disclose any fresh material, nor were any subsequent
events pointed out which may have warranted a "fresh"
consideration of the representation made by the detenu. It
was only a change in the language of the representation.
The Delhi Administration was, therefore found, justified in
rejecting the representation since there were no "fresh
grounds" nor any "fresh material" or "subsequent events"
brought out in the last representation. There was,
therefore, no obligation on the part of the State to get that
representation considered by a "fresh Advisory Board"
and, therefore, the exercise of this discretion by the State
in rejecting the representation and not constituting a
"fresh" Advisory Board could not be faulted. The writ
petition was accordingly dismissed.
9. Faced with this situation counsel for the appellant
submitted that even if a detenu does not have a
constitutional right to make a second representation, in the
facts of this case it must be held that since the first
representation was pending when the second
representation was received, it was a part of, or
continuation of the first representation. In any case, it was
material before the Central Government which it was
bound to consider.
10. The learned Additional Solicitor General submitted
that the principle is well established that there is no
constitutional right of a detenu to make successive
representations, nor is there a corresponding obligation on
the competent authority to consider and dispose of such
representation by a separate order, unless the subsequent
representation discloses "fresh grounds" or "fresh
material" or any "subsequent event" which may justify the
consideration of another representation. A mere reiteration
of the same grounds on the same material is not sufficient,
and in such a case there is no legal obligation even to
consider such a representation. He further submitted that
Article 22(5) speaks of "a representation" and therefore
another representation can be considered only if new
grounds based on fresh materials are brought to the notice
of the competent authority. Having regard to the
authorities, we find considerable force in the submission
urged by the learned Additional Solicitor General.”
There is no “changed or new factor” in the present case and “fresh
materials” cannot be those that were available earlier and could very well have
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been brought to the notice of the authorities earlier.
22 There is, thus, no merit in the petitions. The petitions are dismissed.
There shall be no order as to costs.
(S.C. Gupte, J.) (A.S. Oka, J.)
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