Judgement

SUBBA RAO, CJI. : This petition under Art. 32 of the Constitution of India raises the question of validity of the detention of the petitioner under S. 3 of the Foreigners Act, 1946 (Act No. 31of 1946) Hereinafter called the Act).

2. The petitioner is 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 S. 135 of the Indian Customs Act, 1962. On May 9, 1964, he was ordered to be enlarged on bail. On May 18, 1965, he was ordered to be released. When he was about to be released from jail, a detention order was served on him by the Central Government under S. 3 (2) (g) of the 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, First Class, Delhi of an offence under the Customs Act and sentenced to undergo rigorous imprisonment for a period of 9 months and to pay a fine of Rs. 2,000. The appeal filed by him to the Sessions Judge against that order was dismissed. The petitioner underwent imprisonment and also paid the fine. Before his term of imprisonment expired the petitioner filed a writ of habeas corpus in the Circuit Bench of the Punjab High Court at Delhi challenging his detention. That petition was dismissed by Khanna J., on merits. Before the learned Judge the constitutional validity of S. 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. He negatived the contention raised before him that an order under that sub-section could not be made for the purpose of completing an investigation in a conspiracy as no such limitation was found therein. In short, he dismissed the petition on merits.

3. The present petition was filed in this Court under Art. 32 of the Constitution on May 12, 1966 for issue of a writ of habeas corpus against the respondents directing them to set him at liberty on the ground that the provisions of the Act were invalid.

4. Before we consider the various contentions raised by Mr. R. V. Pillai in support of the petition, we would at the outset deal with a preliminary objection raised by Mr. N. S. Bindra, learned counsel appearing for the respondents. Mr. N. A. Bindra, contended that the order made by Khanna, J., dismissing the writ of habeas corpus filed in the Circuit Bench of the Punjab High Court operated as res judicata and barred the maintainability of the present application. The decision of this Court in Daryao v. State of U. P. 1962-] SCR 574 at p. 590, was relied upon in support of the said contention. There, the High Court dismissed a writ petition under Art. 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 therein did not prefer an appeal against that order to this Court, but he filed an independent petition under Art. 32 of the Constitution in this Court on the same facts and for the same reliefs. This Court held that the petition in this Court would be barred by the general principles of res judicata. That decision related to a right claimed by the petitioners therein. The petitioners in that case sought to enforce their fundamental right to property which had been negatived by the High Court in its order made on an application presented by them under Art. 226 of the Constitution. While upholding the plea of res judicata, this Court made the following observations in the context of the said plea vis-a-vis the writ of habeas corpus :

"In England technically an order passed on a petition for habeas corpus is not regarded as a judgment and that places the petitions for habeas corpus in a cla