Judgment

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.

2. 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).

3. 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 No. 449 of 1980.

4. 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, (1967) 2 SCR 271 and Seervais Constitutional Law, Vol. II, Page 994, Foot Note 2.

5. 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 made to a Full Bench decision of the Punjab High Court in Ram Kumar Pearay Lal v. District Magistrate, Delhi, AIR 1966 Punj 51. On facts, counsel has tried to distinguish the decisions of this Court in Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 and Niranjan Singh v. State of Madhya Pradesh, (1973) 1 SCR 691 .

6. 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 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), (1958) 3 All ER 625. 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 Hastings (No. 4), (1959) 1 All, ER 698. Harman, J. pointed out that since the Judicature Act had abolished the three independent Courts, namely, the Court of Exchequer, the Kings 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.

7. 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.