Judgment

FAZAL ALI, J.:- By our Order dated 21-1-1981, we had already allowed the petition and directed the detenu to be released forthwith. We now proceed to set out the reasons for the order which we passed on 21-1-1981.

2. The writ petition and the criminal special leave arise out of the same subject matter, namely, that the petitioner Kirit Kumar Chaman Lal Kundaliya) was detained by an order passed by the Home Minister of the State of Gujarat on 9-9-1980 under Section 3 of the Conservation of Foregin Exchange and Prevention of Smuggling Activities Act.

3. The petitioner/detenu in the first instance filed a petition for habeas corpus in the High Court of Gujarat which was dismissed by the High Court by its order dated 25-11-1980. The detenu thereafter filed a petition for special leave against the order of the High Court and also a writ petition under Article 32 of the Constitution of India in this Court. Both the petition for special leave and the writ petition have been heard together.

4. Before the High Court, the detenu assailed the order of detention mainly on the ground that certain materials relied upon or referred to in the order of detention were not supplied to the detenu and hence he was not in a position to make an effective representation to the Government. It was also pleaded by the detenu before the High Court that two of the documents which were referred to in the order of detention were not supplied to him because the Secretary thought that they were not relevant.

5. The High Court while examining the contention of the detenu sent for the entire file from the Government and after examining the documents itself found that as the documents concerned were not relevant and consisted of statements of some other persons, the failure to supply the documents to the detenu did not vitiate the order of detention. Hence the petition in this Court for grant of special leave against the order of the High Court.

6. A separate writ petition has also been filed by the detenu in this Court in which apart from the point canvassed before the High Court certain additional grounds have been taken. In the view that we take in the present case, it is sufficient to refer only to two important grounds that have been taken in the writ petition. In the first place, it was suggested that the endorsement by the Secretary shows that the question as to whether or not the documents demanded by the detenu were relevant was decided not by the Minister who was the detaining authority but by the Secretary. Secondly, it was urged that although the detenu made a representation to the State Government on 3-10-1980 the same was rejected on 14-10-1980 not by the detaining, authority, namely, the Hon. Home Minister acting on behalf of the Govt. but by the Secretary, and this infirmity was sufficient to render the order of detention void.

7. Mr. Phadke appearing for the State took a preliminary objection regarding the maintainability of the writ petition filed by the detenu in this Court. The sheet-anchor of the argument of Mr. Phadke for the State was that as the detenu had not raised the additional points taken, in the High Court he could not be permitted to agitate those very points in the writ petition filed under Art. 32 of the Constitution, as the same were barred by the principles of constructive res judicata. In support of his argument he relied on a decision of this Court in the case of Ghulam Sarwar v. Union of India, (1967) 2 SCR 271.

8. The learned counsel for the petitioner, however countered the submission of the respondents on the ground that a writ under Article 32 being guaranteed by the Constitution the doctrine of res judicata can have no application to a writ petition filed in this Court under Article 32. Mr. Dewan, learned counsel for the detenu further submitted that the case relied upon by the respondents also does not decide that the writ petition was not maintainable as being barred by principles of res judicata. In our opinion, th