V. BHARGAVA, J.

(1) THESE are two petitions under Article 32 of the Constitu- tion by two persons who have been detained under Section 3(2) of the Pre- ventive, Detention Act. When these petitions came up for hearing, a preli- minary objection was raised on behalf of the respondent that both these petitioners had moved the High court of Calcutta under Article 226 of the Constitution for their relief and in those petitions the rules issued were dis- charged on 25/07/1969. It was urged that those orders of the High court not having been brought up in appeal in this court, became final and that these petitions should be held to be barred by the principle of res judicata. Counsel for the respondent argued that this court has held in Daryao and Others v. State of U. P. and Others that if a petition under Article 226 of the Constitution is presented in the High court and is dismissed on merits and not on the grounds of limitation or without a speaking order and no appeal is brought up against the order of the High court, a petition on similar grounds in the Supreme court should be held to be barred by res judicata. That case does not, however, apply to the case before us, because