IMPORTANT POINT
The doctrine of constructive res judicata is entirely inapplicable to illegal detention.

JUDGMENT (Oral)

M.M. Qazi J. - The present criminal writ petition is a second petition filed by the petitioner challenging the impugned order of detention dated 7th April, 1989, passed by the Detaining Authority under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA Act"). The first petition bearing Criminal Writ petition No. 65 of 1989 filed by the cousin brother of the present petitioner-detenu was dismissed by this court vide judgment dated 18th September, 1989. Mr. Khan appearing for the petitioner has contended that the present petition is filed on a fresh ground which was neither taken nor urged earlier before this Court. The challenge is raised in para-5 of the petition. The relevant portion of the challenge is reproduced below:

"That the petitioner says and submits that the impugned order of detention suffers from non-application of mind to very vital and material fact which has a direct hearing on the question of whether to issue the impugned order of detention against the petitioner or not, namely, the order passed by the Sessions Court, Bombay in Criminal Application No. 199 of 1988 filed by the petitioner for reduction of bail. The petitioner says and submits that the petitioner had filed the above said application for reduction of bail of Rs. 4,00,000/- offered to the petitioner by the Additional Chief Metropolitan Magistrate, Bombay. The petitioner says and submits that the Hon'ble Session Court reduced the amount of bail from Rs. 4,00,000/- to Rs. 2,00,000/- with a condition that the petitioner would not leave the country without prior permission of the Court and this condition was to be incorporated in the bail-bond itself by the petitioner and his surety."

It is further stated in the said ground that the condition imposed by the Sessions Court "that the petitioner would not leave the country without prior permission of the Court" was capable of clipping the wings of the petitioner and thereby the petitioner was immobilised and as a result the petitioner could not have gone abroad to indulge in smuggling activities, It is further stated that the order passed by the Sessions Court reducing the amount of bail and imposing the condition was not placed by", the sponsoring authority before the Detaining Authority and, therefore, the subjective satisfaction of the Detaining Authority was vitiated. It is specifically stated that this ground was not taken in the earlier petition on behalf of the petitioner.

2. This challenge is replied to by the respondent No. 1 in para.60 this affidavit dated 22.1.1990 filed by Shri L. Hningliana, the Secretary (preventive Detention) to the Govt. of Maharashtra, Home Department, Mantralaya, Bombay. The Secretary himself is the Detaining Authority. He has admitted in para. 6 that the full text of the order dated 10. 6-1988 passed by the Sessions Court in Criminal Application No. 199/1988 was not placed before him, though only a gist was placed before him and he was made aware of the fact that the bail amount was reduced from Rs. 4,00,000/- to Rs. 2,00,000/-. He, however, does not assert that he was made aware of the condition imposed, on the petitioner that he was not entitled to leave the country without prior permission of the Court. Mr. Ahmed, the learned A.P.P., has also taken us through the earlier petition and contended that the ground raised in the present petition is not a fresh ground. According to him, this ground was raised in the earlier petition and, therefore, the present petition is not maintainable. Though Mr. Ahmed has taken us through the grounds raised in the earlier petition, we find that the present challenge was not even remotely raised in the earlier petition. We have no doubt that the present ground raised in this petition is a fresh ground and, therefore, the second petition is maintainable, in view of the decision of the Supreme Court reported in Lallubhai Jogibhai Pa