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SUPREME COURT OF INDIA

Page 1 of 9

PETITIONER:

LALLUBHAI JOGIBHAI PATEL

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT15/12/1980

BENCH:

SARKARIA, RANJIT SINGH

BENCH:

SARKARIA, RANJIT SINGH

REDDY, O. CHINNAPPA (J)

CITATION:

1981 AIR 728 1981 SCR (2) 352

1981 SCC (2) 427

CITATOR INFO :

R 1981 SC1621 (8)

RF 1981 SC2084 (1)

R 1982 SC1500 (8)

RF 1990 SC 605 (6)

ACT:

Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act 1974-Section 3-Scope of-Detenu if

could file a second petition for writ of habeas corpus after

dismissal of the first petition-First petition, if operates

as constructive res judicata-Constitutional imperatives

under Art 22(5)- What are.

Constructive res judicata-Grounds not taken in earlier

petition for writ of habeas corpus-Second petition if barred

by constructive res judicata-If applicable in illegal

detentions.

Words and phrases-Commnunicate-Meaning of-Explaining

the grounds of detention without giving them to the detenu

in writing-If amounts to communication.

HEADNOTE:

After dismissal by this Court of the petition impugning

the order of his detention under section 3 of the

Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 the petitioner filed the present

petition urging additional grounds which were not urged in

the previous petition. He alleged that (i) despite his

request for the supply of all the documents relied upon by

the detaining authority while passing the order of detention

the respondent failed to do so; (ii) that many of the

documents were either incomplete or had been wholly withheld

and in particular 236 documents out of 460 documents

purported to have been supplied to him were not supplied;

(iii) that though his representation dated July 17, 1980 for

revocation of the detention order was forwarded by the

jailer to the Central Government it had not been disposed of

and (iv) that lastly serving the grounds of detention in

English which is a language not known to him, without

supplying a translation in his mother tongue, was a breach

of the constitutional imperative embodied in Art. 22(5) and

that for these reasons the order of detention should be held

void.

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Page 2 of 9

A preliminary objection was raised on behalf of the

respondent State that the present petition was barred as

constructive res judicata.

Overruling the preliminary objection,

^

HELD: In the present petition fresh additional grounds

had been taken by the detenu to challenge the legality of

his continued detention. Therefore the subsequent writ

petition is not barred as res judicata. [359 B-C]

1. By a long line of decisions this Court has held that

the application of the doctrine of constructive res judicata

is confined to civil actions and civil proceedings. This

principle of public policy is entirely in-applicable to

illegal detentions and does not bar a subsequent petition

for the writ of habeas corpus

353

under Art. 32 of the Constitution on fresh grounds which

were not taken in the earlier petition for the same relief.

[359 A-B]

Ghulam Sarwar v. Union of India & Ors. [1967] 2 S.C.R.

271, Daryao v. State of Uttar Pradesh A.I.R. 1961 SC.

1457=[1962] 1 S.C.R. 574, Niranjan Singh v. State of Madhya

Pradesh [1973] 1 S.C.R. 691 and Calcutta Gas Co.

(Proprietary) Ltd. v. State of West Bengal, A.I.R. 1965 S.C.

596 referred to.

2(a). One of the constitutional imperatives embodied in

Art 22(5) of the Constitution is that all the documents and

materials relied upon by the detaining authority in passing

the order of detention must be supplied to the detenu as

soon as practicable to enable him to make an effective

representation. [360 G]