VINOD KUMAR VOHRA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has challenged the detention order dated 24th of March 1987 as also the validity of the declaration passed on 21st April 1987 under section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detention order was passed under section 3(1) of the COFEPOSA Act on 24th March 1987 by the Joint Secretary to the Government of India Mr. Tarun Roy and was with a view to preventing the petitioner from smuggling goods. This followed an incident dated 16th of February 1987 when the detenu while travelling from Hongkong to Calcutta via Bangkok was found in possession of foreign made smuggled gold. It may be made clear at this stage that the petitioner has already undergone the period of detention under section 3(1) of the COFEPOSA. Act though he continues to be in detention by virtue of declaration under section 9(1) of the said Act. It is in these circumstances that Mr. Herjinder Singh, learned counsel for the petitioner, did not argue or urge the contentions raised by him against the detention under section 3(1) and he mainly confined himself to the validity of the declaration passed under section 9(1) of the COFEPOSA Act.

(2.) Now before I advert to the contentions and the counter contentions, I feel it necessary to refer to certain dates which on the facts and circumstances of this case do assume importance. The detenu after the incident dated 16th of February 1987 was taken into custody and was produced before a Magistrate who remanded him to custody. On 18th of March 1987 his bail application was rejected by the Chief Judicial Magistrate, Barasat, West Bengal. The petitioner thereafter approached the High Court of Calcutta and he was granted bail in the sum of Rs. 1,00,000.00 with two sureties of Rs.50,000/. each. one of whom to be a local to the stisfaction of the Chief Judicial Magistrate, Barasat on the condition that he shall meet the investigating officer twice a week, that is, on Mondays and Thursdays between I and 2 p.m. until further orders. The High Court of Calcutta further directed that the passport of the detenu shall not be returned to him without the orders of the court. On 24th of March 1987 the detention order was passed and it was served upon the detenu on 31st March 1987. The detenu made arepresentation against the order of detention on 16th April 1987. But before that on 13th of April 1987 be filed a writ petition challenging the order of detention before the High Court of Calcutta which admittedly was dismissed on 30th of July 1987. The detenu was informed that the Advisory Board will meet on 23rd of April 1987 while the declaration under section 9(1) of the COFEPOSA Act passed on 21st April 1987 was admittedly served upon him on 22nd April 1987. Thereafter, after the recommendation of the Advisory Board the order of detention was confirmed by an order dated 11th May 1987.

(3.) The first objection to the maintainability of the writ petition is that the detenu had already challenged the validity of the detention and that writ petition having been dismissed by the Calcutta High Court the present writ ' petition is not maintainable. Mr. Herjinder Singh states that the principle of constructive res-judicata which is based on public policy is no bar to the maintainability of this writ petition, as according to him he is pressing the present writ petition on a ground which on the date when the writ petition was filed was neither available to him nor raised in the writ petition. This contention is consistent with his stand that he is only interested in challenging the validity of section 9(1) declaration which on 13th of April 1987 when the earlier writ petition was filed was not in existence. Support to the contention is sought from Lallubhai JogibhaiPatel v. Union of India. AIR 1981 Supreme Court 728 wherein it has been clearly laid down that a fresh writ petition of habeas corpus would lie on a fresh ground. That will settle the first and the preliminary objection.