KHADADAD HABIB MEMON Vs. R C IYER

JUDGEMENT

(1.) SHRI R. C. Iyer, Secretary to the Government of Maharashtra, Home Department, by order dt. Aug. 27, 1987 passed in exercise of powers under Sub-Sec. (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'cofeposa') directed detention of Mohammed Firdous Khadadad Habib Memon with a view to preventing him from smuggling of goods. Shri R. C. Iyer was specially empowered by the Government of Maharashtra for the purpose of S. 3 of the COFEPOSA to pass the order of detention. The order of detention was served in October 1987 and the grounds of detention were furnished. It is not necessary to set out the contents of grounds of detention for the reasons which will be clear from the recital of what transpired subsequent to the order of detention.

(2.) THE detenu challenged the order of detention by filing Criminal Writ Petition No. 109 of 1988 in this Court. The petition was duly admitted and came up for hearing before the Division Bench on April 19, 1988. Shri T. V. Mujumdar, Advocate appeared for the petitioner, and after considering all the submissions, the Division Bench by a speaking judgement dismissed the petition. After dismissal of the petition, the detenu lodged the present petition on May 5, 1988 during the Summer vacation of this Court. The detenu again challenged the order of detention on several grounds. The petition was admitted by the Vacation Judge on May 6, 1988 and is now placed before us for final hearing.

(3.) WE inquired from Shri Irani, learned counsel appearing for the detenu, as to how, the second petition is maintainable, and Shri Irani submitted that the application of doctrine of res judicata is confined to civil actions and civil proceedings, and the principle of public policy underlined with doctrine of res judicata is inapplicable to illegal detention and does not bar a subsequent petition, in support of the submission, Shri Irani relied upon decision of the Supreme Court reported in AIR 1981 SC 728 (Lallubhai Jogibhai Patel v. Union of India ). It is undoubtedly true that the Supreme Court held that the application of doctrine of constructive res judicata is inapplicable to illegal detention and successive petitions under Art. 32 are maintainable. We inquired from Shri Irani as to whether this decision enables the detenu to reargue the matter before different Benches of this Court. Shri Irani very fairly submitted that a fresh, petition to challenge the order of detention is maintainable provided there are fresh grounds available to the detenu and which were not taken in the earlier petition. In view of the decision of the Supreme Court, we hold that the petition is maintainable and proceed to examine whether there are fresh grounds raised in the present petition which requires quashing of the order of detention.