BALVINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE detention order against the petitioner under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short"COFEPOSA Act") was passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue on 30.4.1989. This order was served upon the petitioner on 27.1.1990 along with the grounds of detention and he was detained. Balwinder Singh petitioner questioned the legality of that order in Cr. W.P. No. 606 of 1990 which was dismissed by this Court on 3.9.1990.

(2.) THE petitioner has again invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India on the sole ground that he has been debarred of his fundamental right to file representation under Article 22(5) of the Constitution of India due to lack of any express direction in the declaration dated 15.2.1990 under section 9 of the Cofeposa Act extending his period of detention from one year to two years by the concerned authority.

(3.) THE learned counsel for the respondent contended that as the petitioner had not taken up this objection in the earlier writ petition or during the pendency of the same, he was restrained by the principle of constructive res judicata to urge this again. There is no force in this contention, especially when the Apex Court in Abdul Sattar Abdul Kadar Shaikh v. Union of India and others, 1990(1) Recent Criminal Reports 396 : JT 1990(1) S.C. 75 had settled this controversy by holding that neither the principle of res judicata nor constructive res judicata applicable in a detention matter.