SUNIL LONGIYA Vs. UNION OF INDIA

JUDGEMENT

(1.) In D.B. Habeas Corpus Petition No. 1194/1992 Gyan Chand Jam v. State of Rajasthan and others, the detention order dated January 8, 1992 of Sunil Longiya made under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short. the COFEPOSA Act) was challenged. The detenu Sunil Longiya is the son of Gyan Chand Jam, petitioner in that petition; This Court under its order dated April 2, 1992 had upheld the detention order and the Habeas Corpus Petition challenging the detention order of Sunil Longiya was dismissed. The detenu himself has filed this second Habeas Corpus Petition. So far as the maintainability of this petition is concerned the same is no longer resintegra in view of the decision of the Supreme Court in the case of Lallubhai Jogibhai Patel v. Union of India and others. The Apex court in para 13 of its judgment said The position that emerges from a survey of the above decisions is 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 inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus and article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief. Learned Add. Advocate General has tried to distinguish the aforesaid authority on the ground that it was a petition under article 32 of the Constitution and not under article 226 of the Constitution and in that case the fresh grounds which were taken were not even within the knowledge of the detenu. Therefore, learned Additional Advocate General contends that if the grounds are within the knowledge of the detenu at the time when earlier petition was filed, but he does not take them, he cannot be allowed to raise these grounds in the fresh habeas corpus petition. But we have already extracted the ratio of the aforesaid case and there can be no doubt that the principles of constructive res-judicata are not attracted to the illegal detention and a fresh petition on fresh grounds which were not taken in the earlier petition for the same relief even though available, can be raised again.

(2.) Before we proceed further, it will be necessary to give a resume of the facts of the case though they are already contained in our earlier order under which we had dismissed the earlier habeas corpus petition. It was on July 17, 1991, at about 8.30 a.m. that Sunil Longiya when he was riding on a Priya Scooter No. RNV-7660 at Sabji Mani, Janta Bazar, Jaipur, was stopped and on a search of his person being taken in the Customs office, it was found that he was having 25 gold biscuits bearing foreign mark, each of 10 tolas. The said gold biscuits, were recovered. On the aforesaid gold biscuits- TJOHNSON HA TIBEY LONDON 9990 TOLAS was engraved. Sunil Longiya could furnish no explanation of the same. The total weight of the gold was 250 tolas and the market value of which was Rs. 11,50,000/-. He was arrested on July 18,1991. His confessional statement under Section 108 of the Customs Act, was recorded and he was produced before the Magistrate on July 18, 1991. The Magistrate in view of certain decision of this court that he had no power to remand, allowed him to go without there being bail order. He is said to have retracted his confessional statement by making an application before the Chief Judicial Magistrate (Economic Offences) Jaipur. On July 19, 1991, he filed an application before the Chief Judicial Magistrate alongwith injury report. On November 18, 1991 proposal for detention was received from the Customs Department by the Home Secretary and the case was examined by the Screening committee on November 20,1991 and the proposal of the customs authorities was approved. The matter was examined by the Sperial Secretary Home (Law) on December 3,1991. Opinion of the Special Secretary (Home) was received and the matter was referred back to the Collector (Customs) on December 6, 1991 regarding delay in sending the proposals. Reply of the Collector (Customs) was received on December 12, 1991 and the matter was again examined by the- Special Secretary, Homes, on December 16, 1991. The matter was placed before Home Minister for approval on December 17,1991 and the approval was made on December 18, 1991. File was received back from the Home Minister on December 19, 1991 and formal detention order was passed on January 8, 1992. The order was served on the detenu on January 9, 1992. The matter was referred to the Central Government on January 15, 1992. Representation was received from the detenu on January 25: 1992 which was rejected on February 10, 1992 by the State Government. The detenu had requested on February 22, 1992 to the detaining authority for sending his representation to the Central Government, but because it had been rejected on February 10, 1992, as aforesaid, it does not appear to have been sent to the Central Government.

(3.) It will appear from the earlier order of this Court dated April 2, 1992, that the grounds on which the detention order was challenged were