LexKIRIT KUMAR CHAMAN LAL KUNDALIYA versus STATE OF GUJARAT & ORS.
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A B c D E F G 718 KIRIT KUMAR CHAMAN LAL KUNDALIYA v. STATE OF GUJARAT & ORS. January 30, 1981 [S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.l Constitution of India-Art. 32-Habeas Corpus petition-Urging additional grounds in different petitions-If barred by constructive res judicata. Conservation of Foreign Exchange and Preve11tion of Smuggling Activities Act--Section 3-Petitioner's representation rejected by Secretary to the Depart- 1nent but not by the detaining authority-Validity of. Words and Phrases : "relied on", «referred to", "based on'~ meaning! df. The petitioner filed a Special Leave Petition impugning the order of the Foreign Exchange and Prevention of Smuggling Activities Act impugned tho order of his detention on the grounds that the materials relied upon in the order of detention were not supplied to him and that two of the documents referred to in the order of detention were not supplied to him because the Secretary of the Department thought that they were not relevant. After exaomining the file and relevant documents the High Court held that failure to supply them did not vitiate the order of detention. The petitioner filed a Special Leave Petition impugning the order of the High Court and also a petition under article 32 urging certain additiona~ grounds that the endorsement by the Secretary showed that it was he who decided the relevancy of the documents to be supplied and not the Minister Who was the detaining authority and (2) his representation was rejected by the Secretary acting on behalf of the Minister instead of the Minister himself. A preliminary objection was raised on behalf of tho State that the points not raised in the Hi,2h Court by the detenu could not be: agitated in a writ petition under Article 32 because that is barred by the principle of constructive re~ judicata. Allowing the petition, HELD : The well established position in law is that so far as petitions for. habeas corpus are concerned the doctrine of constructive res judicata could not apply. Secondly even successive petitions for habeas corpus under article 32 would be maintainable in this Court provided the points raised in the subse- quent petitions are additional points not covered or agitated in the previous petitions. Thus if the principles of res judicata could not apply to successive writ petitions in this Court, much less could they be attracted to cases where points were not agitated before the High C'ourt but were raised for the first time in this Court in a writ petition under Article 32. [723B&E] Shri Lallubhai Jogibhai Patel v. Union of India & Ors. [1981] 2 S.C.R. 352, B followed. Ghulam Sarwar v. Union of India & Ors. [1967] 2 S.C.R. 271, held inappli- cable. • j • • KIRIT KUMAR v. GUJARAT (Fazal Ali, !.) 719 The doctrine of finality of judgment or principles of res judlcata are found· A ed on the basic principle that where a Court of competent jurisdiction h~ decided an issue, the same ought not to be allowed to be agitated a-gain and again. Such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions. [723F] The jurisdiction under Article 226 is a discretionary jurisdiction where8$ the jurisdiction to grant relief in & petition under Article 32 is guaranteed by the Constitution. Once the Court finds that there has beetn a violation o~ Article 22(5) of the Constitution it has no discretion in the matter but is , bound to grant the relief to the detenu. The doctrine of res judicata or th<i B , _principles of finality of judgment cannot be allowed to whittle down or over- ._....- ride the express constitutional mandate to the Supreme Court enshrined in C Article 32 of the Constitution. [723G-H] The concept of liberty has now been widened by Maneka Gandhi's case [1978] 2 S,CR- 621 wher"' Article 21 as construed by this Court has added new dimensions to the various features and concepts of liberty as enshrined in Articles 21 and 22 of the Constitution, [724B] D Smt, Santosh Anand v, Union of India & Ors,, W,P. No, 1097/79 (decided on 31-I 0· 1979) referred to, 11 was not open to the High Court to have waded through the confidential file of the Government in order to fish out a point against the detenu. Secondly. the question of relevance was not to be decided by the Court but by the detain"' ing authority which alone had to consider the representation of the deten
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