LALLUBHAI JOGIBHAI PATEL versus UNION OF INDIA & ORS.

Citation: [1981] 2 S.C.R. 352 · Decided: 15-12-1980 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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B 
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352 
LALLUBHAI JOGIBHAI PATEL 
v. 
UNION OF INDIA & ORS. 
December 15, 1980 
[R. S. SARKARIA AND 0. Ctt!NNAPPA REDDY, JJ.] 
Conservation of Foreign Exchange and Prevention of Smu,.u;ling Activities 
Act, 1974-Section 3-Scope of-Detenu, if could file a second petition for 
writ of habeas corpus aftet dismissal of the first petition-F~·rst petition, if ope-
rates as constructive res judicata-Constitutionul bnperatives under Art. 22(5)-
What are. 
Constructive res judicata-Grounds not taken in earlier petition for writ of 
habeas corpus-Second petition if barred by constructive res judicata-1/ appli-
cable in illegal detentions. 
Words and phra.ses--Con1n1unicate-Meaning of-Explaining the grounds of 
detention without giving theni to the detenu in writing-If amounts to com-
D 
municarion. 
After dismissal by this Court of the petition impugning the order of his 
detention under section 3 of the Conservation of Foreign Exchange and Pre· 
vention of Smuggling Activities Act, 1974 the petitioner filed the present peti· 
tion urging additional grounds which were not urged in the previous petition. 
He alleged that (i) despite bis request for the supply of all the documents 
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relied upon by the detaining authority while passing the order of detention the 
respondent failed to do so; (ii) that many of the documents 
wer~ either in· 
complete or had been wholly withheld and in particular 236 documents out of 
460 documents purported to have been supplied to him were not ~upplied~ 
(iii) that though his representation dated July 17, 1980 for revocation of the 
detention order was forwarded by the jailer to the Central Government it had 
not been disposed of and (iv) that lastly serving the grounds of <letention in 
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English \vhich is a language not known to him, without supplying a transladon 
in his mother. tongue, was a breach of the constitutional imperative embodied 
in Art. 22(5) and that for these reasons the order of detention should be held 
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void. 
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A preliminary objection was raised on behalf of the respondent State that 
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the present petition was barred as constructive res judicata. 
Overruling the preliminary objection, 
HELD : In the present petition fresh additional grounds had been taken by 
the detenu to challenge the legality of his continued detention. Therefore the 
subsequent writ petition is not barred as res judicata. [359 B-C] 
1. By a long line of decisions this Court bas held that the application .,f 
the doctrine of constructive res judicata is confined to civil actions and civil 
proceedings. This principle of public policy is entirely in·applicable to illegal 
detentions and does not bar a subsequent petition for the writ of habeas corpus 
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LALLUBHAI v. UNION (Sarkaria, J.) 
353 
under Art. 32 of the Constitution on fresh grounds which were not taken in 
A 
the earlier petition for the same relief. [359 A-Bl 
Ghulam Sarwar v. Union of India & Ors. [1967] 2 S.C.R. 271, Daryao y. 
Slate of Ullar Pradesh, A.I.R. 1961 SC. 1457=[1962] I S.C.R. 514, Niranjan 
Singh v. S1a1e of Madhya Pradesh [1973] I S.C.R. 691 and Ca/cul/a Gas Co. 
(Proprietary) Ltd. v. State of West Bengal, A.I.R. 1965 S.C. 596 referred to. 
2(a). One of the constitutional imperatives embodied in Art 22(5) of the 
Constitution is that all the documents and materials relied upon by the detain-
ing authority in passing the order of detention must be supplied to the detenu 
as soon as practicable to enable him to make an effective representation. [360 G] 
In the instant case the materials and documents which were not supplied to 
the detenu were a part of the basic facts and materials which should have been 
supplied to him, ordinarily within 5 days of the order of detention and for 
exceptional reasons to be recorded, within 15 days of the commencement of the 
detention. The respondent did not state that the documents which \Vere not 
supplied were not relevant to- the case of detenu. [362 C] 
Smt. lcchu Devi Choraria 
v. 
Union of India & Ors. [1981] 1 SCR 640 
applied. 
(b) In the first petition no specific ground was taken by the detenu that 
documents covering 236 pages relied upon by the detaining authority were sup-
pressed and not supplied to him. 
He had now stated that he 
had come to 
know about the non-supply of these documents from the judgment of the 
Guja1at High Court which was subsequent to the dismissal of his earlier peti-
tion. This assertion has remained unchallenged. 
[360

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