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2000 DIGILAW 966 (MAD)

Santha v. The State of Tamil Nadu and others

2000-09-29

E.PADMANABHAN, P.THANGAVEL

body2000
E.Padmanabhan, J.: The petitioner prays for the issue of writ of habeas corpus calling for the records relating to the order of detention passed in G.O.No.S.R./611-7/99, Public (SC) Department, dated 26.7.1999 by the State of Tamil Nadu represented by its Secretary to Government Public (SC) Department, quash the same and produce the body of the Radhakrishnan Prabakaran to set him at liberty. 2. The order of detention had been passed under Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the detenue had been detained on 28.7.1999. The period of detention had already come to an end. 3. Challenging the very same detention, the very same petitioner on the earlier occasion unsuccessfully moved the Hon’ble Apex Court in W.P. (Criminal) No.225 of 1999. The petitioner had raised a number of contentions. On 9.5.2000, this Court ordered issue of rule nisi to the respondents. On 9.5.2000 the respondents have been served and the first respondent has filed its counter affidavit. 4. Heard Mr.M.M.K.Ali Fuddin for the petitioner and Mr.G.M.Syed Fasiuddin, Additional Public Prosecutor for the respondents 1 and 3 and Mr.Su.Srinivasan, Additional Central Government Standing counsel appearing for the respondent No.2. 5. The learned counsel for the petitioner raised the following two contentions: (i) The order of detention is illegal and vitiated as there is inordinate delay in passing the order of detention and the delay being unexplained the live link between the alleged incident of smuggling and the detention stands snapped. (ii) The failure to place the show cause notice before the confirming authority, viz. the State Government is fatal to the detention and the detention is being rendered illegal. 6.Per contra, it is contended by the counsel for the respondents that both the grounds are devoid of merits and that the subsequent writ petition filed by the petitioner is not maintainable. It is further contended that having failed to raise these two contentions before the Apex Court which were very much available on that dare when the petitioner moved the Apex Court under Art.32, it is not open to the petitioner to file the present writ petition as if the contentions were not available and that the contentions had arisen out of subsequent events or developments. 7. 7. The detenue as seen from the order of detention dated 25.4.1999 arrived at Chennai Anna International Airport from Singapore by Singapore Airlines with two pieces of hand baggage. On arrival, the detenue after completing the immigration formalities, proceed to green channel declared that he had no dutiable goods to declare and when he was about to exit from the arrival hall, he was intercepted on suspicion that he might be carrying contraband/ electronic goods in his baggage or on his person. When questioned the detenue replied in the negative and the answer was not satisfactory and as the detenue was extremely nervous he was taken to air intelligence unit room along with his two hand baggage consisting of One Echolac black colour zipper trolley bag and one transparent plastic duty free shopping bag for detailed examination. On examination in the presence of two witnesses electronic goods namely cellular phones without antenna, batteries and accessories, 10 nos. Samsung SGH 600 batteries, 140 nos. of antenna for Cellular phones, 100 nos. of ear phones details of which are not required to set out but worth Rs.16,02,000 were recovered. 8. The detenue made false declaration to the customs officials and being a law graduate he knew very well that he was in possession of huge quantities of goods which were commercial in nature. On 25.4.1999 and 26.4.1999 the detenue had given voluntary statements. The detenue was also arrested and remanded to judicial custody. The detenue was granted bail on 28.6.1999 by the trial Court with strict conditions. While the detenue was on bail, the order of detention was clamped on 26.7.1999. As already pointed out the detention order was challenged and their Lordships of the Supreme Court by a detailed order confirmed the detention, while holding that the subjective satisfaction arrived at by the Detaining Authority is not liable to be interfered and rejecting the four detailed contentions advanced on behalf of the petitioner by order dated 23.2.2000. 9. As rightly pointed out both the contentions raised by the counsel for the petitioner were very much available when the petitioner moved a writ petition under Art.32 and their Lordships after detailed consideration on 23.2.2000 dismissed the writ petition. 9. As rightly pointed out both the contentions raised by the counsel for the petitioner were very much available when the petitioner moved a writ petition under Art.32 and their Lordships after detailed consideration on 23.2.2000 dismissed the writ petition. It is also pointed out rightly too that the contentions, which are advanced now were very much available to the petitioner when the earlier writ petition was heard before the Apex Court and disposed of and it is not as if these two contentions arose out of subsequent events. Hence, the respondents contended that the writ petition has to be rejected summarily and it shall not be rejected? 10. In the present case, the order of detention was passed on 26.7.1999. The Advisory Board met on 5.10.1999. By order dated 15.10.1999, the State Government had confirmed the order of detention. The incident of smuggling occurred on 25.4.1999 and the detenue was arrested on 26.4.1999 and remanded to judicial custody by the Additional Chief Metropolitan Magistrate. Economic Offences, Chennai, till 10.5.1999. There had been further follow up action of search of the detenu’s residential premises. The detenue moved the Additional Chief Metropolitan Magistrate E.O.I., Egmore, on 28.4. 999, which bail application was resisted by the customs department by filing its counter on 4.5.1999. By order dated 5.5.1999, the said bail application was rejected. Once again the petitioner moved the bail application on 12.5.1999 before the Court of Sessions Judge, Chennai and the same came to be dismissed on 14.5.1999. Again the petitioner moved an bail application before the High Court on 24.5.1999 to which tail application a counter affidavit was filed on 25.5.1999 and by order dated 8.6.1999 the said bill application was dismissed. The remand period of the detenue was extended upto 24.5.1999, 7.6.1999, 21.6.1999 and 5.7.1999. On 22.6.1999, by the order of the Additional C.M.M.E.O.I. Chennai, the detenue was enlarged on bail but subject to strict conditions. He was also directed to report to the customs office daily at 10.30 am on all working days and also directed to reside within the limits of Madras Metropolitan City, until further orders. The detenue had been reporting daily till 23.7.1999. These dates are not in dispute. The order of detention had been passed on 26.7.1999 and it had been served on the detenue on 28.7.1999 on which date he had been detained in the Central Prison, Chennai. The detenue had been reporting daily till 23.7.1999. These dates are not in dispute. The order of detention had been passed on 26.7.1999 and it had been served on the detenue on 28.7.1999 on which date he had been detained in the Central Prison, Chennai. The State Government had passed the orders of confirmation on 15.10.1999. It is also admitted that on the same date another friend of the detenue who had involved himself in identical operation was checked, seizure effected and he too was ordered to be detained by a separate order. 11. As regards the first point, the learned counsel for the petitioner relied upon the decision of the Apex Court in Anand Prakash v. The State of U.P. and others, A.I.R. 1990 S.C. 516, as well as two other unreported orders of this Court. It is contended there is a long gap between the alleged incident and the date of the order and therefore the incident has become stale and there is no nexus or proximity and the order of detention has to be quashed. The detenue had been moving bail applications after bail applications as already details and the detenue had also sent representations through his advocate and certain allegations were also made in the representations dated 17.5.1999 as well on 31.5.1999 through his counsel. Those representations after due consideration came to be rejected on 14.6.1999. Even thereafter also, the bail applications were moved but the bail applications were dismissed. The detenue was ultimately ordered to be released on bail and he started complying with the conditions. The detenue had signed the attendance register upto 23.7.1999. These dates which are relevant and material would show that there is neither a delay nor the incident is too remote which would render the order of detention stale. On the facts, the detenue a law graduate, who had been sending petitions after petitions containing certain allegations and had been moving bail applications after bail applications while pleading innocence besides making certain wild allegations. 12. In the light of the above facts, it cannot be stated that there is delay which had not been explained at all. What is required is an explanation and in this case, the respondents have explained the delay. 12. In the light of the above facts, it cannot be stated that there is delay which had not been explained at all. What is required is an explanation and in this case, the respondents have explained the delay. In the present case, we find that the order is not vitiated and the live link between the incident and the detention had not been snapped by the delay and the delay has been explained by the respondents. Further this contention was very much available to the petitioner when he moved the earlier writ petition. Despite being aware of the facts, the detenue had not chosen to advance the very contention before their lordships of the Supreme Court. This aspect has also to be taken into consideration while rejecting the contention. 13. Nextly, it was contended that the show cause notice and the explanation submitted by the detenue has not been placed before the Slate Government which had confirmed the order of detention on 15.10.1999 on receipt of the report from the Advisory Board which met on 5.10.1999. This contention also cannot be sustained factually. In the present case, the detention order was passed on 26.7.1999 and the Advisory Board met on 5.10.1999. Till 5.10.1999 no show cause notice had been issued by the department to the detenu and as such there was no occasion for the show cause notice being placed before the Advisory Board. The show cause notice though it is dated 11.10.1999 had been despatched by the Customs Department only on 13.10.1999 after the meeting of the Advisory Board on 5.10.1999. The files were placed before the State Government for approval with the opinion of the Board. After considering the entire materials as well as report of the Advisory Board, the State Government approved the detention on 15.10.1999. As such the show cause notice which came to be issued only on 13.10.1999 could not have been placed before the Government. The files were circulated for confirmation of the State Government. As such the non-placement of the show cause notice and non-consideration of the show cause notice at the time of confirmation is an impossibility and it will not vitiate the order of detention. The confirmation order is not vitiated nor the order of detention is rendered illegal. The files were circulated for confirmation of the State Government. As such the non-placement of the show cause notice and non-consideration of the show cause notice at the time of confirmation is an impossibility and it will not vitiate the order of detention. The confirmation order is not vitiated nor the order of detention is rendered illegal. The reliance placed upon the unreported decisions of this Court in H.C.P.No.603 of 1997, H.C.P.No.1155 of 1994 and W.P.No.9706 of 1989 will not advance the case of the petitioner as they are clearly distinguishable on facts. 14. On the contrary as has been held by the Apex Court in Abdul Rahman v. State of Maharashtra, 1996 S.C.C. (Crl.) 83, the State Government which confirms the order of detention has to consider the materials which were placed at the time of passing the order and the materials which were placed before the Advisory Board which are relevant materials and which have to be considered by the State Government while confirming the order of detention and the material which is non-existent and which was impossible to be placed cannot be relied to contend that the order of detention is vitiated. In this case, factually all the representations made upto the date of confirmation and all materials connected with the detention proceedings and came into existence had been placed before the State Government which had confirmed the order of detention. 15. In Abdul Rahman v. State of Maharashtra, 1996 S.C.C. (Crl.) 83, their Lordships of the Supreme Court have rejected an identical contention and held that for making a confirmation any further material other than which was before the Detaining Authority is not necessary and the authority concerned can arrive at the necessary satisfaction on the material available on record. 16. Reliance placed by the learned counsel for the petitioner on the unreported orders of this Court will not advance the case of the petitioner and they are clearly distinguishable on facts. Further the show cause notice could not be placed at all as it came to be issued only after the file has been taken up for circulation. It is to be pointed out that all the material papers have been placed before the State Government including the representations which had confirmed the order of detention. Hence, the second content also fails. 17. It is to be pointed out that all the material papers have been placed before the State Government including the representations which had confirmed the order of detention. Hence, the second content also fails. 17. Dismissal of an earlier petition of habeas corpus under Art.32 will not operate as a total bar to the maintainability of a subsequent writ petition. 18. In Gulam Sarwar v. Union of India and others, A.I.R. 1967 S.C. 1335, Bachawat, J., speaking for himself while agreement with the contention that the second writ petition is maintainable however, held that previous dismissal of a petition for a writ of habeas corpus is one of the matters which the Court may take into consideration at the preliminary hearing of the writ petition and may take the same into consideration as to whether there is prima facie case for granting the petition is made out the Court may refuse to issue a rule nisi on the facts of the case. 19. In Kavita v. State of Maharashtra and others, (1981)4 S.C.C. 145 , the Apex Court held thus: “... The petitioner having deliberately and advisedly not chosen to raise the question in the earlier petition, we do not think we will be justified in admitting this writ petition.” 20. As regards the plea of res judicata, it is well settled by now that no second writ petition for a writ of habeas corpus on the same ground is maintainable, if an earlier petition is dismissed by the Court as has been held by a Full Bench of the Bombay High Court in Prahlad Krishna, In re., A.I.R. 1951 Bom. 25, Gulam Sarwar v. Union of India, A.I.R. 1967 S.C. 1335, as well as Lallubhai Jogibhai v. Union of India, (1981)2 S.C.C. 427 . 21. Following the enunciation of law by their Lordships of the Apex Court in Lallubhai Jogibhai v. Union of India, (1981)2 S.C.C. 427 , Ghulam Sarwar v. Union of India, A.I.R. 1967 S.C. 1335 as well as Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457, Nazul Ali v. State of West Bengal, (1969)3 S.C.C. 698 , it has to be held that the application of doctrine of constructive res judicata has to be confined to civil actions and civil proceedings. If the doctrine of constructive res judicata is applied, the Courts enjoined by the Constitution to protect the rights of the individual illegally detained will become powerless to do so, which would result in whittling down the wide sweep of the constitutional protection. The principle of public policy is entirely inapplicable to illegal detention and the same will not bar a subsequent petition for a writ of habeas corpus on points which were not taken in the earlier petition for the same relief. 22. In Sunil Dutt v. Union of India, A.I.R. 1983 S.C. 53, the Apex Court held that the dismissal of the earlier writ petition for habeas corpus does not operate as a bar to maintainability of another writ petition for that purpose. 23. We have considered identical contention in Syed Noor Mohammed v. State of Tamil Nadu, H.C.P.No.1705 of 2000 and held thus: 29. In the present case a habeas corpus petition was filed challenging the very detention order of the same detenu raising number of contentions. But the petitioner had confined himself to one of the contentions. After recording that the petitioner had not challenged the subjective satisfaction and had raised the only contention, the earlier habeas corpus petition was dismissed on merits. Having raised a number of contentions and having chosen to elect one of the contention and pressed the same alone at the hearing as the only ground agitated at the time of hearing, it is not open to the petitioner to re-agitate those points though raised, but not agitated or pressed. In the light Poonam Lata’s case, as well as on unreported decision in Thangam v. State of Tamil Nadu, and various pronouncements referred to above, we are of the considered view that the present H.C.P., has to be rejected summarily and the petitioner having confined to the only contention and having failed to agitate the contentions which were very much available shall not be permitted to file fresh petition under Art.226 of the Constitution and the petitioner shall not be permitted to agitate the contentions which were given up. 30. 30. In the light of the above pronouncements, we hold that when admittedly the points which are sought to be advanced in this second habeas corpus petition were not only available, but were set out and raised in the prior habeas corpus petition filed challenging the very same detention, but given up as not pressed, and consequently on the very same grounds the second habeas corpus petition cannot be entertained and it is not maintainable. 24. in Niranjansingh v. State of Madhya Pradesh, (1972)2 S.C.C. 542 , the Apex Court while reiterating that there is no bar or res judicata to a petition under Art.32 in a case where earlier the High Court had dismissed the petition under Art.226. It has been held that the petitioner would not have a right to move the Supreme Court under Art.32 more than once on the same facts. 25. Following the above pronouncements, we hold that when the petitioner had failed to put forward the contentions when they were available on the earlier occasion and admittedly the grounds which are sought to be advanced were also very much available, this Court would not be justified in exercising the jurisdiction in favour of the petitioner. Factually also the above two grounds cannot be sustained on the facts of the case. 26. In the result, the habeas corpus petition fails and it is dismissed.