JUDGMENT
H.C. Goel, J.
(1) By this writ petition under Article 226 of the Constitution the petitioner challenges his order of his detention as passed by the Administrator, Union Territory of Delhi, respondent No. 1, on September 8, 1987 directing that the petitioner be detained and kept in custody in the Central Jail, Tihar, New Delhi, as also his continued detention as per the said order. Shri M.L. Wadhawan, Additional Secretary to the Government of India, Ministry of Finance, respondent No. 3, had made a declaration under Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA) on September 2li, 1987. By virtue of this declaration the period of detention of the petitioner has been two years from the date of his detention. It is stated in the grounds of detention that the petitioner arrived at Indira Gandhi International Airport, New Delhi from London on July 26, 1987. On search of his baggage as also his personal.search 132 pieces of gold biscuits of foreign origin weighing 10 tolas each (total weight 15397 gms) valued at Rs. 43,70,760.00 were recovered. The Administrator, Union Territory of Delhi passed the order of detention observing that with a view to preventing the petitioner from smuggling goods namely, gold into India, it was necessary to pass an order of detention against him.
(2) The petitioner has challenged the order of detention as also hit 327 continued detention on a number of grounds. It may be stated here that the petitioner had earlier filed a similar petition under Article 226 of the Constitution challenging his detention, being Cr. 2.500/87. A notice was issued in that petition to the respondents to show cause as to why the same be not admitted. The petition was thereafter partly argued on behalf of the petitioner regarding admission. Then on the adjourned date an application was moved on behalf of the petitioner praying for the withdrawal of the petition with permission to file a fresh petition, as advised. That petition was filed on behalf of the detenu. Bhupendra Amratlal Mehta through his brother, Rohit Amratlal Mehta and the application for withdrawal of that petition was also moved by Rohit Amratlal Mehta on the instructions of the detenu. That writ petition was dismissed as withdrawn. Nothing was stated in the order dated February 24, 1988 dismissing the petition as withdrawn as to whether leave for filing a fresh petition was or was not allowed to the petitioner.
(3) In the present writ petition apart from challenging the detention of the petitioner on the grounds that were taken up by the petitioner in the earlier petition, some new grounds have also been taken. A preliminary objection was raised on behalf of the respondents that the first writ petition of the petitioner having been dismissed a withdrawn the present subsequent writ petition is not maintainable and is barred. I would not like to go into the broad question as to whether the present writ petition is maintainable on the grounds that were taken by the petitioner in his earlier petition. However, as the petitioner has taken some new grounds in the present petition which had not been taken up by him in his earlier petition, I would like to deal with the question as to whether the petition is maintainable at least insofar as the challenge to the order of detention and his continued detention is made therein on fresh grounds which were not raised by the petitioner in his first petition.
(4) The Supreme Court in the case Sarguja Transport Service v. Stale Transport Appellate Tribunal, Gwalior and others, , had the occasion to consider the question about the maintainability of a subsequent writ petition under Article 226 when a similar writ petition under Article 226 filed by that petitioner had been dismissed as withdrawn without the permission to institute a fresh petition on the same cause of action. The Supreme Court held as below :- “…we are of the view that the principle underlying Rule I of Order Xxiii of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petitions also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a 328 fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.” (Emphasis provided by me.) It is obvious that whereas the Supreme Court held that when a writ petition under Article 226 of the Constitution is dismissed as withdrawn, a subsequent writ petition regarding the same subject-matter is barred on the principle underlying Order 23 Rule I of the Code of Civil Procedure which is based on public policy namely, to prevent a litigant from abusing the process of the Court by instituting a suit again and again on the same cause of action without any good reason and without obtaining the permission of the Court to file a fresh suit. So far as the question of the maintainability of a subsequent writ petition in the matter of Habeas Corpus under such circumstances is concerned, the Court left the question entirely open. There are some decisions of the Supreme Court, as also of this Court which throw some light on this matter. Before I refer to those decisions it may be stated here that it has been contended on behalf of the respondents that some of the fresh pleas which have been taken up in the present petition were available to the petitioner and at the time of the filing of the first petition and some others became available to him during the pendency of that writ petition ; that it was open to the petitioner to have sought the leave of the Court to raise those grounds as additional grounds in the earlier writ petition itself and that the petitioner having withdrawn his first petition, the petition on the basis of the new grounds should also be barred on the analogy of constructive res judicata.
(5) The Supreme Court dealing with a habeas corpus petition in the case Lallubhai Patel v. Union of India and others, held as below:- "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 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 under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief." (6) In the case Ghulam Sarwar v. Union of India and Ors., the Supreme Court traced the history of habeas coups writ. Subba Rao, C.J., as his Lordship then was, observed in para 9 of the report as follow:- "The order of the High Court in the said writ is not res judicata as held by the English and the American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order. If the doctrine a RESjudicata is attracted to an application for a writ of habeas corpus, there is no reason why the principle of constructive res judicata cannot also govern the said application, for the rule of constructive res judicata is only a part of the general principles of law of res judicata, and if that be applied the scope of the liberty of an individual will be considerably narrowed."
(7) No doubt in the latter two cases the Supreme Court was dealing with the question of the operation of the bar of constructive res judicata in habeas corpus petitions moved before it under Article 32 of the Constitution, yet the observations of the Supreme Court in these cases are a pointer that habeas corpus petitions not only do not stand at par with other writ petitions for enforcement of civil rights, the writ jurisdiction (including that of High Courts as well-although not so said expressly) seeking a direction against an illegal order curtailing personal liberty of a citizen as guaranteed by Article 21 of the Constitution shall not be ousted by invoking the bar of the principles of constructive res jlidicata. The principle underlying these decisions of the Supreme Court for not extending the principle of the bar of constructive res judicata to petitions for enforcement of a right relating to personal liberty of individuals applies with equal force for not extending the bar of subsequent proceeding taken on a fresh ground when his earlier petition relating to the same matter stood dismissed as withdrawn. Even a criminal revision petition once admitted cannot be dismissed for non-prosecution viz. for nonappearance of the revisionist and has to be disposed of on merits.
(8) In the case of Y.Kumar v. Union of India and others, 1984 Cr.L.J. 1350, a Division Bench of this Court also took the same view. The first habeas corpus petition of the petitioner had been dismissed by this Court. His subsequent petition on a somewhat new ground or what in any case was new evidence was held as not barred by the doctrine of constructive res judicata. I am not only in agreement with the view taken in this judgment regarding the bar not being available when the subsequent habeas corpus petition is filed on a new ground, I sitting as a Single Judge am in fact bound by that judgment. In conclusion I hold that this petition is maintainable at least insofar challenge to the detention is made on said additional grounds and they have to be disposed of on merits.
(9) Now it is the admitted position that the petitioner made a representation dated October 20. 1987 to Sh.M.L. Wadhawan, Respondent No. 3, against the declaration made by him under Section 9(1). A copy of this representation is Annexure ‘U’ at pages 123 to 126. The declaration under Section 9(1) had also been made by Sh. Wadhawan. This representation after being processed at the lower level of the Ministry of Finance and after obtaining the comments of the officials was placed before the Finance Minister, Ministry of Finance, Government of India, instead of the same having been placed before Shri Wadbawan. The Finance Minister then dealt with it and rejected the same. The learned counsel for the petitioner submitted that whereas under Section 11(1) the Central Government is competent to revoke an order of detention in a case in which detention order was made by an officer of the Central Government, the representation made against a declaration made by an officer of the Central Government under Section 9(1) if addressed to that officer must be disposed of by him alone and not by anyone superior to him i.e. the minister concerned, as by so doing the detenu loses the second opportunity viz. the opportunity of approaching the higher authority i.e. the Minister in case his representation to the officer of the: Central Government does not find favor with him.
(10) The point is squarely covered by a decision of the Supreme Court in the case Smt. Santosh Anand v. Union of India and others, 1981 Scc (Crl.) 456. In that case the order of detention was made by the Chief Secretary, Delhi Administration. The detenu made a representation against his order of detention to the Chief Secretary under Section 11(1) of the Act, The representation was although dealt with by the Chief Secretary and he even recommended to the Administrator that the representation of the detenu may be rejected, the order rejecting the representation was not passed by him and the same was instead passed by the Administrator. The Supreme Court observed that although the representation had been considered by the Chief Secretary at the highest but he did not take the decision to reject the same himself and for the purpose the papers were submitted to the Administrator who ultimately rejected the same. It was held that the representation not having been rejected by the detaining authority itself and by an authority higher to that namely, the State Government in that case, the constitutional safeguards under Article 22(5) of the Constitution could not be said to have been strictly observed or complied with, inasmuch as the detenu was deprived of his right of making a further representation to the State Government in the event of his representation having been first rejected by the officer of the State Government. The learned counsel for the respondents could not say anything to repel the said contention of the petitioner. Thus, following the said judgment of the Supreme Court, I hold that the detention, as also the continued/detention of the petitioner is illegal. I may also point out here that from the Scheme and the provisions of the Act it is clear that a declaration under Section 9(1) does not merely have the effect of extending the period of detention beyond the one that could be made by the detaining authority without a declaration under Section 9(1) having been made. A declaration under Section 9(1) operated for the entire period of detention. In view of what has been said above I accept the writ petition, quash the order of detention and the continued detention of the petitioner and direct that he be set at liberty forthwith if not required in any other case by any lawful order.