Holding

Section 529 incorporates the set‑off rule of Section 46, and constructive res judicata does not bar a second habeas‑corpus petition on fresh grounds.

Summary

The Supreme Court considered two distinct matters. In Official Liquidator v. Lakshmikutty, the Court held that Section 529 of the Companies Act, 1956 incorporates the set‑off rule of Section 46 of the Provincial Insolvency Act, so that where a creditor and a company in winding up have mutual dealings, only the net balance after set‑off is payable. Section 530’s preferential payment provisions do not override this rule. In Lallubhai Jogibhai Patel v. Union of India, the Court examined whether a second habeas‑corpus petition on fresh grounds is barred by constructive res judicata. It ruled that the doctrine of constructive res judicata, confined to civil proceedings, does not apply to successive petitions challenging illegal preventive detention, and that the petitioner’s additional grounds—non‑supply of documents, delayed consideration of his representation, and failure to communicate grounds of detention in a language he understood—rendered the detention illegal under Article 22(5) of the Constitution and the COFEPOSA Act.

Issues considered

Whether Section 529 of the Companies Act, 1956 mandates the application of the set‑off rule of Section 46 of the Provincial Insolvency Act to mutual dealings in winding‑up.
Whether Section 530's preferential payment provisions can override the set‑off rule under Section 529.
Whether a subsequent writ of habeas corpus on fresh grounds is barred by the doctrine of constructive res judicata.
Whether failure to supply documents and to communicate grounds of detention in a language understood by the detenu violates Article 22(5) of the Constitution and the COFEPOSA Act.

Legislation cited

Code of Civil Procedures. 11
Companies Act, 1956s. 529, s. 530
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3
Constitution of Indias. Article 22(5)
Provincial Insolvency Acts. 46

Subjects

set‑offmutual dealingswinding‑upCompanies Actconstructive res judicatahabeas corpuspreventive detentionArticle 22(5)COFEPOSApreferential payment

Judgment

1 349

OFFICIAL LIQUIDATOR OF HIGH COURT OF KARNATAKA A

v.
SMT. V.LAKSHMIKUTTY
December 12, 1980 B

[P. N. BHAGWATI AND A. P. SEN. JJ.]

Co1npanies Act, 1956-Sections 529 and 530-Scope of-Party having
mutual dealings with a Company in liquidation-If endtled to set off debts
against credits. C
The respondent claimed that since there were mutual dealings between her
and the company in liquidation an account should be taken in respect of such
• mutual dealings and only that amount should be payable or receivable by her
which is due at the foot of such account. She claimed that she was entitled
to the benefit of the rule enacted in section 46 of the Provincial Insolvency
~ D
The High Court upheld her contention.

Dismissing the special leave petition by the Official Liquidator

HEID: (1) In view of the provisions of section 529 of the Companies
Act, 1956 the rule enacted in section 46 of the Provincial Insolvency Act 'vith
regard to debts provable by a creditor against the insolvent must equally apply E
in regard to debts provable against a company in winding up. [350 F]

(2) Although section 530 provides for preferential payments, that provi-
sion cannot in any way detract from full effect being given to section 529 which
enacts that in the winding up of an insolvent company, the same rules shall
prevail and be observed with regard to provable debts as are in force for the F
time being under the law of insolvency with respect to the estate of persons
adjudged insolvent. The only way in which sections 529 and 530 can be re-
conciled is by reading them together so as to provide that whenever any cre-
ditor seeks to prove his debt against the company in liquidation, the rule enact-
ed in section 46 of the Provincial Insolvency Act should apply and only that
' amount which is ultimately found due from him at the foot of the account in
respect of mutual dealings should be recoverable from him and not that the G
amount due from him should be recovered fully while the amount due to him
• from the company in liquidation should rank in payment after the preferen-
tial claims provided under section 530. [350 HJ

Gore Brown on Companies, 43rd Ed. at page 34-14.

National JVesttninster Bank Ltd. v. Halesowen Presswork and Assen1blies B
Ltd. [1972] 1 All E. R. 641 at 659 and Re City Life Assurance Co. Lid.
(1925] All E. R. 453 at 457 referred to.
350 SUPREME COURT REPORTS (1981] 2 S.C.R.

A CIVIL Ai>PELEATE JURISDICTION : Petition for Special Leave to
Appeal No. 5844 of 1980. •
From the Judgment and Order dated 1-2-1979 of the Karnataka
High Court in O.S.A. No. 5 of 1975.
Y. S. Chitale and P. R. Ramuses for the Petitioner.
B
NEMO for the Respondent.
The Order of the Court was delivered by
BHAGWATI, J.-We think tlmt the view taken by the High Court
is the correct view on the interpretation of sections 529 and 530 of
C the Companies Act, 1956. Section 529 provides that in the winding
J
up of an insolvent company, the same rules shall prevail and be obser-
ved with regard to the provable debts as are in force to the time being
under the law of insolvency with respect to the estate of persons ad- ,
judged insolvent. Tills provision brings in the applicability of section
46 of the Provincial Insolvency Act which reads :
D "Where there have been mutual dealings between an
insolvent and a creditor proving or claiming to prove a
debt under this Act, an acconnt shall be taken of what is
due from the one party to the other in respect of such mutual
dealings, and the sum due from the one party shall be set
off against any sum due from the other party, and the balance
of the account, and no more, shall be claimed or paid on
either side respectively."
Tills rule enacted in section 46 of the Provincial Insolvency Act with
regard to the debts provable by a creditor against the insolvent must,
therefore, likewise apply in regard to debts provable against a com-
F pany in winding up. Consequently, when the respondent in the pre-
sent case claimed to prove her debt against the company in liquidation,
she was entitled to the benefit of the rule enacted in Section 46 of the
Provincial Insolvency Act and she could legitimately claim that since
there were admittedly mutual dealings between her and the company
in liquidation, an account should be taken in respect of snch mutual
G dealings and only that amount should be payable or receivable by her
which is due at the foot of such account.
It is true that section 530 provides for preferential payments, bu~
that provision cannot in any way detract from full effect being given
to section 529 and in fact the only way in which these two sections can •
H be reconciled is by reading them together so as to provide that whenever
any creditor seeks to prove his debt against the company in liquida-
tion, the rule enacted in Section 46 of the Provincial Insolvency Act
J OFFICIAL LIQUIDATOR v. LAKSHMIKUTTY (Bhagwati, /,) 351

should apply and only that amount which is ultimately found due A
from him at the foot of the account in respect of mutual dealings
should be recoverable from him and. not that the amount due from him
should be recovered fully while the amount due to him from the com-
pany in liquidation should rank in payment after the preferential
claims provided under S. 530. We find that the same view has been
taken by the English Courts on the interpretation of the correspon- B
ding provisions of the English Companies Act, 1948 and since our
Companies Act is modelled largely 011 the English Companies Act
1948, we do not see any reason why we should take a different view,
pa:rticnlarly when that view appears to be fair and just. We may,
point out that Gore Browne in his book on Company Law, 43rd Ed c
at page 34-14 also confirms this view :

"Indeed, all claims provable in the winding up may be
• the subject of set-off, provided that there is mutuality."

Moreover, we find that the observations of the House of Lords in 0
National Westminster Bank Ltd. v. Halesowen Presswork & Assem-
blies Ltd.( 1) are also to the same effect. We may also usefully refer
to the observations of Sir Ernest Pollock, M. R. in re. City Life Assur-
ance Co. Ltd.( 2 ) where the learned Master of the Rolls after referring
to section 207 of the Companies Act, 1908 (s. 317 of the Companies
Act, 1948) which corresponds to section 529 of Companies Act, 1956 E
and section 31 of the Bankruptcy Act, 1914 which corresponds to
section 46 of the Provincial Insolvency Act, says :

"It is to be observed thats. 31 of Bruikruptcy Act, 1914,
is definite in its terms that where there is a mutual credit,
mutual debt or other mutual dealings, the sums are to be F
set off and the balance of the account and no more shall be
claimed or paid on either side respectively. It is not merely
permissive, it is a direct statutory enactment that the balance
only is to be claimed in bankruptcy."
We are in agreement with these observations and affirm the view G
taken by the Karnataka High Conrt in the judgment sought to be
appealed against. We accordingly dismiss the special leave petition
on merits after condoning the delay in filing it.

• P.B.R . Petition dismissed.
H
(!) [1972] All B.R. 641 @ 659.
(2) [l925]AUB.R.453 @457.
I •
352

A LALLUBHAI JOGIBHAI PATEL
v. •
UNION OF INDIA & ORS.
December 15, 1980
B [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.
c •
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
E 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
F 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 ~
void.

A preliminary objection was raised on behalf of the respondent State that ~
the present petition was barred as constructive res judicata.
G
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 •
B 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
• i
J 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.
B
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
c
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.
D
(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 E-F]
E
(c) In maitters touching the personal liberty of a person preventively de-
tained, the constitutional imperative in Art. 22(5) is that ari.y representation
made by the detenu should be dealt with with the utmost expedition which in
this case has been honoured in breach. [362 E]

(d) Merely explaining the grounds of detention in the mother tongue of
the detenu would not be sufficient compliance with the mandate of Art. 22(5) F
which requires that the grounds of detention must be communicated to the
detenu. "Communicate" is a strong word. It means that sufficient knowledge
of the basic facts constituting the grounds should be imparted effectively and
• fully to the dotenu in writing in a language understood by him. Its whole
purpose is to enable him to make a purposeful and effective representation. If
the grounds are only verbally explained without giving them to him in writing
in a language that he understands, its purpose is not served and the constitu- G
tional mandate is infringed. [362 G-H]

Haribandhu Das v. District Magistrate, Cuttack & Anr. [1969] 1 S.C.R.
227. Smt Razia Umar Bakshi v. Union of India [1980] 3 S.C.R. 1398 and
Harikisan v. State of Maharashtra [1962] Supp. 2 S.C.R. 918 followed •
•
H
ORIGINAL JurusorcnoN : Writ Petition No. 4349 of 1980.
(Under Article 32 of the Constitution.)
354 SUPREME COURT REPORTS [1981] 2 S.C.R.

A M/s. Ram Jethrnalani, Anil Dewan, Harjinder Singh and S. H.
Sajanwala, for the Petitioner.
J. L. Nain, Sushi! Kumar and M. N. Shroff for the Respondents.
Th~ Judgment of the Court was delivered by

B SARKARIA, J.-By our order dated October 3, 1980, we had allow-
ed this writ petition for the issue of a writ of Habeas Corpus and
directed the release of the detenu. We are now giving the reasons
in support of that order.
On January 30, 1980, the petitioner, Lallubhai Jogibhai Patel •
c was served with an order of detention, dated January 30, 1980,
passed by Shri P. M. Shah, Deputy Secretary to the Government
of Gujarat (Horne Department) under Section 3 of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act,
1974 (for short, the COFEPOSA). •
The grounds of detention were also served on hirn on the sarne
D
day. The petitioner challenged the order of his detention by Writ
Petition No. 449 of 1980 in this Court. That petition was dismissed
by this Court by an order dated May 9, 1980, but the reasons for
that order were announced later on Augnst 4, 1980. After the dis-
missal of his petition, he on July 21, 1980, filed additional grounds.
E He was on July 30, 1980, informed that he rnay, if so advised, file a
fresh petition on those additional grounds. That is how this subse-
quent petition carne to be filed on additional grounds which were not
urged in the previous Writ Petition 449 of 1980.
A preliminary objection was raised on behalf of the respotident-
F State that this subsequent petition is barred as constructive res judi-
cata. In this connection, reference has been made to the decision of
·~·
this Court in Ghulam Sarwar v. Union of India & Ors.( 1) and Seervai's
Constitutional Law(').

In reply, Shri Ram Jethmalani, counsel for the petitioner, con-
G tended that this Court caunot refuse to entertain a second petition for
habeas corpus on a fresh ground which could not, for good reasons,
be taken ih the earlier writ petition, on the ground that it is barred
by any doctrine of estoppel or constructive res judicata. It is stressed
that a preventive detention illegally continued is a continuous wrong
and furnishes a continuous cause of action to the detenu to challenge
H the same on fresh grounds. In this connection, reference has been
(I) [1967) 2 S.C.R. 271
(2) Vol. IT, page 994, Footnote 2.
LALLUBHAI v. UNION (Sarkaria, !.) 355
J

made to a Full Bench decision of the Punjab High Court in Ram A
Kumar Pearay Lal v. District Magistrate, Delhi(!). On facts, counsel
has tried to distinguish the decisions of this Court in Da!Yao v. State
of Uttar Pradesh(') and Niranjan Singh v. State of Madhya Pra-
desh(8).
The preliminary question, therefore, to be considered is, whether
the doctrine of constructive res judicata applies to a subsequent peti-
tion for a writ of habeas corpus on a ground which he "might and
ought" to have taken in his earlier petition for the same relief. In
England, before the Judicature Act, 1873, an applicant for habeas
corpus had a right to go from court to court, but not from one Bench
of a court to another Bench of the same Court. After the Judicature
Act, 1873, this right was lost, and no second application for habeas
corpus can be brought in the same court, except on fresh evidence.
In re Hastings (No. 3)( 4 ) Lord Parker, C.J., after surveying the
• history of the right of habeas corpus, arrived at the conclusion that
it was never the law that in term time, successive writs of habeas
corpus lay from Judge to Judge. In re Hastings (No. 4)( 5 ). Har- D
man, J. pointed out that since the Judicature Act had abolished the
three independent courts, namely, the Court of Exchequer, the King's
Bench Division, and the Common Pleas, and had constituted one
, High Court, when an application for writ of habeas corpus has been
disposed of by one Divisional Court, no second application on the
same ground lies to another Divisional Court of the High Conrt. This E
position was given statutory recognition in the Administration of Jus-
tice Act, 1960.
In a Full Bench decision of the Punjab High Court, which pur-
ports to follow these English decisions and two decisions of this Court
in Daryao v. State of U.P. (ibid) and Calcutta Gas Co. (Proprietary) F
Ltd. v. State of West Benga/( 6 ), it was held as follows :
."f. "No second petition for writ of habeas corpus lies to
the Higl1 Court on a ground on which a similar petition had
• already been dismissed by the Court. However, a second
such petition will lie when a fresh and a new ground of attack
against the legality of detention or custody has arisen after
, the decision on the first petition, and also where for some
f
exceptional reason a ground has been omitted in an earlier
(1) A.I.R. 1966 Punjab 51
(2) A.I.R.1961S.C.1457~[1962]1S.C.R.574
(J) [1973] 1 S.C.R. 691
.• (4) [1958] 3 All E.R. 625
(5) [1959] 1 All E.R. 698
(6) A.I.R. 1965 S.C. 596
356 SUPREME COURT REPORTS [1981] 2 S.C.lt.

A petition, in appropriate circumstances, the High Court will
hear the second petition on such a ground for ends of justice.
In the last case, it is only a ground which existed at the time
of the earlier petition, and was omitted from it, that will
be considered. Second petition will not be competent on
the same ground merely because an additional argument is
B available to urge with regard to the same."
In Daryao's case (ibid), Gajendragadkar, J. (as he then was),
speaking for the Constitution Bench, held that where the High Court
dismisses a writ petition under Article 226 of the Constitution after
hearing the matter on the merits on the ground that no fundamental
c right was proved or contravened or that its contravention was con-
stitutionally justified, a subsequent petition to the Supreme Court
under Article 32 of the Constitution on the same facts and for the
same reliefs filed by the same party would be barred by the general •
principle of res judicata. It was further clarified that the rule of res
judicata, as indicated in Section 11 of the Code of Civil Procedure,
D
has no doubt some technical aspects, for instance, the rule of cons-
tructive res judicata may be said to be technical; but the basis on
which the said rule rests is founded on considerations of public policy.
It is in the interest of the public at large that a finality should attach
to the binding decisions pronounced by Courts of competent jurisdic-
E tion, and it is also in the public interest that individuals should not be
vexed twice over with the same kind of litigation. If these two prin-
ciples form the foundation of the general rule of res judicata, they
cannot be treated as irrelevant or inadmissible even in dealing with
fundamental rights in petitions filed under Article 32. It was also
noted that the liberty of the individual and the protection of his
F fundamental rights are the very essence of the democratic way of life
adopted by the Constitutian, and it is the privilege and the auty of
this Court to uphold those rights. Though a right is given to
the citizen to move this Court by a petition under Article 32 and
to claim an appropriate writ against the unconstitutional infringement l -
of his fundamental rights, yet, in dealing with an objection based on
G the principle of res judicata may even apply to a successive petition.
The Court was careful enough to add : "We propose to express no
opinion on the question as to whether repeated applications for habeas
corpus would be competent under our Constitution. That is a matter
with which we are not concerned in the present proceedings".
e It may be noted that the petitions which were before the Court •.
in IDaryao's case were civil matters and not petitions for issue of a
writ of habeas corpus. Even so, it was clarified in that case that the
LALLUBHAI v. UNION (Sarkaria, !.) 357

principle of constructive res judicata, as embodied in Section 11 of A
the Code of Civil Procedure, was of a technical character and this
principle was 'not one of universal application.
In Ghulam Sarwar's case (ibid), the Constitution Bench of this
Court wa5 dealing with a petition under Article 32 of the Constitution
which had raised the question of the validity of the detention of the B
petitioner under Section 3 of the Foreigners Act, 1946.' The petitioner
was a Pakistani national, who entered India without any travel docu-
ments. On May 8, 1964, he was arrested in New Delhi by the Cus-
• toms Authorities under Section 135 of the Customs Act, 1962 .
When he was about to be enlarged on bail, he was detained by an
order under Section 3 (2)(g) of the Foreigners Act. It was said that c
he had to be detained, as police investigation was in progress in res-
.. pect of a case of conspiracy to smuggle gold, of which he was a
member. On May 29, 1965, he was convicted by the Magistrate, of
an offence under the Customs Act and sentenced to imprisonment.
His appeal was dismissed by the Sessions Judge. Before his term of
D
imprisonment expired, the petitioner filed a writ of habeas corpus
in the Circuit Bench of the Punjab High Court, challenging his de-
tention. The petition was dismissed by Khanna, J., on merits.
Before the learned Judge, the constitutional validity of Section 3 (2)
(g) of the Act was not canva,ssed. The learned Judge held that the
section authorised the Government to make the said order of deten- E
tion on its snbjective satisfaction and that the Court could not ques-
tion its validity in the absence of any mala {ides. In short, he dismissed
the petition on merits. Thereafter, Ghulam Sarwar filed a petition
under Article 32 of the Constitution for issue of a writ of haberu
corpus against the respo'ndents on the ground that the provisions of
the Act were invalid. On behalf of the respondents, a preliminary F
objection was raised tlrat the decision of Khanna, J. of the Punjab
High Court operated as res judicqta and barred the maintainability of
the subsequent petition under Article 32. Reliance was placed on
the decision of this Court in Daryao's case. After observing that
Daryao's case was no authority in regard to the repeated applica-
tions for habeas corpus, and examining English 21nd American deci- G
sions, the learned Chief Justice (Mr. Justice Subba Rao) summed up
the position, thus :
"But unlike in England, in India the person detained
can file original petition for enforcement of his fundamental
• right to liberty before a court other than the High Court, H
namely, this Court. The order of the High Court in the
said writ is not res judicata as held by the English and the
• 7-57 SC!/81

II
~.
358 SUPREME COURT REPORTS [1981] 2 S.C.R.

A American Courts either because it is not a judgment or be-
cause the principle of res judicata is not applicable to a
fundamentally lawless order. If the doctrine of res judicata
is attracted to an application for a writ of habeas corpus,
there is no reason why the principle of constructive res judi-
cata cannot also govern the said application, for the rule of
B constructive res judicata is only a part of the general princi-
ple of the law of res judicata, and if that be applied, the
scope of the liberty of an individual will be considerably
narrowed. The present case illustrates the position. Before
the High Court, the petitioner did not question the consti-
tutiomil validity of the President's order made under Arti-
c cle 359 of the Constitution. If the doctrine of constructive
res judica~ be applied, this Court, though it is enjoined
by the Constitution to protect the right of a person illegaJ!y
detained, will become powerless to do so. That would •
be whittling down the wide sweep of the constitutional
D protection."

On these premises, it was held "that the order of Khanna, J., made
in the petition for habeas corpus filed by the petitioner does not ope-
rate as res judicata and this Court will have to decide the petition
on merits".
E
In his concurring judgment, Bachawat, J ., while holding that
the order of dismissal by the High Court does not operate as res
judicata and does not bar the petition under Article 32 of this Court,
asking for the issue of a writ of habeas corpus on the same facts,
clarified that the petitioner would not have the right to move this
F Court under Article 32 more than once on the same facts.

In Niranjan Singh's case (supra), the District Magistrate of
Gwalior by his order dated May 26, 1971, passed under Section 2A
of the Madhya Pradesh Public Security (Amendment Act) of
1970, detained the petitioner. The petitioner filed a writ petition
G under Article 226 of the Constitution, challenging his detention and
praying for a writ of habeas corpus. The petition was rejected by
the High Court. Thereupon, the detenu moved this Court by a peti-
tion under Article 32 of the Constitution, for the same relief. A
preliminary objection was taken on behalf of the respondent that the
petition was barred by res judicata. Following the earlier decision
H of this Court in Ghulam Sarwar's case (ibid), Jaganmohan Reddy,
•
J., speaking for a Bench of two learned Judges, over-ruled this
objection.
• LALLUBHAI v. UNION (Sarkaria, J.) 35~

The position that emerges from a survey of the above decisions A
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 under Article 3Z
ol the Constitution on fresh grounds, which were not taken in the
e'llflier petition for the same relief. B

In the p*nt petition fresh additional grounds have been taken,
to challenge the legality of the continued detention of the detenu.
We would therefore hold that the subsequent writ petition is not
barred as res judicata and over-rule the preliminary objection raised
' by the respondents. c
The additional grounds which have been oressed into arguments
• by Shri Ram J ethmalani, are :
( 1) The respondents failed to supply despite the request of the
detenu, all the documents which were relied upon by the detaining D
authority while passing the order of his detention, that the detaining
authority purported to give him 460 documents, but later on, the
detenu discovered that their number was less and many of them were
either incomplete or had been wholly withheld; that in particular 236
documents covering 236 pages were not supplied.
E
This is alleged in ground No. 13 of the present petition. In reply
to this, in para 17 of the counter-affidavit filed on behalf of the res-
pondents, it is admitted that all the documents had not been given to
the detenu, and he had been supplied enough documents which were
thought to be sufficient to enable him to make an effective represen-
tation. F

The petitioner came to know about the non-supply of these
documents from the copy of the judgment, dated May 13, 1980,
I of the Gujarat High Court passed in the allied writ petitions tiled on
•
behalf of other detenus who were oalleged to be the associates of the
present petitioner. G

(2) On July 17, 1980, a representation was made on behalf of
the detenu with a request that the same be forwarded to the Central
Government for exercise of its power of revocation of the detention
under Section 11 of the Act. The Jailer forwarded that represen-
• tation to the Central Government on July 18, 1980, but the same has H
not yet been disposed of. This plea is the subject of grounds 16, 17
and 26 of the Writ Petition.
•
360 SUPREME COURT REPORTS [1981] 2 S.C.R.

A A reply to these allegations is to be found in paragraphs 20 and 21
of the counter filed on behalf of the respondents, wherein it is admitted
that the jailor has sent the representation at the detcnu's request to
the Central Govt.
( 3) The grounds served oh the detenu were in English. The
8
detcnu does not know English. It is stated in the affidavit of the
person who served the 'grounds' that they were explained to the detenu
in Gujm·ati which is the mother-tongue of the detenu. Admittedly, no
translation into Gujarati of the grounds of detention ·.vas given to the
detenu on March 11, 1980. This being the case, there was a breach
of the .constitutional imperative which requires that the grounds should
c be communicated to the dctcnu. It can be spelled out therefrom that
the grounds must be communicated in a language which the detcnu
understands. .In support of this contention, reference has been made
to Haribandhu Das v. District Magistrate, Cuttack & Anr. (') and
the judgment dated June 23, 1980 in Bakshi's( 2 ) case. '
Contention No. (1) :
.D In the previous petition, though it was alleged that there was delay
in supply of copies of the documents relied on by the detaining
authority in passing tho.> impugned order of detention, no specific
ground was taken that documents covering aboi;t 236 pages which
were relied upon by the detaining authority in passing the order of
detention, were suppressed and not supplied to the petitioner. Indeed
E
this is not dc'nicd in the counter-affidavit. The petitioner has affinned
in his affidavit that he came to know about the non-supply of these
documents from the judgment of the Gujarat High Court subse-
quently to the dismissal of his earlier petition. This affirmation re-
mains unchallenged.
F A catena of decisions of this Court has firmly established the rule
that one of the constitutional imperatives embodied in Article 22(5)
of the Constitution is that all the documents and materials relied upon
by the deta;ning authority in passing the order of detention must be
supplied to the detenu, as won as practicable, to enable him to make
an effective representation. Recently, in Smt. lcchu Devi Choraria
G v. Union of India & Ors.,(') this Court reiterated the principle as
-
follows :
"One of the basic requirements of clause (5) of Article
22 is that the authority making the order of dctentfon must,
as soon as may be, communicate to the detenu the grounds
(I) [1969] I S.C.R. 227.
H (2) Smt. Razia Umar Bakshiv. Unian af India [1980] 3 SCR 1398, (rendered by
•
Fazal AH, J.)J
(3) [1981] l S.C.R. 642.'
•
U.LLUBHAI v. UNION (Sarkaria, !.) 361

on which the order of detention has been made and under A
sub-section ( 3) of Section 3 of the COFEPOSA Act, the
Wl!rds "as soon as may be" have been translated to mean
"ordinarily not later than five days and in exceptional cir-
cumstances and for reasons to be recorded in writing not
later than fifteen days, from the date of detention." The
grounds of detention must therefore be furnished to the 8
detenu ordinarily within five days from the date of detention,
but in exceptional circumstances and for reasons to be re-
corded in writing, the time for furnishing the grounds of
detention may stand extended but in any cveut it cannot
be later than fifteen days from the date of detention. These
are the two outside time limits provided by Section 3, sub-
c
section (3) of the COFEPOSA Act because unless the
grounds of detention are furnished to the detenu, it would
• not be possible for him to make a representation against
the order of detenion and it is a basic requirement of clause,
(5) of Article 22 that the detenu must be afforded the D
earliest opportunity of making a representation cgainst his
detention. If the grounds of detention are not furnished
to the detenu within five or fifteen days, as the case may
be, the continned detention of the detenu would be render-
ed illegal both on the ground of violation of clause (5)
of Article 22 as also on the ground of breach of require- E
ment of Section 3 sub-s,ection (3) of the COFEPOSA
Act. Now it is obvious that when clause (5) ol Article
22 and sub-section ( 3) of Section 3 of the COFEPOSA
Act provide that the grounds of detention should be
communicated to the detenu within five or fifteen days, as the
case may be, what is meant is that the grounds of detention F
in their entirety must be furnished to the detenu, if there
are any documents, statements or other materials relied
upon in the grounds of detention, they must also be com-
mu"nicated to the detenu, because being incorporated in
the grounds of detention, they form part of the grounds
and the grounds furnished to the detenu cannot be said to G
be complete with them. It would not therefore be suffi-
cient to communicate the detenu a bare recital of the
grounds of detention, but of the documents, statements
and other materials relied upon in the grounds of detention
• mnst also be furnished to the detenu within the prescribed
H
time subject of course to clause (6) of Article 22 in order
(I) [1981] 1 S.C.R. 642

=
362 SUPREME COURT REPORTS [1981] 2 S.C.R.

A to constitute compliance with clause (5) of Article 22 and
Section 3, sub-section (3) of the COFEPOSA Act."
In the instant case, the materials and documents which wern not
supplied to the detenu were evidently a part of those materials which
had influenced the mind of too detaining authority in passing the
R order of detention. In other words, they were a part of the basic
facts anJ materials, and therefore, according to !he ratio ot Smt. lcchu
Deri's case (ibid), should have been supplied to the detenu ordinarily
within five days of the order of detention, and, for exceptional reasons
to be recorded, within fifteen days of the commellccment of deten-
tion. Jn the counter-affidavit, it has not been asserted that these
j
c documents, which were not supplied, were not relevant to the case of
\
•
the detenu.

Contention (2)
The respondents have, in their counter-affidavit, stated that this
represe'ntation was not addressed to the Central (io;ernment. It is,
0 howev>"r, admitted that the Jailor had, on the request of the detenu,
forwarded the same to the Central Government on July 18, 1980.
No counter-affidavit has been filed on behalf of the Central Govern-
ment, showing that this representation was considered and disposed
of by it. In matters touching the personal liberty of a person pre-
ventively detained, the constitutional imperative embodied in Article
E
22(5) is that any representation made by him >hould be dealt with
utmost ;expedition. This constitutional mandate has been honoured
in breach 1egarding the representatio'n sent by the detcnu to the
Central Government.
Contention (3):
F
It is an admitted position that the detenu does not know
--~-
English. The grounds of detention, which were served 011 the detenu,
have been drawn up in English. It is true that Shri C. L. Antali,
Police Inspector, who served the grounds of detention on the detenu,
has filed an affidavit stating that he had fully explained the grounds
G of detention in Gujarati to the detenu. But, that is not a sufficient
compliance with the mandate of Article 22(5) of th•" Constitution,
which requires that the grounds of detention must be "communicated''
to the detenu. "Communicate" is a stro'ng word. It means that
suflicien: knowledge of the basic facts constituting the 'grounds'
should be imparted effectively and fully to the dctcnu in writing in a
H language which he understan<)s. The whole purpose of communica- •
ting the 'ground' to the detenu is to enable him to make a purposeful
and effective representation. If the 'grounds' are only verbally
'

r
LALLUBHAI v. UNION (Sarkaria, J.) 363
•
explained to the detenu and nothing in writing is left with him, in a A
language which he understands, then that purpose is not served, and
the constitutional mandate in Article 22(5) is infringed. If any
authority is needed on this point, which is so obvious from Article
22(5), reference may be made to the decisions of this Court in
Harikishan v. State of Maharashtra('): and Haribandhu Dass. v.
B
District Magistrate (ibid).
Thus all the three contentions canvassed by the counsel for the
petitioner, on merits were sound. The conclusion was therefore,
inescapable that due to the aforesaid contraventions of constitutional
imperatives, the continued detention of the detenu was illegal.
It was for these reasons that we had allowed Writ Petition (Cr!.)
c
No. 4349 of 1980 by our order dated October 3, 1980, and directed
the release of the detenu.
•

P.B.R. Petition allowed.

'

•

(1) [1962] Supp. 2 S.C.R. 918
'