Usha Mehra, J.
(1) This is a third round of litigation started by the petitioner (Madan Lal Anand), challenging the legality of the detention order dated 30th
September, 1988 of the Conservation of Foreign Exchange and. Prevention of Smuggling Activities Act, 1974 (as amended) (for short ''the
Cofeposa Act'').
(2) The petitioner (Madan Lal Anand) earlier had filed a similar writ petition No. 555 of 1988 in this Court, which was dismissed on 17th March,
1989 thereafter he filed SLP . (Criminal) in Supreme Court being No. 950/89 against the judgment of this Court, which was also dismissed vide
judgment datcd26th October, 1989. The present writ petition is filed for the same relief but on the basis of some alleged fresh and additional
grounds which according to petitioner, were not taken up or urged in the writ petition as well as in the SLP It is not necessary, for the view that we
are going to take, to deal in detail with the grounds on which the order of detention was passed except to notice that the detaining authority, from
the facts collected, was satisfied that although petitioner was neither the partner nor a proprietor of M/s. Jasmine and M/s. Expo International yet
he was actively associated with his brother Shri Ved Paul Anand, who was actively involved in the import of the duty free goods obtained in
advance licenses as actual user and in illegal disposal of the same.
(3) It was in this back-ground that the detaining authority with a view to preventing him from-
(A)abetting the smuggling pf goods; and (b) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping
smuggled goods. passed the impugned detention order against him.
(4) He made a representation against the detention order on 17th January, 1989 to the Central Government. The said representation was rejected
vide Memorandum dated 20th February, 1989 which was served upon the detenu in the Central Jail, Tihar, New Delhi on 21st February, 1989. In
the declaration dated 2nd November, .1988 it has not been mentioned that the detenu has a right to make representation. He filed a writ petition
which was dismissed against which be went to Supreme Court in SLP . which was also dismissed. He made a fresh representation on 5th
December, 1989 on the basis of fresh and additional'' grounds.
(5) Mr. Vijay Krishan Makhija, Counsel appearing for the respondents contended that the present petition is abuse of legal process and not
bonafide. Some finality has to be attached to the round of litigations which the petitioner is initiating one after the other, on the same grounds and
for the same cause of action. So far as this objection of the respondent is concerned (no doubt this is the third round of litigation) cannot loss sight
of the fact that in a detention matter neither principles of resjudicata nor constructive resjudicata is applicable, if the petition is based on fresh or
additional grounds. Each case has to be decided on its own merits. In this regard reference can be had to the decision of the Supreme Court in the
case of Abdul Sattar Abdul Kadar Shaikh Vs. Union of India (UOI) and Others, decided on 24th January, 1990 in writ petition (Criminal) No.
532 of 1989.
(6) The impugned detention order was passed on 30th September, 1988 with a view to preventing the detenu from .abetting the smuggling of
goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. He has urged that he
was not made aware of the existence of some of the relevant documents and statements namely: -
(I)Statements recorded by the C.B.I, of the co-detenus S/Shri Naresh Chadha, Krishan Lal Chawla and G.L. Aggarwal on 1st June, 1988,
2ndJune,1988 and 3rd June, 1988 respectively. The enquiry conducted by C.B.I, with regard to Ms. Jasmine, B-3/7 Vasant Vihar, New Delhi
pertains to the same allegations which from the subject ''matter of the grounds of detention. These documents are relevant and material. These have
been suppressed from the detaining authority, thus vitiating the detention and making detenu''s detention illegal; (ii) .Apart from other documents
which are referred to and relied upon and which have not been supplied to the detenus are the advance licenses bearing Nos. (i)
P/L/3078321/C/XX/92/D/84 dated 3rd August, 1984 (ii). P/L/3078644/C/XX/92''D/84 dated 11thSepetmber, 1984 (iii) No.P/L/3041054
dated 21st December. 1984 (iv) No. P/L/3042825 dated 7th Jan., 85 and license No. P/L/3042846/C/XX/D/94/84 Dt. 25th Jan, 1985. Some of
the documents which have been supplied to him are illegible.
(7) By the present writ petition the petitioner had challenged the detention order inter alias on the grounds :-
(I)That material documents were not supplied; (ii) There was delay of more than a month in disposal of his representation which delay has
remained un-explained; and (iii) The declaration u/s 9 of the Act dated 2nd November, 1988 violates his right under Article 22(5) of the
Constitution of India.
(8) So far as the alleged non-supply of documents are concerned, this was in the knowledge of the petitioner as is apparent from his first
representation made on 17th January, 1989. He had mentioned about the licenses as well as the recording of the statements by the C.B.I, of his
co-detenus. Therefore, it cannot be said that there was any concealment of documents or facts.
(9) The question/which remains for consideration is about the infringement of petitioner''s fundamental right under Article 22(5) of the Constitution
of India. Article 22(5) of the Constitution of India confers two rights on the detenu, namely the right to be informed of the grounds of which the
order of detention has been made, and secondly, to be afforded an earliest opportunity to make a representation against the order.
(10) As we have already mentioned, the detenu was supplied the copies of the documents relied upon by the detaining authority. Since all the
documents have been supplied by the detaining authority, we find that the detenu was in no way handicapped. Even, otherwise, a mere non-supply
of any document whatever its nature may be, to the detenu would not per se amounts to denial of opportunity under Article 22(5).
(11) The second contention is that the declaration u/s 9(1) of the Act dated 2nd November, 1988 did not make the detenu aware of his right of
representation against the declaration. The detenu was not made'' aware of this right even by any other letter. The detenu had thus been deprived
of his constitutional right to make representation against the declaration and, Therefore, the declaration is vocative of the provision of Article 22(5)
of the Constitution of India. Reliance was placed on the. decision of the Supreme Court in Jagprit Singh v. Union of India & Others (Criminal
Appeal No. 23/90) decided on 28th March, 1990.
(12) In Jagprit Singh''s case, the Supreme Court observed :-
FROM the papers placed on record, it was not until the detenu wrote to the declaring authority on 10th November, 1988 seeking clarification as
to whether he had a right of representation against the declaration and, if so, to which authority that a clarification on this matter was furnished to
him on 17th November, 1988. In other words, there has been a delay of about a month and 13 days before the detenu was made aware of his
rights under the Constitution to make an effective representation against the declaration. This delay, in our opinion, is quite unreasonable and
inconsistent with the provisions of Article 22(5) of the Constitution of India. The detention of the detenu beyond the original period of one year, in
the circumstances, was unjustified.
Further, the Supreme Court has noted in the said case :
IT is undeniable that in the facts and circumstances of this case, the detenu has not been made aware, either in the order of declaration or within a
reasonable time thereafter, that he had a right to make a representation against the declaration to the appropriate authorities.
(13) The Counsel for the respondents, however, submits that on the facts of this case, it will have to be assumed that the petitioner was aware of
the right of representation against the declaration, but deliberately delayed the representation. He submits that the petitioner is a well-educated
person, (Engineer) had availed of services of eminent lawyers in making all the representations and proceedings before the Advisory Board.- His
brother and nephew were also detained and also contested all the proceedings under the Act. The counsel places reliance on the decision of the
Supreme Court in the case of Abdul Sattar Abdul Kadar Shaikh Vs. Union of India (UOI) and Others, where on similar facts, the Supreme Court
had held that non-mention of right of representation in the impugned order was not fatal. We, however, note that the areas of detenu''s protection
are being extended by the Supreme Court, from time to time and, Therefore, the decision rendered by the Supreme Court in 1990 in Jagprit Singh
v. Union of India & Ors. (Supra) is directly to the point. If right of representation in a declaration u/s 9(1) of the Act is covered by procedural
guarantee under Article 22(5), non-mention of such a right in the declaration dated 2nd November, 1988 would render detention beyond the
period of one year, had.
(14) Once the declaration is declared illegal, the detention of the petitioner beyond the original period of one year, in the circumstances, was
unjustified. We, Therefore, set aside the detention of the petitioner beyond 29th September, 1989 and direct that he be set at liberty at once unless
there are other justifiable circumstances to hold him back in custody. Criminal Writ is accordingly disposed of with no order as to costs.
