Judgment

NATARAJAN, J. : - Leave granted.

Being more concerned with the law adumbrated by the High Court of Bombay rather than with the quashing of the order of detention passed against a detenu by name Bhadresh Mafatlal Shah, son of respondent No. I herein, under Section 3(l) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the COFEPOSA Act) the State of Maharashtra has filed this appeal by special leave against the order of the High Court in Crl. Writ Petition No. 356 of 1987. The High Court has quashed the order of detention on the ground that Shri D. N. Capoor, Officer on Special Duty and Ex-officio Secretary to the Government of Maharashtra, Home Department (hereinafter referred to as D. N. Capoor only) who had passed the order of detention had only communicated to the detenu that "he had a right to make a representation to the State Government as also to the Government of India against the order of detention" and had failed to communicate that "he had also a right to make a representation to the Detaining Authority himself". The constitutional safeguards and imperatives under Article 22(5) had been violated inasmuch as the detenu had been deprived of his right to make a representation to the Detaining Authority himself before availing of his right to make further representation to the State Government and the Central Government. The, principal challenge in this appeal is to the proposition of law enunciated by the High Court.

2. We may now have a look at the facts. On 21-8-86 the detenu was caught in the act of transporting ten gold biscuits of foreign origin. On 23-10-86 the Collector of Central Excise and Customs sent a proposal to the State Government for action being taken against the detenu under the COFEPOSA Act and on 17-11-86 he furnished, in response to Government s query, some additional information about the detenu. On 2-2-87 an order of detention under Section 3(l) of the COFEPOSA Act was passed by D. N. Capoor in exercise of the powers specially conferred upon him by the Government of Maharashtra for the purpose of S. 3 of the Act. In the grounds of detention the detenu was informed that he had a right to make a representation to the State Government as also to the Government of India against the order of detention. On 15-2-87 the order of detention as well as the grounds of detention were served on the detenu.

3. On 14-3-87 the detenu preferred a representation addressed to D. N. Capoor and it was forwarded by the Superintendent, Central Prison, Nasik with a covering letter dated 17-3-87 to the Government. The Government after calling for remarks from the Assistant Collector of Customs and Central Excise, Pune rejected the representation of the detenu by order dated 3-4-87 and the said order was communicated to the detenu on 4-4-87 through the Superintendent of the Central Prison, Nasik.

4. In the meanwhile on 12-3-87 the case: of the detenu was referred to the Advisory Board. On 8-5-87 the Advisory Board considered the detenus case and sent a report justifying, the detention and thereafter, the State Government confirmed the detenus detention.

5. In the month of March 1987 the first respondent being the detenus mother, filed a petition under Art. 226 of the Constitution before the High Court of Bombay for a writ being issued for the order of detention being quashed. Though several grounds were set out in the writ petition, they were all given up and the counsel appearing on behalf of the detenu confined the challenge to the validity of the detention order on one ground alone. The ground of attack was to the following effect :-

"as the order of detention had been passed by D. N. Capoor in his capacity as a person specially empowered by the Government of Maharashtra to issue the order of detention under S. 3(l) of the COFEPOSA Act, the detenu had a right to make a representation to him in the first instance and only thereafter to make representation to the