1. Detention under COFEPOSA Act — Challenge to detention order on grounds of non-intimation of right to make representation to the Specified Officer under Article 22(5), Constitution. (Para 2 )
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1995 Supreme(SC) 1194
SUPREME COURT OF INDIA
K. RAMASWAMY & B.L. HANSARIA, JJ.
Mrs. Nutan J. Patel
Versus
S.V. Prasad & Anr.
Criminal Appeal NO. 1562 Of 1995 (Arising out of SLP (CRL.) No.1175 of 1993)
Decided on 22-11-1995.
Important Points
A person detained under the COFEPOSA Act must be informed of their right to make a representation to the detaining authority. Failure to provide this information violates Article 22(5) of the Constitution, rendering the detention order invalid, regardless of whether the detenu was already aware of the right.
Subject
Constitutional Law - Right to Representation in Preventive Detention
Act Referred
Headnote
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act - Preventive detention order - Detenu was not informed of his constitutional right to make a representation to specified officer for reconsideration of his detention - Detention order is vitiated - Validity of order is to be considered though detenu had undergone period of detention. (Paras 2 & 3)
Legal Category Hierarchy
Advocates:
B.KUMAR, G.Prabhakar, K.AMARESWARI, K.K.MANI
B.KUMAR, G.Prabhakar, K.AMARESWARI, K.K.MANI
Table of Contents
2. Appellant contended denial of constitutional right due to non-intimation of representation right to Specified Officer; respondents argued the issue was academic as detention period had elapsed. (Para 2 , 5 )
3. The court found the detenu was not informed of the right to represent to the Specified Officer, despite being informed of rights to represent to other authorities. (Para 4 )
4. Failure to inform a detenu of the right to make a representation to the detaining authority at the time of serving grounds violates Article 22(5), Constitution. (Para 3 , 4 )
5. Appeal allowed and the order of detention quashed. (Para 6 )
6. Does a detenu under COFEPOSA or PIT NDPS Act have a right to make a representation to the detaining officer?
Yes, a person detained under Section 3 of the COFEPOSA Act or the PIT NDPS Act has a right to make a representation to the officer specially empowered to make the detention order. (Para 3 )
7. Is the detaining authority required to inform the detenu of their right to make a representation?
Yes, the right to make a representation implies that the detenu must be informed of this right to the authority that made the order at the time the grounds of detention are served. (Para 3 )
8. What is the legal consequence of failing to inform a detenu of their right to make a representation to the Specified Officer?
Failure to inform the detenu of the constitutional right to make a representation to the Specified Officer violates Article 22(5) of the Constitution and vitiates the detention order. (Para 3 , 4 )
9. Can a challenge to a detention order be dismissed as academic if the detenu has already completed the detention period?
No, the court held that the validity of the detention order should be considered even if the period has elapsed, as the order may form the foundation for consequential actions. (Para 5 )
ORDER
1. Leave granted.
2. The detenu, Jayantibhai Rambhai Patel, was detained on April 1, 1992 under COFEPOSA Act. The appellant on behalf of her husband, filed a writ petition in A.P. High Court. The High Court in the first instance dismissed the writ petition. Subsequently two other detenues filed writ petition on the ground that copies of the documents supplied to the detenues were illegible and that they have been deprived of their valuable right to make a representation to the Advisory Board, to the State Government and the Central Government. That contention was found acceptable and, therefore, the detention order was quashed. Thereafter, the appellant filed another writ petition and contended that the detenu had not been informed of his right to make a representation to the Specified Officer under the Smuggling of Foreign Exchange and Manipulation of Forfeiture Goods Act. Therefore, he has been denied of the constitutional right under Article 22(5) of the Constitution. A Division Bench of the High Court under the impugned order dated March 10, 1993 made in Writ Petition No. 15974 of 1992 dismissed the writ petition on the ground that the detenu had known that he had a right to make a representation but he did not exercise that right and that, therefore, the order of detention is not vitiated on the ground of non-intimation of the right to make representation to the specified Officer. Thus, this appeal by special leave.
3. The controversy is no longer res Integra. The Constitution Bench of this Court in Kamleshkumar Ishwardas Patel v. Union of India & Ors. JT 1995 (3) SC 639 laid down the law thus :
"Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act, the question posed is thus answered:
Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an Officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of theperson detained to make a representation."
4. In relation to the detention of the detenues in Criminal Appeal Nos.850 and 915 of 1994 under PIT NDPS Act, the Madras High Court allowed the writ petition and set aside the order of detention on the ground that the detenue were not informed of his Constitutional right to make a representation to the detaining officer and it vitiates the right guaranteed under Article 22 (5) of the Constitution. The Court had upheld the above view. It is seen that the detenu was informed on April 20, 1992 that he was at liberty to make a representation to the State Government, Central Government and to the Advisory Board. It was asserted that he made a representation through the prison authorities to the Government of Andhra Pradesh. In other words, from these facts, it would be clear that the detenu was not informed of his constitutional right to make a representation to the Specified Officer for reconsideration of his detention. In view of the law laid down by this Court, the fai
