JUDGMENT - Smt. MANOHAR SUJATA, J.:—The petitioner is the brother of one Babulal Ganeshmal Jain, who has been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, by an order of detention dated 13th of September, 1990. Thereafter, the Detenu had continued to be in detention as a result of a declaration made under section 9(1) of the COFEPOSA Act on 13th of February, 1991.

2. The order of detention is made by Shri L. Hminglina, Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, who has been specially empowered by the Government of Maharashtra to issue such detention orders under section 3(1) of the COFEPOSA Act. In the grounds of detention, the Detenu has been informed that he has a right to make a representation to the State Government against the order of detention and such representation should be addressed to the Minister of State for Home, Mantralaya, Bombay-400 032, through the Superintendent of Jail where he is detained. It is also stated that the Detenu has also a right to make a representation to the Central Government against the order of detention and, for that purpose, the Detenu may make a representation and address it to the Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi, through the Superintendent of Jail. The Detenu was further informed that if he desires to make any representation to the Advisory Board constituted under the COFEPOSA Act, he may do so and submit the same through the Superintendent of Jail.

3. The Detenu made a joint representation dated 6th of February, 1991, which he addressed to the Officer specially empowered who had issued the detention order; as well as to the State Government and the Central Government. The representation of the Detenu has been rejected by the State Government and the Detenu has been informed of the same by a letter dated 15th of February, 1991 addressed by the State Government to him. The Detenu's representation to the Central Government has also been rejected by the Central Government and the Detenu has been informed of the same by a letter dated 18th of February, 1991 addressed by the Central Government to him. There is no response to the representation addressed by the Detenu to the Officer who has issued the order of detention.

4. It is contended by the petitioner that under section 21 of the General Clauses Act, 1897, the Detenu has a right to make a representation to the Officer specially empowered under section 3(1) of the COFEPOSA Act, who has issued the order of detention. According to the petitioner, this right flows from section 21 of the General Clauses Act and is expressly preserved by section 11(1) of the COFEPOSA Act. It was, therefore, the duty of the Detaining Authority under Article 22(5) of the Constitution of India to inform the Detenu, in the grounds of detention, of his right to make a representation not merely to the State Government and the Central Government and the Advisory Board, but also to the Officer specially empowered under section 3(1) of the COFEPOSA Act, who had issued the order of detention. This, however, has not been done in the present case, thus depriving the Detenu of a valuable safeguard under Article 22(5) of the Constitution of India. As a result, the order of detention is bad in law.

5. It is further submitted on behalf of the petitioner that although the Detenu in the present case was not informed of his right to make a representation to the officer who had issued the order of detention, he had, in fact, made a representation to that officer. The officer, however, has not considered the representation even as of now. This has also vitiated the order of detention.

6. In order to consider the submissions made by the petitioner, it is necessary to examine in brief the relevant provisions of the COFEPOSA Act.

7. Under section 3(1), the Central Government; the State Government; or any officer of the

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