IMPORTANT POINT
When a person is placed under detention and he makes a request that a representation prepared by him may be forwarded to the Central Government as well as the State Govt. for consideration after taking out copies thereof, it would be a denial of his right to represent if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his representation.

JUDGMENT (ORAL)

S.W. Puranik J.- The petitioner Sailleshkumar Jain challenges the order of detention of his brother Mukesh Bhanwarlal Jain passed by the 1st respondent on 1st April 1991 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Admitted]y, the order of detention was executed on 30th August 1991 and the detenu is in custody since then.

2. Even though other grounds have been raised in the Petition, one additional ground by way of amendment with the leave of the Court was urged by the petitioner. The said added ground is to the effect that the detenu' s representation dated 26th September 1991 addressed to the Advisory Board and the Minister for State for Home Affairs was despatched on behalf of the detenu and at tile foot of the said representation a request was made to the authorities concerned to forward a copy of the same for consideration to the Central Government. In spite of this request, the State Government failed to forward a copy thereof for consideration to the Central Government. Shri Satpute, learned Counsel appearing for the Union of India, has not filed any affidavit-in-reply but, on instructions, has stated that the Union of India has not received any copy of the representation of the detenu and hence the same has not been considered.

3. Shri Merchant, learned Counsel appearing for the petitioner, urges that by failing to forward a copy of the representation to the Central Government as desired by the detenu, the State Government has breached the detenu's right under Article 22(5) of the Constitution of India and has failed thereby to afford an effective opportunity to the detenu for making a representation even to the Central Government.

4. The 1st respondent had already filed his affidavit-in-reply to the main Petition, but after the added ground of challenge, an. affidavit is filed today on behalf of the State of Maharashtra by Shri A.M. Zanzane, Desk Officer, Home Department, Mantralaya, Bombay. In paragraph 2 of the said affidavit, this is what has been stated on behalf of the Home Department:

" I say that the detenu had addressed the representation in question to the Chairman, Advisory Board, and to the State Government. He has not addressed the representation either to the Central Government nor did he endorse a copy to the Central Government. Only one copy of the representation was sent. Since the representation was not addressed to the Central Government, the Central Government may not be able to consider the said representation and hence it was not sent to the Central Government"

5. Smt. R.P. Desai, learned Public Prosecutor appearing for the State of Maharashtra, argued that it was not incumbent upon the State Government to forward a copy of the representation of the detenu to the Central Government for the simple reason that the representation was not addressed to the Central Government. She also contended that even if a copy of the representation would have been sent to the Central Government, the Central Government would not have considered it as it was not addressed to the Central Government.

6. Having considered the facts and submissions, we are of the opinion that the stand taken by the State Government is unsustainable. The spirit of the legislation as well as Article 22(5) of the Constitution of India has to be borne in mind in dealing with cases affecting the personal liberty of an individual. Article 22(5) also enjoins upon the authorities to afford a detenu the earliest opportunity of making a representation. Where, therefore, a detenu in his representation makes a request that his representation may also be considered by some other authority indicated by him, it is the bounden duty of the said authority who has received the representation, to forward a copy thereof to' the concerned authority indicated therein. The contention of the State Government that it was not addressed to the Central Government and, therefore, the Cent