IMPORTANT POINT
Where the detention has been made u/s. 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 to the said officer and the said officer is obliged to consider the said 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.

JUDGMENT

S.C. Agrawal, J. - Leave granted in SLP (Crl.) No. 282/94.

2. When an order for preventive detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu ?

3. This is the common question that arises for consideration in these appeals in the context of orders for preventive detention passed by officers especially empowered by the Central Government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [for short 'COFEPOSA Act'] and the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 [for short 'PIT NDPS Act']. There is divergence in the decisions of this Court on' this question. In Amir Shad Khan v. L. Hmingliana & Ors.1, (decided by a bench of three Judges), it has been held that where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention needs to be revoked he can do so. In State of Maharashtra v. Smt. Sushila Mafatlal Shah & Ors.2, (decided by a bench of two Judges), a different view has been expressed. It has been held that if an order of detention is made by an officer specially empowered by the Central Government or a State Government the representation of the detenu is required to be considered only by the Central Government or the State Government and it is not required to be considered by the officer who had made the order.

4. The question posed has to be considered in the light of the provisions relating to preventive detention contained in Article 22 of the Constitution as well as the provisions contained in the relevant statutes.

The Constitution, while permitting Parliament and the State Legislatures to enact a law providing for preventive detention, prescribes certain safeguards in Article 22 for the protection of the persons so detained. One such protection is contained in sub-clause (a) of Clause (4) of Articles 22 which requires that no law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for detention. The other safeguard is contained in clause (5) of Article 22 which provides as under:

"When any person is detained in pursuance of an order made under any law providing for Preventive Detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order".

5. This provision has the same force and sanctity as any other provision relating to fundamental rights. See: State of Bombay v. Atma Ram Sridhar Vaidya3. Article 22 (5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made and; (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22 (5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed.

Article 22 (5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the per