G. T. NANAVATI, J. U. MEHTA, J.

( 1 ) THE petitioner has come before this Court challenging the order of detention dated 18-2-1989 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 passed against his by the Additional Chief Secretary to Government Home Department Gandhinagar The petitioner has also challenged the order dated 9-3-1989 issued under Sec. 9 (1) of the COFEPOSA Act by Shri B. V. Kumar Additional Secretory to the Government of India Ministry of Finance Department of Revenue specially empowered in this behind the Central Government.

( 2 ) FROM the allegations made in the grounds of detention it reveals that on 10-1-1989 the detenu was apprehended along with other while the smuggled gold was being transported in truest bearing No. GQC 7280.

( 3 ) THE learned Advocate appearing for the petitioner submitted that in the grounds of detention it is mentioned that it the detenu wished to avail his right to male representation he may submit his representation through the Jail authority. In the manner landlord therein. It is stated in the grounds of detention that there protection meant for the detaining authority will be addressed to the undersigned i. e. R. Balkrishnan Additional Chief Secretary to Government Home Department Gandhinagar. It is also stated that the representation meant for the State Government would be sent to the address of the Deputy Secretary Government of Gujarat Homo Department (Special) Sachivalaya Gandhinagar. It is also stated that if the representation is meant for the Central Government he should submit the so through the Joint Secretary (COPEPOSA) Government of India Minister of Finance Department of Revenue the if the represents is most tot the Advisory Board in would be addressed to the Chairman COPEPOSA Advisory Board one learned Advocate appearing for the petitioner submits that thug the detenu is misled and he made a representation to the detaining authority on 22-7-1989 as per the guidon given in the grounds of detention sad the detaining authority by its communication dated 28-7-1989 communicated that it is rejected by the detaining authority Thus it is such that by the petitioner that the detaining authority had misled the petitioner in his value the right and an obligation is cast on the detaining authority to afford an earliest opportunity to make a representation to the State Government and thus he violated the provisions of Art. 22 (5) of the Institution The learned Counsel for the petitioner also submitted that his representation has been considered by the authority who had no power to consider the representation According to the learned Counsel for the petitioner the order of detention is thus null and void.

( 4 ) IN this case it is seen from the grounds of detection that the petitioner was informed that he could make a representation against the order of detention to the detaining authority It the detenu world have been informed that the representation could be made to the State Government and not to the detaining authority he would have made the representation to the State Government.

( 5 ) THE correct position of law as held by the Supreme Court in the case of STAGE OF MAHARASHTRA V. SMT. SUSHILA MAFATLAL SHAH and ORS. AIR 1988 SC 2090 is that the detenu under the COFEPOSA Act has a right to make representation to the State Government and not to the detaining authority. It therefore clearly appears that the petitioner was missed regarding his right to make a representation by what was stated in the grounds. Under those circumstances the detenu addressed the representation to the detaining authority and Shri R. Balkrishnan who received the representation considered the representation and rejected it. Shri R. Balkrishnan ought to have forwarded it to the State Government for its consideration. Instead of doing so he considered the representation and rejected the some. He did so in his capacity as the detaining authority. It i

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