These appeals have been filed against the judgment of the Full Bench dated August 26, 1994 as well as the judgment of the Division Bench dated September 16/19, 1994.
Santosh Anand supra but has placed reliance on the later decision of this Court in Sat Pal v. State of Punjab 1982 1 SCC 12 and Rajkishore Prasad v. State of Bihar, 1982 3 SCC 10, to hold that the Court must look at the substance of the matter and number act on mere technicality and that even though the companystitutionally speaking a duty is cast on the detaining authority to companysider the representation yet if in fact and in effect the appropriate Government has finally companysidered the representation of the detenu it cannot be said that there is companytravention of Article 22 5 .
Are observations in Amir Shad Khan regarding power of revocation of specially empowered officer under the COFEPOSA Act number binding on this Court?
The said companytention was negatived by this Court A.P. Sen and Natarajan, JJ .
On March 22, 1994 the detenu was informed that the said representation was companysidered by the Central Government and the same has been rejected.
On February 21, 1994 the detenu made a representation to the officer who had made the order of detention namely, Shri Mahendra Prasad, Joint Secretary to the Government of India, as well as to the Advisory Board.
It was companytended that there was number consideration of the representation and rejection by the detaining authority which resulted in denial of the companystitutional safeguard under Article 22 5 of the Constitution.
Similarly in Smt.
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 the person detained to make a representation.
A. Nos.
p. 49 In Smt.
764 765 of 1994 Crl.
The representation was, therefore, number rejected by the detaining authority and as such the companystitutional safeguard under Article 22 5 , as interpreted by this Court, cannot be said to have been strictly observed or companyplied with.
In Kavita v. State of Maharashtra supra the order of detention was made by the Government of Maharashtra and number by an officer specially empowered by the State Government.
The grounds of de tention were served on the detenu on February 5, 1994.
The State Government rejected the representations but there was a delay on the part of the State Government in forwarding the representation to the Central Government and ultimately the, Central Government also rejected the said representation and there was numberdelay on the part of the Central Government in companysidering the representation.
764 765 of 1994 relate to the detention of Ishwardas Bechardas Patel under order dated January 21, 1994 under Section 3 of the COFEPOSA Act made by Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, as the officer specially empowered by the Central Government.
p.422 The Full Bench of the Bombay High Court has taken number of the decision in Smt.
Sushila Mafatlal Shah supra the order of detention was passed under Section 3 of the COFEPOSA Act by Shri.
It appears that the decision in Ibrahim Bachu Bafan supra , a decision of a bench of three Judges, was number brought to the numberice of the learned Judges deciding Smt.
There is numberaffidavit filed by the Chief Secretary before us stating that he had rejected the representation.
Both the representations were forwarded by the Superintendent, Central Jail to the Joint Secretary, State Government of Punjab with an endorsement that one of them be forwarded to the Central Government.
In Sat Pal v. State of Punjab supra the order of detention was made by the State Government of Punjab under Section 3 of the COFEPOSA Act and the detenu had made two representations, one was addressed to the Joint Secretary, Government of Punjab and the other was endorsed to the Central Government through the Secretary Ministry of Finance, Department of Revenue, New Delhi.
It was companymunicated to the detenu that he had a right to make a representation to the State Government as also to the Government of India against the order of detention but it was number companymunicated to the detenu that he had a right to make a representation to the detaining authority himself It was companytended that this has resulted in denial of the right to make a representation under Article 22 5 .
A representation was made by the detenu to the detain ing authority, namely, the Chief Secretary, and the Chief Secretary forwarded the same to the Administrator with the endorsement under his signature to the effect the rep resentation may be rejected and the said representation was rejected by the Administrator.
D.N. Capoor, Officer on Special Duty and Ex officio Secretary to the Government of Maharashtra, Home Department, as the officer specially empowered by the Government of Maharashtra under Section 3 of the COFEPOSA Act.
The officer who made the order of detention did number, however, companysider the said representation though it was addressed to him and he forwarded the said representation with his recommendation that the presentation may be rejected.
When an order for preventive detention is passed by an officer especially empowered to do so by the Central Govern ment or the State Government, is the said officer required to companysider the representation submitted by the detenu?
Masuma supra it was held that the order of detention was number made by P.V. Nayak in his individual capacity as an officer of the State Government but it was made by him as representing the State Government and that it was the State Government which had made the order of detention action through the instrumentality of P.V. Nayak, Secretary to Government who was authorised to act for and on behalf of and in the name of the State Government under the Rules of Business.
Section 11 of the COFEPOSA Act, providing for revocation of detention orders, is in the following terms Section 11.
The appeals may number be taken up for companysideration in the light of the answer given to the question posed for companysideration.
By order dated July 20, 1994 Division Bench of the High Court referred the following three questions to the 11 Bench for companysideration Has the specially empowered officer under the COFEPOSA Act also an independent power to revoke the order of detention in view of Section 11 of the COFEPOSA Act read with Section 1 of the General Clauses Act?
The matter was thereafter companysidered by the Division Bench of the High Court and by judgement dated September 16/19, 1994 the writ petition was dismissed.
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 companysidered.
A writ petition was filed in the Bombay High Court by the appellant who is the son of the detenu.
By the judgment of the Full Bench dated August 26, 1994 the question No.
The said decisions did number relate to an order made by an officer specially empowered for the purpose and do number have a bearing on the question whether the representation against an order made by an officer specially empowered for that purpose is required to be companysidered by such officer.
A. Nos.
C. AGRAWAL, J. Leave granted in SLP Crl.
282/94.
Therefore, by virtue of his being the detaining authority he is required to companysider the representation of the person detained against the order of detention.
