On 8.5.87 the Advisory Board companysidered the detenus case and sent a report justifying the detention and thereafter the State Government companyfirmed the detenus detention.
480 of 1988.
In the grounds of detention the detenu was informed 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.
Vimal Chand v. Shri Pradhan Ors.,
This is an additional factor to show that an order of detention passed by an officer has the same force and status as an order of detention passed by the Government itself and this companyld happen only if an order of detention made by an officer is treated as an order of detention made by the Government itself, although through the instrumentality of an officer empowered under Section 3.
While upholding the detenus companytentions in each of the two cases it was observed in passing that though Clause 5 of Article 22 does number in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make representation and to companysider it when so made Abdus Sukkur v. The State of West Bengal, 1973 1 SCR 680 was a case relating to a detention order passed under the West Bengal Prevention of Violent Activities Act, by the District Magistrate, Bardna.
In the grounds of detention the detenu had only been informed that he had a right to make a representation to the State PG NO 832 Government as also to the Government of India against the order of detention, but he had number been companymunicated that he had also a right to make a representation to the Detaining Authority i.e. D.N. Capoor him self.
On the companytrary, the COFEPOSA Act does number provide for the State Government or Central Government passing an order of approving of a detention order made by one of its officers and therefore the detention order will companytinue to be operative for the full period of detention unless the order is revoked by the State Government or the Central Government or is quashed by the Court for any reason.
On 2.2.87 an order of detention under Section 3 1 of the COFEPOSA Act was passed by D.N. Capoor in exercise of the powers specially companyferred upon him by the Government of Maharashtra for the purpose of Section 3 of the Act.
In so doing the Court observed that the requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority companycerned after giving such an opportunity pays numberprompt attention to the representation which is submitted by the detenu as a result of that opportunity.
Though several grounds were set out in the writ petition, they were all given up and the companynsel appearing on behalf of the detenu companyfined the challenge to the validity of the detention order on one ground alone.
The Government after calling for remarks from the Assistant Collector of Customs and Central Excise, Pune rejected the representation of the detenu by order dated 3.4.87 and the said order was companymunicated to the detenu on 4.4.87 through the Superintendent of the Central Prison, Nasik.
On 21.8.86 the detenu was caught in the act of transporting ten gold biscuits of foreign origin.
The ground of attack was to the following effect as the order of detention had been passed by D.N.Capoor in his capacity as a person specially empowered by the Government of Maharashtra to issue the order of detention under Section 3 1 of the COFEPOSA Act, the detenu had a right to make a representation to him in the first instance and only thereafter to make representation to the State Government or to the Central Government if need be.
1 herein, under Section 3 1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter called the COFEPOSA Act the State of Maharashtra has filed this appeal by special leave against the order of the High Court in Crl.
From the Judgment and Order dated 23/24.7.1987 of the Bombay High Court in Crl.
On 14.3.87 the detenu preferred a representation addressed to D.N. Capoor and it was forwarded by the Superintendent, Central Prison, Nasik with a companyering letter dated 17.3.87 to the Government.
The only further duty to be performed thereafter is to place the representation made by the detenu before the companycerned officer or the Minister empowered under the Rules of PG NO 841 Business of the Government to deal with such representation if the detenu addresses his representation to the officer himself.
Since the State Government had failed to companysider the representation made by the detenu for a period of 27 days without giving satisfactory explanation for the delay, the detention order was quashed.
In both the cases the detention orders were quashed on the ground that the government had failed to companysider the detenus representation expeditiously and instead had sought umbrage for its action on the ground it had awaited the opinion of the Advisory Board to which it had forwarded the detenus representation.
Failure to numberify the detenu of his right to make a representation to the Detaining Authority violated the companystitutional provisions of Article 22 5 inasmuch as the detenu had been deprived of his right to make a second representation to the State Government in the event of the Detaining Authority D.N. Capoor rejecting his representation.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
We may number have a look at the facts.
In the meanwhile on 12.3.87 the case of the detenu was referred to the Advisory Board.
R. Lalit, V.N. Ganpule and S.K. Angihotri for the Respondents.
Writ Petition No.
Turning number to the COFEPOSA Act, the relevant provisions to be numbericed are Sections 2, 3, 8 and 11.
On 15.2.87 the order of detention as well as the grounds of detention were served on the detenu.
356 of 1987.
The first two cases Jayanarain v. W. Bengal, 1970 3 SCR 225 and P.K. Chakrabarty v. W. Bengal, 1970 1 SCR 543 were cases pertaining to detention orders passed under the Preventive Detention Act by District Magistrate empowered under the Act to pass the detention orders.
This companytention found acceptance with the High Court and the High Court made the Rule absolute and quashed the order of detention.
N .Capoor only who had passed the order of detention had only 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 and had failed to companymunicate that he had also a right to make a representation to the Detaining Authority him self the companystitutional safeguards and imperatives under Article 22 5 had been violated in as much as the detenu had been deprived of his right to make a representation to the Detaining Authority himself before availing of his right to make further representation to the State Government and the Central Government.
The High Court has quashed the order of detention on the ground that Shri D.N. Capoor, Officer on Special Duty and Ex officio Secretary to the Government of Maharashtra, Home Department hereinafter referred to as D .
356/1987.
Dr. Y.S. Chitale, A.M. Khanwilkar ad A.S. Bhasme for the Appellants.
The Judgment of the Court was delivered by NATARAJAN, J. Leave granted.
Being more companycerned with the law adumerated by the High Court of Bombay rather than with the quashing of the order of detention passed against a detenu by name Bhadresh Mafatlal Shah, son of respondent No.
W.P. No.
On 23.10.86 the Collector of Central Excise and Customs sent a proposal to the State Government for action being taken against the detenu under PG NO 831 the COFEPOSA Act and on 17.11.86 he furnished, in response to Governments query, some additional information about the detenu.
In the month of March, 1987 the first respondent being the Detenus mother, filed a petition under Article 226 of the Constitution before the High Court of Bombay for a writ being issued for the order of detention being quashed.
The detention order was quashed by this Court on the ground that the Government had failed to companysider the detenus representation expeditiously and instead had postponed companysideration of the representation till the report of the Advisory Board was received.
