SANTOSH ANAND Vs. UNION OF INDIA

JUDGEMENT

(1.) By this writ petition the detention of one Mangat ram Anand, a detenu, detained under an order dated 3/04/1979 issued under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act is sought to be quashed.

(2.) Admittedly the case of the detenu was considered by the Chief secretary, Delhi Administration, who passed the detention order acting as the specially empowered officer under S. 3 of the Act. On 20/04/1979 a representation was made to the detaining authority (Chief secretary) by the detenu, which was received by that authority on 24/04/1979. It appears that before the representation was considered by the detaining authority the same was forwarded to the Advisory Board for its consideration, which had held its meeting on 17/05/1979. Thereafter on 24/05/1979 the detenu was informed that his representation had been considered by the administrator) Delhi, and had been rejected. On these facts Mr. Jethmalani appearing for the petitioner contended that the continuous detention of the detenu pursuant to the detention order was illegal and would have to be quashed on two grounds (a) that it was obligatory upon the detaining authority (Administrator) to consider the representation before sending it to the Advisory Board and (b) that in any event the detenu's representation ought to have been considered and rejected by the detaining authority itself, namely, by the Chief secretary but the same had been straight away considered and rejected by the Administrator, who under S. 2 (f) of the act was the State government for the Union Territory, thus depriving the detenu of his remedy to approach the Administrator as a higher authority after the rejection of his representation by the detaining authority. According to mr. Jethmalani for both the reasons the constitutional safeguards under article 22 (5) of the Constitution, as interpreted by this Court, had not been strictly complied with resulting in continued illegal detention of the detenu.

(3.) We are of the view that the continued detention of the detenu under the order dated 3/04/1979 is liable to be quashed on the second ground about which facts are clear and there is no difficulty in acceptingthe same. Under Article 22 (5) , as interpreted by this Court, as also under the provisions of Section 11 of the COFEPOSA it is clear that a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by detaining authority it is open to the detenu to approach the state government for revocation of the order and failing that it is open to him to approach the central government to get the detention order revoked. In paragraph 10 of the counter-affidavit filed in reply by one Mr. W. C. Khambra, Under-Secretary, Home Department, Delhi Administration, it has been categorically stated thus :