DEVRAJ NARAYAN VINJUDA Vs. C D SINGH

JUDGEMENT

(1.) IT is now well settled that where the detention order has been made under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short ' COFEPOSA 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 against the order of detention. 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 considered. 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 failure to do so results in denial of the right of the person detained to make a representation. ( Kamleshkumar Ishwardas Patel V/s. Union of India, reported in JT 1995(3) S.C.639).

(2.) IN the instant case, the impugned order of detention has been issued by Shri C.D.Singh, Secretary to the Government of Maharashtra (Preventive Detention) Home Department, being an officer specially empowered by the Government of Maharashtra. Hence apart from the right of making a representation to the State Government and the Central Government, the detenu has an additional right of making a representation to the detaining authority himself. The aforesaid right carries alongwith it a corresponding obligation on the part of the detaining authority to apprise the detenu of the said right. We have perused the grounds of detention. The same informs the detenu of his right to make a representation to the State Government, Central Government and the Advisory Board. It does not convey to the detenu his right to make a representation to the detaining authority himself. The non-apprisal of the aforesaid right,in our judgment, has rendered the impugned order of detention, as also the continued detention of the detenu, null and void.