SANDEEP ATMARAM PARWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS Bench has been constituted by the learned Chief Justice at the instance of the Division Bench to decide the following issues arising under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("cofeposa Act") :

(2.) THE material facts giving rise to the aforesaid questions are as below. One Atmaram Madanlal Parwal was detained by the order dated 11th March 1988 of Mr. L. Hmingliana, Secretary (II) to the Government of Maharashtra, Home Department (Special), Mantralaya, Bombay under section 3 (1) of the COFEPOSA Act. Mr. L. Hmingliana was an officer specially empowered in that behalf by the Government of Maharashtra for the purposes of section 3 of the COFEPOSA Act. The said detention order was served on the detenu only on 9th March, 1995 when he was taken in detention. On 6th April, 1995, a declaration under section 9 (1) of the COFEPOSA Act being Declaration No. 31 of 1995 was also made by Mr. N. N. Mookerjee, Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi in his capacity as an officer specially empowered in that behalf by the Central Government. Both the order of detention under section 3 (1) and the declaration under section 9 (1) of the COFEPOSA Act are challenged on various grounds by the son of the detenu before this Court by filing a writ petition which is numbered as Writ Petition No. 379 of 1995. One of the grounds of challenge was that the declaration under section 9 (1) of the COFEPOSA Act made by the officer specially empowered by the Central Government was violative of Article 22 (5) of the Constitution of India inasmuch as no opportunity was given to the petitioner to make a representation to the officer specially empowered by the Central Government to make a declaration against the said order. At the time of hearing of the writ petition before the Division Bench, it was contended by Mr. Karmali, learned Counsel for the petitioner, that it was incumbent on the part of the officer specially empowered by the Central Government who made a declaration under section 9 (1) of the COFEPOSA Act in the instant case to inform the detenu of his right to make a representation before him in addition to a right to make representation before other authorities including the Central Government. It was contended on behalf of the detenu that the right to make representation before the officer making a declaration was a constitutional right and the failure on the part of the officer specially empowered by the Central Government to inform the detenu of his right to make a representation before him and not giving an opportunity to represent before him was fatal to the declaration under section 9 (1) of the COFEPOSA Act. The stand of Mr. R. M. Agarwal, the learned counsel appearing on behalf of the respondents, before the Division Bench was that the right to make representation against a declaration under section 9 (1) of the COFEPOSA Act was neither a constitutional right nor a statutory right and hence failure to give an opportunity to the detenu to make such a representation would not vitiate the declaration. Reliance was placed in support of this contention on a Division Bench decision of this Court in the case of (Meena Jayendra Thakur v. Union of India)reported in 1995 Cri. L. J. 2533, in particular, to the concluding part of paragraph 76 of the said judgment which reads as follows :

(3.) IN reply to the above contentions of the respondents, Mr. Karmali, learned counsel for the petitioner, referred to the decision of the Supreme Court in the case of (Jagprit Singh v. Union of India) reported in J. T. 1990 (3) S. C. 293 and submitted that the decision in Meena Jayendra Thakurs case was contrary to the decision of the Supreme Court in Jagprit Singh (supra ). It was submitted by Mr. Karmali that the judgment of the Supreme Court in Jagprit Singh (supra) was an authority for the proposition that the detenu has a constitutional right under Article 22 (5) of the Constitution to make a representation against the declaration made under section 9 (1) of the COFEPOSA Act. Attention of the Division Bench was drawn to the fact that in the above case, the Supreme Court had quashed the declaration under section 9 (1) of the COFEPOSA Act on the ground of unreasonable delay in making the detenu aware of his right to make an effective representation against the declaration. It was further submitted by Mr. Karmali that the controversy whether the detenu has a right to make a representation to the officer specially empowered by the Central Government who makes a declaration under section 9 (1) of the COFEPOSA Act in addition to the Central Government, which was left open by the Supreme Court in Jagprit Singh (supra), also stands concluded now by a recent decision of the Supreme Court in (Kamleshkumar Ishwardas Patel v. Union of India) reported in J. T. 1995 (3) S. C. 639 wherein the Constitutional Bench of the Supreme Court has clearly held that a person detained has a right to make a representation to the officer specially empowered for that purpose in case an order has been made by such 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 to make a representation against the order made by such officer.