MOIDEEN BABA ABDUL SHEFI Vs. D N CAPOOR

JUDGEMENT

(1.) The petitioner came to be detained by the impugned order dated 29th December, 1986, which purported to have been passed in exercise of power under sub-section (1) of section of section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act of 1974). It was communicated to the petitioner detenue in the grounds of detention that he has a right to make representation to the State Government and such representation be addressed to the Detaining Authority. Beside this, it was also informed that the detenue can make representations to the Advisory Board, as well to the Government of India.

(2.) Shri Maqsood Khan, the learned Counsel appearing for the petitioner detenue, urged that the detenue is entitled to make representation against the order of detention to the Detaining Authority. The Detaining Authority, however, omitted to inform accordingly. As such, according to Mr. Khan, the detenue has lost the valuable right to make representation to the Detaining Authority. Mr. Khan, further urged that the order of detention and its continuation have, therefore, been vitiated. In support Mr. Maqsood Khan invited our attention to decision dated 23rd/24th July, 1987 of the Division Bench of this Court in Criminal Writ Petition No. 356 of 1987 (Sushila Mafatlal Shah v. Union of India and others) and supplied copy of the judgement.

(3.) The Division Bench, in para 16 considered the decision in case of (Santosh Anand v. Union of India) (1981)2 Supreme Court Cases 420. The Supreme Court has held that under Article 22(5) of the Constitution of India as also under section 11 of the Act of 1974, it is clear that representation should be considered by the Detaining Authority and on rejection it is open for the detenue to approach to the State Government. The Division Bench then in para 7 considered another decision in case of (Pushpa v. Union of India) reported in A.I.R. 1979 Supreme Court 1953. The Supreme Court has observed that it would be open to the detenue to make representation under section 11 either to the State or Central Government to revoke the order of detention. But the initial representation that a detenue has a right to make on receipt of the grounds of detention would ordinarily be addressed to the Detaining Authority because it is that authority which has taken a decision adverse to the detenue and is to be persuaded to reconsider the same. The Division Bench has observed in para 18 of their judgment that Article 22(5) of the Constitution does not specifically lay down that the initial representation should be made by the detenue to the Detaining Authority. However, reading section 21 of the General Clauses Act, and Article 22(5), it can be stated that Article 22(5) of the Constitution by implication lays down that the representation should be made by the detenue to the Detaining Authority. The Division Bench further observed in para 21 that the detenue had a right to make representation initially to the Detaining Authority.