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1995 (4) TMI 283 - SC - Indian LawsWhen an order for preventive detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu? Held that - Since the appellant had submitted a representation to the detaining authority, name- ly, the officer who was specially empowered to make an order of detention, and the said officer did not consider the representation there has been a denial of the constitutional safeguard guaranteed under Article 22(5) of the Constitution. As a result the detention of the appellant has to be held to be illegal and the said appeal has to be allowed. The detenues, namely, Ishwardas Bechardas Patel father of the appellant and Jayantilal Somchand Shah husband of the appellant are ordered to be set free unless they are required in connection with any other matter.Appeals allowed.
Issues Involved:
1. Whether an officer specially empowered by the Central Government or the State Government to pass an order for preventive detention is required to consider the representation submitted by the detenu. Issue-wise Detailed Analysis: 1. Requirement for Consideration of Representation by the Detaining Officer: The core issue in these appeals is whether an officer specially empowered by the Central Government or the State Government to pass an order for preventive detention under the COFEPOSA Act and the PIT NDPS Act is required to consider the representation submitted by the detenu. The judgment examines this question in light of Article 22 of the Constitution, which provides safeguards for preventive detention. Article 22(5) states that the authority making the detention order must communicate the grounds to the detained person and afford them the earliest opportunity to make a representation against the order. This provision is fundamental and imposes a dual obligation on the detaining authority: to inform the detained person of the grounds for detention and to allow them to make a representation. The court noted that Article 22(5) does not specify the authority to whom the representation should be made. However, it implies that the representation should be made to the authority that can revoke the detention order and provide immediate relief. This includes the authority that made the detention order, as recognized by Section 21 of the General Clauses Act, 1897. The judgment references several cases to support this interpretation. In Abdul Karim v. State of West Bengal, the court emphasized the constitutional right to make a representation and the obligation of the State Government to consider it. In Pankaj Kumar Chakrabarty v. State of West Bengal, the court stated that the detaining authority must consider the representation to ensure the detention is lawful. Similarly, in Jayanarayan Sukul v. State of West Bengal, the court outlined principles for considering representations, including the need for prompt consideration by the appropriate authority. The court also discussed conflicting decisions. In Amir Shad Khan v. L. Hmingliana and Ors., it was held that the officer who made the detention order could revoke it upon receiving a representation. Conversely, in State of Maharashtra v. Smt Sushila Mafatlal Shah & Ors., it was held that only the Central or State Government should consider the representation, not the officer who made the order. The court concluded that under Article 22(5), the person detained has the right to make a representation to the authority that made the detention order, as well as to any other authority empowered to revoke the order. This interpretation ensures the detained person's right to make a representation is meaningful and effective. 2. Provisions in COFEPOSA Act and PIT NDPS Act: The judgment analyzed the relevant provisions of the COFEPOSA Act and the PIT NDPS Act. Section 3 of both acts allows the Central Government, State Government, or specially empowered officers to make detention orders. Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act provide for the revocation of detention orders by the Central or State Government, without prejudice to the provisions of Section 21 of the General Clauses Act. The court emphasized that the power to revoke the detention order under Section 21 of the General Clauses Act remains with the officer who made the order. Therefore, the detained person can make a representation to this officer, who is obliged to consider it. 3. Conflicting Decisions and Final Ruling: The court addressed the conflicting decisions in Amir Shad Khan and Smt. Sushila Mafatlal Shah. It found that the decision in Smt. Sushila Mafatlal Shah, which held that only the Central or State Government should consider the representation, was incorrect. The court reaffirmed that the officer who made the detention order must consider the representation. 4. Specific Appeals and Orders: The court applied this interpretation to the specific appeals before it. In Crl.A.Nos. 764-765 of 1994, the detenu's representation was not considered by the officer who made the detention order, rendering the detention illegal. The court allowed the appeal and ordered the detenu's release. In Crl.A.Nos. 850 and 915 of 1994, the detenu was not informed of the right to make a representation to the detaining officer, resulting in a denial of the constitutional right. The court upheld the Madras High Court's decision to set aside the detention orders. In Crl.A.No....../95 [Arising out of SLP (Crl.) No. 282194], the detenu's representation was not considered by the detaining officer, leading to a denial of the constitutional safeguard. The court allowed the appeal and ordered the detenu's release. Conclusion: The court concluded that when a detention order is made by an officer specially empowered under the COFEPOSA Act or the PIT NDPS Act, the detained person has the right to make a representation to the officer who made the order. The failure of the officer to consider the representation results in a denial of the constitutional right under Article 22(5), rendering the detention illegal. The appeals were decided accordingly, with some being allowed and others dismissed based on this interpretation.
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