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TMI Blog1997 (7) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... lf either at the time of the service of the order or even thereafter. 3. This petition has been filed by the friend of the detenu, the detenu being Rahim Haroon Manoria @ Atzal Haroon Batatawala. The order of detention was issued by the respondent No. 2 under the provisions of the COFEPOSA Act on 31st March 1994 which was served on the detenu on 4th March 1997. The order of detention is annexed as Annexure 'A' to the petition while the grounds of detention have been annexed as Annexure 'B' to the petition. 4. From the grounds of detention it appears that the detenu was arrested on 10th January 1994 at Sahar International Airport on prior information when he was proceeding for security check to board the Cathay Pacific flight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prised of his right to make a representation to the detaining authority himself at the time when he was served with the order, which was not so done. Even later on, he was not apprised of his said right within 15 days from the date of the service of the order, assuming that, in law, it could have been so done. Thus, the detenu could not and in fact has not made a representation to the detaining authority. The order is thus, violative of Article 22(5) of the Constitution. 6. In reply to the above point raised in the petition, the Deputy Secretary to the Government of Maharashtra, Home Department, has filed affidavit dated 16th June, 1997. Paragraph 10 of the said affidavit deals with the said point in which it is admitted that the detenu was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he who has to apply his mind to the facts of the case and it is he who furnishes the grounds of detention on which he had acted and it is he who has to be convinced that the action taken by him is unjustified and requires reconsideration. It is further observed in the said paragraph that the initial representation that a detenu 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 detenu and which has to be persuaded to reconsider the same. 8. Mr. Karmali also cited the judgment of the Constitution Bench of the Supreme Court in the case of Kamleshkumar Ishwardas Pate! v. Union of India and others, 1996 (53) EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right of the person detained to make a representation. 9. In the above case the Supreme Court was dealing with a group of matters involving the common question of law including Criminal Appeal Nos. 850 and 915 of 1994. The facts of the above two appeals, as appearing in para 47 of the report, are similar to the facts in the present case. In the aforesaid appeals the order of detention was made under section 3 of the PITNDPS Act by the officer specially empowered by the Central Government. In the grounds of detention the detenu was only informed that he could make representation to the Central Government or the Advisory Board but he was not informed that he could make representation to the officer who had made the order of detention. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently after the issuance of the order. 11. The above stand taken by the Government cannot sustain for another reason; Though the order of detention was passed in this case as far back as 31st March 1994 the said order was executed as late as 4th March 1997 i.e. much after the above ' interpretation of Article 22(5) of the Constitution by this Court or by the Supreme Court. It is pertinent to mention here that this very detaining authority i.e. respondent No. 2 had issued Addenda making addition to the grounds of detention issued to other detenus by inserting a paragraph to the grounds of detention informing the detenus that they had a right to make representation to the detaining authority against the order of detention, in cases wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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