JUDGMENT
S.C. Jain, J.
(1) By this petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. the petitioner challenges the validity of the, detention order dated 31.8.1990, passed by the Administrator, Union Territory of Delhi, under Section 3(1) read with Section 2(f) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA) with a view to preventing him from smuggling goods and also preventing him from engaging in transporting, concealing and receiving smuggled goods.
(2) Pursuant to the aforesaid detention order the petitioner was detained and Kept in custody in the Central Jail Tihar on 17-9-1990.
(3) On 6th October, 1990, while the petitioner was in detention, his advocate Shri Shirish Gupta wrote a letter to the Supdt. Jail enclosing therewith five copies of representation addressed to the Advisory Board, two copies for Central Government and the Administrator Delhi Administration. That letter was received by the Supdt. Jail on 11th October, 1990. The Supdt. Jail was requested by the aforesaid letter that the representation be forwarded to the concerned authorities after obtaining the signature of the detenu thereon.
(4) The contention of the’ petitioner is that inspite of the long passage of time, the representation sent to the Central Government has not been considered by it rendering the detention illegal. No counter-affidavit has been filed on behalf of the Central Govt. despite the fact that opportunity.was granted to file the counter-affidavit. In the counter-affidavit filed on behalf of the Administrator, it has been admitted that the detenu made a representation to the Administrator on II.10.1990. This representation was duly considered by the Administrator and rejected. The rejection was communicated to the detenu. Sending of the representation to the Central Government and the Advisory Board was denied for want of knowledge. Grounds No. Xiii and Xiv taken’ in the writ petition challenging the detention order specifically mention that the detenue has addressed representations to the Central Government, the Administrator Delhi Administration and the Advisory Board. There is is no specific denial in the counter-affidavit filed on behalf of the Administrator. The Union of India has not come forward to deny this fact. There is nothing on record to show that the Central Govt. has considered the representation sent by the detenu against the detention order meaning thereby that the representation sent by the detenu to the Central Govt. remain unattended.
(5) There is no difficulty in so far as the representation sent to Delhi Administration is concerned, but the unfortunate lapse on the part of the authorities is that they overlooked the representation made by the detenu to the Central Govt. Representations to the Central Government and to the Administrator were made simultaneously through the Supdt. Jail.
(6) The question which needs answer in this case is whether non-consideration of the representation of the detenu by the Central Government in this case, where the detaining authority is the Administrator Union Territory of Delhi, has made the detention order illegal ? My answer is in the affirmative. Section 11(1) of the Cofeposa confers upon the Central Govt. the power to revoke an order of detention even if it is made by the State Govt. or its officer. That power, in order to be real and effective, must imply the right of a detenu to make a representation to the Central Govt. against the order of detention. This is the law as has been laid down by Hon’ble the Supreme Court in Rattan Singh and another v. Slate of Punjab and others, Air 1982 S.C. 1.
(7) When a proper representation is made to the Central Govt. for revocation of the order of detention, a statutory duty is cast upon the Central Govt. under Section 11 of Cofeposa to apply its mind and either revoke the order of detention or dismiss the representation and such representation for revocation of an order of detention should be disposed of with reasonable expedition. I am fortified in my view by a decision of the Supreme Court in Shyam Ambalal Siroya v. Union of India, .
(8) As the representation of the petitioner to the Central Govt. against the detention order has not been considered by the concerned authority in the Central Govt. till date. the order of detention is invalid and the detenu is liable to be released. Rule is made absolute. The petitioner be released forthwith if not required to be defamed in any other case.