ORDER
S.S. Parkar, J.
1. This writ petition filed under Article 226 of the Constitution challenging the order of detention dated 3rd October 1992 under the provisions of COFEPOSA Act can be allowed on the only point raised in this petition that the detenu was not apprised of his right to make representation to the detaining authority against the impugned order of detention.
2. The order of detention was issued by respondent No. 2 on 3rd October, 1992, against the detenu by name Mohd. Altaf Iqbal Masalewala under the provisions of COFEPOSA Act which was served on him on 5th December, 1996. The said order of detention came to be passed in the following background.
3. The detenu with his associates was apprehended by the Customs Officers (Preventive), Bombay, on 14-8-1991 from Room No. 206 of Hotel Sahil situated on Belasis Road at Bombay Central. At the same time two cars, which were parked in the car parking place in the said hotel, were also intercepted. On the search of one of those two cars viz. the white ambasador car, 12 jackets were seized. Each of the 12 jackets had concealed 100 FM gold bars. Thus 1200 FM gold bars of 10 tolas each totaliy weighing 139.92 kgs. valued at Rs. 5,83,88,616/- L MV were found and seized by the Customs Officers on the reasonable belief that the same were smuggled into India. The search of the various premises and also the Maruti Car, which was intercepted, were made. The detenu along with other accused was arrested on 15-8-1991 and produced in the Court of Chief Metropolitan Magistrate, Esplanade Bombay on 16-8-1991. On that day all the accused were remanded to judicial custody till 30th August 1991. Ultimately the detenu and his co-accused were granted bail by the Court on 9th September, 1991, and the said bail was availed of by the detenu on the same day. In the aforesaid background the impugned order which is annexed as Annexure “A” to the petition came to be issued by respondent No. 2 against the detenu. The said order, along with the grounds of detention dated 3rd October, 1992, annexed as Annexure “B” to this petition were served on the detenu on 5-12-1996.
4. The present petition is filed by the wife of the detenu on the only ground of challenge contained in paragraph 3(i) of the petition which states” as follows :
“The detenu was not communicated at the time of the service of the grounds of detention or at any time thereafter till date that the detenu had a right
to make representation to the detaining authority himself against the impugned order of detention. Failure to so communicate the detenu in the grounds of detention the aforesaid right, has vitiated the impugned order of detention and has rendered the continued detention of the detenu null and void ab initio.”
5. Mr. Khan the learned Counsel appearing on behalf of the petitioner contended that in view of the judgment of the Supreme Court delivered in Kamleshkumar Ishwardas Patel v. Union of India and others, , the impugned order of detention is liable to be set aside as the detenu was not apprised of his right to make representation to the detaining authority. From the grounds of detention we find that the detaining authority in paragraph (III) of the grounds had informed the detenu that he had a right to make representation to the State Government against the order of detention. Para (IV) of the grounds mentions that the detenu had a right to make representation to the Central Government against the impugned order of detention. In para (V) of the grounds the detenu was informed that his case was being referred to the Advisory Board constituted under section 8 of the COFEPOSA Act and that if he wished to make any representation to the Advisory Board against the detention order he could address it to the Chairman, Advisory Board and submit the same through the Superintendent of Jail where he was detained. We find from the said grounds that the detenu was not informed of his right to make representation to the detaining authority himself.
6. In view of the aforesaid Supreme Court decision in there is no doubt left that the detenu has a right not only to be communicated the grounds on which the order had been made and has a right to make representation against the order of detention at the earliest opportunity but the detenu has also a right to be informed of his right to make representation. It is further made clear in the aforesaid judgment of the Supreme Court that the detenu has a right to make representation to the detaining authority himself and the detenu has got further right to be informed of this right. In para 38 of the judgment the Supreme Court has observed that where the detention order had been made by an officer specially empowered for that purpose either by Central Government or the State Government the person detained has a right to make representation to the said 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 detained to make a representation against the order of detention. This right is in addition to his right to make representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by either of those two Governments. It is further observed that this right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority which had made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such representation and failure to do so results in denial of the right of the person detained to make a representation. This position in law is not disputed on behalf of the respondents, nor is it disputed that the detenu was not apprised of his right to make representation to the detaining authority. What is stated in reply-affidavit is that the detenu had in fact made representation dated 1st February 1997 addressed to the Advisory Board with a request to consider the said representation by the Advisory Board and also by all other authorities
competent to revoke the impugned order of detention. This representation was obviously made to the Advisory Board as the same was presented on the day when the Advisory Board had met under its statutory obligation where the detenu has a right to be heard by the Advisory Board. From para 3 of the affidavit-in-reply filed by Mr. R.Y. Nalawade, Section Officer of the Home Department (Special), Government of Maharashtra, Mantralaya dated 11th March 1997 it appears that the copy of the said representation dated 1-2-97 was forwarded to the Central Government on 12-2-97 and another copy was also placed before the detaining authority on 14-2-97 on which date the detaining authority is stated to have rejected the same.
7. The fact that the copy of the said representation was first forwarded to the detaining authority to consider it and, as appears from the reply affidavit, very expeditiously, is not the answer to the question raised in the petition. Article 22(5) of the Constitution confers a vital right on the detenu which has two legs, firstly when an order of detention is passed against any person the grounds of detention must be communicated to such person as soon as may be and secondly such person must be afforded the earliest opportunity of making representation against the said order. The representation was made by the detenu on 1st February 1997, the day when the Advisory Board had fixed meeting for the purpose of considering the validity of the order of detention and this was obviously done pursuant to the information contained in the grounds of detention. In all probability if the detenu had been informed ot his right to make representation to the detaining authority he would have made the representation to the said authority much earlier. This has thus resulted in denial of his right to afford him the earliest opportunity of making representation as envisaged or mandated by Article 22(5) of the Constitution of India. This view finds support from the unreported judgment of the Division Bench of this Court. (Corarn: Tipnis & Triyedi, JJ.) to which one of us (Trivedi, J.) was party, in (Criminal Writ Petition No. 1110 of 1994 decided on 28th April 1995). In that case the order of detention was issued on 21st July 1994 and the same was served on the detenu on the following day i.e. 22nd July 1994. The grounds of detention did not mention the right of the detenu to make representation to the detaining authority and yet pursuant to the legal advise which he received from his advocate, the detenu had, as a matter of fact, addressed representation dated 16-8-94 to the detaining authority which came to be rejected on 25-8-95. Yet the Division Bench of this Court following the judgment of the Supreme Court in Kamleshkumar’s case which at that time did not seem to have been reported, held that the detenu was not afforded or was denied the earliest opportunity of making representation to the order of detention. The reason being that, had the detenu been informed in the grounds of detention about his right to make representation to the detaining authority, he would have in all probability addressed the representation to the detaining authority much earlier and probably would not have waited for three weeks.
8. The stand taken on behalf of the detaining authority appears in paragraph 7 of the affidavit dated 11th March 1997 filed by Mr. N.K. Mada, Joint Secretary to the Government of Maharashtra, Home Department, Mantralaya. After admitting the fact that the detenu was not apprised of his right to make representation to the detaining authority paragraph 7 of the said affidavit states as follows :
“7. ….. I say that said right to make the representation to the Detaining Authority was not communicated to the detenu because the order of Detention is dated 8-10-1992, whereas the right of representation to the
Detaining Authority has been conceded on 26-8-1994 by the Full Bench of the Hon’ble High Court in Criminal Writ Petition No. 284 of 1994 and subsequently by the Hon’ble Supreme Court in Criminal Writ Petition No. 764-765 of 1994 K. I. Patel v. Union of India & Union of India v. A. U. Patel. I say that at the time of passing the detention order, the law which prevailed was that the detenu has no right to make the representation to the detaining authority and therefore, the detention order was issued by complying with the requirements of law in vogue at that date. I therefore, respectfully say and submit that considering the date of order of detention, it cannot be said that the detaining authority failed to communicate the detenu that he had a right to make the representation to the detaining authority against the impugned order of detention. I further state that as the said right was not in existence on the date of detention order dated 3-10-1992, the order of detention cannot be said to be vitiated on the said ground.”
9. The said stand taken on behalf of the detaining authority is wholly unacceptable for the simple reason that the said right cannot be said to have been conceded or conferred on the detenu on 26-8-94 by the Full Bench decision of this Court in Criminal Writ Petition No. 284 of 1994, Kamleshkumar Ishwardas Patel v. Union of India, reported in 1995(2) Bom.C.R. 640 or by the decision of the Supreme Court in Kamleshkumar’s case (supra). The aforesaid decisions have only interpreted Article 22(5) of the Constitution which existed in its present form right from the inception of the Constitution. The said right cannot be said to be not in existence on the date when the detention order was passed on 3rd October 1992. Dealing with the similar stand taken on behalf of the detaining authority and the Government in Criminal Writ Petition No. 399 of 1997 decided by us on 9/10th July 1997 we had observed in paragraph 10 of our judgment in the said case as follows :
“….. Article 22(5) of the Constitution was in existence in its present form from the inception or the commencement of the Constitution. This Court or the Apex Court had only interpreted Article 22(5) of the Constitution and that interpretation cannot be said to have come into force or operation from the date of the judgment interpreting the said Article. Interpretation of a provision explains what the provision is or what it means and thus it ‘relates back to the time when the provision was made. Interpretation of a provision, therefore, cannot be said to have changed the existing provision or its meaning….”.
10. During the course of the arguments we were told across the bar by the Counsel for the petitioner that this very detaining authority i.e. respondent No. 2 had issued an order of detention on 24th September 1992, i.e. about a few days before the impugned order herein was issued, to one Pralhad D. Deokar in which he had in fact apprised the detenu in that case of his right to make representation to the detaining authority. We were also told that in some matters addenda have been issued, before the service of the order, adding a paragraph to the grounds of detention whereby the detenu is informed of his right to make representation. Mr. Bagwe, the learned A.P.P. on behalf of respondents has fairly conceded that such practice was followed. One is at a loss to understand as to why either this information was not contained in the original grounds of detention in this case or the addendum was not issued before the service
of the order and the grounds of detention was effected on the detenu in this case on December 5, 1996 which was much after the decisions of the Full Bench of this Court and the Apex Court, referred to above, were pronounced.
11. In view of the aforesaid position the stand taken on behalf of the respondents cannot and does not stand to our reason. This petition is, therefore, entitled to-succeed on the ground that the detenu was not apprised of his vital constitutional right of making representation to the detaining authority himself.
12. We, therefore, allow this petition, set aside the order of detention dated 3rd October 1992 and direct the release of the detenue-Mohammad Altaf Iqbal Masalewala forthwith unless required in any other case. Rule is thus made absolute.
13. Petition allowed.