JUDGMENT
Anil Dev Singh, J.
(1) This is a petition under Article 226 of the Constitution whereby the petitioner challenges the order of detention dated April 9, 1996 issued against him. The allegations against the petitioner are that on search of his premises 60 grams of opium, 6 grams of methqualone powder, a diary and certain other incriminating documents along with a sum of Rs.15,000.00 were recovered.
(2) On April 9, 1996, Joint Secretary to the Government of India passed an order of detention against the petitioner under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short ‘the Act’) with a view to preventing him from engaging in the manufacture of methaqualone powder and also preventing him from engaging in purchase, transportation, storage and sale of narcotic drugs and psychotropic substances. Pursuant to the order of detention, the petitioner was detained on April 15, 1996 in Arthur Road, Thane, Mumbai. On April 30, 1996 a declaration under section 10(1) of the Act was issued by the Additional Secretary to the Government of India in respect of the petitioner. The case of the petitioner was placed before the Advisory Board on May 10, 1996. The Central Government after receipt of opinion of the Advisory Board confirmed the detention order of the petitioner under section 9(f) read with section 10(2) of the Act and directed that the petitioner be detained for a period of two years from the date of his detention, i.e., from April 15, 1996.
(3) Learned counsel for the petitioner urges that the detention of the petitioner is violative of Article 22(5) of the Constitution as the declaration issued under section 10(1) of the Act was served on the petitioner on May 11, 1996 thereby depriving him of an opportunity to make a representation before the Advisory Board against the declaration. It is the submission of the learned counsel that a copy of the declaration should have been served on the petitioner before the matter was placed before the Advisory Board.
(4) I have considered the submission of the learned counsel for the petitioner. Learned counsel for the respondent does not dispute the fact that it was only on May 11, 1996 that a copy of the declaration issued under section 10(1) of the Act was served on the petitioner, i.e., after May 10, 1996 when the matter was placed before the Advisory Board. Thus, the position is that the petitioner did not have an opportunity to make a representation before the Advisory Board against the declaration issued under section 10(1) of the Act. This being so, clearly the right of the petitioner under Article 22(5) of the Constitution was viol- ated. In Akhilesh Kumar Tyagi v. Union of India and others, 1996 Crl. L. J. 965, a Full Bench of this Court held that a detenu has a right to make a representation against the declaration under section 9 of the Cofeposa Act. It further held that the Central Government as well as the Advisory Board are duty bound to consider the representation as other- wise it would amount to violation of detenu’s right guaranteed under Article 22(5) of the Constitution of India. This Court, in this regard, observed as follows :-
” In so far as the right to represent to the Advisory Board is concerned, there is initially a statutory right under Section 8 to question the declaration before the Advisory Board. In Hawabi Sayed Arif Sayed v. L.Hminglilana, the Supreme Court observed :
“……the detenu against whom the order of detention has been passed and there- after a declaration under Section 9(1) has been made, has got a statutory right under Section 8(c) of the Act to be heard in person if he so desired and the Advisory Board has to submit its report only after hearing him. therefore, it follows that the detenu should be served with the initial order of detention within the specified period and the order of declaration within a reasonable time so that he could make his personal representation to the Advisory Board leaving apart his right of making repre- sentation to the detaining authority under Article 22(5) challenging the order of detention. ”
(5) In that case, in view of the statutory right traced to Section 8 of the Act, the Supreme Court left open the further question as to the applicability of Article 22(5). They observed :
“….THEREis no need to elaborately deal with the question as to whether constitutional safeguards under Article 22(5) should be extended in the case of declaration also as in the case of detention order.”
(6) We shall next deal with the question, whether the statutory right to represent before the Advisory Board at the stage of Section 9 also flows from Article 22(5). Now, it has been held that a similar right to represent to the Advisory Board at the stage of Section 3(1) order flows from Articles 22(4) and 22(7) of the Constitution of India. It has been also held that the denial of a right of hearing before the Advisory Board at the stage of Sec- tion 3(1) is a violation of Article 22(5). In State of Punjab v. Sukhpal Singh, , it was again held that if the report at the section 3(1) stage was submitted by the Advisory Board without hearing the detenu who desired to be heard against Section 3(1) order, there was a violation of Article 22(5). Again in Harbans Lal v. M.L. Wadhawan, , it was held that the right of the detenu to lead evidence against Section 3(1) order was constitutional safeguard embodied in Article 22(5). It was also observed that it was so construed in A.K. Roy’s case and that Article 22(5) was to be deemed to have been incorporated in the statute dealing with detention without trial, i.e., in the provisions in Section 8(b) and 8(c) of COFEPOSA. In Anil Vats v. Union of India , the refusal to permit a friend of the detenu to appear before the Advisory Board at the Section 3(1) stage was held to be violative of Article 22(5) in the context of representation against Section 3(1) order. Thus, if the right to represent against section 3(1) order before the Advisory Board is not merely a statutory right flowing from Section 8 of the Act but is also a right traceable to Article 22(5), there can in our view, be no doubt, that a similar right to question the continued detention under Section 9 beyond 3 months and upto 2 years before the Advisory Board is also a right flowing from Article 22(5).
(7) Thus, the Supreme Court laid down that under section 8(c) of the Cofeposa Act a detenu has a right to represent against the declaration made under section 9 thereof. Besides, he has a right to represent to the Central Govern- ment and to the Advisory Board under Article 22(5) of the Constitution of India.
(8) In the instant case, the declaration has been made under section 10(1) of the Act. The right to represent before the Advisory Board against the declaration under section 10(1) of the Act springs from section 9(c) thereof and Article 22(5) of the Constitution. Since this right of the petitioner has been infringed, his continued detention has been rendered illegal. Accordingly, the respondents are directed to forthwith release the petitioner from detention provided he is not required in any other case.
(9) The petition is disposed of.