PETITIONER: MRS.NUTAN J. PATEL Vs. RESPONDENT: PRASAD & ANR. DATE OF JUDGMENT22/11/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) CITATION: 1996 SCC (2) 315 JT 1995 (8) 496 1995 SCALE (6)700 ACT: HEADNOTE: JUDGMENT:
O R D E R
Leave granted.
The detenu, Jayantibhai Rambhai Patel, was detained on
April 1, 1992 under COFEPOSA Act. The appellant on behalf of
her husband, filed a writ Petition in A.P. High Court. The
High Court in the first instance dismissed the writ
petition. Subsequently two other detenues filed writ
petition on the ground that copies of the documents supplied
to the detenues were illegible and that they have been
deprived of their valuable right to make a representation to
the Advisory Board, to the State Government and the Central
Government. That contention was found acceptable and,
therefore, the detention order was quashed. Thereafter, the
appellant filed another writ petition and contended that the
detenu had not been informed of his right to make a
representation to the Specified Officer. Therefore, he has
been denied of the constitutional right under Article 22(5)
of the Constitution. A Division Bench of the High Court
under the impugned order dated March 10, 1993 made in Writ
Petition No.15974 of 1992 dismissed the writ petition on the
ground that the detenu had known that he had a right to make
a representation but he did not exercise that right and
that, therefore, the order of detention is not vitiated on
the ground of non-intimation of the right to make
representation to the specified Officer. Thus, this appeal
by special leave.
The controversy is no longer res integra. The
Constitution Bench of this Court in Kamleshkumar Ishwardas
Patel vs. Union of India & Ors. [(1995) 4 SCC 51] laid down
the law thus :
“Having regard to the provisions of
Article 22(5) of the Constitution and
the provisions of the COFEPOSA Act and
the PIT NDPS Act, the question posed is
thus answered :
Where the detention order has been made
under Section 3 of the COFEPOSA Act and
the PIT NDPS Act by an Officer specially
empowered for that purpose either by the
Central Government of the State
Government the person detained has a
right to make a 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 of the detenu is in addition to
his right to make the representation to
the State Government and the Central
Government where the detention order has
been made by an officer specially
authorised by a State Government and to
the Central Government where the
detention order has been made by an
officer specially empowered by the
Central Government, and to have the same
duly considered. 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 that has 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 a representation
and the failure to do so results in
denial of the right of the person
detained to make a representation.”
In relation to the detention of the detenues in
Criminal Appeal Nos.850 and 915 of 1994 under PIT NDPS Act,
the Madras High Court allowed the writ petition and set
aside the order of detention on the ground that the detenue
were not informed of his Constitutional right to make a
representation to the detaining officer and it vitiates the
right guaranteed under Article 22 (5) of the Constitution.
The Court had upheld the above view. It is seen that the
detenu was informed on April 20, 1992 that he was at liberty
to make a representation to the State Government, Central
Government and to the Advisory Board. It was asserted that
he made a representation through the prison authorities to
the Government of Andhra Pradesh. In other words, from these
facts, it would be clear that the detenu was not informed of
his constitutional right to make a representation to the
Specified Officer for reconsideration of his detention. In
view of the law laid down by this Court, the failure on the
part of the specified Officer to inform the detenu that he
has a Constitutional right to make representation to the
Specified Officer against the order of detention, violates
Article 22(5) of the Constitution. The order of detention
gets vitiated.
It is contended for the respondents that since the
detenu had already undergone the period of detention, the
question becomes one of academic interest. We cannot accede
to the contention. Since the order of detention would form
foundation to consequential actions to ensue, we are of the
view that it would be proper to consider validity of the
order of detention, though the detenu had undergone the
period of detention by the time the matter came up for final
disposal.
In these circumstances, the appeal is allowed. The
order of detention stands quashed.