MRS. NUTAN J. PATELversusS.V. PRASAD AND ANR.

                                                                                   ":
A                           MRS. NUTAN J. PATEL
                                     v.
                           S.V. PRASAD AND ANR.

                              NOVEMBER 22, 1995
                                                                                   .
                                                                                   ~




B
                [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

            Conse1Vation of Foreign Exchange and Prevention of Smuggling Ac-
    tivities Act, 1974 :

c          Detention-Detenu-Right to make representation-Failure to inform
    about-Effect of-Held violative of Article 22(5}-Detention order held
    vitiated.

          The appellant filed a writ petition challenging the detention order of
D   her husband, under the Conservation of Foreign Exchange and Prevention
    of Smuggling Activities Act, 1974, on the ground that it was violative of
    detenu's constitutional r.ight under Article 22(5) because he has not been
    informed of his right to make a representation to the Specified Officer.
                                                                                        I
    The High Court dismissed the petition by holding that the detenu had
    known that he had a right to make a representation but he did not exercise
E   that right and that, therefore, the order of detention was not vitiated.
    Against the decision of the High Court an appeal was preferred before this
    Court.                                                                          ~




                                                                                    "
          Allowing the appeal, this Court
F
           HELD : 1. 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. From these facts, it would be clear that the detenu was
G   not informed of his constitutional right to make a representation to the
    Specified Officer for reconsideration of his detention. The failure on the
    part of the Specified Officer to inform the detenu that he has a constitu-      ,..~




    tional right to make representation against the order of detention, violates
    Article 22(5) of the Constitution. The order of detention gets vitiated and
H   is consequently quashed. [574-~; 575-A-B]
                                        572
                       N.J. PATEL v. S.V. PRASAD                      573

     Kamleshkwnar Ishwardas Patel v. Union of India and Ors., [1995] 4       A
sec 51.
      2. The contention that since the Detenu had already undergone the
period of detention, the question becomes one of academic interest cannot
be acceded to. Since the order of detention would form foundation to
consequential actions to ensue, it would be proper to consider validity of   B
the order of detention, though the detenu had undergone the period of
detention by the time the matter came up for final disposal. [575-C-D]

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1562 of 1995.
                                                                             c
     From the Judgment and Order dated 10.3.93 of the Andhra Pradesh
High Court in W.P. No. 15974 of 1992.

      B. Kumar and K.K. Mani for the Appellant.

      Ms. K. Amareshwari and G. Prabhakar for the Respondents.
                                                                             D

     The following Order of the Court was delivered :

      Leave granted.

     The detenu, Jayantibhai Rambhai Patel, was detained on April 1,         E
1992 under COFEPOSA Act. The appellant on behalf of her husband, filed
a writ petition in AP. 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 F
right to make a representation to the Advisory Board, to the State Govern-
ment 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 G
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 H
    574                   SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A 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 v. Union of India & Ors.,
    [1995] 4 sec 51 laid down the law thus :
B
            "Having regard to the provisions of Article 22(5) of the Constitu-
            tion 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
c           COFEPOSA Act and the PIT NDPS Act by an Officer specially
            empowered for that purpose either by the Central Government or
            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 repre-
D           sentation 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 beeJ!. 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
E           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
F           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 repre-
            sentation."

         In relation to the detention of the detenues in Criminal Appeal Nos.
  850 and 915of1994 under PIT NDPS Act, the Madras High Court allowed
G the writ petition and set aside the order of detention on the ground that
  the detenu 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
H at liberty to make a representation to the State Government, Central
J

                           N.J. PATEL v. S.V. PRASAD                        575

    Government and to the Advisory Board. It was asserted that he made a 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 repre-
    sentation 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
                                                                                 B
    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    C
    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.                                             D
          In these circumstances, the appeal is allowed. The order of detention
    stands quashed.

    T.N.A.                                                     Appeal allowed.