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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 :

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    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.

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