Case Note & Summary
The Supreme Court of India heard an appeal by special leave against a Division Bench order of the Andhra Pradesh High Court which dismissed a writ petition challenging a preventive detention order passed under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu, Jayantibhai Rambhai Patel, was detained on April 1, 1992, under COFEPOSA. His wife, the appellant, initially filed a writ petition in the Andhra Pradesh High Court, which was dismissed. Subsequently, two other detenus filed writ petitions on the ground that copies of documents supplied to them were illegible, depriving them of their right to make an effective representation; the High Court quashed their detention orders. Thereafter, the appellant filed a second writ petition contending that the detenu was not informed of his right to make a representation to the Specified Officer who had passed the detention order, thereby violating Article 22(5) of the Constitution. The Division Bench of the High Court dismissed the writ petition on March 10, 1993, holding that the detenu knew he had a right to make a representation but did not exercise it, so the detention was not vitiated. On appeal, the Supreme Court noted that the controversy was no longer res integra, as a Constitution Bench in Kamleshkumar Ishwardas Patel v. Union of India had laid down that a detenu detained under Section 3 of COFEPOSA or PIT NDPS Act by a specially empowered officer has a right to make a representation to that officer, and the detaining authority must inform the detenu of this right at the time of serving the grounds; failure to do so violates Article 22(5). In the present case, the detenu was informed on April 20, 1992, of his liberty to make representations to the State Government, Central Government, and Advisory Board, but not to the Specified Officer. He had made a representation through prison authorities to the Government of Andhra Pradesh. The Court held that the failure to inform the detenu of his constitutional right to represent to the Specified Officer vitiated the detention order. The respondents argued that since the detenu had already undergone the period of detention, the question was academic; the Court rejected this, stating that the order could form the foundation for consequential actions, and its validity should be considered. The appeal was allowed, and the detention order was quashed.
Headnote
A) Constitutional Law - Preventive Detention - Right to Representation under Article 22(5) - Constitution of India, Article 22(5); Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Section 3; Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, Section 3 - The detenu detained under Section 3 by an officer specially empowered under COFEPOSA/PIT NDPS Act has a right to make a representation to that officer, in addition to representation to State/Central Governments and Advisory Board. Failure of the detaining authority to inform the detenu of this right at the time of serving grounds of detention results in denial of the right and vitiates the detention order. Held that the impugned detention order was vitiated for non-intimation of this constitutional right. (Paras Not mentioned)
B) Preventive Detention - Judicial Review - Mootness/Validity after Detention Period - Constitution of India, Article 22(5); Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Section 3; Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, Section 3 - Even if the detenu has already undergone the full period of detention, the validity of the detention order can still be examined because the order may form the foundation for consequential actions. Held that the question is not academic and the court may quash the order. (Paras Not mentioned)
Issue of Consideration
Whether a detenu detained under Section 3 of COFEPOSA Act, 1974 has a constitutional right to make a representation to the Specified Officer who passed the detention order; whether failure of the Specified Officer to inform the detenu of this right violates Article 22(5) of the Constitution and vitiates the detention; whether the question becomes academic after the detenu has undergone the full period of detention.
Final Decision
The appeal was allowed. The Supreme Court held that the detenu was not informed of his constitutional right to make a representation to the Specified Officer, which violated Article 22(5) of the Constitution and vitiated the detention order. Rejecting the argument that the question had become academic, the Court held that the detention order could form basis for consequential actions, so its validity must be examined. The order of detention was quashed.
Law Points
- Detenu detained under Section 3 COFEPOSA Act or PIT NDPS Act by specially empowered officer has right to make representation to that officer
- right is in addition to representation to State Government
- Central Government and Advisory Board
- detaining authority must inform detenu of this right at time of serving grounds
- failure to inform violates Article 22(5) and vitiates detention order
- validity of detention can be examined even after detenu has undergone detention period if order may have consequential effects.
Case Details
1995 LawText (SC) (11) 68
K. Ramaswamy, B.L. Hansaria
1996 SCC (2) 315, JT 1995 (8) 496, 1995 SCALE (6) 700
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Nature of Litigation
Appeal by special leave against a Division Bench order of the Andhra Pradesh High Court dismissing a writ petition that challenged a preventive detention order passed under Section 3 of COFEPOSA Act, 1974.
Remedy Sought
The appellant, wife of the detenu, sought quashing of the detention order dated April 1, 1992 on the ground that the detenu was not informed of his constitutional right to make a representation to the Specified Officer who passed the detention order.
Filing Reason
After the Andhra Pradesh High Court initially dismissed the first writ petition, and later quashed detention orders of two other detenus for illegible documents, the appellant filed a second writ petition claiming violation of Article 22(5) due to non-intimation of the right to represent to the Specified Officer; the High Court dismissed it, leading to this appeal.
Previous Decisions
The Andhra Pradesh High Court first dismissed the appellant's initial writ petition; subsequently, in separate writ petitions by two other detenus, the High Court quashed their detention orders on the ground that illegible copies of documents deprived them of their right to make effective representation. The appellant's second writ petition (W.P. No.15974 of 1992) was dismissed by a Division Bench on March 10, 1993, holding that the detenu knew of his right but did not exercise it, so the detention was not vitiated.
Issues
Whether a detenu detained under Section 3 of COFEPOSA Act, 1974 has a right to make a representation to the Specified Officer who passed the detention order
Whether failure to inform the detenu of this right violates Article 22(5) of the Constitution and vitiates the detention order
Whether the question becomes academic after the detenu has already undergone the full period of detention
Submissions/Arguments
Appellant: The detenu was not informed of his constitutional right to make a representation to the Specified Officer, contrary to the law laid down in Kamleshkumar Ishwardas Patel v. Union of India; this failure violated Article 22(5) and vitiated the detention order.
Respondents: The detenu had known that he had a right to make a representation but did not exercise that right; therefore the detention order was not vitiated for non-intimation. Additionally, since the detenu had already undergone the period of detention, the question was academic.
Ratio Decidendi
Where a detention order is made under Section 3 of COFEPOSA Act, 1974 or PIT NDPS Act, 1988 by an officer specially empowered, the person detained has a right to make a representation to that officer. The detaining authority must inform the detenu of this right at the time of serving grounds of detention; failure to do so results in denial of the right under Article 22(5) of the Constitution and vitiates the order of detention. The validity of the detention order can be examined even after the detenu has undergone the full period of detention if the order may have consequential effects.
Judgment Excerpts
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 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.
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.
Procedural History
On April 1, 1992, Jayantibhai Rambhai Patel was detained under Section 3 of COFEPOSA Act. The appellant, his wife, filed a writ petition in the Andhra Pradesh High Court, which was initially dismissed. Subsequently, two other detenus filed writ petitions and their detention orders were quashed on the ground that illegible copies of documents deprived them of their right to make an effective representation. Thereafter, the appellant filed another writ petition (W.P. No.15974 of 1992) contending that the detenu was not informed of his right to make a representation to the Specified Officer. A Division Bench of the High Court dismissed the writ petition on March 10, 1993, holding that the detenu knew of his right but did not exercise it. The appellant then filed a special leave petition in the Supreme Court, which granted leave. On November 22, 1995, the Supreme Court allowed the appeal and quashed the detention order.
Acts & Sections
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA): Section 3
- Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT NDPS): Section 3
- Constitution of India: Article 22(5)
