1988 (9) TMI 175 - SC - FEMA

Whether by reason of D.N. Capoor having passed the order of detention only in exercise of his special empowerment to act under Section 3(1) of the Act and not in exercise of any right given to him under the Rules of Business of the Government he was under a constitutional obligation to communicate to and afford opportunity to the detenu to make a representation to himself in the first instance before the detenu availed of his right to make representations to the State Government and the Central Government? Held that - The view taken by the High Court it would lead to the position that even if an order of detention is made on very valid and justifiable grounds by a specially empowered officer the sustainment of the order would depend upon extraneous factors such as the officer not falling sick or going on leave or retiring from service or being transferred etc. etc. Surely the Act and the Constitution do not envisage such situations. It is because of these factors Dr. Chitale contended and in our opinion very rightly that if the view of the High Court is to be accepted it would often lead to a defeasance of the COFEPOSA Act itself and the purpose for which is was enacted. Thus we cannot accept or sustain the view taken by the High Court for quashing the order of detention passed against the detenu. We therefore direct that notwithstanding our holding that the High Court was in error in quashing the order of detention made against the detenu he will not be re-arrested and placed in custody for the rest of the period of detention. Appeal is allowed and the judgment and order of the High Court are set aside but however the detenu s release will not be effected

Summary

Issues Involved:
1. Whether an officer specially empowered under Section 3(1) of the COFEPOSA Act must inform the detenu of the right to make a representation to the Detaining Authority himself.
2. Whether there is a difference between an order of detention passed by an officer solely under Section 3(1) and one passed by an officer also empowered under the Rules of Business of the Government.
3. Whether a detenu has a constitutional right to have his representation first considered by the officer issuing the detention order before making representations to the State Government and the Central Government.

Issue-wise Detailed Analysis:

1. Right to Make Representation to the Detaining Authority:
The High Court quashed the detention order on the ground that the detenu was not informed of his right to make a representation to the Detaining Authority, D.N. Capoor, violating Article 22(5) of the Constitution. The Supreme Court examined whether an officer specially empowered under Section 3(1) of the COFEPOSA Act must inform the detenu of this right. The Court concluded that Article 22(5) does not provide for a detenu to make a representation to the officer who issued the detention order, but rather to the State Government and the Central Government.

2. Difference Between Orders Passed Under Section 3(1) and Rules of Business:
The State argued that there should be no distinction between detention orders passed by officers solely under Section 3(1) and those also empowered under the Rules of Business. The Supreme Court agreed, stating that the COFEPOSA Act does not differentiate between these orders. The Court emphasized that the appropriate Government (State or Central) remains the Detaining Authority irrespective of whether the order was passed by an officer under Section 3(1) or under the Rules of Business.

3. Constitutional Right to Initial Representation to the Officer:
The detenu's counsel argued that the detenu had a constitutional right to have his representation first considered by the officer who issued the detention order. The Supreme Court refuted this, stating that the obligation under Article 22(5) is to provide the earliest opportunity to make a representation to the appropriate Government, not the officer. The Court clarified that an officer's order of detention is deemed to have the Government's approval, making the Government the Detaining Authority.

Conclusion:
The Supreme Court held that the High Court erred in quashing the detention order on the ground that the detenu was not informed of his right to make a representation to the Detaining Authority. The Court emphasized that the appropriate Government remains the Detaining Authority and the constitutional obligation is to provide the detenu the opportunity to make a representation to the Government. The appeal was allowed, the High Court's judgment was set aside, but the detenu was not to be re-arrested.