TMI Blog2007 (3) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India and the detaining authority. The Joint Secretary, Government of India issued the order of detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act ) on 14.6.2002. The said order of detention was served upon the sole respondent on 5.9.2002. The grounds of detention were set out in the backdrop of the detailed factual matrix which were made available to the detaining authority about various alleged omissions, misdeclaration and concealment etc. which according to the detaining authority amounted to smuggling of goods within the meaning of the provisions of the COFEPOSA Act. We are not required to notice the details of the grounds of detention for the purposes of disposal of this appeal. 3. The respondent through his brother filed the writ petition in Delhi High Court on 21.11.2002 assailing the legality of the order of detention on various grounds. The only ground on which the writ petition was pressed and disposed of relates to non-consideration of the representation dated 01.10.2002 submitted to the Central Government by the detenu. It was contended that non-con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a reasonable time, only the continued detention of the detenu may be vitiated and the original detention order cannot be declared void ab initio. 6. Dr. Abhishek M. Singhvi, learned Senior Counsel appearing for the respondent while countering the submissions of the learned Addl. Solicitor General contended that the High Court was fully justified in quashing the very order of detention. It was further submitted that the right to make representation against the order of detention is conferred upon the detenu under Article 22 (5) of the Constitution of India and its non-consideration vitiates the very order of detention. The concept of continued detention would be applicable only in cases where there has been a declaration made under Section 9 of the Act extending the period of detention without obtaining the opinion of the Advisory Board. 7. We have carefully considered the rival submissions and scrutinized the impugned judgment of the Delhi High Court and the conclusion arrived at in the said judgment. 8. It is so well settled and needs no re-statement that the right to make a representation against the order of detention is the most cherished and valuable right conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analogy it must be held that the failure on the part of the Central Government to independently consider the representation submitted by the detenu against his detention renders further detention of the detenu illegal. The initial order of detention passed under Section 3 (1) of the COFEPOSA Act does not get vitiated. The very order of detention passed under Section 3 (1) of the COFEPOSA Act cannot be declared void ab initio. It is unnecessary to multiply authorities in support of our conclusion. In Meena Jayendra Thakur v. Union of India, [1999] 8 SCC 177 this Court relying on the judgment rendered by the Constitution Bench in Kalesh Kumar Ishwardas Patel (supra) held: the authority issuing a declaration under Section 9 of the COFEPOSA Act must intimate the detenu that he has the right of opportunity to represent to the declaring authority and non-intimation of the same infringes upon the constitutional right of the detenu to make a representation under Article 22 (5) and, therefore, the notification issued under Section 9 (1) becomes invalid and the continued detention pursuant to such declaration and the opinion of the Advisory Board within the extended period as well as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... large. The order of detention as such was not quashed. 12. In Smt. Santosh Anand v. Union of India Ors. [1981] 2 SCC 420 one Mangat Ram Anand was detained under the order dated April 3, 1979 issued under Section 3 (1) of the COFEPOSA Act. On April 20, 1979 a representation was made to the detaining authority ( Chief Secretary) by the detenu against the order of detention. On 24.5.1979 the detenu was informed that his representation has been considered by the Administrator, Delhi and had been rejected. In the writ petition filed on behalf of the detenu it was contended that detenu s representation ought to have considered by the detaining authority itself, namely, by the Chief Secretary but the same had been straight away considered by the Administrator, who under Section 2 (f) of the COFEPOSA Act was the State Government for the Union Territory, thus depriving the detenu of his remedy to approach the Administrator as a higher authority after the rejection of his representation by the detaining authority. This Court came to the conclusion that the representation was not rejected by the detaining authority and as such constitutional safeguard under Article 22 (5) cannot be said ..... 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