Preventive detention law: failure to inform representation rights vitiates a declaration, but not the original detention order.

Non-intimation of the right to make a representation against a declaration under section 9(1) of the COFEPOSA Act vitiates the declaration, the consequential confirmation, and detention beyond the period authorised by that declaration, but it does not by itself invalidate the original detention order under section 3(1), which depends on the material before the detaining authority at the time of issuance. Delay in execution of a detention order is not fatal where it is factually explained, including evasion of service and consideration of possible bail. Alleged retraction of section 108 Customs Act statements does not undermine detention where the operative material before the authority included reaffirmed statements and the retraction was not shown to have affected subjective satisfaction.

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Issues: (i) Whether non-intimation of the right to make a representation against a declaration under section 9(1) of the COFEPOSA Act vitiated the declaration and the continued detention, and whether it also invalidated the original detention order; (ii) whether delay in execution of the detention order and the detenue's custody in another case rendered the detention illegal; and (iii) whether reliance on statements recorded under section 108 of the Customs Act, 1962 was vitiated by retraction.

Issue (i): Whether non-intimation of the right to make a representation against a declaration under section 9(1) of the COFEPOSA Act vitiated the declaration and the continued detention, and whether it also invalidated the original detention order.

Analysis: The right to make a representation under Article 22(5) extends to the authority making a declaration under section 9(1) because that authority has power to revoke the declaration. Failure to inform the detenue of that right infringes the constitutional guarantee and affects the declaration, the consequential confirmation, and the continued detention beyond the period authorised by the declaration. The defect, however, does not by itself go to the initial satisfaction recorded for detention under section 3(1), since the validity of that order is judged on the material before the detaining authority at the time of making it.

Conclusion: The declaration and continued detention were vitiated, but the original detention order was not invalidated on that ground.

Issue (ii): Whether delay in execution of the detention order and the detenue's custody in another case rendered the detention illegal.

Analysis: Delay in execution of a detention order must be assessed on the facts of the case. Where the detenue had been evading service and the authority acted after learning of the arrest in another case, and also considered the possibility of release on bail, the delay is sufficiently explained. Mere custody in another case does not automatically invalidate detention if the authority has applied its mind to the relevant circumstances and the need for preventive detention remains.

Conclusion: The delay in execution and the detenue's custody did not vitiate the detention order.

Issue (iii): Whether reliance on statements recorded under section 108 of the Customs Act, 1962 was vitiated by retraction.

Analysis: The material before the detaining authority showed that the earlier statements had been reaffirmed and the retraction was not the operative version before the authority when the detention order was made. In those circumstances, non-consideration of the alleged retraction did not undermine the subjective satisfaction supporting the detention order.

Conclusion: The detention order was not vitiated by the alleged retraction.

Final Conclusion: The challenge succeeded only to the extent that the declaration under section 9(1) and the consequent continued detention were unsustainable, but the detention order under section 3(1) remained intact; the appeal was otherwise dismissed.

Ratio Decidendi: Non-intimation of the right to represent against a declaration under preventive detention law vitiates the declaration and continued detention, but it does not by itself nullify the original detention order made on prior subjective satisfaction; delay in execution and alleged retraction do not invalidate detention where adequately explained or not materially shown before the detaining authority.

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