Preventive detention representation rights: detenu may approach the detaining officer, who must consider it independently.

Article 22(5) gives a detenu a substantive right to make a representation against preventive detention to any authority capable of granting immediate relief by revoking the order. In cases under COFEPOSA and the PIT NDPS Act, a specially empowered officer remains the detaining authority because the scheme does not require prior governmental approval and the officer retains revocation power under the General Clauses Act. The detenu may therefore represent directly to that officer, and the officer must consider it independently. Failure to inform the detenu of this right, or failure by the officer to decide the representation, denies the constitutional safeguard and vitiates the detention.

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Issues: Whether, when a detention order is made under the preventive detention statutes by an officer specially empowered by the Central Government or the State Government, the detenu has a right to make a representation to that officer and whether the officer is bound to consider it; and whether failure to inform the detenu of that right or to consider the representation vitiates the detention.

Analysis: Article 22(5) confers a substantive constitutional right to make a representation against a detention order, and that right is meaningful only if the representation can be made to an authority competent to grant immediate relief by revoking the order. The authority that makes the detention order retains the power to revoke it under Section 21 of the General Clauses Act, 1897, and in the case of orders under the COFEPOSA Act, 1974 and the PIT NDPS Act, 1988 that power is preserved notwithstanding the additional revocation powers given to the Central Government and the State Government. The scheme of those enactments does not provide for governmental approval of the officer's order and does not displace the specially empowered officer as the detaining authority. Accordingly, the detenu may address a representation to that officer, and the officer must consider it independently. Earlier authority treating the appropriate Government as the sole authority obliged to consider such a representation was not accepted to the extent it conflicted with this construction. Where the detenu is not informed of the right to represent to the detaining officer, or where such representation is not independently decided by that officer, the constitutional safeguard is denied.

Conclusion: A detenu detained under Section 3 of the COFEPOSA Act, 1974 or the PIT NDPS Act, 1988 by a specially empowered officer has a right to make a representation to that officer, and the officer must independently consider it; failure to do so vitiates the detention.

Final Conclusion: The batch of appeals was disposed of by upholding detentions where no such representation issue survived and setting aside detentions where the detenu's constitutional right to a representation before the detaining officer was breached.

Ratio Decidendi: In preventive detention under COFEPOSA and PIT NDPS, the specially empowered officer remains the detaining authority and must independently consider a detenu's representation because the right under Article 22(5) extends to every authority capable of granting immediate relief by revocation.

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