Preventive detention safeguard violated where the detaining authority did not itself decide the detenu's representation.

Preventive detention under Article 22(5) and Section 11 of the COFEPOSA Act was held illegal because the detenu's representation was not finally decided by the detaining authority itself. The Chief Secretary, acting as the specially empowered officer, had only recommended rejection, while the Administrator took the final decision. That was insufficient, as the statutory and constitutional safeguard required the detaining authority to consider and decide the representation so the detenu could pursue further remedies. Non-compliance with that requirement vitiated the continued detention, which was liable to be quashed and could not be sustained.

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Issues: Whether the continued detention was vitiated because the detenu's representation was not rejected by the detaining authority itself as required by Article 22(5) of the Constitution of India and Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.

Analysis: The detention order was passed by the Chief Secretary as the specially empowered officer, but the representation made by the detenu was ultimately placed before and rejected by the Administrator. The materials on record showed that the Chief Secretary had only recommended rejection and had not himself taken the final decision on the representation. Under the constitutional safeguard embodied in Article 22(5), as also the statutory scheme under Section 11 of the Act, the representation had to be considered and decided by the detaining authority, because only then could the detenu pursue further remedies before the State Government and thereafter the Central Government. Since that step was not complied with, the constitutional protection was not strictly observed.

Conclusion: The continued detention was illegal and was liable to be quashed.

Final Conclusion: The detention order could not be sustained, and the detenu was entitled to immediate release.

Ratio Decidendi: Where preventive detention law requires the detaining authority to consider a representation, the safeguard is not satisfied if another authority alone takes the final decision on rejection; non-compliance renders the detention illegal.

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