Preventive detention representation must be independently considered by the detaining officer; awaiting the Advisory Board cannot justify delay.

Article 22(5) requires a detenu's representation to be considered promptly and independently by the authority competent to grant relief. In COFEPOSA detention orders made by a specially empowered officer, that officer remains the detaining authority for this purpose and must consider the representation himself, in addition to the appropriate Government and the Central Government. The officer cannot postpone consideration merely because the matter has been referred to the Advisory Board, since his role is distinct from the Board process. On this view, failure to act from the date custody information was received and continued inaction until the Board's opinion caused unconstitutional delay and vitiated the detention.

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Issues: (i) Whether a detenu whose detention order is passed by a specially empowered officer under COFEPOSA has a right to have his representation considered by that very detaining authority independently; (ii) whether the detaining authority could defer consideration of the representation until receipt of the Advisory Board's opinion, and if not, whether the delay in the present case violated the detenu's constitutional rights.

Issue (i): Whether a detenu whose detention order is passed by a specially empowered officer under COFEPOSA has a right to have his representation considered by that very detaining authority independently.

Analysis: Article 22(5) guarantees not only the right to make a representation but also the right to have it properly considered by the authority competent to grant relief. The statutory scheme of COFEPOSA, read with the power of revocation preserved by Section 21 of the General Clauses Act, shows that the specially empowered officer who makes the detention order remains the detaining authority for this purpose and can revoke the order. The Constitution Bench in Kamleshkumar settled that a representation against such an order must be addressed to and considered by the very officer who passed it, in addition to any representation to the appropriate Government and the Central Government.

Conclusion: Yes. The detenu had a right to independent consideration of the representation by the specially empowered detaining authority, and failure to do so would amount to denial of the constitutional safeguard.

Issue (ii): Whether the detaining authority could defer consideration of the representation until receipt of the Advisory Board's opinion, and if not, whether the delay in the present case violated the detenu's constitutional rights.

Analysis: The earlier line of authority concerning the appropriate Government and the Advisory Board recognises that, in some situations, the Government may await the Board's report; however, that principle was confined to the Government's distinct statutory role in confirming or revoking detention after the Board's opinion. A specially empowered officer acting as detaining authority has no function in the Advisory Board process and cannot justify inaction by waiting for the Board's report. Since the representation was not considered from the date the custody information was received and was withheld solely because the Board's opinion was awaited, the delay lacked legal justification and prejudiced the detenu's right under Article 22(5).

Conclusion: The detaining authority was not justified in waiting for the Advisory Board's opinion, and the delay from 27.11.2019 to 14.01.2020 violated the detenus' constitutional rights.

Final Conclusion: The detention orders were held to be illegal, invalid, and unconstitutional, and the detenus were directed to be released forthwith unless required in connection with any other proceeding.

Ratio Decidendi: Where a preventive detention order under COFEPOSA is made by a specially empowered officer, Article 22(5) requires that officer to consider any representation independently and without awaiting the Advisory Board's report; prolonged inaction on that basis vitiates the detention.

Dissenting Opinion: Hemant Gupta, J. held that the principle in K.M. Abdulla Kunhi governed the situation and that once the matter had been referred to the Advisory Board, it was proper for the detaining authority to await the Board's opinion. On that view, the representation could be decided by the detaining authority dehors the Board's opinion, and the writ petition was dismissed.

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