Detention Order Quashed: Failure to Inform Detainee of Right to Representation Under Article 22(5) Leads to Release.

The HC allowed the writ petition, setting aside the detention order under the COFEPOSA Act due to the failure to inform the detenu of his right to make a representation, as required by Article 22(5) of the Constitution. The Court ordered the detenu's release, emphasizing the constitutional mandate and established legal precedents.

---

---

Issues:
Challenge to detention order under COFEPOSA Act based on failure to inform detenu of right to make representation.

Analysis:
The writ petition challenged the detention order issued under the COFEPOSA Act, contending that the detenu was not informed of his right to make a representation to the detaining authority. The detenu, Rahim Haroon Manoria, was arrested at Sahar International Airport with foreign currency concealed in his baggage. The detention order was served on the detenu on 4th March 1997, and the grounds of detention were provided. The detenu was not informed of his right to make a representation, as required under Article 22(5) of the Constitution.

The Deputy Secretary to the Government of Maharashtra admitted in an affidavit that the detenu was not apprised of his right to make a representation due to the prevailing law at the time of detention order issuance. However, the petitioner argued citing the Supreme Court's decision in Smt. Pushpa v. Union of India that the detaining authority must be informed to enable the detenu to make a representation. Additionally, the petitioner referred to the Constitution Bench judgment in Kamleshkumar Ishwardas Patel v. Union of India, emphasizing the detenu's right to make a representation to the detaining authority, which includes being informed of this right at the time of service of the grounds of detention.

The Court found the Government's stand unsustainable as the interpretation of Article 22(5) of the Constitution was in existence from the commencement of the Constitution. The Court highlighted that the detention order execution in this case was after the interpretation of the law by the Supreme Court, indicating a failure to inform the detenu of his right to make a representation. The Court noted that the detaining authority had issued addenda in other cases to inform detenus of their representation rights, further underscoring the failure in the present case. Consequently, the Court allowed the petition, set aside the detention order, and ordered the detenu's release unless required in another case.

In conclusion, the Court held that the detention order was invalid due to the detenu not being informed of his right to make a representation, as mandated by Article 22(5) of the Constitution. The Court's decision was based on established legal principles and precedents emphasizing the detenu's constitutional rights in detention matters.

---