COFEPOSA representation rights: detenu need not first approach the specially empowered officer who signed the detention order.

Article 22(5) does not create a separate right for a detenu to make an initial representation to the specially empowered officer who signed a COFEPOSA detention order. Under the statutory scheme, the appropriate Government remains the detaining authority in substance, so the constitutional safeguard is satisfied by consideration of the representation by the Government. The absence of any revocation power in the officer supports the view that a prior representation to that officer would be futile and is not a legal prerequisite. Earlier cases on delay or non-consideration by the Government do not require first-level consideration by the signing officer in every case.

---

---

Issues: Whether, under Article 22(5) and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, a detenu whose detention order is made by a specially empowered officer has a right to be informed that he may first make a representation to that very officer, and whether such officer is the detaining authority distinct from the State Government.

Analysis: Article 22(5) requires communication of grounds and an earliest opportunity to make a representation, but it does not confer a separate constitutional right to insist that the initial representation must be made to, and considered by, the officer who signed the detention order. Under the statutory scheme, the appropriate Government remains the detaining authority for the purposes of the Act even where the order is made by a specially empowered officer. The provisions governing reporting to the Central Government, reference to the Advisory Board, and revocation by the Governments show that the Act treats such orders as governmental orders in substance, supported by deemed approval and governmental responsibility. The absence of a power of revocation in the officer making the order also shows that requiring a prior representation to that officer would be futile and would not advance the detenu's constitutional protection. Earlier decisions referring to the detaining authority were concerned with delay or failure by the Government in considering representations and do not establish a rule that the same officer must first deal with the detenu's representation in every case.

Conclusion: The detenu had no right to a first representation to the officer who passed the detention order, and the order could not be quashed on that ground.

Final Conclusion: The detention order was restored in law, the High Court's quashing was set aside, and the appeal succeeded, though the detenu was not to be re-arrested for the remaining period.

Ratio Decidendi: Under COFEPOSA, a detention order made by a specially empowered officer is treated as an order of the appropriate Government for the purposes of Article 22(5), so the detenu's constitutional right is to have the representation considered by the Government and not to insist on an initial consideration by the officer who made the order.

---