TaxTMI 
TaxTMI 
2004 (1) TMI 389
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....gistrate, Calcutta, he retracted therefrom. He was granted bail in the aforementioned case. 3. The first respondent herein-thereafter filed a writ application before the Calcutta High Court for quashing the statement allegedly obtained from her husband by the Customs Officer. He was thereafter detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (hereinafter referred to as 'the COFEPOSA', for the sake of brevity). The said order of detention was served on him on 28-8-1995. 4. The detenu, made three representations - firstly, on 4-9-1995 before the Joint Secretary, COFEPOSA which was rejected on 21-9-1995; the second on 11/12-9-1995 addressed to Shri K.L. Verma, Joint Secretary to the Government of India which upon obtaining the comments of the Sponsoring Authority was rejected on 9-10-1995; and the third on 14-9-1995, addressed to the Secretary to the Government of India which was rejected by the Finance Minister on 16-10-1995. 5. Questioning the validity or otherwise of the said order of detention, the wife of the detenu, the first respondent herein, filed a Criminal Miscellaneous Case before the Calcutta High ....
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....ernment and the Advisory Board have to be considered by all the three Authorities independently of each other and unless there be separate consideration of each one, there will be no sufficient compliance of law insofar as the provision under article 22(5) of the Constitution of India is concerned. In this view of the matter we are constrained to hold in the facts and circumstances of the present case that the order of detention has been rendered otiose in view of the non-consideration of all the representations by all the three Authorities on account of which the detenu is liable to be released from detention. . . ." Mr. P.P. Malhotra, learned senior counsel appearing on behalf of the appellant, would submit that the High Court went wrong in taking the aforementioned view inasmuch representations made by or on behalf of the detenu in terms of the provisions of the COFEPOSA are required to be considered by the concerned authorities independently. 7. The learned counsel would urge that the first two representations being made to the Joint Secretary who was the detaining authority, the same were required to be considered by him and not by the Central Government. Similarly, the ....
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....y. The cleavage in opinion of this Court as to whether the detaining authority can pass an order revoking the order of detention came up for consideration before a Constitution Bench of this Court in Kamleshkumar Ishwardas Patel's case (supra) wherein this Court in no uncertain terms held that the revoking authority has the requisite jurisdiction to revoke an order of detention. Upon service of the order of detention of the detenu, the detaining authority or the State Government is obligated to forward to the Central Government a report thereabout; whereafter the latter is entitled to consider at its earliest opportunity, the validity or otherwise thereof so as to enable it to intervene in appropriate cases by exercising its power of revocation. Furthermore, the represen- tation of the detenu, if any at a later stage is required to be considered by the Central Government in terms of section 11 of the Act which read thus: "11. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified- (a)notwithstanding that the order has been made by an officer of a State G....
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....d to be obtained. Apart from the fact that such procedure is not contemplated, a great delay would ensure thereby which would run counter to the constitutional schemes, as the detenu has a fundamental right to have the same considered and obtain an order on his representation by the appropriate authority at the earliest opportunity. Keeping in view the aforementioned principles, we may examine the decisions relied upon by the High Court. 16. In Kubic Darusz's case (supra), the question which arose was as to whether the grounds of detention are required to be supplied to the detenu in the language understood by him so as to enable him to make an effective representation and that the representation submitted by him was required to be considered, acted upon or replied by all the authorities. This Court observed that indisputably, the representation may be made by the detenu to the appropriate Government and it is the appropriate Government that has to consider the representation within a reasonable time holding : ". . . Even if the Advisory Board had made a report upholding the detention the appropriate Government is not bound by such opinion and it may still, on consideri....
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....tually rejected by the latter. Agarwal, J. speaking for the Bench noticed the provisions of sections 3 and 11 of the COFEPOSA Act as also section 21 of the General Clauses Act and upon considering a large number of decisions answered the question thus : ". . . Where the detention order has been made under section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorized by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representa....