TaxTMI 
TaxTMI 
2007 (3) TMI 730
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....oreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA Act") on 14.6.2002. The said order of detention was served upon the sole respondent on 5.9.2002. The grounds of detention were set out in the backdrop of the detailed factual matrix which were made available to the detaining authority about various alleged omissions, misdeclaration and concealment etc. which according to the detaining authority amounted to smuggling of goods within the meaning of the provisions of the COFEPOSA Act. We are not required to notice the details of the grounds of detention for the purposes of disposal of this appeal. 3. The respondent through his brother filed the writ petition in Delhi High Court on 21.1....
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....3 the High Court could have simply disposed of the writ petition without going into the legality of the order of detention. The respondent appears to have pressed the writ petition in order to avoid further proceedings under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "the SAFEMA"). Be it noted Section 2 of the SAFEMA provides that the provisions of the Act shall apply inter alia to every person in respect of whom an order of detention has been made under the COFEPOSA Act provided that such order of detention has not been set aside by a court of competent jurisdiction. 5. Mr. Amarendra Sharan, learned Additional Solicitor General appearing for the appellants submitt....
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.... settled and needs no re-statement that the right to make a representation against the order of detention is the most cherished and valuable right conferred upon a detenue under Article 22(5) of the Constitution of India and if there has been any infraction of such right the detenu is entitled to be released. Construing the provisions of Article 22 (5) this Court in more than one decision explained that the right of a person detained to make a representation against the order of detention is a comprehensive one. It comprehends that the person detained has the right to make a representation not only to the officer who made the order of detention but as well as to the State Government and the Central Government who are competent to revoke the....
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....e failure on the part of the officer who had made the order of detention to independently consider the representation submitted by the detenu against his detention and to take a decision on the said representation the further detention of the detenu Ishwardas Bechardas Patel is rendered illegal." In the same analogy it must be held that the failure on the part of the Central Government to independently consider the representation submitted by the detenu against his detention renders further detention of the detenu illegal. The initial order of detention passed under Section 3 (1) of the COFEPOSA Act does not get vitiated. The very order of detention passed under Section 3 (1) of the COFEPOSA Act cannot be declared void ab initio. It is u....
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....ile making an order of detention under Section 3 (1) of the COFEPOSA Act. If the detaining authority on the basis of the materials before him did arrive at his satisfaction with regard to the necessity for passing an order of detention and the order is passed thereafter, the same cannot be held to be void because of a subsequent infraction of the detenu's right or of non-compliance with the procedure prescribed under law. On such infraction and for non-compliance with the procedure prescribed under law, the further detention becomes illegal. But it does not affect the validity of the order of detention itself issued under Section 3 (1) of the Act by the detaining authority." (emphasis added) 10. In our considered opinion the decision of ....
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....ded that detenu's representation ought to have considered by the detaining authority itself, namely, by the Chief Secretary but the same had been straight away considered by the Administrator, who under Section 2 (f) of the COFEPOSA Act was the State Government for the Union Territory, thus depriving the detenu of his remedy to approach the Administrator as a higher authority after the rejection of his representation by the detaining authority. This Court came to the conclusion that the representation was not rejected by the detaining authority and as such constitutional safeguard under Article 22 (5) cannot be said to have been strictly observed or complied with but this Court did not quash the detention order dated April 3, 1979 but held ....