1995 INSC 1023
                                                 Nutan J. Patel (Ms)

                                                           Vs

                                             S. V. Prasad and Another

                                       Criminal Appeal No. 1562 of 1995

                                       (K. Ramaswamy, B. L. Hansaria JJ)

                                                      22.11.1995

                                                        ORDER

1. Leave granted.

2. The detenu, Jayantibhai Rambhai Patel, was detained on 1-4-1992 under COFEPOSA Act. The
appellant on behalf of her husband, filed a writ petition in A.P. High Court. The High Court in the
first instance dismissed the writ petition. Subsequently two other detenus filed a writ petition on the
ground that copies of the documents supplied to the detenus were illegible and that they have been
deprived of their valuable right to make a representation to the Advisory Board, to the State
Government and the Central Government. That contention was found acceptable and, therefore, the
detention order was quashed. Thereafter, the appellant filed another writ petition and contended that
the detenu had not been informed of his right to make a representation to the Specified Officer.
Therefore, he has been denied of the constitutional right under Article 22(5) of the Constitution. A
Division Bench of the High Court under the impugned order dated 10-3-1993 made in Writ Petition
No. 15974 of 1992 dismissed the writ petition on the ground that the detenu had known that he had
a right to make a representation but he did not exercise that right and that, therefore, the order of
detention is not vitiated on the ground of non-intimation of the right to make representation to the
Specified Officer. Thus, this appeal by special leave.

3. The controversy is no longer res integra. The Constitution Bench of this Court in Kamleshkumar
Ishwardas Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] laid down the law thus :
(SCC p. 68, para 38)

                  "Having regard to the provisions of Articles 22(5) of the Constitution and the
                  provisions of the COFEPOSA Act and the PIT NDPS Act, the question posed is thus
                  answered : 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 authorised 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 representation necessarily implies that the
                  person detained must be informed of his right to make a representation to the
                  authority that has made the order of detention at the time when he is served with the
                  grounds of detention so as to enable him to make such a representation and the
                  failure to do so results in denial of the right of the person detained to make a
                  representation."

4. In relation to the detention of the detenus in Criminal Appeals Nos. 850 and 915 of 1994 under
PIT NDPS Act, the Madras High Court allowed the writ petition and set aside the order of detention
on the ground that the detenus were not informed of their constitutional right to make a
representation to the detaining officer and it vitiates the right guaranteed under Article 22(5) of the
Constitution. The Court had upheld the above view. It is seen that the detenu was informed on 20-4-
1992 that he was at liberty to make a representation to the State Government, Central Government
and to the Advisory Board. It was asserted that he made a representation through the prison
authorities to the Government of Andhra Pradesh. In other words, from these facts, it would be clear
that the detenu was not informed of his constitutional right to make a representation to the Specified
Officer for reconsideration of his detention. In view of the law laid down by this Court, the failure
on the part of the Specified Officer to inform the detenu that he has a constitutional right to make
representation to the Specified Officer against the order of detention, violates Article 22(5) of the
Constitution. The order of detention gets vitiated.

5. It is contended for the respondents that since the detenu had already undergone the period of
detention, the question becomes one of academic interest. We cannot accede to the contention. Since
the order of detention would form the foundation to consequential actions to ensue, we are of the
view that it would be proper to consider validity of the order of detention, though the detenu had
undergone the period of detention by the time the matter came up for final disposal.

6. In these circumstances, the appeal is allowed. The order of detention stands quashed.