J.U. Mehta, J.
1. The petitioner who is the detenu has challenged the order of detention dated 18-2-1989 passed by the Addl. Chief Secretary to Government, Home Department, Gandhinagar, who is respondent No. 2 herein, by exercising the powers under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) and directed that the detenu be kept in custody in the Central Prison, Ahmedabad. Along with the order of detention, the grounds of detention and the materials relied upon were served to the detenu at the time of the execution of the order. On 9-3-1989 a declaration under Section 9 of the Act was also issued by Shri B.V. Kumar, Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, who is respondent No. 4 herein. Both the order are challenged in this petition.
The allegations made in the grounds of detention reveal that on 11-1-1989 the detenu along with others was apprehended when the smuggled gold was being transport in the truck bearing No. GBC 7280. Thus, the present detenu with others was apprehended and the gold was seized under a reasonable belief that the gold was smuggled and was liable to be confiscated under the provisions of the Customs Act and the Gold (Control) Act, 1968.
2. The learned Advocate appearing for the petitioner submitted that in the grounds of detention it is mentioned that if the detenu wishes to avail of his right to make a representation, he may submit his representation through the jail authorities in the manner indicated therein. It is stated in the ground of detention that the representation meant for the detaining authority should be addressed to the undersigned, i.e. R. Balkrishnan, Additional Chief Secretary to Government, Home Department, Gandhinagar. It is also stated that the representation meant for the State Government should be sent to the address of the Joint Secretary, Government of Gujarat, Home Department (Special), Sachivalaya, Gandhinagar. It is also stated that if the representation is meant for the Central Government, it should be submitted through the Joint Secretary, (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economics Intelligence Bureau, and if the representation is meant for the Advisory Board, it should be addressed to the Chairman, COFEPOSA Advisory Board. The learned Advocate for the petitioner submits that thus the detenu is misled and he made a representation to the specially empowered Officer, R. Balkrishnan on 20-7-1988 as per the guidance given in the grounds of detention and it is communicated to the detenu by letter dated 25-7-1989, that the same is rejected by the specially empowered officer after carefully considering the same. It is submitted on behalf of the petitioner that the petitioner was misled in his valuable right and thus there is non-compliance of obligation cast upon the detaining authority to afford an earliest opportunity to make a representation to the State Government. He also submitted that the State Government who is the appropriate authority who has to decide the representation has not decided the same and thus, in the present case, the provision of Article 22(5) of the Constitution is infringed. It is also submitted on behalf of the petitioner that even though the representation was addressed to the specially empowered officer who issued the detention order, he ought to have got decided the said representation expeditiously at the level of the appropriate authority who is State Government in me present case as there is no right given to the detenu to make representation to specially empowered officer who had passed the detention order. The learned Advocate for the petitioner also submitted that the representation of the detenu has been considered by the authority who had no power and authority to consider the representation and for all these reasons, the continued detention of the petitioner becomes bad.
3. The learned Addl. Public Prosecutor appearing on behalf of respondents 3. Nos. 1 and 2 invited our attention to Para 9 of the affidavit filed by the Deputy Secretary to Government. Home Department (Spl.) Sachivalaya, Gandhinagar, wherein it is stated as under:
I say and submit that the petitioner addressed one representation to Shri R. Balkrishnan, the Additional Chief Secretary (Home) and as such it was considered by him and the petitioner was informed of the decision rejecting his representation on 25-7-1989. The petitioner is informed of his right to make a representation against his detention not only to the detaining authority, but also the State Government, Central Government as well as to the Advisory Board. He has also been informed of his right to be heard in person by the Advisory Board.
Thus, according to the learned Addl. Public Prosecutor, as the petitioner had addressed his representation to Shri R. Balkrishnan, the Addition Chief Secretary, his representation was considered by him and the decision rejecting his representation was communicated to the detenu and that under these circumstances, it cannot be said that there is an infringement of the right of the detenu under Article 22(5) of the Constitution. In our opinion, in preventive detention cases under COFEPOSA, even though a representation is addressed to the specially empowered officer who had issued me detention order, still it is incumbent upon the authorities to get the said representation decided expeditiously at the level of the State Government. The specially empowered officer under Section 3(1) of the COFEPOSA even if additionally authorised to revoke an order of detention under Section 11 of the COFEPOSA was ipso facto not authorised to deal and decide the representation made to him challenging the order of detention passed by him. In view of the above position in law, it is evident that the representation made by the detenu, which was addressed to the specially empowered officer has not been considered at all by the State Government and it would be deemed that it remains indisposed even till today and thus, the continued detention of the detenu has becomes bad. That conclusion of ours is based on the observations in Smt. Sushila Mafatlal Shah's case reported in : 1989CriLJ99 , wherein the Supreme Court has said in very clear terms that the specific duty of the specially empowered officer under Section 3(1) to place the representation before the officer concerned or the Ministers specially empowered under the Rules of Business of the Government of India. A similar view as we are taking is also taken by the Delhi High Court in the case of Kulwant Singh v. Union of India and Ors., reported in 1990(1) Crimes 300, while considering the case under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988, wherein a similar provision is found. The Delhi High Court has also taken a similar view in the case of Modieen Abbas v. Union of India and Ors., reported in 1990(1) Crimes 505, while dealing with a case under the COFEPOSA Act, after following the judgment in the case of Mohd. Saleem given by the Full Bench of the Delhi High Court, reported in 1989(3) Delhi Lawyer 77. The same view is taken by this High Court (Coram: G.T. Nanavati and N.B. Patel, JJ.) in Special Criminal Application No. 990 of 1988 decided on 29-12-1989 and also in the case of the co-detenu of the present case in Special Criminal Applicated No. 1268 of 1989, decided on 20-2-1990 (Coram: G.T. Nanavati and J.U. Mehta, JJ.) [Reported in : (1990)2GLR1090 Praful Keshavji Thakkar v. Union of India].
4. In the result, this petition is allowed. The impugned order of detention dated 18-2-1989 is quashed and set aside. Consequently, the declaration under Section 9(1), dated 9-3-1989 is also quashed and set aside. The petitioner-detenu is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly, with no order as to costs.