STATE OF MAHARASHTRA & ANOTHER versus SMT. SUSHILA MAFATLAL SHAH & OTHERS

Citation: [1988] SUPP. 2 S.C.R. 827 · Decided: 07-09-1988 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

J 
STATE OF MAHARASHTRA & ANOTHER 
v. 
SMT. SUSHILA MAFATLAL SHAH & OTHERS 
SEPTEMBER 7, 1988 
[A.P. SEN AND S. NATARAJAN, JJ.] 
Conservation of foreign Exchange and Prevention of Smuggling 
Activities Act, 1974: Sections 2, 3, 8 & 11-0fficer of State/Central 
Government specially empowered to pass detention orders-Whether 
··obligated to inform -detenu that he has three fold opportunity to make 
representatio·ns to himself, the State Government and Central 
Government-Whether there is any distinction between order of deten· 
lion passed by Officer of State Government and Officer of Central 
Government . 
. Constitution of India, 1950-Artic/e 22(5)-Detenu has a right to 
make representation to State and Central Government-No further right 
to makl! representation to the officer who has made order of detention. 
The detenu, D.N. Shah, was caught on 23.10.1986 in the act of 
trimspolilug ten gold biscuits of foreign origin. On 2.2.1987 D.N. 
Ca poor, Officer on Special Duty and ex-officio Secretary to the Govern-
ment of Maharashtra, in exercise of the powers specially conferred 
upon him by the Government of Maharashtra, passed an order of 
detention against D.N. Shah under section 3(1) of the COFEPOSA Act. 
In the grounds of detebtion served on the detenu he was informed that 
be had a right to make a representation to the State Government as also 
to the Government of India. 
The detenu's representation addressed to D.N. Capoor was 
forwarded by the Superintendent, Central Prison, Nasik to the State 
Government who rejected the same. 
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In March., 1987, the detenu's mother, respondent No. 1, filed a 
petition in the High Court of Bombay challenging the detention order 
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inter alia on the ground that the order of detention having been passed 
under section J(l) by D.N. Capoor in his capacity as a specially em· 
powered person, the detenu had a right to make a representation, in the 
first instance, to D.N. Capoor himself as the detaining authority before 
availing of his right to make .further representation, and failure to 
notify him of this right in tlie grounds of detention violated article 22(5) H 
827 
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B 
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828 
SUPREME COURT REPORTS 
[1988] Supp. 2 S.C.R. 
of the Constitution. The High Court accepted this contention and 
quashed the order of detention. 
Before this Court the appellant contended that: (1) neither Article 
22(5) of the Constitution nor the provisions of the COFEPOSA Act 
afforded scope for holding that if an order of detention was passed by a 
specially empowered officer of the State Government or the Central 
Government, a different kind of procedure had to be followed in the 
matter of affording opportunity to the detenu to make his represen-
tation against the order of detention, and (2) the High Court was not 
right in holding that the detenu had a right to have his representation 
considered by the very same officer who had passed the order of 
detention. 
The respondent, on the other hand, contended that unlike other 
Preventive Detention Acts such as the National Security Act, etc. there 
was no provision in the COFEPOSA Act for con!irmation by the 
9overnment of an order of detention passed by a specially empowered 
D officer under section 3(1) of the Act and as such the officer issuing an 
order of detention constituted the Detaining Authority of the determ. 
Allowing the appeal, it was, 
HELD: (1) On the plain language of Article 22(5), that article 
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does not provide material for the detenu to contend that in addition to 
his right to make a representation to the State Government and the 
Central Government, he has a further right under Article 22(5) to 
make a representation to D.N. Capoor himself as he had made the order 
of detention. [835G-H; 836A] 
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(2) Even if an order of detention is made by a specially 
empowered officer of the Central Government or the State Government 
as the case may be, it is the concerned Government that would consti-
t.ute the Detaining Authority under the Act and not the officer con-
cerned who 1nade the order of detention, and it is for that Government 
the detenu should be afforded opportunity to make representation 
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against the detention order at the earliest opportunity, as envisaged 
under Article 22(5), and not to the officer making the order of 
detention. [840E-G I 
(3) Though by reason of Section 3( I) a specially empowered officer 
is entitled to pass an order of detention, his constitutional obligation is 
H only 

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