P. M. CHAUHAN, J. ( 1 ) PETITIONER Raghuvirsinh Amarsinh Jadeja has filed this petition under Art. 226 Constitution of India for a writ of Habeas Corpus or any other appropriate order or direction quashing the order detaining his brother Harishchandra Amarsinh Jadeja (hereinafter referred to as the detenu) passed by Shri K. V. Hari Har Das Additional Chief Secretary to Government Home Department (Special) Gandhinagar. on 8-12-1986 on the strength of which the detenu is detained on 29-12-1986. ( 2 ) SHRI K. V. Hari Har Das Additional Chief Secretary in exercise of the powers under sub-sec. (1) of sec. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the COFEPOSA Act) conferred on him by Government Order Home Department No. GG/63/sb-IV/psa/1086/360 dated 12-3-1986 directed detention of the detenu as Shri Hari Har Das was satisfied that with a view to preventing the detenu from engaging in transporting smuggled goods it is necessary to detain him. The detenu was detained on 29-12-1986 and the grounds of detention were also served on him on the same day. ( 3 ) IN the grounds of detention it is specifically stated that the detenu was engaged in transporting smuggled goods. On 30-8-1986 the Customs Officers of Mandvi searched the Wadi of Chatursinh Halubha Jadeja of village Nani Khakhar and at the time of search one Batukbha Tejmalji Jadeja working as the watchman of the said Wadi was present and said Batukbha informed the officers in presence of panchas that a few days prior to that a truck was brought at night and goods were off-loaded and Batukbha was paid Rs. 500. 00 for the labour charges. The Customs authorities attached 60 packages containing contraband goods consisting of synthetic fabrics zip fasteners etc. of foreign origin valued at Rs. 28 63 653 and they were seized under the reasonable belief that the same were smuggled and liable to be confiscated under the Customs Act 1962 The Wadi belonged to Chatursinh Halubha Jadeja and his statement was recorded and from the statement it transpired that the detenu was engaged in transporting some smuggled goods. This aspect is not challenged before us. This aspect is not challenged before us. It is clear from the grounds of detention that the detenu was engaged in transporting smuggled goods Shri K. V. Hari Har Das Additional Chief Secretary who was specially empowered under sub-sec (1) of sec. 3 of the COFEPOSA Act was subjectively satisfied about the activities of the detenu and therefore he came to the conclusion that from the material on record he was satisfied that the detenu was engaged and also was likely to engage himself in transporting smuggled goods and there was sufficient cause to pass the order of detention against him under the COFEPOSA Act with a view to preventing him from engaging in transporting smuggled goods. When the detention order was passed the detenu was absconding but it appears that subsequently he was arrested on 29-12-1986. ( 4 ) THE petitioner has challenged the detention order on various grounds mentioned in the petition but Shri M. G. Karmali learned Counsel for the petitioner at the hearing of the petition asserted two contentions raised in the petition. . . . . . . . . . . . . . . . . . ( 5 ) SHRI M. G. Karmali learned Counsel for the petitioner has raised mainly two contentions viz: (1) That Shri K. V. Hari Har Das while exercising the powers conferred on him under sub-sec. (1) of sec. 3 of the COFEPOSA Act has passed the detention order as an empowered authority and not as a State Government and therefore under Article 22 (5) Constitution of India the right of making effective representation to the detaining authority should have been informed to the detenu and by not informing that the detenu has a right to make representation to the detaining authority the detention order is per se fatal and the very fact that the representation was made to the detaining authories on or about 30-12-1986 i. e. on the next day of the detention would not save the situation as it is obligatory duty on the detaining authority to inform the detenu of his constitutional right to make representation Failure to discharge such constitutional obligation by the detaining authority makes the order per se fatal. It is the absolute right of the detenu to be informed of his right to make a representation to the detaining authority. It is the absolute right of the detenu to be informed of his right to make a representation to the detaining authority. (2) That the representation was submitted to Shri K. V. Hari Har Das the detaining authority exercising the powers under sub-sec. (1) of sec. 3 of the COFEPOSA Act but it was rejected by the State Government and not by Shri K. V. Hari Har Das as the detaining authority. Even if Shri Hari Har Das has rejected the representation in his capacity as Additional Chief Secretary to the Government in exercise of the powers under the Rules of Business he was acting as the State Government and not in exercise of independent powers under sec. 3 (1) of the COFEPOSA Act and therefore the representation of the detenu is not considered at all by the detaining authority and also the right of the detenu to make a representation to the State Government and being considered by the State Government is made abortive and rendered barren. ( 6 ) MR. S. D. Shah learned Standing Counsel for respondent No. 1 of India and Mr. J. U. Mehta learned Additional Public Prosecutor for respondent Nos. 2 and 3 have submitted that under Art. 22 Constitution of India the only obligation of the detaining authority is to communicate to the detenu the grounds on which the order is made and afford him the earliest opportunity to make representation against the order and it is not the obligation to further inform the detenu about the authorities to whom the representation should be made. It is also submitted that the detenu made the representation to the detaining authority on the very next day of the detention and therefore no prejudice is caused to the detenu and even if the detaining authority did not inform the detenu about his right to make representation to the detaining authority that has not prejudiced the detenu at all. About the second contention it is submitted that the representation was made to Shri K. V. Hari Har Das as the detaining authority and the same officer has rejected the representation and even if it is rejected by him on behalf of the State Government that by itself cannot he considered as not considering the representation by the detaining authority and would not vitiate the detention order. Mr. Mr. J. U. Mehta learned Additional Public Prosecutor also tried to explain that the representation was rejected by Shri K. V. Hari Har Das in his capacity as the detaining authority but that aspect will be considered separately at a later stage. . . . . . . . . . . . . . . . . . . . . . . . . . . ( 7 ) UNDER sub-sec. (1) of sec. 3 of the COFEPOSA Act the Central Government or the State Government or any officer of the Central Government not below the rank of a Joint Secretary to that Government specially empowered for the purpose of sec. 3 of the COFEPOSA Act by that Government or any officer of a State Government not below the rank of a Secretary to that Government specially empowered for the purpose of sec. 3 of the COFEPOSA Act by that Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods or engaging in transporting or concealing or keeping smuggled goods etc. it is necessary so to do make an order directing that such person be detained. Under sec. 3 of the COFEPOSA Act the State Government or a specially empowered officer not below the rank of Secretary to the State Government can exercise the power of detaining or preventing any person from doing any activities specified in the section. It is clear from the detention order that Shri K. V. Hari Har Das was specially empowered by the State Government to exercise the powers under sec. 3 of the COFEPOSA Act and he was satisfied about the activities of the detenu engaging himself in transporting smuggled goods and therefore on his subjective satisfaction he passed the order detaining the detenu. Evidently the detenu was not detained by Shri Hari Har Das as the Secretary to the Government of Gujarat on behalf of the State Government in exercise of delegated powers under the Rules of Business. Shri K. V. Hari Har Das is therefore the detaining authority and not the State Government. Admittedly the detenu was not informed that a representation should be made to the detaining authority. Shri K. V. Hari Har Das is therefore the detaining authority and not the State Government. Admittedly the detenu was not informed that a representation should be made to the detaining authority. So far as this factual aspect is concerned as such there is no dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 8 ) AS we hold that the continued detention vitiates as the representation of the detenu is not considered Joy the detaining authority we have decided not to consider the rival contentions mainly about the detention order being per se fatal absolute right of the detenu to be informed of the representation to be made to the detaining authority obligation of the detaining authority to inform the detenu about that right and the requirement of the clement of prejudice in such cases. We would only like to observe that the learned Counsel of both the sides have ably discussed these aspects but we refrain from expressing any view on the above points as it is not necessary for us to do it in this matter. The above rival contentions are only discussed as the learned Counsel for the parties had strenuously urged them before us. We should therefore not be understood to have expressed any view on the above contentions. ( 9 ) THE detenu was informed by letter dated 3-1-1987 (Annexure F) by Shri P. N. Roychaudhary Deputy Secretary to the Government of Gujarat Home Department (Special) that the representation dated 30 of the detenu was carefully considered by the Government and it is rejected. It is therefore unequivocally clear that the representation was carefully considered by the State Government and the State Government had rejected it. It is not stated in the letter that the detaining authority Shri Hari Har Das had considered the representation and he has rejected it in his capacity as the detaining authority. Shri Hari Har Das the detaining authority has not filed any affidavit for the consideration of the Court stating that he has considered the representation in his capacity as the detaining authority and rejected it. At this stage we would like tn make it clear that after the arguments were over Mr. Shri Hari Har Das the detaining authority has not filed any affidavit for the consideration of the Court stating that he has considered the representation in his capacity as the detaining authority and rejected it. At this stage we would like tn make it clear that after the arguments were over Mr. J. U. Mehta learned Additional Public Prosecutor requested to grant time to inquire as to whether Shri K. V. Hari Har Das would be inclined to file an affidavit explaining the position and with a view to enable him to file an affidavit we adjourned the matter and at the closing hours of the Court Mr. J. U. Mehta informed that he tried to contact Shri Hari Har Das but could not contact him and therefore he did not require any time to file the affidavit. We have noted this fact as we wanted to give sufficient opportunity to the Government and Shri Hari Har Das to file affidavit if at all they desired for that and make the position clear. ( 10 ) FROM the letter dated 3-1-1987 (Annex F) of Shri P. N. Roychaudhary it is clear that the Government had considered the representation and rejected it. In spite of this fact Shri J. U. Mehta learned Additional Public Prosecutor tried to convince us that the representation was considered by Shri K. V. Hari Har Das in his capacity as the detaining authority. Mr. S. D. Shah learned Standing Counsel for respondent No. 1 in all fairness however did not make any such effort. ( 11 ) WE have considered the affidavits filed by Shri R. B. Verma Assistant Collector of Customs (Preventive) Shri C. Rajan Under Secretary to the Government of India Shri P. N. Roychaudhary Deputy Secretary to the Government of Gujarat Home Department (Special) and Shri V. P. Malvania Deputy Secretary Home Department Government of Gujarat and we do not find in clear terms in any of the affidavits and especially in the affidavit of Shri P. N. Roychaudhary that the representation of the detenu was considered by Shri K. V. Hari Har Das in his capacity as the detaining authority and it was a mistake on the part of Shri Ronchaudhary to inform the detenu by letter dated 3-1-1987 (Annexure F) that the State Government had rejected the representation. In spite of the fact that Shri Roychaudhary has filed his affidavit he did not state in clear terms that only because of his mistake if any he had informed the detenu that his representation was rejected by the State Government. If at all that would have been the fact he would have clearly deposed in his affidavit. What Shri Roychaudhary has staled in his affidavit is that the representation was addressed to Shri K. V. Hari Har Das who is the detaining authority and it was stated in the representation that it was made under Art. 22 (5) Constitution of India to the detaining authority. It is therefore clearly admitted that the representation was made only to the detaining authority and not to the State Government and that too in assertion of right under Art. 22 (5) Constitution of India. Shri Roychaudhary then further deposed in his affidavit the representation of the detenu dated 30-12-1986 has been considered and rejected by the detaining authority himself. He then referred to the Gujarat Government Rules of Business 1984 and the instructions issued under the said Rules and stated that the Governor on the advice of the Chief Minister has issued instructions on 3-9-1985 and as per the said instructions the Additional Chief Secretary has power to consider the representation made by the detenu under the provisions of different detention laws. He then stated: I say that in this case Shri K. V. Hari Har Das himself had considered the representation. Shri Roychaudhary has not stated in clear terms that the representation was rejected by the detaining authority in his capacity as the detaining authority. It appears that he has specifically not clarified that position as he wanted to make believe that the detaining authority which had the dual capacity in this particular case should be considered as having rejected the representation in his capacity as the detaining authority also. He however stands clearly contradicted by his letter dated 3-1-1987 (Annex. F) in which he clearly stated that the Government had rejected the representation. He however stands clearly contradicted by his letter dated 3-1-1987 (Annex. F) in which he clearly stated that the Government had rejected the representation. If at all the Government would not have rejected the representation and Shri K. V. Hari Har Das in his capacity as the detaining authority only rejected the representation that fact would have been specifically stated by Shri Roychaudhary in his affidavit and he would have clearly stated that it was his mistake in informing the detenu that it was rejected by the State Government. He would have also not referred the Rules of Business under which Shri K. V. Hari Har Das Additional Chief Secretary is delegated the powers of the State Government. If at all Shri K. V. Hari Har Das would have filed affidavit position would have been clear but in spite of the fact that the matter is pending in the Court for about 8 months and specific contention is raised by the petitioner the respondents did not think it necessary to file the affidavit of Shri K. V. Hari Har Das. As stated above even we agreed to give opportunity to enable the respondent to file the affidavit of Shri K. V. Hari Har Das but that was also Dot availed of. We therefore hold that the representation of the detenu was not considered by the detaining authority. but was considered and rejected by the State Government. ( 12 ) UNDER Art. 22 (5) Constitution of India the detenu should be communicated the grounds on which the order has been made and should be afforded earliest opportunity of making a representation against the order. Under sec. 21 General Clauses Act 1897 the authority conferred power to issue any order under the Act or regulations has a right to add. to amend to vary or rescind the order. The power of the detaining authority to revoke or rescind the detention order is therefore conferred under the provisions of sec. 21 of the General Clauses Act. Under the provisions of Art. 22 (5) Constitution of India or the provisions of the COFEPOSA Act revocation power of the detaining authority is not withdrawn or taken away. Section 11 of the COFEPOSA Act specifically provides that without prejudice to the provisions of sec. 21 of the General Clauses Act. Under the provisions of Art. 22 (5) Constitution of India or the provisions of the COFEPOSA Act revocation power of the detaining authority is not withdrawn or taken away. Section 11 of the COFEPOSA Act specifically provides that without prejudice to the provisions of sec. 21 of the General Clauses Act 1897 a detention order may at any time be revoked or modified notwithstanding that the order has been made by an officer of a State Government or by that State Government or by the Central Government; and notwithstanding that the order has been made by an officer of the Central Government or by a State Government by the Central Government. Provisions of sec. 11 of the COFEPOSA Act are therefore made without prejudice to the rights of the detaining authority under sec. 21 General Clauses Act 1897 The State Government or the Central Government are given statutory powers to revoke the detention order under sec. 11 of the COFEPOSA Act without affecting the power of the detaining authority under sec. 21 General Clauses Act. Three different authorities viz. the detaining authority the State Government and the Central Government therefore can exercise the power of revocation of the detention order under the COFEPOSA Act. ( 13 ) IN Ibrahim Bachu Bafan v. State of Gujarat AIR 1985 Supreme Court 697 (1985 (2) GLR 820 (SC)) provisions of sec. 11 of the COFEPOSA Act came to be considered by the Supreme Court. The point for consideration before the Supreme Court was as to whether power can be exercised under sub-sec. (2) of sec. 11 of the COFEPOSA Act for detention after the order is set aside by the Court and not revoked by the competent authorities under sub-sec. (1) of sec. 11 of the COFEPOSA Act. While considering that aspect the Supreme Court considered the provisions of sec. 21 General Clauses Act and sec. 11 of the COFEPOSA Act and observed:. . . . SUB-SEC (1) of sec. 11 indicates that the power conferred under it in the situations envisaged in clauses (a) and (b) is exercisable without prejudice to the provisions of sec. 21 of the General Clauses Act. 21 General Clauses Act and sec. 11 of the COFEPOSA Act and observed:. . . . SUB-SEC (1) of sec. 11 indicates that the power conferred under it in the situations envisaged in clauses (a) and (b) is exercisable without prejudice to the provisions of sec. 21 of the General Clauses Act. That section provides that a power to issue orders includes a power exercisable in the like manner and subject to the like sanction and conditions if any to add to amend vary or rescind such orders. Under sec. 21 of the General Clauses Act therefore the authority making an order of detention would be entitled to revoke that order by rescinding it. We agree with the submission of Mr. Jethmalani that the words without prejudice to the provisions of sec. 21 of the General Clauses Act 1897 used in sec 11 (1) of the Act give expression to the legislative intention that without affecting that right which the authority making the order enjoys under sec. 21 of the General Clauses Act an order of detention is also available to be revoked or modified by authorities named in clauses (a) and (b) of sec. (1) of the Act. Power conferred under clauses (a) and (b) of sec 1 of the Act could not be exercised by the named authorities under sec. 21 of the General Clauses Act as these authorities on whom such power has been conferred under the Act are different from those who made the orders. Therefore conferment of such power was necessary as Parliament rightly found that sec. 21 of the General Clauses Act was not adequate to meet the situation. Thus while not affecting in any manner and expressly preserving the power under sec. 21 of the General Clauses Act of the original authority making the order power to revoke or modify has been conferred on the named authorities. In Smt. Kavita v. The State of Maharashtra AIR 1981 Supreme Court 1641 grievance was made that the representation was considered and rejected by the Minister of State Home Affairs Government of Maharashtra and not by Shri Samant Secretary to the Government who had exercised his mind at the initial stage of making the order of detention and therefore the detention vitiated. Repelling that contention the Supreme Court observed that the detention order was passed by the State Government and was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf and therefore the order did not vitiate. Shri Samant was exercising delegated powers under the Rules of Business Even though it is not specifically decided by the Supreme Court it appears from observation that the capacity of the same officer may he different while exercising the powers conferred under the COFEPOSA Act and under the Rules of Business. ( 14 ) RIGHT of the detenu under clause (5) of Art. 22 of the Constitution of India to make a representation and the corresponding duty of the detaining authority to consider the representation are now well-settled by several judgments of the Supreme Court. In Smt. Pushpa v. Union of India AIR 1979 Supreme Court 1953 (supra) the Supreme Court has observed in terms that the right to make a representation imposes a corresponding duty on the detaining authority to consider the representation because the representation may furnish such information as may necessitate revocation of the detention order as contemplated by sec. 11 of the COFEPOSA Act. The scheme of the COFEPOSA Act is that the representation if and when made may furnish such information to the detaining authority which may necessitate revocation of the detention order. Therefore the importance of the constitutional tight to make a representation and the corresponding duty to consider the representation cannot be under-estimated and should not be whittled down. While clearly expressing the view that the detaining authority has a right and duty to consider the representation it is observed:there is nothing in the scheme of Art. 22 or the provisions of the COFEPOSA which requires that the representation ought always to be considered by the appropriate Government notwithstanding the fact that the order of detention has been made by an officer specially empowered in that behalf Undoubtedly the power to revoke the detention order under sec. 11 is conferred on the State Government and the Central Government wherever an order of detention is made by an Officer of the State Government but that does not imply that the initial representation which a detenu has a right to make after the grounds of detention are furnished to him must of necessity be made and considered by the State Government. In fact the representation can and ought to be made to the detaining authority because it is he who has to apply his mind to the facts of the case and it is he who has furnished the grounds of detention on which he has acted and it is he who has to be convinced that the action taken by him is unjustified and requires reconsideration. After all the purpose of a representation is to convince the authority to consider its decision which has resulted in the detention of the detenu. The representation is not in the form of an appeal to the higher authority and therefore ipso facto it must go to the State Government. Undoubtedly it would be open to the detenu to make a representation under sec. 11 requesting either the State Government or the Central Government as the case may be to revoke the order of detention. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to reconsider the same. In the case of Puspa representation was made to the Chief Secretary who was the detaining authority and was considered and rejected by him and a grievance was made that it should have been rejected by the State Government and that contention was repelled. It is therefore evident that the detaining authority retains the power of considering the representation irrespective of the provisions of sec. 11 of the COFEPOSA Act. ( 15 ) IN Smt. Santosh Anand v. Union of India 1981 (2) Supreme Court Cases 420 (supra) the Chief Secretary Delhi Administration who was the detaining authority considered the representation submitted by the detenu but did not take final decision and submitted to the Administrator who finally rejected it and therefore it was held that the constitutional safeguard under Art. 22 (5) Constitution of India was not strictly observed or complied with and the detention order vitiated. It Was observed in terms that under Art. 92 (5) Constitution of India as interpreted by the Supreme Court as also under the provisions of sec. It Was observed in terms that under Art. 92 (5) Constitution of India as interpreted by the Supreme Court as also under the provisions of sec. 11 of the COFEPOSA Act it is clear that the representation should be considered by the detaining authority who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order and failing that it is open to him to approach the Central Government to get the detention order revoked. ( 16 ) THE Supreme Court was considering the provisions of the National Security Act 1980 in Raj Kishore Prasad v. State of Bihar AIR 1983 Supreme Court 320 and on considering the provisions of sec. 8 National Security Act and the scheme of the said Act representation considered by the State Government and not by the District Magistrate who was the detaining authority was held not to be violative or in contravention of Art. 25v5) Constitution of India or that there was failure to consider the representation by the detaining authority. In that case the detaining authority was the District Magistrate. But it was held that sec. 8 National Security Act made a statutory departure and provided for making representation to the appropriate Government. As discussed above there is no analogous provision in the COFEPOSA Act like the provisions of sec. 8 National Security Act. Even while considering the said provisions the Supreme Court observed in terms that constitutionally speaking a duty is cast on the detaining authority to consider the representation. As there is no analogous provision like sec. 8 National Security Act in the COFEPOSA Act the representation considered by the State Government and not by the detaining authority would not save the situation. ( 17 ) IT is now well settled that the constitutional obligation under Art. 22 (5) Constitution of India is not only to afford earliest opportunity to make effective representation but also a duty to consider the representation made by the detenu by the detaining authority. Obligation of the detaining authority to consider the representation is not affected by any provision of the COFEPOSA Act. Obligation of the detaining authority to consider the representation is not affected by any provision of the COFEPOSA Act. When the representation is made to the detaining authority it is only that authority which has to consider the representation and take appropriate decision and failure by the detaining authority to take decision would certainly vitiate the detention order. ( 18 ) IN view of the above settled position of law submission of Mr. S D. Shah learned Standing Counsel for respondent No. 1 and Mr. J. U. Mehta learned Additional Public Prosecutor for respondents Nos. 2 and 3 that no prejudice is caused to the detenu in not considering the representation by Shri K. V. Hari Har Das as the detaining authority and by considering the representation by the same person Shri K. V. Hari Har Das in exercise of the powers delegated under the Rules of Business deserves to be rejected. When the constitutional obligation is required to be performed in a particular manner element of prejudice is not much relevant. It is the obligation of the detaining authority to consider the representation under Art. 22 (5) Constitution of India especially when there are no provisions analogous to sec. 8 National Security Act in the COFEPOSA Act infraction of the constitutional obligation will vitiate the detention order without even establishing the prejudice caused to the detenu Mr. S. D. Shah learned Standing Counsel for respondent No. 1 referred Prakash Chandra Mehta v. Commissioner and Secretary Government of Kerala AIR 1986 Supreme Court 687 (supra) in which certain general observations are made by the Supreme Court in paragraph 81 about the rival interest of the individual and Society. The said observations are relevant for the purpose of approaching to the problem especially when there is no infraction of the constitutionally laid down procedure and specific right of the detenu and specific obligation of the detaining authority. ( 19 ) AS discussed above in the instant case representation was immediately made by the detenu to the detaining authority Shri K. V. Hari Har Das but he has not considered the representation in his capacity as the detaining authority. It appears from the letter dated 3 (Annexure F) to the detenu by Shri P. N. Roychaudhary Deputy Secretary that the Government had considered the detenus representation and rejected it. It appears from the letter dated 3 (Annexure F) to the detenu by Shri P. N. Roychaudhary Deputy Secretary that the Government had considered the detenus representation and rejected it. It may be that Shri K. V. Hari Har Das Additional Chief Secretary to the Government of Gujarat in exercise of delegated powers under the Rules of Business might have considered and rejected it on behalf of the Government but that capacity of Shri K. V. Hari Har Das is entirely different then his capacity as the detaining authority as he was exercising the powers for detention under sec. 3 (1) of the COFEPOSA Act and not on behalf of the Government. It may happen that incidentally same person may exercise the powers under two different capacities but the exercise of the power under one capacity under specific provision of the particular Act does not necessarily mean exercise of powers by the same person in another capacity in exercise of the powers under another statute. What is material is the exercise of the power under a particular statute and not the person. In a complex society where the Government has to exercise the powers through instrumentality of civil service or other authorities it can exercise the powers through various agencies and such authority or person may exercise the power conferred on him in his different capacities under any statute. When the same person exercises the statutory power under various capacities exercise of power under one capacity cannot be considered to be the exercise of statutory power under another capacity. What is material is the conferring and exercising of the power under a particular statute and not the individual. Even though Shri K. V. Hari Har Das might have rejected the representation on behalf of the State Government as the Additional Chief Secretary that exercise of the power was not the exercise of the power under sec. 3 (1) of the COFEPOSA Act as the detaining authority and therefore the constitutional obligation under Art. 22 (5) of the Constitution is not discharged by him. The effect of it is that the representation submitted by the detenu on 30-12-1986 to Shri K. V. Hari Har Das the detaining authority is not considered at all by the competent authority exercising the powers under sec. 3 (1) of the COFEPOSA Act. The effect of it is that the representation submitted by the detenu on 30-12-1986 to Shri K. V. Hari Har Das the detaining authority is not considered at all by the competent authority exercising the powers under sec. 3 (1) of the COFEPOSA Act. Such representation is required to be considered by the competent authority at the earliest opportunity. As that representation is not considered by the appropriate and complete authority i. e. the detaining authority Shri K V. Hari Har Das the continued detention of the detenu vitiates and the detention order should be quashed. ( 20 ) THE other limb of argument of Shri Karmali learned Counsel for the petitioner is that as Shri K. V. Hari Har Das has considered the representation of the detenu on behalf of the Government exercising powers under the Rules of Business the right of the detenu to make a representation to the State Government is totally aborted and the same has been rendered barren. As the representation is considered by the State Government instead of by the detaining authority it cannot be accepted that the right of representation to the Government is aborted and rendered barren. The State Government does not exercise the appellate powers to consider the representation under sec. 11 of the COFEPOSA Act and therefore it is not necessary that it can consider the representation only after it is considered by the detaining authority. It can however be said that the right of representation being effectively considered by the Government is certainly affected as the detenu could have requested the Government to consider his representation by the Home Minister or any other competent authority exercising such powers of Government under the Rules of Business other than the detaining authority Shri K V. Hari Har Das who had to exercise the powers as the detaining authority. . ( 21 ) IN the result the petition is allowed. The detention order dated 8-12-1986 passed against the detenu by Shri K. V. Hari Har Das Additional Chief Secretary to the Government of Gujarat Home Department (Special) is quashed and set aside and the detenu is ordered to be set at liberty forthwith if not required in any other case. Rule made absolute. Rule made absolute. .