P. S. GUPTA, I. P. SINGH, JJ. ( 1 ) BY this Habeas Corpus Writ Petition No. 8419 of 1983 Under Article 226 of the Constitution the petitioner, Harpal Singh Yadava, has challenged his detention order passed under Section 3 (1) of the Conservation of foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act), by the State of Uttarpradesh, on 30th August. 1932. ( 2 ) THE detention order against the petitioner was passed by the State Government on 30-8-1982. As the petitioner was alleged to have been absconding, the detention order was served on him on 19-4-1983 when he was lodged in the Central Jail, Varanasi, after his arrest on 18-4-1983 by the officers of the Customs Department, Ghaziabad. The grounds of detention were also served on him the same day in the aforesaid jail. He submitted his representation against the detention on 29-4- 1983 His matter was also placed before the Advisory Board that opined that there was sufficient cause for the detention of the petitioner and forwarded its opinion to the State Government on 20-5-1983. The State Government on 2-6-1983 had confirmed the detention order. ( 3 ) THE petitioner thereafter submitted another representation under Section 11 of Cofeposa Act for revocation of is detention order on 21-6-1983 to the Superintendent, Central Jail, Varanasi. This representation was received by the State Government on 28-6-1983 and was disposed of on 14-7- 1983 by a rejection order passed by the Chief Secretary of the Uttar Pradesh Government. ( 4 ) THOUGH the detention order has been challenged on many grounds, much stress has been laid by the learned counsel for the petitioner Shri Daya Shanker Misra, Advocate, on the ground that the representation submitted by the petitioner on 21-6-1983 has been disposed of by the State Government with inordinate delay which makes the detention illegal. ( 5 ) TO substantiate his contention he has relied on the various pronouncements of the Honble Supreme Court as well as of this Court. ( 5 ) TO substantiate his contention he has relied on the various pronouncements of the Honble Supreme Court as well as of this Court. In Smt. Khatoon Begum v. Union of India and others, it has been held as under: The right of detenu to have his representation considered at the earliest opportunityt and the obligation of the detaining authority to consider the Representation at the earliest opportunity is not a right and On obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, or the National Security Act or, for that matter any other Parliamentary or State law providing for preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State Law. Article 22 (5) enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order. The right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged. If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the interdepartmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape make delay inevitable. ( 6 ) IN Barish Pahwa v. State of U. P. and others, their Lordships observed as follows: The representation made by a detenu has to be considered without any delay. The Supreme Court does not look with equanimity upon delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such- vital import. The Supreme Court does not look with equanimity upon delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such- vital import. It is the duty of the State to proceed to determine representations with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. Where this is not done, the detention has to be declared unconstitutional ( 7 ) IN Vijay Kumar v. State of J. and K. and others, it was held as under: When power to detain without trial, is exercised, the authority exercising the power must afford an opportunity to the detenu to convince the Government detaining authority that the power was not justifiably exercised or no occasion arose for exercise of the power. In a punitive detention which is the end product of a trial in which the convict participates and has full opportunity to present his side of the case while preventive detention ordinarily described as jurisdiction based on suspicion does not afford any opportunity to the detenu to explain his side of the matter before he is deprived of the liberty and, therefore, as soon after the detenu is deprived of his personal liberty the statute makes it obligatory on the authorities concerned to afford him an earliest opportunity to represent his side of the case and which inheres the corresponding obligation on the authority to consider the same. The word earliest which qualifies the opportunity must equally qualify the corresponding obligation of the State to deal with the representation, if and when made, as expeditiously as possible. The opportunity contemplated by the Section is the opportunity to make a representation against the detention order to the Government and therefore exhypothesi soon after the person is deprived of his personal liberty he must be afforded the earliest opportunity to make a representation. The opportunity contemplated by the Section is the opportunity to make a representation against the detention order to the Government and therefore exhypothesi soon after the person is deprived of his personal liberty he must be afforded the earliest opportunity to make a representation. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order. ( 8 ) IN Tara Chand v. The State of Rajasthan and others it has been held that Section 11 (1) of the COFEPOSA Act clearly enjoins that the Central Government may revoke or modify an order passed by the State Government. Mr. Abdul Khadar fairly conceded that the Central Government had discretion under section 11 of the COFEPOSA Act to revoke the order of detention. Thus when once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22 (5) so as to render the detention un-constitutional and void. ( 9 ) THE leirned counsel for the petitioner says that in this case the petitioner gave his representation to the Superintendent. Central Jail, Varanasi on 21. 6. 1983 and according to the respondents, it was received by the State Government on the 28th of June 1983, on which a detailed note was put up on 2. 7. 1983 and thereafter on 14. 7. 1983 it was rejected by the Chief Secretary to the U. P. Government. The contention of the learned counsel for the petitioner is that there is no reason able explanation for the time gaps, not only in between 21st June, 1983 and 28th June, 1983 but also from 28th June, 1983 to 2nd July, 1983 and from 2nd July 1983 to 14th July, 1983. His further contention is that no reasonable explanation has been given by the respondents for this inordinate delay in the disposal of the representation. ( 10 ) IN paragraph 25 of the counters affidavit filed by Shri Ram Surat Singh, Upper Division Assistant, Confidential Section 5, U. P. Secretariat, Lucknow, the delay has been explained as under:- it is stated that the representation dated 21. 6. 1983 was received by the Government on 28. ( 10 ) IN paragraph 25 of the counters affidavit filed by Shri Ram Surat Singh, Upper Division Assistant, Confidential Section 5, U. P. Secretariat, Lucknow, the delay has been explained as under:- it is stated that the representation dated 21. 6. 1983 was received by the Government on 28. 6. 1983. A detailed note on the said representation was put up by the office on 2. 7. 1983. It will be relevant to mention here that by the alleged representation which possibly cannot be treated to be a representation in the eyes of law, certain papers were demanded by the petitioner. The Section had put up its note in respect of these papers. As the Joint Secretary, Home, was away in connection with some Government work at New Delhi in the week comrnencinci from 4th July and as 9th and 10th July were hiiciavs. he had arrlved bck from Delhi and attended to tfle said representation only on 14-/-1yand. After the Joint Secretary examined the said representation, the Home Secretary also examined it on the same day which was ultimately rejected by the Chief Secretary to the Government of U. P. as the Chief Minister was not available at Lucknow and as the Chief Secretary under rule be competent to reject the representation in toe event of the Chief Minister being not present in the city. The intimation about the rejection has been communicated to the detenu through the Superintendent, Central Jail, Varanasi on 167. 1983 and the ijetitioner has sicined the said intimation on 25. 7. 1983i ( 11 ) THUS the explanation given by the respondents is that seven days took in transit in reaching the representation from Varanasi to Lucknow. Another four days were taken by the office to put up its note and thereafter the representation was disposed of after 12 days because the Joint Secretary Home Department, could not find time to attend and examine the representation. ( 12 ) THERE can be no hard and fast rule regarding the number of days in which a representation should be disposed of. But there should be reasonable explanation for the time consumed in disposing of the representation. If that is reasonable and valid explanation for the delay in disposing of the representation, it cannot be said that the detention of the detenu is unconstitutional or invalid. But there should be reasonable explanation for the time consumed in disposing of the representation. If that is reasonable and valid explanation for the delay in disposing of the representation, it cannot be said that the detention of the detenu is unconstitutional or invalid. But, on the other hand, if there is a delay for which there is no reasonable and acceptable explanation, then of course the delay is fatal to the detention. ( 13 ) MR. Girdhar Malviya, the learned Additional Government Advocate has cited certain cases in which, according to him inspite of the delay in the disposal of the representation the detention bas not been held to be unconstitutional or invalid. In this connection, he has relied on some cases, the facts and circumstances of which need scrutiny. ( 14 ) IN Sat Pal v. State of Punjab and other. , the petitioner submitted, his representation to the State Government which forwarded the same to the Central Government after a lapse of two months and fifteen days but the Central Government disposed of the same within four days. The contention of the learned State Counsel is that inspite of the delay of two and a half months on the part of the State Government the Honble Supreme Court upheld the detention. It is true that the delay on the part of the State Government in sending the representation was ignored but it was due to the fact that the Central Government acted with great promptitude in dealing with the representation and, therefore, it was held that the contention that the unexplained delay on the part of the State Government is not sufficient to quash the detention order. The State Government expeditiously considered and decided the representation and the Central Government also considered the representation with promptitude and decided it. Therefore, the unexplained delay on the part of the State Government in forwarding the representation to the Central Government was not held sufficient to invalidate the order of detention. Thus it was observed in this case that: The Court must look at the substance of the matter and not a mere technicality and. therefore, the detention is not to be invalidated merely on the technical ground but the substance of the matter is to be analyzed whether or not there is unexplained reasonable delay to invalidate the detention. ( 15 ) IN Mst. therefore, the detention is not to be invalidated merely on the technical ground but the substance of the matter is to be analyzed whether or not there is unexplained reasonable delay to invalidate the detention. ( 15 ) IN Mst. L. M. S. Ummu Saleema v. B. B. Gujarat and another the representation of detenu against detention under section 3 (1) was despatched on 5. 2. 1981 and was received in the office of the detaining authority on 13. 2. 1981. It was put up, before the detaining authority on 19. 2. 1981 and disposed of that very day. The detaining authority himself was not available from 13th to 16th as he had gone abroad. He returned on 16th and considered and decided the matter on 19th As the detaining authority himself was not available as he had gone outside India and he decided the representation within three days of his return, it was held that there was no unaccountable or unreasonable delay in the disposal of the representation by the detaining authority. 16. In Frances Coralie Mullin v. W. C. Khambra and others it has been held as follows:the role of the Court in Cases of preventive detention has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Courtts writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22 (5) vests in the detenu the riqht to be provided with an opportunity to make a representation. The Principal enemy of the detenu and his right to make a representation is neither highhandedness nor mean-mindedness but the casual indifference, the mindless insensibility, the routine and the red-tape of the bureaucratic machine. The procedure prescribed for making representation is aimed at shielding personal freedom against indifference, insensibility, routine and red-tape and thus to secure to the detenu the right to make an effective representation. Expedition is essential at every stage. However, the time-imperative can never be absolute or obsessive. There has to be lee-way, dependent on the necessities of the case. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramification are involved. However, the time-imperative can never be absolute or obsessive. There has to be lee-way, dependent on the necessities of the case. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramification are involved. The burden of explaining the necessity for the slightest departure from the time-imperative is on the detaining authority. In the instant case, the representation was sent to the Administrator, Union Territory of Delhi and the Home Department of the Delhi Administration sent the same to the Customs Authorities for examining it and soliciting their advice on the legal points. In such circumstances, it was held that the delay, if any, was not due to any want of care but because the representation required thorough examination in consultation with investigators of facts and advisers on law. 17. In Fitrat Raza Khan v. State of U. P. and others the Honble Supreme Court was satisfied that there was no unexplained delay on the part of the State Government to consider the representation which was made on 8. 15. 1981 and decided on 24. 8. 1981. In this case, the representation was actually handed over on 10 8. 1981 to the Superintendent, Central Jail who sent it to the District Magistrate the same day and the District Magistrate sent it to the Home Secretary with his comments on 13. 8. 1981 which was received in the Home Department the next day. It could not be attended to on 15th August, 1981 which was the Independence Day and on 16th August, 1981 being a Sunday. The representation was scrutinized in the Secretariat for three days between 17th and 19th August and the notings on the file were made. The file was perused by the Joint Secretary, Home Department, on August 19, 1981 and on August 20, 1981 the law Department was consulted. The file was placed before the Home Secretary on August 21, 1981, who placed it before the Chief Minister who took two days to study the file and ultimately passed an order rejecting the representation on August 24, 1981. Thus it is apparent that there was reasonable explanation for almost all days and, therefore, accepting the explanation the Supreme Court held that there was no unexplained delay in the matter. Thus it is apparent that there was reasonable explanation for almost all days and, therefore, accepting the explanation the Supreme Court held that there was no unexplained delay in the matter. ( 16 ) IN Suresh Bhojraj Chelani v. State of Maharashtra and Narain T. Mirchandani v. State of Maharashtra there was nearly fifteen days delay in considering the representations submitted by the petitioners but the delay was explained in the affidavit files in the court. The representation dated 4. 5. 1982 was received in the Ministry of Finance, Government of India, New Delhi, on 14. 5. 1982 which was placed before the Central Government, which considered and rejected the same on 20. 5. 1982 and the decision was also communicated to the detenu the same day. As the delay was duly explained in the affidavit, the Honble Supreme Court accepted the explanation and upheld the detention. 19. In Awadh Kumar v. Adhikshak Kenderiya Karagar, Naini it has been held as under: Where a detenu claims that the concerned Government has, in dealing with the representations made by him, acted in cavalier fashion or had inordinately delayed in deciding the same, it is for the concerned Government to place material before the Court to satisfy it that having regard to the entire circumstances of the case, the representation made by the detenu has been dealt with expeditiously and that it had not acted in a cavalier fashion. While considering the explanation offered by the Government the Court will certainly keep in mind the fact that a question of liberty of a citizen is involved before it. Where on the face of it a number of days have been taken by the concerned Government in disposing of the representation and it chooses not to offer any explanation whatsoever, the delay can he said to be unexpended and can be attributed to letharqy or indifference on its part. There can be no objection to the Central Government seeking any further information on the representation made by the detenu from the State Government which it may consider relevant for purposes of dealing with detenus representation. In the circumstances of the case, neither can it be said that petitionerts representation has been dealt with in a cavalier fashion resulting in inordinate delay nor can it be said that it had not been disposed of with reasonable expedition. In the circumstances of the case, neither can it be said that petitionerts representation has been dealt with in a cavalier fashion resulting in inordinate delay nor can it be said that it had not been disposed of with reasonable expedition. Accordingly, it must be held that petitionerts continued detention is not rendered invalid for any delay on the part of the Central Government in disposing of petitioners representation In the instant case, the Central Government which received the representation, felt the necessity of requiring some information for processing the representation from the State Government and they sought the same which was eventually furnished by the State Government through a wireless message. After receiving the same the Central Government disposed of the representation within six days. In the circumstances of the case, it was held that there was no inordinate delay in the disposal of the representation. ( 17 ) IN this connection, Mr. D. S. Misra, the learned counsel for the petitioner, has also relied on Smt. Icchu Devi Choraria v. Union of India and others, it has been held as under: On a proper interpretation of clause (5) of Article 22, the detaining authority is under a constitutional obligation to consider the representation of a detenu as early as possible, and if there is unreasonable delay in considering such representation. It would have the effect of invalidating the detention of the detenu. The representation of the detenu dated 9th June, 1980 was received by the Deputy Secretary on 14th June, 1980 while the representation dated 26th June, 1980 was received on 28th June, 1980 and yet no decision was taken on these representations of the detenu until 14th July, 1980. It was held that the detaining authority was guilty of unreasonable delay in considering the two representations of the detenu. This was sufficient to invalidate the continued detention of the detenu. ( 18 ) IN the present case, therefore, we have to see whether there is any unexplained inordinate delay on the part of the State Government in disposing of the representation which vitiates the detention order. 22. On this point we have not only heard the learned counsels for both the parties and gone through the explanation given in the counter-affidavit, but have also seen the original file of the State Government which has been placed before us by the learned Additional Government Advocate on our asking. 22. On this point we have not only heard the learned counsels for both the parties and gone through the explanation given in the counter-affidavit, but have also seen the original file of the State Government which has been placed before us by the learned Additional Government Advocate on our asking. The representation Was handed over by the detenu on 21. 6. 1983 to the Superintendent Central Jail, Varanasi, who made an endorsement of its receipt on the representation also the same day. The Superintendent Central Jail; Varanasi also made a note forwardedt on the same day. This representation reached the State Government on 28. 6. 1983. There is no mention in the Counter affidavit regarding the source by which it was sent to the State Government by the Superintendent Central Jail, Varanasi. Even the papers do not reveal whether it was sent through postal agency or through some special messenger. Thus the six days delay in transit remained unexplained. It was the duty of the respondents to explain this delay. It was sent through the postal agency then it should have been clearly stated that the representation was sent through post and due to some break down in the postal service it reached late. ( 19 ) IN Vijay Kumar v. State of J. and K. and others (supra), it has been held as under: The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quicker as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order. ( 20 ) THUS it was the duty of the State Government to explain on unequivocal terms the process of transit of representation and to show how it took six days to reach from Varanasi to, Lucknow. ( 20 ) THUS it was the duty of the State Government to explain on unequivocal terms the process of transit of representation and to show how it took six days to reach from Varanasi to, Lucknow. According to the counter-affidavit a detailed note on the representation was submitted on 2-7-1983. Thus the office took full four days to prepare the note. Even if this delay is ignored, the authority concerned took 12 more days to dispose it of. The reason for the same is said to be that the Joint Secretary. Home Department, was away, in connection with some Government walk at New Delhi in the week commencing from 4th July. It is further Stated that 9th and 10th July were holidays. There is no explanation why he did not attend for the representation from 11th to 13th of July. If the Joint Secretary could not attend to this representation from 4th to 10th July on account of his being away at New Delhi and holidays then he ought to have attended to the representation soon after his return. As pointed out, what to say of reasonable explanation, no explanation has been given for not attending to the representation from 11th to 13th July. Even if it is taken for granted that no officer other than the Joint Secretary could deal with this representation, the respondents have ,failed to offer any reasonable and acceptable explanation for the delay in not disposing of, the representation after the return of the Joint Secretary. Thus there is prima facie un-explained inordinate delay in the disposal of the representation of the petitioner. The representation of the detenu ought not to have been the victim of official red-tapism. It clearly shows that this inordinate delay is unexplanable and there seems to be no reason able or plausible justification for the same. This delay itself makes the detentiolinvalid and unconstitutional. ( 21 ) THE learned Additional Government Advocate has also canvassed that the second representation of a detenu does not stand on the same footing on which his first representation stands. The contention of the learned state counsel is that whereas the expeditious disposal of first representation is a constitutional necessity as contemplated under Article 22 (5) of the Constitution, the disposal of the second representation under section 11 of the COFEPOSA ACT is only a statutory binding. The contention of the learned state counsel is that whereas the expeditious disposal of first representation is a constitutional necessity as contemplated under Article 22 (5) of the Constitution, the disposal of the second representation under section 11 of the COFEPOSA ACT is only a statutory binding. Therefore, they cannot be treated on the same footing and any delay in the disposal of the second representation will not make the detention unconstitutional. This point was also, canvassed in (Mohammad Alam v. Superintendent, District Jail, Moradabad and others ). After considering the various aspects of the matter a Division Bench of this court has held that the second representation should also be decided as expeditiously as the first representation. ( 22 ) IN Mohammad Shami v. Superintendent, District Jail, Moradabad and others a Division Bench of this court quashed the detention order even when the fourth representation of the detenu was not decided expeditiously. ( 23 ) AFTER giving our careful thought to the matter we are of the view that the representation under section 11 of the COFEPOSA Act is also to be disposed of as expeditiously. As the first representation. As the petitioners second representation has been disposed of with unexplained and unreasonable delay, the detention of the petitioner becomes invalid. ( 24 ) AS we are allowing this petition on lhis ground alone, it is needless to enter into the other grounds on which the petitioner has challenged the detention. For the reasons given above, the petition succeeds and is allowed. The detention: in question of the petitioner is held to be unconstitutional and invalid and is, therefore, quashed. The respondents are directed to set the petitioner at liberty forthwith, if not wanted in any other case. .