R. C. MANKAD, J. ( 1 ) WE are called upon to resolve the controversy centering around three questions referred to us by the Division Bench of this Court. The questions which have been referred to us arose for consideration before the Division Bench in this two petitions challenging the legality and validity of detention of two persons under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (COFEPOSAA for short ). The factual background in which these questions arise for our consideration is as under: ( 2 ) SPECIAL Criminal Application No. 240 of 1987 is filed by the son of one Bhanuprasad Parmanand Soni (hereinafter referred to as the detenu) who has been detained under sub-sec. (1) of Sec. 3 of the COFEPOSAA. The detention order dated 20/01/1987 was passed by the Additional Chief Secretary to the Government of Gujarat Home Department (detaining authority for short) on his being satisfied that with a view to preventing the detenu from engaging in keeping smuggled goods it was necessary to detain the detenu in exercise of the powers conferred under sub-sec. (1) of Sec. 3 of the COFEPOSAA. The order of detention was served on the detenu on 22/01/1987 when he was taken in detention. The detenu was also served with the grounds of detention and the documents on which the detaining authority relied for issuing the order of detention along with the order of detention on 22/01/1987 ( 3 ) ON 17/09/1986 the Customs Officers stationed at Ahmedabad acting on information searched the business premises of the detenu situated on the mezanine floor of Laxmi Jewellers Manekchowk at Ahmedabad. The detenu was present in his business premises at the time of search. In the course of search one gold bar with marking indicating foreign origin weighing 187 grams and valued at Rs. 40,000 wrapped in a newspaper was found lying under a mattress in the said premises. The officers seized the gold bar under the reasonable belief that the same was smuggled and liable to confiscation under the provisions of the Customs Act 1962 and Gold Control Act 1968 The officers also seized four papers containing some accounts found lying in a drawer of desk in the said premises. The officers seized the gold bar under the reasonable belief that the same was smuggled and liable to confiscation under the provisions of the Customs Act 1962 and Gold Control Act 1968 The officers also seized four papers containing some accounts found lying in a drawer of desk in the said premises. The detenus statement was recorded by the Customs Officer on the same day that is 17/09/1986 In this statement the detenu gave details of the business carried on by him and stated that on 17/09/1986 at about 10 A. M. one Shivlal Mohanlal Soni of Ahmedabad who is also known as Shivakaka came to his business premises and gave him a packet containing the gold bar of 16 tolas with markings indicating foreign origin and told him that he would come with a customer. The detenu stated that he kept the said packet under the mattress and in the mean time the Officers searched his premises and recovered the said packet containing gold bar. The detenu also stated that in the last three months prior to the date of the search Shivakaka had brought packets containing gold bars with markings indicating foreign origin two to three times brought customers and sold the said gold bars. According to the detenu Shivakaka used to give him commission of about 50 to 100 rupees for keeping the gold bars. The detenu admitted recovery of four papers containing some accounts from the desk but stated that he did not know who had written the said accounts. In his further statement recorded on 18/09/1986 the detenu identified the photograph of the said Shivlal Mohanlal Soni as the photograph of the person who had been referred to by him in his statement dated 17/09/1986 and who bad delivered the gold bar recovered from his premises on 17/09/1986 The detenu stated that be was selling gold bars with marking indicating foreign origin in Manekchowk on commission basis. He stated that apart from Shivakaka he had sold goods on commission basis by purchasing from other persons also It was stated that the detenu had purchased three gold bars with markings indicating foreign origin from one Punamchand Laxmichand Kotadia alias Punamchand Marwadi and sold the same to out-station customers whose names he did not remember. He stated that apart from Shivakaka he had sold goods on commission basis by purchasing from other persons also It was stated that the detenu had purchased three gold bars with markings indicating foreign origin from one Punamchand Laxmichand Kotadia alias Punamchand Marwadi and sold the same to out-station customers whose names he did not remember. Punamchand Laxmichand Kotadia appeared before the Customs Officers on 10/10/1986 and stated that he was a certified gold-smith and he was dealing in silver also. He denied having sold gold bars with markings indicating foreign origin to the detenu. In fact he denied having any acquaintance with the detenu. The Customs Officers were not able to locate Shivlal Mohanlal Soni alias Shivakaka and obtain his clarifications in the matter nor had Shivakaka presented himself before the Customs Officers to clarify the position inspite of the summons issued to him under Sec. 108 of the Customs Act 1962 ( 4 ) THE detaining authority on considering the material on record reached the conclusion that with a view to preventing the detenu from engaging in keeping smuggled goods it was necessary to detain him and therefore in exercise of the powers conferred under sub-sec. (1) of Sec. 3 of the COFEPOSAA the detaining authority by the order dated 20/01/1987 directed that the detenu be detained. ( 5 ) THE legality and validity of the order passed by the detaining authority was challenged by the detenus son on various grounds. One of the grounds of challenge was that failure to State in the grounds of detention that the detenu had a right of personal hearing before the Advisory Board had affected his right to make effective and adequate representation under Art. 22 (5) of the Constitution of India. It is not necessary to set out other grounds of challenge since the Division Bench before which the petition came up for hearing has dealt with and decided those grounds and referred for our decision only one ground which is set out above. ( 6 ) SPECIAL Criminal Application No. 554 of 1987 arises out of the detention of the petitioner in that petition (detenu for short ). ( 6 ) SPECIAL Criminal Application No. 554 of 1987 arises out of the detention of the petitioner in that petition (detenu for short ). In that case also under the provisions of the COFEPOSAA the order which was passed on 8/12/1986 was executed on 30/01/1987 The detaining authority on being satisfied that with a view to preventing the detenu from engaging in keeping smuggled goods it was necessary to detain him under sub-sec. (1) of Sec. 3 of the COFEPOSAA and had therefore directed the detention of the detenu by an order dated 8/12/1986 The detenu was served with the order of detention along with the grounds of detention and documents in support thereof on 30/01/1987 In other words the grounds of detention and the documents on which the detaining authority had relied upon for passing the order of detention were communicated to the detenu on 30/01/1987 when the order of detention dated 8/12/1986 was served on him and he was taken in detention. ( 7 ) THE grounds communicated to the detenu disclosed that on 30/08/1986 the Customs Officers stationed at Mandvi in Kutch district had searched the Vadi of the detenu. At the time of the search one Batukbha Tejmalji Jadeja who was employed as watchman of the said Vadi was present. The said Batukbha Jadeja informed the officers that few days earlier a truck had come to the Vadi at night and had off-loaded goods which were stored in a room of the building situate in the Vadi. The watchman brought the keys and opened the lock of the said building and showed the packages stored in the room. The watchman stated that he was paid Rs. 500. 00 by unknown persons who had accompanied the truck. In the course of search the officers recovered packages which were found to contain contraband goods. Sixty packages were seized and on detailed examination they were found to contain synthetic fabrics zip fastners etc. of foreign origin collectively valued at Rs. The watchman stated that he was paid Rs. 500. 00 by unknown persons who had accompanied the truck. In the course of search the officers recovered packages which were found to contain contraband goods. Sixty packages were seized and on detailed examination they were found to contain synthetic fabrics zip fastners etc. of foreign origin collectively valued at Rs. 28 63 653 The goods were seized under the reasonable belief that the same were smuggled and were liable to confiscation under the Customs Act 1962 In the further statement recorded on 2/09/1986 watchman Batukbha stated amongst other things that he was working in the Vadi of the detenu for the last 15 months; that he was a man of confidence of the detenu and that the detenu had instructed him that if any person came to the Vadi to store goods he should permit him to do so. The detenu in his statement recorded on 30/09/1986 stated that on 20/08/1986 one Harischandra Amarsinh Jadeja had met him at his Vadi and requested him to store truck load of smuggled goods in his Vadi for a night in case it became necessary for him to do so. The detenu stated that he knew said Harischandra Jadeja and his brother Pragji Amarsinh Jadeja for the last six months. They were frequently visiting his Vadi. The detenu further stated that on 22/08/1986 Harischandra Jadeja met him at his Vadi and told him that he had brought a truck loaded with smuggled goods which were to be stored in his Vadi for a night. The detenu instructed watchman Batukbha to Bet the goods brought by Harischandra unloaded and stored in the building in the Vadi. The building in which the goods were stored was locked and keys were kept with watchman Batukbha for safe custody. The detenu stated to the effect that Harischandra paid Rs. 500. 00 to watchman Batukbha towards the labour charges and guarding the goods and promised to pay more when the goods were removed. The detenu stated that Harischandra had also promised to pay him for storing and guarding the goods. Thereafter on 20/08/1986 the building in the Vadi of the detenu was searched by the Customs Officers as stated above and the goods valued at Rs. 28 63 653 were seized under a panchnama. The detenu stated that Harischandra had also promised to pay him for storing and guarding the goods. Thereafter on 20/08/1986 the building in the Vadi of the detenu was searched by the Customs Officers as stated above and the goods valued at Rs. 28 63 653 were seized under a panchnama. ( 8 ) FROM the material on record the detaining authority came to the conclusion that the detenu was engaged ant was likely to engage himself in keeping smuggled goods and that there was sufficient cause to pass an order of detention against him under the COFEPOSAA. Thus on being satisfied that it was necessary to detain the detenu with a view to preventing him from engaging in keeping smuggled goods the detaining authority passed an order dated 8/12/1986 directing to detain him under sub-sec. (1) of Sec. 3 of the COFEPOSAA. However after the order of detention was passed the detenu was not found available and he therefore could not be served with the order of detention. The detenu was declared absconder under the relevant provisions of the COFEPOSAA. Ultimately on 30/01/1987 the detenu was arrested and served with the order of detention and the grounds for detention along with the relevant documents and detained under the said order. ( 9 ) THE detenu challenged the aforesaid order of detention on various grounds. One of the grounds on which the order of detention was challenged was that the detenus fundamental right to make representation to the detaining authority guaranteed under Art. 22 (5) of the Constitution was violated inasmuch as the grounds of detention served on the detenu did not mention that he had a right to make representation to the detaining authority It is not necessary to set out other grounds on which the order of detention was challenged because they have already been dealt with and referred by the Division Bench before which the aforesaid Special Criminal Application No. 554 of 1987 came up for hearing. ( 10 ) THE Division Bench which heard these petitions did not render decision on the ground that failure to mention in the grounds of detention that the detenu had a right of personal hearing before the Advisory Board raised in Special Criminal Application No. 240 of 1987 and the ground that failure to apprise the detenu about his right to make representation to the detaining authority in the case of the detenu in Special Criminal Application No. 554 of 1987 which failure according to the detenu were being violative of Art. 22 (5) of the Constitution had rendered continuous detention void and while dealing with these grounds the Division Bench referred to the decision of the Supreme Court in Wasi Uddin Ahmed v. District Magistrate Aligarh AIR 1981 SC 2166 and the decision of this Court in Noormohmad Yakubbhai Saiyed @ Bhaiya Sheth v. K. V. Hari Har Das and Others Special Criminal Application No. 1265 of 19b6 decided on May 1 1987 (1987 GLT 219) and various other decisions of this Court in which reliance was placed on the aforesaid decision of the Supreme Court in Wasi Uddin Ahmeds case and came to the conclusion that divergent views were expressed in the various decisions of this Court in regard to the principles laid down by the Supreme Court in the case of Wasi Uddin Ahmed. The Division Bench was of the view that there is uncertainty as regards the correct principles laid down by the Supreme Court in the case of Wasi Uddin Ahmed and therefore it was necessary that the questions arising out of the aforesaid grounds of challenge be referred to a larger Bench. The Division Bench formulated the following questions for reference to the larger bench: special Criminal Application No. 240 of 1987. " (1) Whether having regard to the decision of the Supreme Court in the case of Wasi Uddin Ahmed v. District Magistrate Aligarh is it obligatory on the Detaining Authority while serving the grounds of detention upon the detenu to inform that the detenu has a right of personal hearing before the Advisory Board ? (2) Would failure to inform the detenu as stated above ipso facto result into infraction of Art. 22 (5) of the Constitution of India and invalidation of the order of detention ?special Criminal Application No. 554 of 1987. (2) Would failure to inform the detenu as stated above ipso facto result into infraction of Art. 22 (5) of the Constitution of India and invalidation of the order of detention ?special Criminal Application No. 554 of 1987. (1) Having regard to the decision of the Supreme Court in the case of Wasi Uddin Ahmed v. District Magistrate Aligarh or even otherwise is it obligatory on the Detaining Authority while serving the grounds of detention upon the detenu to inform that the detenu has a right to make representation against the detention order to the detaining authority and to other authorities such as State Government Central Government and the Advisory Board ? (2) Would failure to inform the detenu as stated above result into infraction of Art. 22 (5) of the Constitution of India and invalidation of the order of detention ? ( 11 ) IN the grounds of detention communicated to the detenu in Special Criminal Application No. 240 of 1987 it was mentioned as follows:" You have a constitutional right to make a representation against your detention to the Detaining Authority State Government Central Government as well as to the Chairman of the Advisory Board. If you wish to avil your right then you should submit your representation through the jail authorities in the manner indicated below:1 Representation meant for the Detaining Authority and State Government should be addressed to the undersigned. 2 Representation meant for the Central Government should be addressed to the Additional Secretary to the Government of India Ministry of Finance Department of Revenue New Delhi. 3 Representation meant for the Advisory Board should be addressed to the Chairman COFEPOSA ADVISORY BOARD in triplicate and forward directly through the jail authorities. "the grounds were communicated under the signature of Mr. P. P. Rathod Additional Chief Secretary to Government Home Department. It is not disputed that in the grounds communicated to the detenu it was not mentioned that the detenu had a right of personal hearing before the Advisory Board. ( 12 ) IN the grounds of detention communicated to the detenu in Special Criminal Application No. 554 of 1987 it was mentioned as under:"you have a constitutional right to make a representation against your detention to the State Government Central Government as well as to the Chairman of the Advisory Board. ( 12 ) IN the grounds of detention communicated to the detenu in Special Criminal Application No. 554 of 1987 it was mentioned as under:"you have a constitutional right to make a representation against your detention to the State Government Central Government as well as to the Chairman of the Advisory Board. If you wish to avail of your right then you should submit your representation through the jail authorities in the manner indicated below:1 Representation meant for the State Government should be addressed to the undersigned. 2 Representation meant for the Central Government should be addressed to the Additional Secretary to the Government of India Ministry of Finance Department of Revenue New Delhi. 3 Representation meant for the Advisory Board should be addressed to the Chairman COFEPOSA Advisory Board in triplicate and forwarded directly through the jail authorities. "the grounds were communicated under the signature of Mr. K. V. Harihar Das Additional Chief Secretary to the Government of Gujarat Home Department. It is not disputed that the grounds communicated to the detenu did not mention that the detenu had a right to make representation against the order of detention to the detaining authority. ( 13 ) IT was in view of the failure to mention the aforesaid rights of the detenus in the grounds that it was urged on behalf of the detenus that their fundamental rights guaranteed under Art. 22 (5) of the Constitution were violated and consequently the orders of detention were vitiated. It was as a result of this contention that the questions reproduced here inbefore were framed by the Division Bench. These questions have now been placed before us for final decision on the controversy involved therein. It may be mentioned here that the learned Counsel appearing for the detenus and the respondents jointly requested that after answering the questions referred to us we may ourselves instead of referring the matters back to the Division Bench decide these matters finally on facts also. Therefore by the consent of the parties we are finally disposing of these petitions by this common judgment since common questions are raised in these petitions. ( 14 ) ARTICLE 22 of the Constitution is for protection against arrest and detention in certain cases. Therefore by the consent of the parties we are finally disposing of these petitions by this common judgment since common questions are raised in these petitions. ( 14 ) ARTICLE 22 of the Constitution is for protection against arrest and detention in certain cases. Clauses (4) and (5) of this Article are relevant for the purpose of appreciating the rival contentions and they read as under:"22 No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a)An Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there Is In Its opinion sufficient cause for such detentionprovided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) Such person is detain in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7 ). (5) When any person is datelined In pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order"it is also necessary to read sub-sec. (3) of Sec. 3 and Sec. 8 of the COFEPOSAA which are relevant for our purpose and they are as under:" 3 (3) For the purpose of clause (5) of Art 22 of the Constitution the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention but ordinarily not later than five days In exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention ""8. For the purposes of sub-clause (a) of clause (4) and sub-clause (c) of clause (7) of Art 22 of the Constitution (a)The Central Government and each State Government shall whenever necessary constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of Art 22 of the Constitution; (b) save as otherwise provided In Sec 9 the appropriate Government shall within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable Advisory Board to make the report under sub-clause (a) of clause (4) of Art 22 of the Constitution; (c) the Advisory Board to which a reference Is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any Person called for the purpose through the appropriate Government or from the person concerned and if in any particular case it considers it essential so to do or if the person concerned desires to be heard in person after hearing him in person prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned; (d) when there is a difference of opinion among the members forming the Advisory Board the opinion of the majority of such members shall be deemed to to be the opinion of the Board; (e) a person against whom an order of detention has to be made under this Act shall not be entitled to appear by any legal petitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report excepting that part of the report in which the opinion of the Advisory Board is specified shall be confidential; (f)in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned the appropriate Government shall revoke the detention order and cause the person to be released forthwith. "since the decision of the Supreme Court in Wasi Uddin Ahmeds case was rendered in the context of Sec. 8 of the National Security Act 1980 (NSA for short) it will be convenient to reproduce the provisions of the said section for comparing them with the relevant provisions of sub-sec. (3) of Sec. 3 of the COFEPOSAA Act. They read as under:"8 (1) When a person is detained in pursuance of a detention order the authority making the order shall as soon as may be but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in Writing not later than ten days from the date of detention communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in sub-sec. (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. " ( 15 ) IN Sk. Abdul Karim and Others v. The State of West Bengal AIR 1969 SC 1028 the Supreme Court examined Art. 22 and several provisions of the Preventive Detention Act 1950 and held that: (1) a person detained under the said Act has a right to be furnished with the grounds for his detention; (2) he has a right to make representation against the order of his detention; (3) though clause (5) of Art. 22 does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation there is by necessary implication an obligation on the part of the appropriate Government to consider it; and (4) the constitution of an Advisory Board under Sec. 8 of the said Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as Soon as it is received by it. The Supreme Court held that the constitutional right to make a representation guaranteed by Art. 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The Supreme Court held that the constitutional right to make a representation guaranteed by Art. 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The Supreme Court repelled the contention that once the Advisory Board was constituted for consideration of the detenus case it was enough if the State Government were to send the representation to the Board for consideration without itself considering it. The Court gave several illustrations to show that such a contention was not only incorrect but would defeat the provisions of Art. 22 (4) and (5) and those of the Preventive Detention Act. ( 16 ) THE above decision in the case of Sk. Abdul Karim was referred to in the latter decision of the Supreme Court in Pankaj Kumar Chakrabarty v. State of West Bengal reported in AIR 1970 SC 97 . It will be useful to reproduce the observations made by the Supreme Court in paragraph 10 of its judgment while discussing the implications of clauses (4) and (5) of Art. 22 of the Constitution:"it is true that-Clause (5) does not in positive language provide as to whom the representation is to be made and by whom when made it is to be considered. But the expressions as soon as may be and the earliest opportunity in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though clause 15) does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in Sk. The illustrations given in Sk. Abdul Karims case (supra) show that Clause (5) of Art. 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is through error or otherwise wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government Clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board. But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board ? If counsels contention were to be right the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation Clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both minds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. The obligation applies to both minds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. In our view it is clear from Clauses (4) and (5) of Art. 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu namely (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If In the light of that representation the Board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus where as the Government considers the representation to ascertain whether the order is In conformity with its power under the relevant law the Board considers such representation from the point of view of arriving at Its opinion whether there is sufficient cause for detention. The obilgation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Governments obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form Its opinion and to obtain such opinion. "later on in its decision reported in the same volume at page 675 of AIR 1970 SC (Jainarayan v. State of West Bengal) the Supreme Court refereed to its decision in Pankaj Kumars case and stated in paragraph 20 of its judgment as follows:"broadly stated four principles are to be followed in regard to representation of detenus. First the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early 85 possible. Secondly the consideration of the representation of the detenu by the appropriate authority Is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly there should not be any delay in the matter of consideration. Secondly the consideration of the representation of the detenu by the appropriate authority Is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down ar to measure of time taken by the appropriate authority for consideration but It has to be vigilant in the Governance of the Citizens A citizens right raises a correlative duty of the State. Fourthly the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. if however the Government will not release the detenu the Government will send the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will experts an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu. "it will thus be seen that the Supreme Court has laid down four principles first is that the detenu has to be given the earliest opportunity to make representation; secondly consideration of the representation by the appropriate authority as entirely independent of any action that the Board may deem necessary to take including consideration of the representation of the detenu by the Board; thirdly representation has to be considered expeditiously and without delay and fourthly before the detenus case is sent to the Board the Government is under an obligation to consider and record its opinion on the representation received from the detenu. These principles have been deduced from clauses (4) and (5) of Art. 22 of the Constitution. ( 17 ) THE implications of clause (5) of Art. 22 of the Constitution read with Sec. 11 of the COFEPOSAA came up for consideration before Desai J. of the Supreme Court in Smt. Pushpa v. Union of India and Others AIR 1979 SC 1953 . ( 17 ) THE implications of clause (5) of Art. 22 of the Constitution read with Sec. 11 of the COFEPOSAA came up for consideration before Desai J. of the Supreme Court in Smt. Pushpa v. Union of India and Others AIR 1979 SC 1953 . The Supreme Court held as follows : "clause (5) of Art. 22 of the Constitution makes it obligatory for the authority making an order of preventive detention to communicate to the detenu as soon as may be the grounds on which the order has been made and should afford him the earliest opportunity of making a representation against the order. This 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 COFEPOSAA Section 11 confers power for revocation of detention orders. The obligation to furnish grounds for preventive detention and the constitutional rights conferred on the detenu to make a representation on receipt of the grounds of detention when read in the context of Se. 11 would spell out a scheme 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 right to make a representation and the corresponding duty to consider the representation cannot be underestimated and should not be whittled down. " In paragraph 8 of the judgment the Supreme Court went on to observe:"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 be an officer specially empowered in that behalf. Undoubtedly the power to revoke the detention order under Sec. 111 is conferred on the State Government and the Central Government whenever 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 be 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 which has taken a decision adverse to the detenu and which has to be persuaded to reconsider the same. Therefore if the detenu made the representation to the third respondent who had passed the detention order it was open to him to consider the same and after applying his mind to accept or reject the same. The failure to submit the representation addressed to the detaining authority and considered by him to the State Government would not vitiate the detention order. "provisions of Sec. 11 of the COFEPOSAA which came up for consideration in the aforesaid decision of the Supreme Court are as follows:"11 (1) 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: (a)notwithstanding that the order has been made by an officer of a State Government by that State Government or by the Central Government; (b) notwithstanding that the order has been made by an officer of the Central Government or by State Governments by the Central Government. (2) The revocation of 8 detention order shall not bar the making of another detention order under sec. 3 against the same person. (2) The revocation of 8 detention order shall not bar the making of another detention order under sec. 3 against the same person. It would appear that on a combined reading of Sec. 11 of the COFE-POSAA and Art. 22 (5) of the Constitution the Supreme Court held that whenever a statute gives a right to make a representation it is implicit that the representation will have to be considered by the concerned authority and it has to be done without undue delay. There is no specific provision either in the COFEPOSAA of clauses (4) and (5) of Art. 22 of the Constitution which requires that the detenu has to be apprised of his right to make representation to the Advisory Board and of his right to be heard personally before the Advisory Board while serving or communicating the grounds of detention. ( 18 ) IN Santosh Anand v. Union of India 1981 (2) SCC 420 it was held that under Art. 22 (5) as interpreted by the Supreme Court as also under the provisions of Sec. 11 of the COFEPOSAA it is clear that a 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. In that case the detention order was passed by the Chief Secretary Delhi Administration acting as a specially empowered officer under Sec. 3 of the COFEPOSAA. The detenu made representation to the detaining authority. The detaining authority forwarded the representation to the Advisory Board for its consideration. Thereafter the detenu was informed that his representation had been considered by the Administrator Delhi and had been rejected. It appeared that the Chief Secretary as the detaining authority had considered the representation of the detenu only for the purpose of submitting the same for orders to the Administrator who in his turn after considering it rejected the same as aforesaid. The Chief Secretary as the detaining authority himself did not reject it. It appeared that the Chief Secretary as the detaining authority had considered the representation of the detenu only for the purpose of submitting the same for orders to the Administrator who in his turn after considering it rejected the same as aforesaid. The Chief Secretary as the detaining authority himself did not reject it. The Chief Secretary had made an endorse ment under his signature to the effect the representation may be rejected and it was below the endorsement made by the Chief Secretary that the Administrator made endorsement to the effect that he had considered the representation as well as the comments of the Customs Department and after examination thereof he agreed that the representation had no merit and was rejected. The Supreme Court observed that the representation of the detenu could be said to have been considered by Chief Secretary at the highest but he did not take decision to reject it himself. For that purpose the papers were submitted to the Administrator who ultimately rejected the same. It was held that since the representation was not rejected by the detaining authority constitutional safeguards under Art. 22 (5) as interpreted by the Supreme Court could not be said to have been strictly observed or complied with. The continued detention of the detenu was therefore held to be illegal. ( 19 ) IN Tara Chand v. State of Rajasthan AIR 1980 SC 1361 the Supreme Court observed. . . . . . . the detenu was arrested on 19-7-1979 and on the same day he was served with the grounds of detention in which there was no indication although there should have been that the detenu was entitled to make a representation to the detaining authority. This observation was not made in the context of any specific plea raised on behalf of the detenu that it was obligation on the detaining authority to indicate in the grounds of detention that the detenu had a right to make representation to the detaining authority. This passing observation made by the Supreme Court however in terms expresses the view to the effect that it should have been indicated in the grounds of detention that the detenu was entitled to make a representation to the detaining authority. This passing observation made by the Supreme Court however in terms expresses the view to the effect that it should have been indicated in the grounds of detention that the detenu was entitled to make a representation to the detaining authority. ( 20 ) IT was for the first time in the case of Wasi Uddin Ahmed that a contention was specifically raised that the detenu has to be apprised of his right to make representation and the right to be heard personally by the Advisory Board. Strong reliance was placed on this decision of the Supreme Court on behalf of the detenu and it was urged that the Supreme Court has clearly laid down that the detenu must be apprised of his aforesaid rights while communicating the grounds of detention and failure to do so would render the order of detention invalid. On the other hand it is urged on behalf of the respondents that no such rule or principle of law has been laid down by the Supreme Court in the said decision. . ( 21 ) IN the case of Wasi Uddin Ahmed petition under Art. 32 of the Constitution was moved by the petitioner for the issuance of a writ of habeas corpus for the release of his brother manzar Safi @ Safiuddin who had been detained by an order of detention dated 21/02/1981 passed by the District Magistrate Aligarh under sub-sec. (2) of Sec. 3 of the NSA on his being satisfied that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. On the same day the District Magistrate made a report to the State Government about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same. The said report and other particulars were considered by the State Government and it approved of the detention order under sub-sec. On the same day the District Magistrate made a report to the State Government about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same. The said report and other particulars were considered by the State Government and it approved of the detention order under sub-sec. (4) of Sec. 3 of the NSA and sent a report to the Central Government under Sec. 3 (5) The detenu was apprehended on 9/03/1981 and taken to Central Jail Agra where he was served with the order of detention together with the grounds of detention as well as documents in support thereof but the detenu declined to accept the documents on the ground that he was not conversant with Hindi The State Government forwarded the case of the detenu to the Advisory Board in due course under Sec. 10 of the NSA along with detention order together with the grounds of detention. At the hearing before the Advisory Board on 21/04/1981 the detenu submitted his representation. On the same day the Advisory Board after considering the material placed before it and the said representation and after giving a personal hearing to the detenu made a report to the State Government under sub-sec. (1) of Sec. 11 of the NSA to the effect that there was sufficient cause for the detention. By an order dated 1/05/1981 the State Government in exercise of its powers under sub-sec. (1) of Sec. 12 of the NSA confirmed the order of detention. (1) of Sec. 11 of the NSA to the effect that there was sufficient cause for the detention. By an order dated 1/05/1981 the State Government in exercise of its powers under sub-sec. (1) of Sec. 12 of the NSA confirmed the order of detention. ( 22 ) THE validity of the order of detention was challenged on behalf of the detenu on five grounds two of which were as follows: (1) While the order of detention was served on the detenu he was not informed in the grounds of detention of his constitutional right to make a representation against such order of detention and also the light to be heard by the Advisory Board; and (2) the procedural safeguards of Art. 22 (5) and Sec. 8 of the NSA were not complied with since the detenu was not supplied with any document till 25/03/1981 and some of them as on the date of hearing of the petition had not been supplied at all and further that the grounds of detention and the documents in support thereof were in Hindi and not in Urdu that is in a language with which the detenu was not conversant. The Supreme Court observed that the constitutional imperatives indicated in Art. 22 (5) are two-fold: (1) the detaining authority must as soon as may be that is as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made; and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. The right to make a representation implies what it means the right of making an effective representation. Where certain documents are relied upon in the grounds of detention the grounds would be incomplete without such documents. The detenu therefore has a right to be furnished with the grounds of detention along with the documents relied upon. The Supreme Court adverted to a series of its decisions which on construction of Art. 22 (5) of the Constitution read with sub-sec. (3) of Sec. 3 of the COFEPOSAA held that the right of making an effective representation carries with it the right to copies of documents relied upon in the grounds of detention. The Supreme Court adverted to a series of its decisions which on construction of Art. 22 (5) of the Constitution read with sub-sec. (3) of Sec. 3 of the COFEPOSAA held that the right of making an effective representation carries with it the right to copies of documents relied upon in the grounds of detention. The Supreme Court observed that the rationale of these decisions is that the right to be supplied with copies of the documents statements and other materials relied upon in the grounds of detention without any delay flows as a necessary corollary from the right conferred to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningfully exercised. The constitutional imperatives of Art. 22 (5) which enjoins a duty on the detaining authority making an order of detention to afford the detenu the earliest opportunity of making a representation against the order equally apply to a detention under Sec. 3 of the NSA. The Supreme Court rejected the aforesaid two contentions raised on behalf of the detenu by observing as follows in paragraphs 17 and 18 of its judgment:"17 In the instant case however there was no infraction of the constitutional safeguards enshrined in Art. 22 (5 ). We are satisfied that there was no failure on the part of the Government to discharge its obligations under Art. 22 (5) of the Constitution and Sec. 8 of the Act. There is no warrant for the submission that the detenu was deprived of the right of being afforded the earliest opportunity as enjoined by Art. 22 (5) and Sec. 8 of the Act in that he was not served with the grounds of detention and the relevant documents in support thereof at the earliest opportunity on 9/03/1981 when he was placed under detention or within a reasonable time thereafter and that the documents were indeed not furnished in a language with which he was not conversant. There was no such grievance made in the representation filed by the detenu before the Advisory Board. The contention now raised that the detenu was not furnished with copies of the relevant documents is only an after thought. There was no such grievance made in the representation filed by the detenu before the Advisory Board. The contention now raised that the detenu was not furnished with copies of the relevant documents is only an after thought. In the instant case the detenu had the earliest opportunity of making a representation when the order of detention as well as grounds of detention were served on him personally on 9/03/1981 at the Central Jail Agra but he refused to receive the documents on the ground that they were in Hindi. The detenu disdained from making a representation to the detaining authority. In fact the detenu did make a detailed representation before the Advisory Board. A bare perusal of the representation would show that it was drawn by a person conversant with law. ( 23 ) IT is unfortunate that there was a failure to mention in the grounds of detention that the detenu had the right to make a representation against the order of detention as envisaged by Art. 22 (5) of the Constitution read with Sec. 8 of the Act and also the right of being heard before the Advisory Board while he was served with the order of detention. It is expected of a detaining authority while serving an order of detention as a rule to mention in the grounds of detention that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. In the present case the grounds of detention served upon the detenu do not contain any such recital. It however appears that the detenu was furnished a copy of the Constitution on 25/03/1981 at the Central Jail Fatehgarh presumably at his own request for the purpose of making a representation against the order of detention. The words and shall afford in Art. 22 (5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is therefore imperative that the detaining authority must apprise a detenu of his constitutional right under Art. 22 (5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. It is therefore imperative that the detaining authority must apprise a detenu of his constitutional right under Art. 22 (5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make a representation under Art. 22 (5) would be in many cases of little avail if the detenu is not informed of the right. The failure to comply with this requirement however does not have the effect of vitiating the impugned order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightened person and has been in active politics and was therefore fully cognizant of his right to make a representation under Art. 22 (5) of the Constitution and under Sec. 8 of the Act. In fact the detenu appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board. " It was argued on behalf of the detenus that neither in the grounds of detention nor by any other contemporaneous documents de hors the grounds of detention nor by any oral communication the detenu in Special Criminal Application No. 554 of 1987 at the time when he was served with the grounds of detention or even thereafter was and has been informed that he had a constitutional right to make representation under Art 22 (5) of the Constitution to the detaining authority that is Mr. K. V. Hari Har Das himself who had issued the impugned order of detention. Similarly the detenu in Special Criminal Application No. 240 of 1987 was not apprised of his right of personal hearing before the Advisory Board in the grounds of detention or any other contemporaneous documents de hors the grounds of detention nor by any oral communication. Relying upon paragraph 18 of the judgment of the Supreme Court in Wasi Uddin Ahmeds case it was submitted that it was enjoined upon the detaining authority to have apprised the detenu of the said constitutional rights at the time of the service of the order of detention itself. The detaining authority was however blissfully ignorant and totally oblivious of the said rights of the detenus and the corresponding duty/cast upon him. The detaining authority was however blissfully ignorant and totally oblivious of the said rights of the detenus and the corresponding duty/cast upon him. The detaining authority by not apprising the detenus of their said constitutional rights has it was urged disabled them from making effective representation at the earliest opportunity and that has resulted in infringement of their constitutional right under Art. 22 (5) of the Constitution. It was submitted that once the detenus said constitutional right is held to have been infringed the question as to whether it caused them prejudice or not does not arise at all. There is inbuilt prejudice in the infringement of the said right itself. In any case urged the detenus the omission to apprise the detenus of their said rights in fact had caused them severe and irreparable injury and prejudice. It was submitted that the Supreme Court has laid down a rule of universal application that it is obligatory upon the detaining authority to apprise the detenus of their aforesaid rights and failure or omission to so apprise the detenus would vitiate the orders of detention without anything more. In other words according to the detenus mere failure or omission to apprise the detenus of their aforesaid rights would result in invalidating the detention order. On the other hand it is submitted on behalf of the respondents that what is sought to be urged on behalf of the detenus is not the ratio decidendi of the decision of the Supreme Court in the case of Wasi Uddin Ahmed. It is urged that the ratio decidendi is that on which the Court bases its decision and what is its actual decision. No rule should be treated as a ratio which would not support the ultimate order. It was submitted that the Supreme Court reached its final conclusion on the aforesaid two contentions in paragraph 17 of its judgment. Both the contentions on the basis of which it was sought to be urged that there was infraction of Art. 22 (5) of the Constitution were negatived by the Supreme Court. It was urged that the observations made in paragraph 18 of the judgment were only to point out an ideal situation or state of things. Both the contentions on the basis of which it was sought to be urged that there was infraction of Art. 22 (5) of the Constitution were negatived by the Supreme Court. It was urged that the observations made in paragraph 18 of the judgment were only to point out an ideal situation or state of things. All that the Supreme Court had suggested in paragraph 18 was that it would be advisable to apprise the detenu of his right of making representation under Art. 22 (5) of the Constitution and right of being personally heard by the Advisory Board. It was submitted that if what is urged on behalf of the detenu is the correct legal position emerging from the decision of the Supreme Court in Wasi Uddin Ahmeds case the Supreme Court would have held the detention order to be invalid as admittedly the detenu was not apprised of his constitutional right to make representation under Art. 22 (5) and the right of personal hearing before the Advisory Board. The Supreme Court however in terms held that there was no Infraction of constitutional safeguards enshrined in Art. 22 (5 ). Therefore what the Supreme Court pointed out in paragraph 18 was an ideal situation or state of things to do and suggested or recommended that the detaining authority would be well advised in apprising the detenu of his right of representation and the right of being personally heard by the Advisory Board. It was therefore submitted that failure or omission to apprise the detenu of his right to make representation to the Advisory Board and right of being personally heard by the Advisory Board would not render the order of detention invalid since there is no infraction of constitutional safeguards enshrined in Art. 22 (5) of the Constitution. In the alternative it was urged on behalf of the respondents that even if the Supreme Court is held to have laid down in the case of Was Uddin Ahmed that it is obligatory on the detaining authority to apprise the detenu of his aforesaid rights in the grounds of detention failure to so apprise would not in all cases result in infraction of Art. 22 (5) of the Constitution or Sec. 8 of the NSA or the corresponding statutory provisions. It was urged that whether or not there is such infraction would depend upon the facts of each case. It was urged that whether or not there is such infraction would depend upon the facts of each case. ( 24 ) IT is well settled that a decision of the Supreme Court is not to be read as a statute; a decision of a Court is only an authority for what it actually decides. The Supreme Court in Stare of Orissa v. Sudhansu Sekhar Misra and Others AIR 1968 SC 567 referred with approval oft quoted passage of Earl of Halsbury in Quinn v. Leathem 1961 AC 495 which is as under:" Now before discussing the case of Allen v. Flood 1898 AC 1 and that was decided therein there are two observations of a general character which I wish to make and one is to repeat what I have very often said before that every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily logical Code where as every lawyer must acknowledge that the law is not always logical at all. "it is not a profitable task to extract a sentence here and there from a judgment and to build upon it. " ( 25 ) THE Supreme Court has made it abundantly clear in a number of pronouncements as to what exactly binds the lower Courts. It is a settled principle that it is not everything said by the Supreme Court in its judgment which is binding as law declared by the Supreme Court. What is considered binding to all the Courts is ratio decidendi of the decision which is to be gathered from the statements of principles of law applicable to the legal problems disclosed by the facts of the case decided by the Supreme Court. (vide Calico Mills v. Union of India 1983 (1) GLR 1 ). What is considered binding to all the Courts is ratio decidendi of the decision which is to be gathered from the statements of principles of law applicable to the legal problems disclosed by the facts of the case decided by the Supreme Court. (vide Calico Mills v. Union of India 1983 (1) GLR 1 ). In Dalbir Singh; v. State of Punjab AIR 1979 SC 1384 at pages 1390 and 1391 Sen J. Speaking for the Supreme Court has observed as under:" According to the well-settled theory of precedents every decision contains three basic ingredients: (i) findings of material facts direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of (i) and (ii) above. For the purposes of the parties themselves and their privies ingredient No. (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject matter of the action. It is the judgment that estops the parties from reopening the dispute. However for the purposes of the doctrine of precedents. ingredient No. (ii) is the vital element in the decision. Tis indeed is the ratio decidendi (5) It is not everything said by Judge when giving judgment that constitutes a precedent. (Emphasis added)AS observed in Calico Mills v. Union of India (supra) the Supreme Court has also uttered a warning to the effect that the greatest possible care must be taken to relate the observations of a Judge to the precise issue before him and confine such observations even though expressed in broad terms in the general compass of the questions before him (vide Madhav Rao Scindia v. Union of India AIR 1971 SC 530 and A. D. M. Jabalpur v. S. Shukla AIR 1976 SC 1207 at page 1378 ). It is therefore evident that the decision of the Supreme Court is only an authority for what it actually decides and the observations made in the judgment should be restricted to the context in which they are made after relating the observations to the precise issue before the Court taking care to interpret the observations in the context of the question before the Court even though the same are expressed in broad terms. The ratio decidendi of decision of the Supreme Court in the case of Wasi Uddin Ahmed has to be culled out on the basis of the said settled principles. ( 26 ) THE decision of the Supreme Court in the case of Wasi Uddin Ahmed was considered by the Division Bench of the Bombay High Court in Mohd. Hussain v Secretary Govt. of Maharashtra 1982 Cri. LJ 1848 In that case also one of the contentions which was raised on behalf of the petitioner who was detained under sub-sec. (1) of Sec. 3 of the COFEPOSAA was that he was not communicated at the time of service of the grounds of detention on him that he had a right to make a representation as well as of being heard personally before the Advisory Board and therefore there was infringement of the provisions of Art. 22 (5) of the Constitution. The detenu (petitioner) placed reliance on the decision of the Supreme Court in the case of Wasi Uddin Ahmed in support of his above contention. The Division Bench of the Bombay High Court after quoting paragraph 18 of the Supreme Court speaking through Sawant J. observed that following propositions flow from the observations made by the Supreme Court in paragraph 18: (1) the detenu has a right to make a representation against the order of detention and also the right of being personally heard before the Advisory Board by virtue of the provisions of Art. 22 of the Constitution read with Sec. 8 of the NSA; (2) it is expected of the detaining authority as a rule to make a mention in the grounds of detention that the detenu has such a right and (3) the failure to comply with the said requirement viz. of the intimation of such a right does not have the effect of vitiating the order of detention or rendering the continued detention of the detenu illegal in every case. of the intimation of such a right does not have the effect of vitiating the order of detention or rendering the continued detention of the detenu illegal in every case. Whether it does or not will depend upon the facts of each case. With respect we are broadly in agreement with the view taken by the Division Bench of the Bombay High Court. ( 27 ) WE are unable to accept the contention raised on behalf of the detenus that mere failure or omission to apprise the detenu of his right to make representation to the various authorities and also the right to be personally heard by the Advisory Board would vitiate the order of detention in every case. In Wasi Uddin Ahmeds case the detaining authority had not mentioned in the grounds of detention served on the detenu in that case that the detenu had a right to make representation against the detention order and that he also had a right to be heard by the Advisory Board. The detenu did not make any representation to the detaining authority or the appropriate Government He however did make a written representation to the Advisory Board and he was also personally heard by the Advisory Board. If the obligation on the detaining authority to apprise the detenu of his right to make representation and of his right to be personally heard by the Advisory Board was such that mere failure to discharge it would render the order of detention invalid the Supreme Court would have held the order of detention passed in that case to be invalid. However i n paragraph 17 of its judgment the Supreme Court observed that the detenu disdained from making a representation to the detaining authority. In fact the detenu did make a detailed representation before the Advisory Board and a bare perusal of the representation showed that it was drawn by a person conversant with law. These observations were made after the Supreme Court held as follows in the opening part of paragraph 17: In the instant case however there was no infraction of the constitutional safeguards enshrined in Art. 22 (5 ). These observations were made after the Supreme Court held as follows in the opening part of paragraph 17: In the instant case however there was no infraction of the constitutional safeguards enshrined in Art. 22 (5 ). The decision of the Supreme Court that there was no infraction of constitutional safe guards enshrined in Art. 22 (5) was not confined to the detenus contention that procedural safeguards of Art. 22 (5) and Sec 8 of the NSA were not complied with since the detenu was not supplied with documents till 25/03/1981 and the same were not even supplied till the date of hearing of the petition but it was in the context of both the aforesaid contentions namely the contention that the detenu was not communicated in the grounds of detention that he had a constitutional right to make representation against the order of detention and also the right to be heard by the Advisory Board and the aforesaid contention regarding non-compliance with the procedural safeguards enshrined in Art. 22 (5) and Sec. 8 of the NSA by not supplying the documents. The Supreme Court did not lay down an absolute rule that failure or omission to apprise a detenu of his right to make representation and also the right to be heard by the Advisory Board would necessarily lead to invalidation of detention order in all cases and this is evident from the observations made in paragraph 18 of the judgment. If the Supreme Court had laid down such absolute propositions as observed above it would have held that the detention order in that case was invalid. On the contrary it was held that there was no infraction of the constitutional safeguards enshrined in Art. 22 (5 ). If the present detenus contention were to be accepted the final conclusion reached by the Supreme Court would not be consistent with such absolute proposition or rule. We are also not inclined to subscribe to the view canvassed on behalf of the respondents that there is no obligation on the detaining authority to apprise the detenu of his right to make representation and also right to be heard by the Advisory Board and failure to apprise the detenu of his those rights would be no case render the order of detention invalid. As observed above the ratio decidendi of the Supreme Court has to be gathered from the statements of principles of law applicable to legal problems disclosed by the facts of the case decided by the Supreme Court. Every judgment must be read as applicable to particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found and for the proposition that a case is only an authority for what it actually decides. Before culling out a ratio of the decision the Court must of necessity examine the precise question or the precise issue which arose before it and identify the principle of law applied by the Court in resolving the issue and make a further effort to find out what is the proposition of law which emerge from the decision of the Court (vide Calico Milts v. Union of India (supra) ). It is in this perspective that the question will have to be examined as to what exactly has been decided by the Supreme Court in Wasi Uddin Ahmeds case and the propositions which emerges therefrom. In our opinion the observations made by the Supreme Court in paragraphs 17 and 18 of its judgment have to be read together in order to arrive at the correct ratio decidendi of the decision. Whatever is observed in paragraph 17 is subject to what is stated in paragraph 18. It was not merely an ideal situation or state of things which was sought to be pointed out by the Supreme Court in paragraph 18 as urged on behalf of the respondents. If the Supreme Court was merely indicating an ideal situation or state of things or merely suggesting that it was advisable for the detaining authority to apprise the detenu of his right to make representation and his right to be heard by the Advisory Board it would not have used the expression such as as a rule and imperative in paragraph 18. The Supreme Court in terms observed that it is expected of the detaining authority while serving the order of detention as a rule to mention in the grounds of detention that the detenu has a right to make representation against the order of detention and also a right to be heard by the Advisory Board. It was further observed that the words and shall afford in Art. 22 (5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is therefore imperative that the detaining authority must apprise a detenu of his constitutional right under Art. 22 (5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. These observations made by the Supreme Court would be meaningless if we were to accept the contention of the respondents. In our opinion. the aforesaid observations are dictum of law laid down by the Supreme Court. However this dictum has to be appreciated in the background of the facts and the actual decision. The Supreme Court on appreciation of the facts in the case found that though the detenu was not apprised of his right to make a representation and also the right to be heard by the Advisory Board there was no infraction of constitutional right under Art. 22 (5 ). Right to make representation is a constitutional right guaranteed under Art. 22 (5) while the right to be heard by the Advisory Board is a statutory right conferred by the relevant statute but both these have been equated and put on par. However mere omission or failure to apprise the detenu of his said rights would not necessarily in all cases result in infraction of his said constitutional and statutory rights and consequential invalidation of the detention order. However mere omission or failure to apprise the detenu of his said rights would not necessarily in all cases result in infraction of his said constitutional and statutory rights and consequential invalidation of the detention order. The Supreme Court found that (1) the detenu was an enlightened person and had been in active politics and was therefore fully cognizant of his right to make a representation under Art. 22 (5) of the Constitution and under Sec. 8 of the NSA; (2) the detenu had in fact appeared before the Advisory Board and filed a written representation against the order of detention; (3) the detenu was personally heard by the Advisory Board; (4) the detenu had disdained from making the representation to the detaining authority; and (5) the detenu was furnished with a copy of the Constitution at his own request. In the background of these facts the Supreme Court reached the conclusion that there was no infraction of the constitutional safeguards enshrined in Art. 22 (5 ). It is further pertinent to note that the Supreme Court has observed that the right of the detenu to make a representation under Art. 22 (5) would be in many cases of little avail if the detenu is not informed of his right. The Supreme Court did not say that this right would be of little or of no avail in all cases. The observations of the Supreme Court clearly indicate that the Supreme Court did not lay down as a matter of rule that failure to carry out obligation of apprising a detenu of his right to make representation and his right to be heard before the Advisory Board would necessarily lead to infraction of constitutional safeguards enshrined in Art. 22 (5) in all cases. It would depend upon the facts of each case whether or not there has been infraction of the safeguards enshrined in Art. 22 (5) of the Constitution as a result of failure or omission to apprise the detenu of his right to make representation and of his right to be heard by the Advisory Board Therefore we broadly agree with the view taken by the Division Bench of the Bombay High Court in the case of Mohd. Hussain v. Secy. Govt. of Maharashtra (supra ). Hussain v. Secy. Govt. of Maharashtra (supra ). ( 28 ) WE are therefore of the opinion that the Supreme Court has held that it is obligatory on the detaining authority to apprise the detenu of his right to make representation and right to be personally heard by the Advisory Board while serving the grounds of detention on him. The right to make representation is a constitutional right guaranteed under Art. 2. 2 (5) and also a statutory right and the right to be heard by the Advisory Board which is otherwise a statutory right is equated with the said right of representation. Violation of either of these two rights may result in infraction of Art. 22 (5) of the Constitution depending upon the facts of each case. The decisions of the Supreme Court referred to above make it clear that the right of representation guaranteed under Art. 22 (5) includes the right to make representation (1) to the detaining authority (2) to appropriate Government and (3) to the Advisory Board. ( 29 ) THE propositions which emerge from the decision of the Supreme Court in the case of Wasi Uddin Ahmed and its earlier decisions are as follows: (1) the detaining authority must as soon as may be that is as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made; (2) that the detaining authority must supply to the detenu copies of documents relied upon in the grounds of detention. It is however not necessary to furnish copy of the documents to which casual or passing reference may be made in the course of narration of events and which are not relied upon by the detaining authority in making the order of detention; (3) the detaining authority must afford to the detenu earliest opportunity of making representation against the order of detention; (4) the detenu has a right to make representation against the order of detention to the detaining authority appropriate Government and the Advisory Board; (5) the detenu also has a right of being heard by the Advisory Board; (6) it is obligatory on the detaining authority to apprise the detenu in the grounds of detention that he has such rights as stated in (4) (5) and (7 ). Failure to comply with the requirement of apprising the detenu of his aforesaid rights would not necessarily invalidate the order of detention in all cases; (7) whether or not as a result of failure to comply with the requirement of apprising the detenu of his aforesaid rights would result in infraction of the constitutional safeguards enshrined in Art. 22 (5) of the Constitution will depend upon the facts in each case; (8) consideration of the representation of the detenu by the detaining authority and the appropriate Government is independent of any action by the Advisory Board including consideration of the representation of the detenu by the Advisory Board; (9) there should not be delay in matter of consideration of the detenus representation by the detaining authority and the appropriate Government; (10) the appropriate Government has to express its opinion on the representation made by the detenu before sending the case along with the detenus representation to the Advisory Board. ( 30 ) OUR attention was also invited to the judgments rendered by different Division Benches of this Court in the context of decision of the Supreme Court in the case of Wasi Uddin Ahmed. The points which are canvassed before us in these two petitions were not elaborately argued before the Division Benches which heard these matters in which those judgments were delivered. In other words the points which are argued before us at length were not put in focus before the Court in those matters. We however find that broadly speaking except in one case the Division Benches have not taken a view which is different from the view which we are taking. We will now briefly refer to these decisions. ( 31 ) IN Mohmad Kasam Imamuddin Shaikh v. The State of Gujarat and Another Special Criminal Application No. 559 of 1985 and companion matter decided on December 5 1985 (1986 GLH (UJ) 4) the Division Bench which heard these cases referred to the decision of the Supreme Court in the case of Wasi Uddin Ahmed and found that grounds of detention were totally silent in so far as the detenus rights to make representation to the Advisory Board and the right to be heard in person by the Advisory Board were concerned. The detenus were therefore deprived of their said rights. The detenus were therefore deprived of their said rights. The detenus were not even orally informed of such rights at the time of service of the grounds of detention. The Division Bench further found that the facts in the case before it were in no way comparable with the facts which obtained in the case of Wasi Uddin Ahmed. The detenus before it were illiterate persons who were not alive to their rights under Art. 2215) of the Constitution. Therefore the Division Bench held that the principles enunciated by the Supreme Court when applied to the facts of that case led to the conclusion that omission to mention about the aforesaid rights was fatal to the order of detention. ( 32 ) IN Hasankhan Pirozkhan Pathan v. The Commissioner of Police Ahmedabad and Others Special Criminal Application No. 1194 of 1985 decided on March 4 1986 (1986 GLT 201) was also a case where the detaining authority did not inform the detenu in the grounds of detention that he had a sight to make representation to the Advisory Board and also a right to be heard by the Advisory Board. The Division Bench after referring to the decision of the Supreme Court in the case of Wasi Uddin Ahmed held that the facts in the case before it were not similar to the facts in the case before the Supreme Court. It was therefore held that failure to give intimation to the detenu of his aforesaid rights in the grounds of detention would render the order of detention illegal. ( 33 ) IN Ahir Kathad Samat v. The State of Gujarat end Others Special Criminal Application No. 164 of 1986 decided on 30/06/1986 (1986 GLH (UJ) Page 39) was a case where the detaining authority had not mentioned in the grounds of detention that the detenu bad a right to be heard by the Advisory Board. The Division Bench referred to the decision of the Supreme Court in Wasi Uddin Ahmed and pointed out that it was on the facts in that case that the Supreme Court had not invalidated the detention order on the ground of failure to give intimation to the detenu of his right to make representation and right to be heard personally by the Advisory Board. The Division Bench held. The Division Bench held. In the facts and circumstances of this case and particularly in view of the fact that the detenu appears to be a semi-literate person and also appears to be ignorant about his constitutional and statutory rights failure to inform him that he had a right to be heard before the Advisory Board should be held sufficient to invalidate the order of detention. ( 34 ) IN Babubhai Gulambhai Goas v. State of Gujarat reported in 1987 (2) GLR 814 : 1987 (1) GLH 568 the detenu was an illiterate person who was not conversant with the constitutional requirements of preventive detention. He had not been told that he had a right of representation to the Advisory Board and in fact he did not make any representation to the Advisory Board though he was personally heard before the Advisory Board. The Division Bench was of the view that the facts in the case before it were similar to the facts in the case of Mohmad Kasam (supra ). Following the decision of the Division Bench in the said case of Mohmad Kasam the Division Bench took the view to the effect that the case before it could be distinguished from the case of Wasi Uddin Ahmed on the facts and it can parallel to the facts in Mohmad Kasams case. Therefore following the decision of the Division Bench in Mohmad Kasams case the Division Bench held that the order of detention was bad. ( 35 ) SIMILAR view was taken by the Division Benches in Natvarlal Manilal Kayastha v. District Magistrate Bharuch and Others Special Criminal Application No. 1178 of 1986 and companion matters decided kbon 7/04/1987 Jagdish Morarji Tanna v. Union of India and Others Special Criminal Application No. 1334 of 1986 and companion matters decided on 28/04/1987 Noormohmad Yakubbhai Saiyad @ Bhaiya Sheth v. Mr. K. V. Hari Har Das and Others Special Criminal Application No. 1265 of 1986 decided on 1/05/1987 ( 36 ) BORICHA Valabhai Natubhai v. The State of Gujarat and Others Special Criminal Application No. 108 of 1987 decided on 8/07/1987 ( 1987 (2) GLR 1230 ) was a case in which the detaining authority had not mentioned in the grounds of detention that the detenu had right to make representation to the detaining authority. It was however found that the detenu was literate and know about his rights. It was however found that the detenu was literate and know about his rights. Under the circumstances it was held that the case would be covered by the ratio of the decision of the Supreme Court in the case of Wasi Uddin Ahmed and the order of detention could not be held to be invalid. In this view of the matter the petition filed by the detenu was dismissed. ( 37 ) IT however appears that in Moriben Virabhai v. B. K Sinha and Another Special Criminal Application No. 1317 of 1986 and companion matter decided on 27/07/1987 a view different from the one taken in the earlier decisions was taken. The detaining authority had not mentioned in the grounds of detention that the detenu had a right to make representation to the Advisory Board and a right to be heard before the Advisory Board. In the affidavit in reply filed on behalf of the respondents in that case it was pointed out that in the grounds of detection the detenu was informed that if he wished to be heard before the Advisory Board he should so state in the representation addressed to the State Government. It was further stated that the detenu had submitted written representation to the Advisory Board and he had represented his case in person before the Advisory Board. The Division Bench which heard the matter was however of the view that the case before it was clearly covered by the judgment in the case of Babubhai (Sulambhai Goas (supra) in which reliance was placed on the decision of the Supreme Court in Wasi Uddin Ahmed. Therefore following the decision in Babubhai Gulumbhai Goas case the Division Bench held that the detention of the detenu was void. With respect we find ourselves unable to agree with the view taken by the Division Bench. In our opinion on facts the case would be covered by the judgment of the Supreme Court in the case of Wasi Uddin Ahmed. With respect we find ourselves unable to agree with the view taken by the Division Bench. In our opinion on facts the case would be covered by the judgment of the Supreme Court in the case of Wasi Uddin Ahmed. Since the detenu had in fact made written representation to the Advisory Board and he was in fact heard by the Advisory Board there was no infraction of constitutional safeguards enshrined in Art. 22 (5) of the Constitution and his statutory rights under the provisions of the Gujarat Prevention of Anti-Social Activities Act 1985 ( 38 ) IT would thus appear that except in one case this Court was consistently taken the view to the effect that whether or not failure to inform the detenu of his right to make representation under Art. 22 and relevant provisions of the statute under which the order of detention is passed and the right to be heard by the Advisory Board would render the order of detention void would depend upon the facts of each case. The Division Benches which heard the matters examined the facts of each case and it was in the light of the facts of the case that it was decided whether or not there was infraction of constitutional safeguards enshrined in Art. 22 (5) or the statutory right. It has not been held except in one case pointed out above that mere failure to mention in the grounds of detention that the detenu had the aforesaid rights would ipso facto render the detention order void or invalid in all cases. In Motiben Virabhai v. B. K. Sinha and Another also the Court did not specifically hold that mere failure to mention about such rights would result in invalidation of the order of detention. But having regard to the facts in the case to which we have already drawn attention it would appear that such was the view of the Division Bench. As already observed above if such were the view taken by the Division Bench with respect we find ourselves unable to agree with it. However by and large the view which we have taken is consistent with the view taken by this Court in majority of the cases which were decided in the context of the decision of the Supreme Court in Wasi Uddin Ahmeds case. However by and large the view which we have taken is consistent with the view taken by this Court in majority of the cases which were decided in the context of the decision of the Supreme Court in Wasi Uddin Ahmeds case. ( 39 ) OUR attention was also drawn to various decisions of the Bombay High Court including the decision in Mohmad Hussain (supra) to which reference is already made above. We do not find anything in these decisions which is not consistent with the view which we are taking. In Smt. Sushila Mafatlal Shall v. 7he Union of India and Others Criminal Writ Petition No 356 of 1987 decided on 24/07/1987 the detaining authority had failed to communicate to the detenu that he had a right to make representation to the detaining authority. There is nothing in the judgment to indicate that the detenu had in fact made representation to the detaining authority. It is under these circumstances that the Division Bench of the Bombay High Court which heard the matter held that as the detenu was deprived of his right to make representation to the detaining authority in the first instance and if his representation was rejected then make another representation to the State Government and the Central Government the provisions of Art. 22 (5) of the Constitution were violated. It would therefore appear it was on the facts of the case that the Court held that the order of detention was vitiated. ( 40 ) THE facts in the case of Smt. Shenaz Begum v. The State of Maharashtra and Others Criminal Writ Petition No. 631 of 1987 decided on 11/09/1987 which was heard by a Division Bench of the Bombay High Court consisting of C. S. Dharmadhikari Ag. C. J and V. P. Tipnis J. were similar to the facts in the case of Smt. Sushila Mafatlat Shah. It was urged on behalf of the State Government in that case that the decision in the case of Smt. Sushila Mafatlal Shah required reconsideration. However it appears the Division Bench declined to differ from the decision in the case of Smt. Sushila Mafatlal Shah which was not challenged before the higher Court and observed that judicial discipline required that the decisions which were finding upon them must govern the case before them. However it appears the Division Bench declined to differ from the decision in the case of Smt. Sushila Mafatlal Shah which was not challenged before the higher Court and observed that judicial discipline required that the decisions which were finding upon them must govern the case before them. In the result the Division Bench made the rule absolute and directed release of the detenu forthwith. . ( 41 ) IN Shri Alexander Rodrigues v. Shri D. N. Capoor and Others Criminal Writ Petition No. 37 of 1987 decided on 30/11/1987 which was heard by the Panji Bench (Goa) of the Bombay High Court the detaining authority failed to inform the detenu that he was entitled to make representation against the order of detention to the detaining authority although it was mentioned in the grounds of detention that the detenu was entitled to represent against the order of detention to the Central Government as well as the State Government. There was nothing on record to indicate that the detenu had in fact made representation to the detaining authority. It was however sought to be urged that no prejudice had been caused to the detenu by failure to mention that he had a right to make representation to the detaining authority inasmuch as he had failed to make representation to the Central Government and the State Government though it was specifically mentioned in the grounds of detention that he had a right to make representation to these authorities. The Division Bench of the Bombay High Court which heard the matter however rejected this contention and following the decision in the case of Smt. Sushila Mafatlal Shah and Other decisions referred to in the judgment quashed and set aside the order of detention. It would appear that it was in the light of the facts in each case that the order of detention was held to be invalid on the ground of failure to mention about the aforesaid rights in the grounds of detention. It would appear that it was in the light of the facts in each case that the order of detention was held to be invalid on the ground of failure to mention about the aforesaid rights in the grounds of detention. In none of the decisions of the Bombay High Court to which our attention was drawn it has been held that failure to mention about the said rights in the grounds of detention would necessarily render the order of detention invalid in all cases on the contrary as already observed above in the case of Mohmad Hussain the Division Bench of the Bombay High Court held that failure to comply with the requirement of giving intimation of the said rights does not have the effect of vitiating the order of detention or reader the continued detention of the detenu illegal in every case. Whether it does or Dot will depend upon the facts of each case. This is the same view which we have taken and no decision of the Bombay High Court is cited before us wherein a different view is taken. In Mohmad Hussains case the detenu was not apprised of his right of making representation to the Advisory Board and of his right to be personally heard before the Advisory Board at the time when the order of detention was made. The Division Bench of the Bombay High Court in the first instance pointed out that so far as these two rights are concerned Art. 22 (5) does not spell out the same The Division Bench went on to observe that the only right spelt out by the said Article is that the representation made to the detaining authority will be considered independently by the Advisory Board. Secondly his right of being personally heard is a right conferred upon him by clause (c) of Sec. 8 of the COFEPOSAA. With respect we are not in complete agreement with the above view. The right to make representation to the Advisory Board also flows from Art. 22 (5) as held by the Supreme Court in the case of Wast Uddin Ahmed. In other words this right is also considered to be constitutional right guaranteed under Art. 22 (5) of the Constitution. With respect we are not in complete agreement with the above view. The right to make representation to the Advisory Board also flows from Art. 22 (5) as held by the Supreme Court in the case of Wast Uddin Ahmed. In other words this right is also considered to be constitutional right guaranteed under Art. 22 (5) of the Constitution. It is true that so far as the detenus right of being personally heard by the Advisory Board is concerned it is a statutory right conferred upon him by clause (c) of Sec. 8 of the COFEPOSAA but this right is also equated with constitutional right to make representation. After making the statement of law as stated above the Division Bench of the Bombay High Court found that so far as the detenus right of being personally heard by the Advisory Board was concerned the record showed and it was not disputed that the Advisory Board by its letter dated 16-11-1981 had informed the detenu that if he wished to make representation against his detention he could do so and address his representation to the Chairman of the Advisory Board immediately. He was also informed by the very same letter that the date for his personal interview will be communicated to him at a later stage. In spite of this letter the detenu did not make any representation to the Advisory Board. However he was personally interviewed by the Board on 16-12-1981 and there was no grievance made in that behalf. In view of these facts the Division Bench held that there was no breach of either constitutional or statutory provisions In that case The Division Bench rejected the contention that merely because the petitioner was not informed at the time of service of the grounds of detention upon him of his right to make a representation and of being heard personally before the Advisory Board either the order of detention or his detention thereunder had become illegal. It would therefore appear that the Division Bench of the Bombay High Court has in the case of Mohmad Hussain taken the same view which we are taking. We have already observed above that we broadly agree with the view taken by the Bombay High Court in the case of Mohmad Hussain. It would therefore appear that the Division Bench of the Bombay High Court has in the case of Mohmad Hussain taken the same view which we are taking. We have already observed above that we broadly agree with the view taken by the Bombay High Court in the case of Mohmad Hussain. ( 42 ) IN the light of what is discussed above we answer the questions referred to us in these two petitions as under: Special Criminal Application No. 240 of 1987. Questions Answers (1) Whether having regard to the Yes. It is obligatory on the decision of the Supreme Court detaining authority while serving in the case of Wasi Uddin the grounds of detention upon the Ahmed v. District Magistrate detenu to apprise him that he has Aligrah is it obligatory on a right of personal hearing before the Detaining Authority while the Advisory Board serving the grounds of deten- tion upon the detenu to inform that the detenu has a right of personal hearing before the Advisory Board ? (2) Would failure to inform the No. Failure to inform the detenu detenu as stated above ipso as stated above would not ipso facto result into infraction of facto result in infraction of Art. Art. 22 (5) of the Constitution 22 (5) of the Constitution of India of India and invalidation of and invalidation of the order of the order of detention ? detention. Whether or not there is any infraction of Art. 22 (5) of the Constitution would depend upon the facts of each case. Special Criminal Application No. 554 of 1987. (1) Having regard to the decision Yes having regard to the decision of the Supreme Court in the of the Supreme Court in the case case of Wasi Uddin Ahmed v. of Wasi Uddin Ahmed v. District District Magistrate Aligarh Magistrate Aligarh since the or even otherwise is it obli- Question is covered by the direct gatory on the Detaining Decision of time Supreme Court in Authority while serving the the said case it is not necessary to Grounds of detention upon examine whether even apart from the detenu to inform that the the decision of the Supreme Court detenu has a right to make in the said case there is such representation against the obligation on the Detaining Authority. detention order to the detain- ing authority and to other authorities such as State Government Central Government and the Advisory Board ? (2) Would failure to inform the Not in all cases. It would depend detenu as stated above result upon the facts of each case whe- into infraction of Art. 22 (5) ther or not there is infraction of of the Constitution of India Art. 22 (5) of the Constitution and and invalidation of the order consequent invalidation of the of detention ? order of detention as a result of such failure. ( 43 ) WE have already stated above that the learned Counsel for the parties to these petitions requested us to finally decide these two petitions on appreciation of the facts in the light of the decision which we may take. In other words the learned Counsel requested us to dispose of these petitions finally instead of sending them back to the Division Bench after answering the questions which are referred to us. We therefore now proceed to examine the facts in each of these petitions and render our decision in the light of the answers given by us to the questions referred to us. ( 44 ) THE detenu in Special Criminal Application No. 240 of 1987 was not informed that he had a right to be heard by the Advisory Board when he was served with the order of detention and the grounds of detention. However as held by us this would Got ipso facto result in infraction of Art. 22 (5) of the Constitution and invalidation of the order of detention. In the affidavit in reply of Mr. P. N. Roy Choudhary Deputy Secretary Home Department (Special) it is stated that though it is not stated in the grounds of detention that the detenu has a right of personal hearing before the Advisory Board the information about personal hearing before the Advisory Board is given as and when the Advisory Board fixes the date of hearing and the State Government informs about the said date of hearing well in advance to the detenu by a letter. It is further stated that in the instant case the detenu was informed of the date of hearing by a letter of the State Government dated 9-3-1987 stating that hearing of the detenus case before the Advisory Board was fixed on 12-3-1987. It is further stated that in the instant case the detenu was informed of the date of hearing by a letter of the State Government dated 9-3-1987 stating that hearing of the detenus case before the Advisory Board was fixed on 12-3-1987. It is further stated that the detenu was fully heard by the Advisory Board. This letter dated 9-3-1987 was produced before us. This letter was received by the detenu on the same day that is 9-3-1987 and it was clearly stated in this letter to the effect that the detenu would be heard by the Advisory Board on 17 It is not disputed that the detenu was heard by the Advisory Board on 17-3-1987. There is nothing on record to show that full opportunity of being beard was not given to the detenu before the Advisory Board. No grievance as regards personal hearing given by the Advisory Board is made by the detenu. It was submitted on behalf of the detenu that the detenu was given only seven days time before the date of hearing before the Advisory Board and therefore it could not be said that the detenu was given sufficient time to represent his case and examine witnesses if be wanted to examine them. However as already pointed out above no grievance whatsoever with regard to the hearing given to the detenu by the Advisory Board is made before the Advisory Board. There is nothing on record to indicate that the detenu complained to the Advisory Board that he did not have sufficient time and that he wanted more time to represent his case and to examine witnesses. Under the circumstances in the light of the facts stated above we are of the opinion that there is no infraction of constitutional safeguards enshrined in Art. 22 (5) of the Constitution or statutory right conferred under clause (c) of Sec. 8 of the COFEPOSAA. Since other grounds urged on behalf of the detenu are already rejected by the Division Bench which has referred the questions to us as stated above we reject the contention that the order of detention is invalid and his continued detention is illegal. The petition fails on all the grounds which are urged on behalf of the detenu and consequently it deserves to be rejected. The petition fails on all the grounds which are urged on behalf of the detenu and consequently it deserves to be rejected. ( 45 ) IT is not disputed that the detenu in Special Criminal Application No. 554 of 1987 in the grounds of detention was not apprised of his right to make representation to the detaining authority. As pointed out above all that was stated in the grounds of detention was that the detenu had a constitutional right to make representation against his detention to the State Government Central Government as well as the Chairman of the Advisory Board. So far as the representation meant for the State Government was concerned the detenu was directed to address it to the undersigned that is Mr. K. V. Harihar Das Additional Chief Secretary to the Government of Gujarat the detaining authority. The detenu did not make representation to the detaining authority. The representation which the detenu made to the State Government was made through the detaining authority. It is stated in the affidavit-in-reply of Mr. P. N. Roy Choudhary Deputy Secretary Home Department (Special) to the effect that the detaining authority had also applied his mind to the representation made by the detenu and thereafter the said representation was also placed before the Honourable Chief Minister who also considered and rejected the representation made by the detenu. It would therefore appear that the detaining authority merely considered the representation of the detenu and placed it before the Chief Minister. he did not reject it after considering the same It would therefore appear that no representation in fact was made to the detaining authority and though the representation addressed to the State Government was considered by the detaining authority he did not render any decision thereon. This case in our opinion would therefore be squarely covered by the decision of the Supreme Court in Smt. Santosh Anand v. Union of India 1981 (2) SCC 420 referred to above. In that case also the representation made by the detenu was considered by the detaining authority but it did not take any decision to reject the same himself. It was therefore held by the Supreme Court that constitutional safeguards under Art. 22 (5) of the Constitution had not been strictly observed or complied with. The same would be the position in the instant case also. It was therefore held by the Supreme Court that constitutional safeguards under Art. 22 (5) of the Constitution had not been strictly observed or complied with. The same would be the position in the instant case also. The position would have been different had the detaining authority through whose hands the representation passed having considered it had himself rejected it independently of it also being rejected by the State Government. In that case it could have been effectively urged on behalf of the respondents that the constitutional right of the detenu was in fact not inflicted and the continued detention of the detenu was not rendered invalid on that score. However such is not the position on the facts of this case. We therefore hold that in the instant case also the constitutional safeguards under Art. 22 (5) of the Constitution have not been strictly observed or complied with. Other grounds urged on behalf of the detenu before the Division Bench are already rejected by it when it referred the questions to us as stated above and therefore we need not deal with them. In the result the continued detention of the detenu must be held to be illegal. Special Criminal Application No. 554 of 1987 therefore deserves to be allowed. ( 46 ) IN the result Special Criminal Application No. 240 of 1987 is rejected and rule issued therein is discharged. Special Criminal Application No. 554 of 1987 is allowed and rule is made absolute. The detenu in the said Special Criminal Application No 554 of 1987 is ordered to be released forthwith if not otherwise to be detained in connection with any other case. Orders accordingly. (ATP) Orders accordingly. .