MALIK,j. (Oral) ( 1 ) THE petitioner has challenged thedetention order passed against him on 26th of June 1987 byshri S. K. Kohli, Joint Secretary to the Government of India,under section 3 (1) of the Conservation of Foreign Exchangeand Prevention of Smuggling Activities Act, 1974 (as amended ). This order was passed with a view to provening the petitionerfrom engaging in smuggling and transporting smuggled goods. This followed an incident dated 11/05/1987 when thepetitioner who is a citizen of Bangia Desh was apprehended inthe process of smuggling 8 gold biscuits of foreign made intothis country. ( 2 ) THE main ground of challenge to the order of detention is delay in the consideration of representations made by thspetitioner-detenu to the detaining authority as also to the Centralgovernment. Mr. Arora submits that on 25th of September1987 he made these representations which were supposed tohave been decided on 21/10/1987 but the order ofrejection was recorded on 26th of October 1987 and it wascommunicated to him on 5/11/1987. ( 3 ) THE affidavit submitted by Shri S. K. Chowdhry, Undersecretary in the Ministry of Finance states that the-representation was received on 26th of September 1987 and the commentsfrom the sponsoring authority were sought on the same day. It further says that these comments were forwarded by shesponsoring authority on 15th of October 1987 and were receivedin the Ministry concerned on 20/10/1987 and therepresentations were considered on 21/10/1987. thoughthe memorandum was drawn on 26/10/1987 as 24th and25th October were holidays. In short, after tendering thisexplanation the court is told that there has been no undue delay in consideration of the representation. Another affidavithas been filed by Mr. C. D. Bhattacharjee. a Superintendentin the Collectorate of Customs (Preventive ). West Bengal,calcutta giving details as to how after the representation wasreceived for comment it was dealt with at their ends. Headmits that it was sent back to the Ministry on 15/10/1987. ( 4 ) MR. Arora submits that the detaining authority is boundto explain everyday of delay and that it must appear that therepresentation of the detenu was dealt with utmost despatch andpromptness. According to him. the detaining authority in thepresent case has been very indifferent to the consideration ofthe repreentation as is evident from the reply filed. Mr. ( 4 ) MR. Arora submits that the detaining authority is boundto explain everyday of delay and that it must appear that therepresentation of the detenu was dealt with utmost despatch andpromptness. According to him. the detaining authority in thepresent case has been very indifferent to the consideration ofthe repreentation as is evident from the reply filed. Mr. Arora further stresses the fact that even though the representation was decided on 21/10/1987 the memo thereofwas drawn only on 26th of October 1987 which also showsthe amount of deference shown by the detaining authority tothe representation of the detenu. His grievance further is thatit was communicated to him only on 5th of November 1987. I am not sure whether the failure to communicate in time wouldbe fetal or not but the fact of the matter is that the detainingauthority under the law and ths Constitution is bound to attendto the consideration of the representation with utmost promptitude because the liberty of a subject is at stake. In the caseof Mahinder Kumar vs. Union of India and others. Criminalwrit No. 273 of 1987 decided on 12/10/1987 (1 ). Ihave ruled that the detaming authority it he so feels wellwithin Ill s jurisdiction to call for comments or send for furtherinformation if he is of the view that such comments and information would be necessary to enable him to deal effectivelywith the representation but it must appear from the recordthat the representation was put up before the detaining authoritywithout waste of any time and the decision to send for further information or comments must be that of the detaining authority. The jurisdiction to consider and take decision on the representation is entirely that of the detaining authority or theappropriate government and it is for the detaining authorityor the appropriate government to apply its mind to the representation. This discretion cannot be surrendered by thedetaining: authority or the appropriate government to any oneelse. The affidavit submitted in the present case on behalf ofthe detaining authority merely states that the representation wassent to the sponsoring authority for comments after it was received in the Ministry on 28/09/1987. In terms it doesnot take the stand that the representation was put up beforethe detaining authority and the detaining authority directed thatthe comments of the sponsoring authority be sent for. In terms it doesnot take the stand that the representation was put up beforethe detaining authority and the detaining authority directed thatthe comments of the sponsoring authority be sent for. Fromthe affidavit it is clear that this representation anpears to havebeen put up before the detaining authority for the first time on 21/10/1987 when the final orders en it were passed. That would show that from the date of making the representation till the date it was rejected the detaining authority hadnot applied his mind to the representation of the petitioner. Itcannot, therefore, be asserted that the representation of thedetenu was dealt with as required by law and the Constitution. This goes to show that there has been delay in the considerationof the represetantion which vitiates the order of detention. The petition for this reason is allowed and the detention order is quashed. The detenu-petitioner shall be released forthwithfrom the detention unless required in some other case.