KAPADIA, J. ( 1 ) THE petitioner-Govindbhai Dipaji Soni alias Chandubhai dipaji Soni has filed this petition for a writ, order or direction quashing and setting aside the impugned order of detention (Annexure-A) to the petition) and for a other direction of releasing the petitioner forthwith. ( 2 ) THE detention order dated 27-9-1990 was passed by the second respondent under Sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act with a view to preventing the petitioner from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. The petitioner was also supplied with the grounds of detention also dated 27-9-1990. From the grounds of detention the following facts can be gathered. ( 3 ) IN pursuance of an intelligence received by the officers of the Directorate of Revenue Intelligence, Ahmedabad Unit, that one Mukesh R. Chokshi having business premises in the name and style of M/s. Shreenath Jewellers, manekchowk, Ahmedabad was dealing in contraband foreign marked gold and that he had received 200 to 250 tolas of gold from one Chandu of deesa (the present petitioner) and that he was proceeding with the same to Baroda side in his Car No. GJ-01-1502 on 17-7-1990, the officers of the D. R. I. Ahmedabad, along with the officers of the Income Tax Department kept surveillance on National Highway no. 8 near Dabhan on 17-7-1990. During their surveillance the officers noticed one Maruti Car No. GJ-01-1502 proceeding to Baroda which was immediately intercepted. The person who was driving the car was Mukesh R. Chokshi and the other occupant was one Jayendra C. Shah. On preliminary inquiry, mukesh admitted that he was carrying 23 pieces of foreign marked gold in the car. Both of them were then brought to the D. R. I. Office, Ahmedabad, along with the aforesaid Maruti car for detailed inquiry. ( 4 ) MUKESH R. Chokshi in his statement dated 18/07/1990 recorded under Sec. 108 of the Customs Act, 1962, while admitting recovery of 23 gold biscuits from his Car No. GJ-01-1502 in his presence and in the presence of Jayendra C. Shah and two independent panchas, inter alia stated that Chandu of Deesa (present petitioner) had supplied the gold biscuits to him. He had also identified one xerox copy of the petitioners photograph as the person from whom he received the said 23 gold biscuits of foreign origin. ( 5 ) THE petitioners statement was recorded under Sec. 108 of the Customs act by the D. R. I. Officers at Ahmedabad on 28-8-1990. However, the petitioner denied to have given any gold biscuits to Mukesh R. Chokshi on 17-7-1990. He had also stated that on 17-7-1990 he had gone to Jodhpur, but he could not produce any evidence in this regard. When the photograph of Mukesh r. Chokshi was pointed out to him he had stated that he had seen him in the Manekchowk Market at Ahmedabad. ( 6 ) THEREAFTER it appears that the petitioner was arrested by the D. R. I. Officers on 28-8-1990 though he was arrested in some other case on 10- 6-1990. Thereafter the authorities collected the assay report with regard to the purity of the gold seized. Said report is dated 7-8-1990. ( 7 ) AFTER the aforesaid order of detention was served on the petitioner, he made representation to the Advisory Board on 29-11-1990. ( 8 ) IN the petition various grounds are raised. However, by amending the petition one more ground is added as ground No. 5 (x) and contended that the petitioner has made a representation to the Advisory Board on 29-11- 1990 and it was submitted through Jail. However, the said representation has not been considered by the State Government before placing it before the advisory Board and therefore, there is clear breach of Art. 22 (5) of the constitution of India and therefore, continued detention of the petitioner is bad in law. ( 9 ) DURING the course of argument Mr. Kiran Jani, learned Advocate for the petitioner has submitted that the said representation has not been considered till date by the State Govt. It may be stated that in this case affidavitin- reply is filed by one Mr. J. M. Parmar, Under Secretary, Home Department (Special), Govt. of Gujarat and dealt with various contentions raised in the petition. Said affidavit-in-reply is dated 22-4-1991. The aforesaid amendment was made on 16-6-1991 pursuant to the Courts order dt. 13-6-1991. However, though sufficient time was given no specific reply is filed on behalf of the respondents in respect of the newly added ground. of Gujarat and dealt with various contentions raised in the petition. Said affidavit-in-reply is dated 22-4-1991. The aforesaid amendment was made on 16-6-1991 pursuant to the Courts order dt. 13-6-1991. However, though sufficient time was given no specific reply is filed on behalf of the respondents in respect of the newly added ground. ( 10 ) THOUGH various grounds are raised in the petition at the time of hearing Mr. Kiran Jani, learned Advocate for the petitioner has pressed some of them including the aforesaid newly added ground and has submitted that the representation made by the petitioner to the Advisory Board on 29-11- 1990 through the Jail has not been considered by the State Govt. till today and therefore, the continued detention of the petitioner is bad. As the petition can be disposed of on this ground alone, other grounds need not be mentioned and considered. ( 11 ) THIS contention of Mr. Kiran Jani has been opposed by Mr. M. R. Raval, learned Asst. Govt. Pleader appearing for the respondents by submitting that there is no statutory provision to consider representation prior to confirmation of the detention order, that power to revoke the detention order is independent of the consideration of the representation and it can be exercised at any time, that special instructions were given to the petitioner at the time when he was served with the grounds of detention that he would be at liberty to make representation to three different authorities namely, the state Government, the Central Government and the Advisory Board and that the detenu in this case has chosen to make representation to the Advisory board only and therefore, the State Government had no occasion to consider the representation of the petitioner prior to the meeting of the Advisory Board. ( 12 ) IN this case Mr. Kiran Jani, learned Advocate for the petitioner has relied on the judgment of the Supreme Court in the case of Kubic Darusz v. Union of India and Ors. , AIR 1990 SC 605 . ( 12 ) IN this case Mr. Kiran Jani, learned Advocate for the petitioner has relied on the judgment of the Supreme Court in the case of Kubic Darusz v. Union of India and Ors. , AIR 1990 SC 605 . He submitted that in the said case the Supreme Court has held that though the representation was addressed to the Chairman, Central Advisory Board, the same was forwarded by the Jail authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the Advisory Board and the same having not been done Art. 22 (5) has to be held to have been violated. In the said case one of the contentions raised was that the representation submitted by the detenu has not been considered upon or replied to at all by the detaining authority where for the detention order was liable to be quashed as violative of Art. 22 (5) of the Constitution of India. Said contention was emphatically refuted by the counsel for the respondents inter alia submitting that so-called representation was addressed to the Chairman, Central Advisory Board, COFEPOSA and therefore, there was no question of the representation being separately dealt with by the Central Government. ( 13 ) SAID contention was dealt with by the Supreme Court right from para-14 onwards in the said judgment. In the said case admittedly the representation was not disposed of by the appropriate Government and indeed has not been disposed of or acted upon till then. Dealing with the contention of Mr. Mahajan that it having been addressed to the Chairman, Central Advisory board it need not have been dealt with by the Central Government and it could not be regarded as a representation at all, the Supreme Court has observed as under : ". ,, There was no scope to hold that what has been stated to be representation wag not representation at all inasmuch as it only requested for translated copies of the grounds of detention and the annexed documents in Polish language. . . ,, There was no scope to hold that what has been stated to be representation wag not representation at all inasmuch as it only requested for translated copies of the grounds of detention and the annexed documents in Polish language. . . " the Supreme Court also referred to the judgment in the case of Smt. Shajini Soni v. Union of India, AIR 1981 SC 431 and observed that no proforma for representation has been prescribed and a request for release of the detenue therefore, has to be deemed a representation; so also a request to supply copies of documents, etc. It is further observed by the Supreme court that it was mandatory on the part of the appropriate Government to consider and act upon it at the earliest opportunity and failure to do so would be fatal to the detention order. ( 14 ) IN para 16 of the said judgment the Supreme Court has considered the judgment in the case of Rattan Singh v. State of Punjab and Ors. AIR 1981 SC 1006 wherein it was held that Sec. 11 of the COFEPOSA Act confers upon the Central Government the power of revocation of an order of detention made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure of the Jail Superintendent to either forward the representation to the Government concerned or to have forwarded the same to the State government with a request for their onward transmission to the Central government in that case was held to have deprived the detenu of his valuable right to have his detention revoked by the Government. The continued detention of the detenu was, therefore, held illegal and detenu was, set free. After quoting the observations of the earlier judgment, the Supreme Court reverting to the facts of the case on hand observed that "in the instant case though the representation was addressed to the Chairman, Central Advisory Board the same was forwarded by the Jail authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the Advisory Board and the same having not been done Art. 22 (5) has to be held to have been violated". The Supreme Court found that there is force in the second submission, i. e. , the submission referred to above and therefore, it held that the continued detention of the detenu has been rendered illegal by non-consideration of his representation by appropriate Government according to law resulting in violation of Art. 22 (5) of the Constitution of India and the detenu was ordered to be set at liberty forthwith. ( 15 ) WHEN the aforesaid judgment was cited by Mr. Jani, Mr. Raval, learned a. G. P. has submitted that there is latest judgment of the Supreme Court on this point in the case of K. M. Ahdulla Knnhl v. Union of India, AIR 1991 SC 574 wherein the Supreme Court has observed that if the Board finds no material for the detenion on merits and reports accordingly the Government is bound to revoke the order of detention. Secondly, if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Supreme Court has made the aforesaid observation on the point as to whether there would be any delay on the part of the Government if it considers representation after the receipt of the report of the Board and the Supreme Court held that it could not be said that the Govern" ment has delayed consideration of the representation unnecessarily awaiting the report of the Board. ( 16 ) IN the said case considering the right of the detenu of affording him the earliest opportunity of making a representation against the order of detention under clause (5) of Art. 22 of the Constitution of India, the Supreme court has observed that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order before it is confirmed according to the procedure laid down under Sec. 8 of the act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the Government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not Within the power conferred under the statute. It further observed that "confirmation of the order of detention is not conclusive as against the detenu. It further observed that "confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu under Sec. 11 or upon a representation of the detenu. So long as the representation is independently considered by the Government and if there is not delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention". ( 17 ) THE aforesaid two judgaisnts clearly give answers to all the points raised by Mr. Raval, learned A. G. P. It may be stated that Art. 22 (5) of the Constitution of India clearly provides for affording earliest opportunity to the detenu. When that is so, it is settled law that it also provides that if any such representation is made in response to such opportunity it is obligatory on the part of the concerned Government to decide the same at the earliest. When the representation is made before making any reference to the Advisory Board, the appropriate Government is bound to consider the representation and decide it at the earliest. If the representation is made at such a time when the State Government had no time to consider it because of the reference made to the Advisory Board before receiving representation, it cannot be said that there would be delay if it is not considered by the State Government before the report of the Advisory Board is received. Still however, as observed above the aforesaid observations made by the Supreme Court in the judgment reported in (K. M. Abdulla Kunhis case) AIR 1991 SC 574 are only with regard to delay in considering the representation. However, the appropriate Government is not absolved from its mandatory duty of considering the representation even if the representation is made after the receipt of the report of the Advisory Board or even if the representation is recieved after confirmation of the order of detention, because Sec. 11 (1) of the COFEPOSA Act clearly empowers the Government to revoke the detention order which impliedly provides for the duty of the appropriate Government to exercise that power either suo motu or on the representation being made. Therefore, it is the duty of the appropriate Government to consider and decide the representation either by rejecting it or by accepting it. Therefore, it is the duty of the appropriate Government to consider and decide the representation either by rejecting it or by accepting it. The aforesaid observations would be reply to all the contentions raised by Mr. Raval, learned A. G. P. on behalf of the respondents. ( 18 ) IT is, therefore, clear that even if the representation is made to the advisory Board the appropriate Government has to consider the same. In the present case the appropriate Government is the State Government as the respondent No. 2-Addltional Chief Secretary to the Government of Gujarat, home Department, has passed the impugned order of detention. Undisputedly the representation of the petitioner made to the Advisory Board has not been considered till today. In that view of the matter, we hold that continued detention of the petitioner is illegal on this ground alone. ( 19 ) IN above view of the matter we allow the petition and hold that the continued detention of the petitioner is illegal. The petitioner is ordered to be released forthwith, if no more required in any other case. Rule is made absolute with no order as to costs. Direct service permitted. .