R. L. Gupta ( 1 ) THIS petition under Article 226 of theconstitution of India read with Section 482 of Code of Criminal Procedureby the petitioner seeks issuance of a writ of Habeas Corpus or any otherappropriate order or direction for quashing the order of detentiondated 20-8-91 passed under Section 3 (1) of the Conservation of Foreignexchange and Prevention of Smuggling Activities Act (COFEPOSA Act forshort) by second respondent Shri Mahender Prasad, Joint Secretary to thegovt. of India, Ministry of Finance, New Delhi and a declaration passedunder Section 9 (1) of the Act dated 9-9-91 passed by third respondent. ( 2 ) THE brief facts are that the petitioner had arrived by Thaiairways flight TG-313 on 3-8-91 at the Calcutta Airport. He opted toout of the gate through green channel. While he was near the exit gate withone hand bag, he was verbally enquired if he had any gold with him. Hedenied the same. However, on suspicion having arisen, be was taken to aseparate counter and on interrogation finally confessed that he had beencarrying four small pieces of gold inside the stomach which were later onejected voluntarily. His statement under Section 108 of the Customs Act wasalso recorded. Besides being prosecuted under the Customs Act the presentdetention order was also passed against him. It was served on him on20-8-91 while he was still in jail in connection with a criminal case againsthim. ( 3 ) IN the petition a number of grounds have been taken up tochallenge the validity of detention order. But during the course of arguments,learned Counsel for the petitioner has restricted his arguments to ground (P)at page 13 of the petition. It is stated herein that his representationdated 29-11-91 addressed to the Hon ble Advisory Board had not beenconsidered by the Central Govt. and thus detention had become illegal andbad in law being violative of Article 22 (5) of the Constitution of India. Inthe counter affidavit it is stated that the representation dated 21-11-91 of thedetenu had been considered by the Central Govt. and the detenu had beeninformed about its rejection vide Memo dated 20-12-1991. ( 4 ) I have heard arguments advanced by learned Counsel for theparties. First of all it may be noted that it is not stated in this para that therepresentation was actually dated 29-11. and the detenu had beeninformed about its rejection vide Memo dated 20-12-1991. ( 4 ) I have heard arguments advanced by learned Counsel for theparties. First of all it may be noted that it is not stated in this para that therepresentation was actually dated 29-11. 91 and, therefore, it is not certainwhether in the counter affidavit the reference is to the same representationwhich has been REFERRED TO by the petitioner as dated 29-11-91. However,during the course of arguments learned Counsel for the respondent did try tocontend that it refers to the same representation and this is just a typographical mistake. In the rejoinder, it is reiterated that the aforesaidrepresentation dated 29-11-91 addressed to the Hon ble Advisory Board hadnot been considered by the appropriate Govt. and in any case no suchdecision was ever communicated to the petitioner. ( 5 ) MR. Singh on behalf of the respondent has drawn my attention tothe confirmation order dated 2-1-92 issued by Under Secretary to the Govt. of India, a copy of which is Annexure X-II along with the rejoinder of thepetitioner. He has specifically drawn my attention to a portion of thisconfirmation order wherein it is mentioned that the Central Govt. had fullyconsidered the report of the Advisory Board and the materials on record. By reference to the words, "materials on record" learned Counsel has arguedthat since the representation dated 29-11-91 also formed part of the materialalong with the opinion of the Advisory Board, therefore, the same should bedeemed to have been considered and its rejection communicated throughconfirmation order dated 2-1-92. It is difficult to accept this contention onbehalf of learned Counsel for the respondent. In the case of P. K. Madhavanv. Union of India, 1991 JCC 207, this Court in similar circumstances held thatit was necessary for the appropriate Authority to consider such a representation addressed to the Advisory Board separately and communicate itsdecision to the detenu. Since it was not done in that case also the detentionwas quashed. In the present case also, it is not possible to stretch themeaning of the words, "materials on record" to the extent that therepresentation dated 29-11-91 addressed to the Advisory Board was alsoconsidered separately by the Central Govt. In fact the "materials on record"will be those materials only on the basis of which the Hon ble Advisoryboard expresses its opinion one way or the other to the Central Govt. In fact the "materials on record"will be those materials only on the basis of which the Hon ble Advisoryboard expresses its opinion one way or the other to the Central Govt. Sincethis representation was neither considered by the Central Govt. nor itsdecision communicated separately, it has to be held that there is denial ofopportunity to the petitioner which is hit by Article 22 (5) of the Constitutionof India. ( 6 ) THEREFORE, the impugned detention order and the consequentdeclaration order dated 9-9-91 in respect of the petitioner-detenu are herebyquashed. He will be set at liberty, if not wanted in any other case orproceedings.