JUDGMENT A.S. VENKATCHALA MOORTHY, J. :---This petition has been filed by the petitioner-detenu Shri P.V.B. Chary @ Babu Chary praying this Court to issue a writ of habeas corpus or any other appropriate order or direction quashing and setting aside the impugned order of detention bearing No. S.P.L. 3(A)/ PSA. 0194/76 dated 1st August, 1994, issued by Shri R.D. Tyagi respondent No. 1, against the detenu and directing that the detenu be released from the detention forthwith and be set at liberty. 2. The Principal Secretary to the Government of Maharashtra, Home Department passed the impugned order dated 1st August, 1994 who was specially empowered by the Government of Maharashtra under Government Order, Home Department (Special), No. SPL. 3(A)/PSA.1094/1, dated 16th May, 1994, under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) (hereinafter referred to an 'the Act'), after having satisfied that it is necessary to detain the detenu under the said Act, with a view to prevent him from abetting the smuggling of the goods. The order further reads that the detenu shall be detained in Bombay Central Prison, Bombay for one week from the date of the detention, in the Central Prison, Nashik thereafter and shall be subject to the conditions laid down in the Act. 3. Before the various points raised by the Counsel for the petitioner are taken for consideration certain undisputed facts may be referred to which would enable this Court to appreciate rival contentions of the parties. 4. The order of detention was passed by the first respondent on 1st August, 1994. The said order of detention along with the grounds of detention was served on the detenu on 25th October, 1994. 5. Subsequently on 28-10-1994 at the directions of the detaining authority the Under Secretary to the Government of Maharashtra, Home Department (Special) sent a communication to the detenu. It is necessary at this stage to quote the entire text of the communication. The same is as under :--- "Please refer to Government letter No. SPL-3(A)/PSA 0194/76 dated the 25-10-94 communicating you the grounds of detention on the basis of which the detention order was issued against you by the Secretary to the Government of Maharashtra (Preventive Detention) Home Department and detaining authority. The same is as under :--- "Please refer to Government letter No. SPL-3(A)/PSA 0194/76 dated the 25-10-94 communicating you the grounds of detention on the basis of which the detention order was issued against you by the Secretary to the Government of Maharashtra (Preventive Detention) Home Department and detaining authority. As directed by the detaining authority, I am to request you kindly to read Paragraph No. 26 after para No. 25 in the grounds of detention which were communicated to you. Paragraph No. 26 is as follows :--- "Para No. 26 :--- I further inform you that you have a right to make a representation to the detaining authority against my order of detention. Should you wish to make such a representation you should address it to the Secretary to the Government of Maharashtra (Preventive Detention), Home Department, and Detaining Authority, Mantralaya, Bombay 400 032, through the Supdt. of the Jail, where you are detained." Thereafter renumbering of remaining paragraphs should be read as No. 27, 28 and 29." This communication dated 28th October, 1994 was served on the detenu on 31st October, 1994. In the mean white the detenu through his counsel Shri U.N. Tripathi addressed a letter to the first respondent dated 30th November, 1994. In the said letter the Counsel has stated that after taking due instructions from his client viz., the detenu he is addressing the letter and further requesting first respondent to furnish the list of documents set out therein immediately so as to enable the detenu to make an effective representation to the Government as well as to file a writ petition in the High Court of Judicature at Bombay. The said letter sent by the Counsel was received by the Home Department on 6th December, 1994. The counsel for the petitioner detenu prepared a representation dated 5-12-1994 and forwarded it to the State Government by hand delivery. The original document forwarded shows that it was received by the Private Secretary to Home Minister. On 6th December, 1994 the Under Secretary to the Government of Maharashtra, Home Department (Special) addressed a letter in response to the letter of the counsel for the detenu Shri U.N. Tripathi dated 30-11-1994, calling upon the counsel to send his Vakalatnama. The present writ petition was filed by the detenu on 20th December, 1994. The writ petition came up for orders before the Division Bench on 22nd December, 1994. The present writ petition was filed by the detenu on 20th December, 1994. The writ petition came up for orders before the Division Bench on 22nd December, 1994. This Court ordered Rule, returnable by 6 weeks (i.e. returnable on or before 1st February, 1995). Thereafter on 10-2-1995 the first respondent sent a communication dated 10th February, 1995 to the counsel for the detenu calling upon the counsel to send his Vakalatnama duly signed by his client viz., the detenu. The said letter also drew the attention of the counsel for the detenu to the previous letter dated 7-12-1994 written in connection with the detenu's counsel requesting to provide copies of documents to enable him to make an effective representation on behalf of the detenu. 6. The counsel for the petitioner has attacked the impugned order on three grounds. 7. The first ground of attack is of non consideration of the representation made by the detenu. According to the counsel for the detenu the representations were sent on 5-12-1994. Thereafter a writ petition was also filed on 20-12-1994. The said writ petition was admitted on 22-12-1994 and made returnable 6 weeks (i.e. on or before 1st February, 1995). The representation dated 5-12-1994 was kept in the cold storage probably by the Private Secretary to the Home Minister and it reached the concerned section of the Home Ministry of State Government only on 8-2-1995. The letter written by the State Government thereafter dated 10-2-1995 is only to explain the delay and to get over the situation. According to the counsel for petitioner the representation made to the State Government by the detenu has not yet been disposed of on merits till date. He would submit that this has caused serious prejudice and would be violative of the rights of the detenu guaranteed under Article 22(5) of the Constitution and on that ground the impugned order is liable to be set aside. 8. The learned Public Prosecutor would meet this point by submitting that in as much as no Vakalatnama was sent along with the representation made to the State Government, the Government was not in a position to proceed further and dispose of the representation on merits. 8. The learned Public Prosecutor would meet this point by submitting that in as much as no Vakalatnama was sent along with the representation made to the State Government, the Government was not in a position to proceed further and dispose of the representation on merits. According to him earlier in respect of the same detenu and the very same counsel addressed a letter dated 30-11-1994 requesting for copies of certain documents and a reply was sent on 6-12-1994 to the counsel stating that to represent his client he should send a Vakalatnama. So, according to the Public Prosecutor the respondents were waiting to receive the Vakalatnama from the counsel for the detenu and that is the reason for the State Government not disposing of the representation. 9. There is no doubt that even till today the representation made by the detenu through his counsel dated 5-12-1994 has not been disposed of on merits. As already pointed out the said representation which was filed by the counsel of the detenu before the Home Department on 5-12-1994 and received by the Private Secretary to the Home Minister reached the concerned section only on 8-2-1995. If the State Government really thought that a Vakalatnama is necessary, one would expect the State Government to send a prompt reply, leave along the question, whether such Vakalatnama is really necessary. It is also relevant to point out that this Court ordered Rule returnable by 6 weeks, on 22-12-1994. So the same counsel who submitted the representation has appeared in this writ petition as well. So at least at that stage the State Government should have been satisfied, assuming it wanted Vakalatnama or authority, and should have proceeded further and disposed of the representation on merits. Not having done so and having kept quiet all the while and sending the reply as late as on 10-2-1995 requesting the counsel to send his Vakalatnama would only show the inaction, supine indifference, callous attitude and negligence of the respondent concerned. We find great force in the submissions made by counsel for the detenu and we hold that the impugned order of detention is liable to be quashed and set aside on this sole ground even. 10. The next point for consideration is whether the State Government is justified in calling upon the counsel for the detenu to send his Vakalatnama. We find great force in the submissions made by counsel for the detenu and we hold that the impugned order of detention is liable to be quashed and set aside on this sole ground even. 10. The next point for consideration is whether the State Government is justified in calling upon the counsel for the detenu to send his Vakalatnama. Or in other words when a counsel takes due instructions from his client and sends a representation on his behalf, is it necessary that he should also send a Vakalatnama, or any other document to show the authority to send such representation? On this question the counsel for the detenu would submit that there is no provision of law, or rule or any other authority that the Vakalatnama must be sent by the counsel along with the representation. He submitted that on the other hand the Supreme Court has clearly laid down in the case of (Balchand Chorasia v. Union of India others)1, reported in A.I.R. 1978 S.C. 297, that once a representation is received by the Government and it clearly recites that the Advocate is sending the representation on instructions from his client, then the representation must be considered without Vakalatnama, because the matter concerns with the liberty of the subject and further the same should not be looked or dealt with technically so as to frustrate or defeat the concept of liberty which is engrained under Article 21 of the Constitution. 11. By way of reply to the submissions made above the learned Public Prosecutor would invite the various provisions of law and rule which according to him would indicate sufficiently that whenever representations are sent by a counsel on behalf of the detenu he must also produce Vakalatnama as otherwise the Government would not be in a position to satisfy itself about the authority given to the counsel and proceed further in the matter. The learned Public Prosecutor also relied on two rulings (1)1984 Criminal Law Journal 601 and (ii) an unreported judgment of this Court in Criminal Writ Petition No. 680 of 1994 in (Abdul Kadar v. Union of India). 12. Before dealing with the decisions cited by the respective parties first it may be considered whether there are any provisions in the Act, or rules etc. on this point under consideration. 12. Before dealing with the decisions cited by the respective parties first it may be considered whether there are any provisions in the Act, or rules etc. on this point under consideration. The learned Public Prosecutor first invited us to section 33 of the Advocate's Act, 1961. The said section reads as follows :--- "Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or person unless be is enrolled as an Advocate under this Act." As far as this submission is concerned it may be noticed that the Advocates' Act came to be passed in the year 1961, with an object to amend and consolidate the law relating to legal practitioners and to provide constitution of the bar council and an All India Bar. A careful reading of section 33 would clearly show that it only deals with and lays down that no person shall on or after the appointed date be entitled to practice in any Court or before any authority or person unless he is enrolled as an Advocate under this Act and nothing more. Hence this provision of law pointed out by the learned Public Prosecutor does not help us to solve the question under consideration. It is not disputed that the counsel who has represented in the instance case on behalf of the detenu-petitioner, is an Advocate enrolled under this Act. 13. Our attention is drawn next to the Civil Procedure Code. The learned Public Prosecutor drew our attention to Order 3, Rule 1 and Order 3, Rule 4. The same reads thus :--- 1. Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done to the party in person, or by his recognised agent, or by a pleader appearing, applying or acting as the case may be on his behalf. 4. 4. (i) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment. (ii) Every such appointment shall be filed in Court and shall, for the purpose of sub-rule (1) be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client." Explanation : For the purposes of this sub-rule the following shall be deemed to be proceedings in the suit :--- (a) an application for the review of decree or order in the suit, (b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit, (c) An appeal from any decree or order in the suit, (d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund or moneys paid into the Court in connection with the suit. (3) Nothing in sub-rule (2) shall be construed- (a) as extending, as between the pleader and his client, the duration for which the pleader is engaged or (b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged except where such service was expressly agreed to by the client in the document referred to in sub-rule (1), (4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating :--- (a) The names of the parties to the suit, (b) the name of the party for whom he appears and (c) the name of the person by whom he is authorised to appear : Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party. Here again the purpose of enacting this Civil Procedure Code has to be taken note of. The preamble portion of the Code reads "An Act to consider, consolidate and amend the laws relating to the procedure of courts of several judicature". So all the provisions that find place in this Code are meant and are applicable only in respect of proceedings before courts. There is no dispute that for the purpose of initiating any proceedings before a Court of law it is necessary that the counsel should file his Vakalatnama. What we are now concerned is, whether a counsel who is duly enrolled under section 33 of the Advocates' Act sends a representation to the Government; then is it necessary that the counsel should also send the Vakalatnama with the said representation to the State Government. These two provisions pointed out by the learned Public Prosecutor do not lend support to the stand taken by the Public Prosecutor on the issue under consideration. 14. Next the learned Public Prosecutor drew our attention to some of the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (Maharashtra Conditions of Detention Order 1974). In particular he would rely on Rule 17 of the order referred above. The same reads thus :--- (i) The Superintendent shall forward, without delay through the Inspector General of Prisons, State of Maharashtra, with such observations as he may think fit, any representations (other than a representation made under Clause (5) of Article 22 of the Constitution of India, which a security prisoner may submit to Government). (ii) Where any security prisoner makes a representation under Clause (5) of Article 22 of the Constitution of India, the Superintendent shall forward direct to Government. (ii) Where any security prisoner makes a representation under Clause (5) of Article 22 of the Constitution of India, the Superintendent shall forward direct to Government. (iii) All petitions from security prisoners addressed to courts shall be transmitted with the atmost expedition. The Superintendent, where the place of detention is a jail, shall forward such petitions direct to the Court concerned and forward copies thereof to the Inspector-General of Prisons. Where the place of detention is a sub-jail or a police lock up the Commissioner or the Superintendent, as the case may be, shall send such petitions to the Inspector-General prisons who shall forward them to the Court concerned after keeping copies thereof. When a petition addressed to the High Court it shall be sent to the Registrar, High Court, Appellate Side, Bombay in a sealed envelope. The Inspector-General of Prisons shall forward copies of such petitions to Government whenever he considers it necessary to do so." The said rule deals with the duties of the Superintendent of the Prisons whenever a representation is filed under Clause (5) of the Article 22 of the Constitution. The rule further lays down that the Superintendent must do so with utmost expedition and it also refers to whom such representations should be forwarded. We have carefully examined the rules and do not find anything to show that, whenever a counsel sends a representation to the Government on instructions from his client viz., the detenu, he must also send a Vakalatnama. 15. Then our attention was drawn by the Public Prosecutor to the Criminal Manual issued by the High Court of Judicature, Appellate Side, Bombay. In particular the learned Public Prosecutor relied on Rule 2 of Schedule VII of Chapter XXXII. This rule has to be read as framed by the High Court under section 34(1) of the Advocates' Act, 1961. The Rule reads thus :--- "No Advocate shall act for any person in any Court unless he has been appointed for the purpose by such person by a Vakalatnama in the form annexed hereto and signed by such persons or by his recognised agent or by some other person duly authorised by or under a Power of Attorney to make such appointment. (2) No Advocate who has been engaged for the purpose of pleading only shall plead on behalf of any party unless he has filed in Court a memorandum of appearance signed by himself and stating (a) the names of the parties to the suit, (b) the name of the party for whom he appears and (c) the name of the person by whom he is authorised to appear : Provided that nothing in sub-rule (2) shall apply to any Advocate engaged to plead on behalf of any party by another Advocate or Attorney who has been duly appointed to act in Court on behalf of such party : Provided that nothing in this rule shall apply to a Public Prosecutor or an Advocate who has been requested by the Court to assist the Court amicus curiae in any case or a proceeding or who has been appointed at the expense of the State to defend the accused person in a criminal proceeding : Provided further that when any Advocate appears on behalf of Government or any public servant suing or sued in his official capacity it shall be sufficient for him to file a memorandum of appearance." We are clear that these rules do not throw any light on the issue under consideration. These rules are applicable only as far as courts are concerned. But we are now considering the question of Government insisting Vakalatnama for the purpose of considering representation sent by the Advocate on instructions from his client. 16. Finally the learned Public Prosecutor also invited us to Rule 2 of Schedule VII of The Bombay High Court Appellate Side Rules 1960. We find that Rule 2 is exactly similar to Rule 2 of Schedule VII of Chapter XXXII of the Criminal Manual issued by the High Court of Judicature, Appellate Side, Bombay. All that the rule lays down is that no Advocate shall act for a person in any Court unless he has been appointed for the purpose by such person by Vakalatnama and signed by such person or by a recognised agent or by some other person duly authorised by him or by some other person duly authorised by him or any Power of Attorney to make such appointment. There are certain clauses viz, proviso clause. There are certain clauses viz, proviso clause. Reading of the said rule would clearly show that they refer to and are applicable only with regard to the proceedings before the Court of law. 17. Hence the various provisions of law, referred to by the learned Public Prosecutor would not in any way support his contention that the Government is entitled to insist for a production of Vakalatnama by the Advocate, even though the counsel specifically states that he is sending the representation on behalf of the detenu and after getting instructions from the detenu. 18. Now we are left with the decisions to be considered on this issue. The learned Counsel for the petitioner drew our attention to the decision of the Supreme Court in the case of Balchand Chorasia v. Union of India, A.I.R. 1978 S.C. 297. It is a short judgment and for the convenience the entire judgment may be extracted. It reads :--- "In support of the rule, Mr. Jethmalani submitted a short point before us. It was argued that the representation filed by the detenu through his counsel, has not been considered by the Government at all. The High Court was of the view that the aforesaid representation was not given by the detenu himself but by Mr. Jethamalani in his capacity as a member of the Parliament. The representation has been placed before us and it clearly recites that Mr. Jethmalani acted not as a member of the Parliament but on instructions from his client, namely, the detenu. In the circumstances, therefore, the High Court was in error in construing the representation made by the petitioner as being made not by him but by his counsel. It is manifest that the counsel had no personal matter and he was only advocating the cause of his client. In matters where the liberty of the subject is concerned and a highly cherished right is involved, the representations made by the detenu should be construed liberally and not technically so as to frustrate or defeat the concept of liberty which is engrained in Article 21 of the Constitution. As the representation has not been considered at all by the Government which it was duty bound to consider, that by itself vitiates the order of detention. We therefore, allow this appeal and direct the appellant to be released forthwith. As the representation has not been considered at all by the Government which it was duty bound to consider, that by itself vitiates the order of detention. We therefore, allow this appeal and direct the appellant to be released forthwith. The order of this Court releasing the appellant on parole, passed by us on last hearing, is vacated as having become infructuous." A mere reading of this judgment of the Apex Court would clearly indicate that once a counsel sends a representation on instructions from his client to the Government, the Government should consider the same without standing on technicalities. The Supreme Court specifically pointed out that in matters where the liberty of the subject is concerned and a highly cherished right is involved the representations made by the detenu should be construed liberally and not technically as to frustrate or defeat the concept of liberty which is engrained under Article 21 of the Constitution. The reading of the judgment would further clearly show that in that case the counsel who sent the representation did not send the Vakalatnama or any authority to represent his client. In such circumstances the Supreme Court has pointed out that it is sufficient if the counsel says in the communication that he is sending the same on instructions from his client. The learned Public Prosecutor would endeavour to substantiate his stand by relying on two judgments. First the learned Public Prosecutor referred to a case of (Vikas Chandra Mishra v. State of Bihar others)4, 1984 Criminal Law Journal 1601, (Full Bench of Patna HIgh Court.). In this case the question was whether a relative or a friend of detenu can send a representation on behalf of the detenu and whether any express authority is necessary for such friend or relative from the detenu himself. Our attention is also invited in particular to para 16 of the said judgment which reads as follows :--- "Secondly, one must also guard against some loose terminology with regard to representations or complaints made by friends or relatives. As at present advised, I am inclined to hold that the detenu may expressly authorise a relative or a friend or a lawyer to frame a representation on his behalf. As at present advised, I am inclined to hold that the detenu may expressly authorise a relative or a friend or a lawyer to frame a representation on his behalf. Indeed, in the context of the complexities of the law in our country, the illiteracy or the ignorance of the detenu, a meaningful original representation against the grounds of detention can, perhaps, be made only by a person having some knowledge or expertise on the matter. One may not be misunderstood to mean that the representation by the detenu must be in his own handwriting or necessarily under his particular signature. Plainly enough a representation duly authorised by the detenu would, in the eye of law, be a representation by him. The real question which we are called to consider is with regard to cases where a representation is claimed to be made by a friend or a relative not authorised to do so by the detenu, but in his own right because of friendship or relationship. In strictness, the question is, whether a representation by a friend or a relation or successive representations by them in their own right, equally attract the mandate of expeditious disposal and the consequent invalidation of detention in the event of delay. I am of the view that this precedential mandate attaches only to the original representation by the detenu himself or a representation by any person duly authorised by him to make the same after the service of the grounds of detention. It applies neither to the subsequent or the successive representation by the detenu himself later, nor to the representations by his friends or relatives in their own right or subsequent such representations by them. Indeed, it appears to me that if it were to be held otherwise, a detenu may well be prejudiced by a frivolous representation by any or every friend of his in his own right, which only merits rejection." As far as this ruling is concerned it is true that it is stated in the judgment that, the detenu may expressly authorise a relative or a friend or a lawyer to frame a representation on his behalf. But however one has to notice that the decision of the Supreme Court referred supra was not placed before the Full Bench of the Patna High Court. But however one has to notice that the decision of the Supreme Court referred supra was not placed before the Full Bench of the Patna High Court. In such circumstances the Full Bench Judgment cannot be taken as having laid down correct legal position. That apart as already pointed out, the learned Public Prosecutor could not point out any provision of law, rules or notifications etc. to the effect that the representation sent by the detenu through his lawyer must be accompanied with Vakalatnama. We would also like to point out that when an Advocate who is a member of noble profession makes a clear and categorical statement that he is sending the representation on behalf of his clients and on instructions, we do not find any reason or justification for the Government not accepting the same. Of course in some peculiar circumstances, the Government may be justified in asking for Vakalatnama or authority, say for instance, suppose if the Government on behalf of the same detenu receives two representations from two Advocates. Certainly in such cases the Government has to satisfy itself of these two Advocates who really has been authorised by the detenu to represent. Otherwise in normal circumstances we do not find any justification for the State Government for insisting for a Vakalatnama from a counsel when after getting instructions from his client sends the representation on behalf of the client/detenu especially when there is no rule requiring the same. We have come across cases after cases where both the Central and the State Government considered the representations sent by the advocates on behalf of the detenues without any Vakalatnama, or any authorisation. In such circumstances we do not find any justification on behalf of the State Government to insist the counsel for the detenu to send the Vakalatnama in this case. The learned Public Prosecutor then relied on an unreported judgment of this Court in Criminal Writ Petition No. 690 of 1994. The learned Public Prosecutor would submit that the Division Bench of this Court has as late as on 16th November, 1994 considered and rather explained the ruling of the Supreme Court cited above and the same would support the stand of the Government. The Public Prosecutor in particular drew our attention to para 10 of the judgment. The same reads thus :--- "The next authority relied upon by Mrs. The Public Prosecutor in particular drew our attention to para 10 of the judgment. The same reads thus :--- "The next authority relied upon by Mrs. Ansari is a decision in the case of Balchand Chorasia v. Union of India others, reported in A.I.R. 1978 S.C. 297. Indeed, the Supreme Court held in this authority that the representation has to be construed liberally and not technically so as to frustrate or defeat the concept of liberty. The facts were that an Advocate on behalf of the detenu had made a representation. Finding of the High Court was that the representation by Advocate Jethmalani was in his capacity as member of Parliament. The Supreme Court negatived the finding of the High Court and held that Shri Jethmalani had not acted as a member of the Parliament but on instructions from his client viz., the detenu and in that view of the matter, held that as the representation had not been considered at all by the Government which it was duty bound to consider, that by itself, should vitiate the detention order. Once again it must be held that once the finding was rendered by the Supreme Court that Advocate Jethmalani had filed a representation on instructions from his client viz., detenu, it is needless to reiterate that an Advocate is competent to represent his client. In our opinion, therefore, this authority cannot be cited to show that a third person unless duly authorised can make a representation on behalf of a detenu." On careful examination of the same we do not agree with the Prosecutor that the judgment would support his contention. The said para in fact on the other hand would lend support only to the petitioner. This is because the Division Bench has pointed out that in A.I.R. 1978 page 297 Supreme Court came to the conclusion that the notice was sent by Shri Jethmalani as counsel because the recitals are "on instructions from his client". On facts in the instant case also we find that the counsel Shri Tripathi sent the representation on instructions from his client-detenu. 19 The final submission made by the counsel for the detenu-petitioner is as under:--- The grounds of detention was served on the detenu on 25-10-1994. The said grounds of detention did not specifically mention that the detenu has right to make a representation before the detaining authority. 19 The final submission made by the counsel for the detenu-petitioner is as under:--- The grounds of detention was served on the detenu on 25-10-1994. The said grounds of detention did not specifically mention that the detenu has right to make a representation before the detaining authority. Only by a subsequent communication dated 28-10-1994 and served on the detenu on 31-10-1994 this was sought to be included as para No. 26 of the terms of detention. According to the petitioner section 3(3) of the COFEPOSA Act, contemplates that the grounds of detention should have been served within 5 days from the date of detention (including the day of detention) in ordinary circumstances and within 15 days in exceptional circumstances. According to him he was detained on 25-10-1994 and he was informed of his right to make representation only on 31-10-1994 i.e. on the 7th day from the date of detention. This according to him in violative of the said section and thereby there is an infraction of the Article 22(5) of the Constitution. On this the learned Public Prosecutor would endeavour to submit that the State Government is entitled to send a further communication informing the detenu of his right to approach the detaining authority. Further according to him section 21 of General Clauses Act gives such powers. He would plead that the power to issue an order to include a power to amend vary or resist such order. 20. Before we consider the rival submissions both factual and legal made by the counsel for respective parties, it is useful and necessary to refer to certain provisions of the Constitution and the Act. Article 21 : No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 : Protection against arrest and detention in certain cases :--- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult, and to be defended by a legal practitioner of his choice. Article 22 : Protection against arrest and detention in certain cases :--- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult, and to be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. (3) Nothing in clauses (1) and (2) shall apply :--- (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) 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 detention. Provided 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 detained 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 detained 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. (6) Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (6) Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of Clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board is an enquiry under sub-clause (a) of Clause (4). Section 3(1), (2) and (3) of the COFEPOSA Act reads as follows :--- 3(1): The Central Government or the State Government or any officer or the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from:--- (i) smuggling goods or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or, (v) Harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. It is necessary so to do, make an order directing that such person be detained. (2) When any order of detention is made by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. It is necessary so to do, make an order directing that such person be detained. (2) When any order of detention is made by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purpose of Clause (5) of Article 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, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. 21. Now certain decisions may be referred to for the purpose of appreciating and deciding the point for consideration. The Supreme Court has repeatedly held that the rights conferred by Constitution are very valuable rights and in cases of detention whatever is the procedure and formalities to be followed under the provisions of law, must be strictly adhered to, as they are not empty formalities. 22. In A.I.R. 1981 S.C. 2166, in the case of (Wasiuddin Ahmed v. District Magistrate, Aligarh, U.P.)5, the Supreme Court in para 18 has observed as follows :--- "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 Article 22(5) of the Constitution read with section 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 March 25, 1981 at the Central Jail, Fatehgarh, presumably at his own request, for the purpose of making a representation against the order of detention. 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 March 25, 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 Article 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 Article 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 Article 22(5) would be, in many cases, of little avail if the detenu is not 'informed' of his 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 cognisant of his right to make a representation under Article 22(5) of the Constitution and under section 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." 23. In (Ratan Singh v. State of Punjab and others case)6, reported in 1981 S.C.C. (4) (in para 4) the Supreme Court has clearly laid down as under :--- "May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. In (Ratan Singh v. State of Punjab and others case)6, reported in 1981 S.C.C. (4) (in para 4) the Supreme Court has clearly laid down as under :--- "May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenues." In (Hemlal Bhandari v. State of Sikkim's)7, case reported in 1987 (2) S.C.C. page 9 the Supreme Court has observed thus :--- "We have considered the averments in the counter affidavit carefully. We have no hesitation to hold that there has been a flagrant violation of the mandatory provisions of section 8 in this case. It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law. Expeditious action is insisted upon as a safeguard against manipulation." "An attempt was made by the counsel for the respondents to contend that the delay in communicating the grounds of detention caused in this case has to be condoned and the rigour of the section relaxed since the detenu had been released on October 2, 1986, and hence was not in detention. This according to us is specious plea which cannot stand legal scrutiny. If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the grounds of detention indefinitely, whenever a detenu secures from a Court of law either bail or parole. To accept this contention would be to destroy the effect of the mandate of the section. As indicated earlier, the mandate enacted in the section is a safely valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention. The section has to be interpreted literally. No relaxation is permissible. To accept this contention would be to destroy the effect of the mandate of the section. As indicated earlier, the mandate enacted in the section is a safely valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention. The section has to be interpreted literally. No relaxation is permissible. If the original time of 5 days has to be extended such extension must be supported by an order recording reasons. If reasons are not so recorded the order of detention will automatically fail. Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny. If the reasons are unsatisfactory courts would still quash the order of detention." 24. In a case reported in A.I.R. 1991 S.C. 1090, (Smt. Graecy v. State of Kerala)8, the Supreme Court has observed :--- "The nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implied the duty to consider and decide the representation when made, as soon as possible. Article 22(5) speaks of the detenu's 'representation against the order' and imposes the obligation on the detaining authority." 25. A reference to the recent judgment of the Supreme Court in (Kamleshkumar Ishwardas Patel v. Union of India)9, J.T. 1995(3) S.C. 639 : 1995(3) Bom.C.R. 69 , can also be made. In para 49 of the said judgment it is stated :--- "At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenues have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenues the cases do not justify interference with the orders of detention made against them. He has urged that having regard to the nature of the activities of the detenues the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right of the personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court." Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court while rejecting a similar submission :--- "May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy . But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set up it is essential that at least these safeguards are not denied to the detenues." 26. In the light of the above principles laid down by the Supreme Court the present case has to be examined. A reference again to section 3(3) of the COFEPOSA Act, 1974 has necessarily to be made. According to the said section the detenu must be served with the grounds of detention order and the same shall be made as soon as may be after the detention, but ordinarily not more than 5 days and in exceptional cases and for reasons to be recorded in writing not later than 15 days from the date of detention. According to the said section the detenu must be served with the grounds of detention order and the same shall be made as soon as may be after the detention, but ordinarily not more than 5 days and in exceptional cases and for reasons to be recorded in writing not later than 15 days from the date of detention. While considering Article 22(5) the relevant provision of the Act viz., section 3(3) of the Act, the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India, J.T. (1995)3 S.C.C. 639, laid down as follows :-- "Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e. the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such representation. "Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered : Where the detention order has been made under section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an Officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation." 27. Considering the above various rulings the relevant provision of the Constitution, of the relevant Act, the following can be summarised. 1. The detenu must be communicated the grounds of detention as soon as may be after the detention. 2. Such communication must be served on the detenu ordinarily not later than 5 days from the date of detention. 3. In exceptional circumstances and for reasons to be recorded in writing the communication can be sent beyond 5 days but not later than 15 days from the date of detention. 4. Grounds of detention must appraise the detenu of his right to make representation to the detaining authority. In the light of the above legal position let us now examine the facts of the present case. As already mentioned there is no dispute with regard to the factual details, i.e., with regard to various dates. The detention order along with the grounds of detention was served on the detenu on 25-10-1994. The said original grounds of detention did not contain or mention that the detenu has a right to make representation to the detaining authority. Subsequently a communication dated 28-10-1994 was sent by the first respondent to the detenu and the same was received by the detenu on 31-10-1994. Only in that communication dated 28-10-1994 the detenu was appraised of his right to approach the detaining authority by making a representation. Subsequently a communication dated 28-10-1994 was sent by the first respondent to the detenu and the same was received by the detenu on 31-10-1994. Only in that communication dated 28-10-1994 the detenu was appraised of his right to approach the detaining authority by making a representation. In the light of the above facts one would find that even though the detenu was detained on 25-10-1994 and grounds for detention was served on the same date, the detenu was appraised of his right to make representation only on 31-10-1994, or in other words only on the 7th day of the detention by a subsequent communication (by adding a para i.e. para 26) the detenu was informed of his right to make representation to the detaining authority. Facts speak for themselves. There has been a clear violation, in this case, of the provision of section 3(3) of the COFEPOSA Act and infraction of Article 22(5) of the Constitution of India. 27. The next point for consideration is whether it can be said that in asmuch as section 3(3) provides that in exceptional circumstances and for reasons to be recorded in writing the detention order can be served even beyond 5 days but before 15 days, can come to the rescue of the respondents. Again the answer is in the negative. In this context a judgment of the Supreme Court reported in A.I.R. 1982 S.C. 1500, (Ibrahim Ahmed Batti v. State of Gujarat)10, can be usefully referred to. In para 12 of this judgment the Supreme Court has clearly held as follows with reference to the issue under consideration :--- "On the second aspect the contention of counsel for the petitioner has been that the detaining authority while supplying the Urdu translation of the bulk documents and statement beyond the normal period of 5 days ought to have given indication to the detenu that the delay was caused due to exceptional circumstances and what the exceptional circumstances were, as also of the fact that reasons for the delay had been recorded in writing but this was not done and this failure prevented the detenue from making effective representation against his detention. Counsel for the respondents, however, contended that neither Article 22(5) nor section 3(3) of the COFEPOSA casts any obligation or duty on the detaining authority to inform the detenu anything about the exceptional circumstances due to which delay might occur nor about the fact whether reasons have been recorded in writing or not and, according to counsel, these are matters for the Court's satisfaction when any issue in that behalf is raised before it. It is true that neither Article 22(5) nor does the COFEPOSA contain any provision which casts such a duty upon the detaining authority in express terms. It is also true that the Court will of course go into and satisfy itself about these matters when any issue in that behalf is raised before it. But the question is whether such a duty is cast on the detaining authority by necessary implication? Does it or does it not flow from the right conferred upon the detenu to make representation against his detention? In this behalf it cannot be disputed that under the scheme of the COFEPOSA, against his detention the detenu has a right to make a representation to an authority which is superior to the detaining authority (e.g. to the State Government when the detaining authority happens to be an officer of that Government or to the Central Government where the detaining authority happens to be the State Government) as well as to the Advisory Board and such representation against his detention can be on merits of the grounds of detention as also for failure on the part of the detaining authority to observe strictly the requisite safeguards and on satisfying the superior authority or the Advisory Board on either count he is entitled to have his detention revoked or quashed. We have already indicated above that one of such safeguards is that unless exceptional circumstances really obtain in a case the delay in supply of grounds of detention and/or the documents and statements incorporated therein by reference beyond the normal period of five days would be fatal to the continued detention of the detenu. In other words, the detenu is entitled to satisfy either the superior authority or the Advisory Board that the delay that has occured in the supply of requisite material to him was not justified because exceptional circumstances did not exist or those put forward were unreal or invalid. In other words, the detenu is entitled to satisfy either the superior authority or the Advisory Board that the delay that has occured in the supply of requisite material to him was not justified because exceptional circumstances did not exist or those put forward were unreal or invalid. Obviously, the detenu will not be in a position to do so if the alleged exceptional circumstances are not communicated to him. In our view therefore, a duty to inform the detenu about the existence of exceptional circumstances and what they were for delay in supplying grounds of detention and/or documents and statements incorporated therein arises by necessary implication and flows from the right which is conferred upon the detenu to make representation against his detention. In the instant case, for instance, if the alleged exceptional circumstances were communicated to the detenu at the time of the delayed supply of the concerned documents and statements in Urdu language he could have satisfied the superior authority or the Advisory Board that exceptional circumstances did not really obtain in the case and the delay had vitiated his detention. In other words, what he has done before the Court now, he could have done before the superior authorities or the Advisory Board. For these reasons we, approve of the view ultimately taken by the Patna High Court in the two decisions cited above, particularly the decision in (Bishwa Mohan Kumar Sinha's)11, case, I.L.R. (1974)53 Pat. 884 (supra) where both the aspects have been dealt with. In our view, therefore, the impugned failure in this case constitutes another breach of the safeguard contained in Article 22(5) read with section 3(3) of the COFEPOSA and vitiates the continued detention of the petitioner." A reference can also be made to another judgment of the Apex Court in Hemlal Bhandari v. State of Sikkim's, case reported in 1987(2) S.C.C. 9 . The Supreme Court had occasion to consider similar provisions under the National Security Act. While considering the same the Supreme Court has observed : A bare reading of the section shows that it is obligatory on the detaining officer to communicate to the detenu, the grounds on which the order of detention has been made, promptly. This has to be done as soon as possible and ordinarily not later than 5 days, The detaining authority is permitted to exceed this limitation of 5 days in exceptional circumstances. This has to be done as soon as possible and ordinarily not later than 5 days, The detaining authority is permitted to exceed this limitation of 5 days in exceptional circumstances. The grounds of detention, under exceptional circumstances, can be communicated to the detenu within a period not later than 15 days from the date of detention but when the detaining authority takes time longer than 5 days he has to record reasons why the grounds of detention could not be communicated within 5 days. It is clear in this case that the grounds of detention were communicated to the petitioner long after 10 days. There is no record evidencing any reason for this long delay." "We have considered the averments in the counter-affidavit carefully. We have no hesitation to hold that there has been a flagrant violation of the mandatory provisions of section 8 in this case. It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapse on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law. Expeditious action is insisted upon as a safeguard against manipulation." "In this case there is no acceptable or satisfactory explanation as to what the officer or the officers did after October, 6, 1986. This inaction after October 6, 1986 till October 14, 1986, by itself is sufficient for us to hold that section 8(1) has been violated by the officer concerned and on that ground alone the order of detention has to be quashed." "An attempt was made by the counsel for the respondents to contend that the delay in communicating the grounds of detention caused in this case has to be condoned and the rigour of the section relaxed since the detenue had been released on October 2, 1986, and hence was not in detention. This according to us is specious plea which cannot stand legal scrutiny. If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the grounds of detention indefinitely, whenever a detenu secures from a Court of law either bail or parole. This according to us is specious plea which cannot stand legal scrutiny. If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the grounds of detention indefinitely, whenever a detenu secures from a Court of law either bail or parole. To accept this contention would be to destroy the effect of the mandate of the section. As indicated earlier, the mandate enacted in the sections is a safety valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention. The section has to be interpreted literally No relaxation is permissible. If the original time of 5 days has to be extended, such extension must be supported by an order recording reasons. If reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny. If the reasons are unsatisfactory courts would still quash the order of detention." 29. In view of the above rulings, the first respondent in the absence of pointing out special circumstances and recording the reasons in writing cannot claim shelter and justify that inasmuch as the subsequent communication was received within 15 days no prejudice is caused to the detenu. Not only that special circumstances and reasons to be recorded, but also the same should have been communicated to the detenu as pointed out by the Supreme Court. 30. We hold that in asmuch as the detenu was not appraised of his right to make a representation to the detaining authority within five days (from the date of detention) there has been a clear violation of section 3(3) of the Act and the mandate of Article 22(5) of the Constitution, which would necessarily result in order of detention being set aside. The order of detention is quashed and hereby set aside.