Judgment : ARUNACHALAM, J. ( 1 ) IN exercise of the powers conferred by Section 3 (1) (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 (as amended), the first respondent directed petitioner Kamal Batcha to be detained and kept in custody in Central Prison, Madras, with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange in future. ( 2 ) WE do not deem it necessary to state the facts in detail, which led to the passing of the impugned order, or this Habeas Corpus Petition will have to be allowed on a short, but vital ground. ( 3 ) THE occurrence, which led to the passing of the impugned order, had happened on 14-6-1995, on which day the petitioner was taken into custody. Judicial remand was ordered on 16-6-1995 and the petitioner was directed to be bailed out on 7-7-1995. Thereafter a petition was preferred by the prosecuting agency before this court for cancellation of bail and the same was dismissed on 14-9-19951 while imposing stringent conditions requiring the petitioner to report before the Enforcement Authority, twice daily. However, in between on 13-9-1995, the impugned order was passed and executed on 26-9-1995. ( 4 ) THE wife of the detenu for warded a representation dated 24-101995 to the Central Government as well as the detaining authority. Two separate representation, though containing the same grounds for setting aside the impugned order, were forwarded and equally they were received separately by the detaining authority and the Central Government. While the representation was rejected by the detaining authority on 29-11-1995, papers were put up before the Additional Secretary only on that date, who, thereafter considered the representation on 30-11-1995 and submitted the file to the Secretary. Revenue, who scrutinised the same and offered his opinion on 2-12-1995, before it reached the Minister for State Revenue and Expenditure, who cleared the file on 4-12-1995 and forwarded the same to the Finance Minister, who, after consideration, rejected the representation on 4-12-1995. ( 5 ) THE contention urged by Mr. M. Abdul Nazeer, petitioners learned counsel is that the representation separately addressed to the Central Government was kept without any action being taken till 29-11-1995, though it stood received on 26-10-1995. ( 5 ) THE contention urged by Mr. M. Abdul Nazeer, petitioners learned counsel is that the representation separately addressed to the Central Government was kept without any action being taken till 29-11-1995, though it stood received on 26-10-1995. No explanation has been offered for such a long delay The second limb of his contention was that there has been no independent consideration even thereafter by the Central Government since the same set of notes prepared by the same set of officials was placed before the authorities concerned with remarks, of rejection earlier, of the representation by the detaining authority. It was there fore argued that the representation had not been considered independently by the Central Government before it ended in rejection. ( 6 ) MR. K. Asokan, learned Additional Central Government Standing Counsel, contended that one stage for consideration of the representation stood closed after the Joint Secretary had offered his opinion and subsequently the other stage followed through which the representation was sent to the Additional Secretary, State Minister for Finance and the Finance Minister. He further pointed out that the procedure is that the same set of officers will have to put up notes for all these authorities and hence it cannot be contended that independent consideration was lacking by the Central Government. He further urged that in view of such a procedure being followed, necessarily the representation addressed to Central Government had to be kept in abeyance till the Joint Secretary (detaining authority) disposed of the representation ( 7 ) WE have carefully considered the contentions urged by counsel on either side. Law is settled that the detaining authority as well as the Central Government were bound to consider the representation addressed to each one of them independently and without being influenced by the opinion of the other authority. That is exactly the reason why even in the grounds of detention, the detenu has been clearly informed as hereunder: 21. You have a right to make representation against your detention to the Detaining Authority, central Government as well as the Advisory Board. You also have a right to be heard in person by the Advisory Board. That is exactly the reason why even in the grounds of detention, the detenu has been clearly informed as hereunder: 21. You have a right to make representation against your detention to the Detaining Authority, central Government as well as the Advisory Board. You also have a right to be heard in person by the Advisory Board. If you wish to avail your right of making representation, you may submit your representation through the Jail Authorities where you was detained in the manner indicated below: (1) Representation meant for the Detaining Authority should be addressed to the undersigned. (2) Representation meant for the Central Government should be addressed to the Secretary, Govt. of India, Ministry of-Finance, Department of Revenue, Central Economic Intelligence Bureau, Janpath Bhawn, 6th Floor. B Wing, Janpath, New Delhi. (3) Representation meant for the Advisory Board should be addressed to the Chairman. COFEPOSA Advisory Board, Delhi High Court, Sher Shah Road, New Delhi and the same should be forwarded through the Jail Authorities. You are further informed that you shall be heard by the Advisory Board in due course, if the Board considers it essential to do so or if you desire. As the above paragraph in the grounds of detention will indicate, the detenu has an independent right to challenge the impugned detention by preferring a representation to (1) the detaining authority, (2) the Central Government. and (3) the Advisory Board. These three representations give the detenu three particular and separate rights which he will be entitled to exercise. That is the reason why in terms of the grounds, the wife of the detenu had forwarded separate representations to the detaining authority, Central Government as well as the Advisory Board, the last though a bit later. It is not as though this question is any longer res integra. We had occasion to consider this issue in Sajitha Banu/nazum Banu v. Joint Secretary to Govt. , Ministry of Finance etc. In that case, we had an additional factor in favour of the detenu therein, since inspite of sufficient time available for confirmation of the impugned order of detention, the order of detention was confirmed and the representation was kept pending without consideration. waiting the decision of another authority before seeking to reject it. , Ministry of Finance etc. In that case, we had an additional factor in favour of the detenu therein, since inspite of sufficient time available for confirmation of the impugned order of detention, the order of detention was confirmed and the representation was kept pending without consideration. waiting the decision of another authority before seeking to reject it. The contention urged in that case was that the detenus therein had forwarded representations to the detaining authority as well as the Union Government on 2-8-1994. Though the detaining authority had disposed of the representations on 31-8-1994, the Union Government had kept those representations in cold storage for about a month before initiating action and thereafter, the process in rejection, which followed was not in consonance with the legal requirements, for the manner of disposal clearly highlighted lack of independent consideration of the representations by the Union Government, which had chosen to confirm the order long before rejection of pending representations, though it had time enough to confirm the impugned orders. While countering this contention, it was argued on behalf of the respondents therein, that in the process of disposal of representations, the same officers had to deal with the file at different stages, and such procedure was adopted even in-that case and after the detaining authority (Joint Secretary) had disposed of the representation, Union Government then stepped in, to act further on the same representation, to perform its duty to consider and dispose it of, on its inherent merits. Even in that case, Mr. Asokan, learned Additional Central Government Standing Counsel, fairly stated that representations were separately received by the detaining authority and the Union Government and from the file placed before him, no material, whatever, was available to indicate as to what had happened to the representation addressed to Union Government from the date of its receipt (10-8-1994) till it was put up for consideration for the first time on 19-1994. After extracting the case law available on the subject, we held that under Clause 5 of Article 22 of the Constitution, a legal obligation was cast on the Government to consider the representation as early as possible and it should be expeditiously considered and disposed of with a sense of urgency without any unavoidable delay. Unexplained delay in disposing of the representation will be a breach of the constitutional mandate rendering the detention impermissible and illegal. Unexplained delay in disposing of the representation will be a breach of the constitutional mandate rendering the detention impermissible and illegal. We then stated, that the observations made in several verdicts of the Supreme Court indicated the need to consider the representations by two different authorities, independently, with a sense, of urgency. We further highlighted that factual constituent in every case will ultimately be the criterion to decide about the independence in disposal of representations, for no uniform formula for rigid application can be laid down. ( 8 ) IN the light of the view taken by us in the earlier case, let us now peruse the detention file in respect of the representations addressed to the detaining authority and the Central Government, placed before us. On 27-1-1995. Under Secretary (COFEPOSA) has concluded his note as hereunder:in view of the above, the representation being devoid of merit, may be rejected by the J. S. as well as by Central Government. Thereafter, another note is made by the Joint Secretary, the detaining authority, which reads as hereunder: have carefully considered the representations dated 2410-1995 from Shrimathi Sharifa Begum, comments thereon of the sponsoring authority and other material on record. I find no merit in the representation and I reject the same. Please issue the memo of rejection and the file be submitted to higher authorities for consideration of the representation. It is thereafter that the same Joint Secretary makes a further endorsement, which is extracted down below: Notes of U. S. (RC) at page 2 ante may be seen. Summary of the case, points raised in the representation and comments thereon are at SIT. The detenu is involved in illegal dealing in foreign exchange over Rs. 1. 40 Crores. Points raised in the representation have no merit and they deserve to be rejected. Thereafter, this file is forwarded to several authorities, before the Finance Minister rejects the representation on 4-12-1995. ( 9 ) IT has not been disputed before us that till 29-11-1995, when the detaining authority (Joint Secretary) forwarded the representation, to be disposed of by the Central Government, no action was taken on it from 26-10-1995. In other words, for about 33 days, the representation addressed to Central Government was dumped down without any action being taken on it. ( 10 ) IN Sujitha Banus case (supra), we observed as follows:that Mr. In other words, for about 33 days, the representation addressed to Central Government was dumped down without any action being taken on it. ( 10 ) IN Sujitha Banus case (supra), we observed as follows:that Mr. Asokan chose to get over the crisis by addressing before us that the same set of officials had to deal with both the representations throughout, and it was probably the said procedure, which had led to the separate representations addressed to the Union Government, having been left unattended till the Joint Secretary exercised his prerogative of disposing of the representation addressed to him in his capacity as the Detaining Authority. There cannot be any divergence, that it is settled law, that the Detaining Authority and the Union Government are bound to independently consider the representations addressed to either of them with promptitude and a sense of urgency. If it is the law, that independent consideration is the sine qua non, then the contention advanced that the senior authority was waiting for disposal of the representations by the junior authority, will have no strength. Whatever, for on that submission alone, the concept of independent consideration, of these representations gets smacked. As a matter of fact, we have perused the entries made in the detention file in respect of these two representations and addressed, to two different authorities and it is fairly apparent that the concept of independent consideration has been given a go by and if at all the dependency of consideration by one or the other of the authority is so much apparently obvious. All that cannot be, in law done has in fact, been done. The same parity of reasoning will attract the instant facts. The contents of the note file which we, have extracted earlier. Would, clearly at firm, this view of ours about lack of independent consideration. Looking at it from a different angle, it can, easily be concluded that the representation of the detenu stood unattended from 26-10- 1995 till 29-11-1995. This is another lacuna. ( 11 ) WHILE considering the need for independent consideration by the State. Would, clearly at firm, this view of ours about lack of independent consideration. Looking at it from a different angle, it can, easily be concluded that the representation of the detenu stood unattended from 26-10- 1995 till 29-11-1995. This is another lacuna. ( 11 ) WHILE considering the need for independent consideration by the State. Government, of the representation, with out waiting for the opinion of the Advisory Board, if there was time enough, a Division Bench of this Court in S. Alagarsami v. The State of Tamilnadu and others, stated as hereunder, after extracting the principles laid down by the Supreme Court in several of its decisions:we have set out the facts in detail which clearly show that though the Government received the representation dated 24-12-1983 through the Jail Superintendent on 30-12-1983, from the file it does not appear that the representation was forwarded to the Collector, though in the counter affidavit of the first respondent it is stated that it was forwarded to the Collector on 6-1-1984 calling for a report. The Government seem to have forwarded the representation to the Advisory Board. The Collector of Madurai to whom a copy was marked seems to have considered the representation after calling for a report from the Superintendent of Police and sent her report on 9-1-1984. The Government had done nothing from 30-12-1983 at least till 6-1-1984. After the receipt of the report of the Collector on 12-1-1984, there was absolutely no necessity for the Government to wait or to take any further time for consideration of the matter. What happened between 12-1-1984 and till the file was passed by the Under Secretary on 19-1-1984 is not made clear in the affidavit. It is also seen that simultaneously both the file relating to detenus representation and the file relating to Advisory Boards report were dealt with by the same officers and on the same days. Therefore, it is Impossible to accept that the Government did not allow their mind to cloud by the opinion of the Advisory Board and considered the representation independently. The facts stated above make it absolutely clear that the Government did not consider the representation filed by the detenu from 30-12-1983 till 6-1-1984 and from 12-1-1984 to 19- 1-1984 and from 23-1-1984 to 31-1-1984 not have they considered independently. The facts stated above make it absolutely clear that the Government did not consider the representation filed by the detenu from 30-12-1983 till 6-1-1984 and from 12-1-1984 to 19- 1-1984 and from 23-1-1984 to 31-1-1984 not have they considered independently. By forwarding it to the Advisory Board alone it is also abundantly clear that They have waited for the opinion of the Advisory Board before the consideration of the representation. The principle enunciated therein will be applicable to the facts of the instant case. ( 12 ) EVEN in Sajitha Banuts case (supra), Mr. Asokan did contend before us that the same set of officers had to deal with the file at different stages and such was the procedure existent. At least after our judgment in Sajitha Banus case (supra), that procedure ought to have been changed. It will be relevant at this stage to refer to the observations of the Supreme Court in Khatoon Begum v. Union of India. They read as hereunder:the learned counsel (for State of V. P.) contrasted the provisions of the National Security Act and the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974. and urged that in the case of detention under the National Security Act, a certain delay was inevitable having due regard to the procedure prescribed by the Act and. Therefore, delay in consideration -of the representation should not be allowed to prejudice the detention. We are unable to agree with the submission of the learned counsel. If the Parliament or the State legislature making the law providing for preventive detention decides a circumlocutory procedure for considering the representation or if the interdepartmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing, for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable. it is high time that the authorities concerned will formulate the proper procedure for independent consideration of representation forwarded by the detenus to two different authorities, who have a duty in law, to dispose them of independently as much as the detenu is entitled to plead for such independent disposals. it is high time that the authorities concerned will formulate the proper procedure for independent consideration of representation forwarded by the detenus to two different authorities, who have a duty in law, to dispose them of independently as much as the detenu is entitled to plead for such independent disposals. In view of the serious lacuna we have no alternative other than holding in favour of the detenu. ( 13 ) IMPUGNED order of detention shall stand set aside. The detenu shall be set at liberty forthwith unless his detention is otherwise required. This Habeas Corpus Petition is allowed. Petition allowed.