Judgment :- Janarthanam, J. The challenge in this action as to the detention of the detenu R.U. Nathan under Sec.3 (l) (i) of the Conservation of Foreign Exphange and Prevention of Smuggling Activities Act, 1974 (as amended - Central Act 52 of 1974 for short COFEPOSA Act’) is thrown by one J. Thangavelu (petitioner), his cousin. 2. The State of Tamil Nadu represented by the Secretary to Government, Public (S.C.) (Department, Fort St.George, Madras-9 (First respondent) clamped upon the detenu, the impugned order of detention, in his proceedings G.O.No.Sr.I/18/2/96, Public (S.C.) Department dated 26. 96 with a view to preventing him from smuggling goods in future. 3. The detenu - R.U. Nathan is the son of one Rajagopal an Indian origin permanently settled at Singapore and consequently attained the status of a citizen of Singapore. The Detenu, it is said, is born at Singapore and therefore, he is also a citizen of Singapore. It appears, the detenu is an Income-tax assessee at Singapore and his monthly income is stated to be around 900 Singapore Dollars. 4. On 25. 1996, the detenu, a holder of the Singapore passport No. 0226892-B landed at Madras Airport. He was stated to have filed a ‘Nil’ declaration of dutiable goods and walked through the Customs Green Channel. However, suspicion arose in the mind of the authorities. Consequently, the Customs personnel prevented him from walking through the Customs Green Channel. Before his person was searched, he was questioned as to whether he was carrying any gold/electronic goods, either in his baggage or in his person, for which he replied in the negative. He appeared to have stated that he was having other goods valued at Rs.300. His person was then searched by the said customs personnel in the presence of witnesses, which resulted in the recovery of three yellow colour metal chains tied around his waist underneath the pant worn by him and four number of yellow metal strips around each of his ankles, totally, numbering eight strips from both the ankles and concealed inside the socks worn by him. The total weight of the yellow metal chains and yellow metal strips is 3661 grams of 24 carat valued at Rs.19,24,954. Those gold chains and yellow metal strips were seized in the presence of witnesses under a mahazar. 5. The total weight of the yellow metal chains and yellow metal strips is 3661 grams of 24 carat valued at Rs.19,24,954. Those gold chains and yellow metal strips were seized in the presence of witnesses under a mahazar. 5. He was then interrogated and he, it is said, voluntarily gave a confession statement revealing his clandestine activities. He had stated in his confession statement that he used to come to Madras to purchase garments - children and women-and the quantity of gold he had smuggled into India from Singapore had been purchased by him and that he, in fact, had paid a part of the sale price of 25,000 Singapore dollars and the remaining amount is yet to be paid. He further revealed that he intended to sell the gold he had brought into India to whomsoever will offer a good price. He was thereafter arrested on the same day and remanded to judicial custody. 6. It appears he hasmoved an application for his release on bail before learned Additional Chief Metropolitan Magistrate (EO II), Madras and the bail application so filed got dismissed on 16. 1996. He appeared to have sent a retraction letter dated 16. 1996, which was received by the Secretary to Government, Public (SC) Department on the evening of 26. 1996. The said letter of retraction, it is said, had been forwarded to Public (SC) Department dealing with the detention matters, which, in turn, received the same on 26. 1996. In the meantime, that is to say, on 26. 1996, the impugned order of detention had been clamped upon the detenu. 7. On 17. 1996, seven copies of identical representation he had deposited with the Superintendent, Central Prison, Madras for onward transmission to the competent authorities inclusive of the first respondent State Government and the second respondent - Central Government. The First respondent -State Government, it is said, disposed of the representation within a period of 16 days from the date of its receipt on 17. 1996, that is to say, on 8. 1886. Whereas the second respondent Central Government, it is said, disposed of the said representation only on 9. 1996. 8. The First respondent -State Government, it is said, disposed of the representation within a period of 16 days from the date of its receipt on 17. 1996, that is to say, on 8. 1886. Whereas the second respondent Central Government, it is said, disposed of the said representation only on 9. 1996. 8. Mr.K. Kumar, learned Counsel appearing for the petitioner, though raised manifold grounds in the affidavit filed in support of the petition, however, was rest content in pressing into service the sole and lone point, namely, that there was inordinate delay in the process of consideration and disposal of the representation by the second respondent - Central Government and on this short ground alone, he would say, the impugned order of detention is liable to be set aside. 9. Mr.Syed Fasuiddin, learned Additional Public Prosecutor representing the first respondent - State Government is not required to play any part on the face of the point, as raised above and therefore, he remained as a silent spectator, by simply producing the relevant files for our perusal and consideration. 10. Mr.K. Kumar, learned Additional Central Government Standing Counsel representing the second respondent-Central Government, besides producing the relevant files of our perusal and consideration, would, however, repel such a submission. 11. We may now delve deep and enter into the arena of discussion as respects the tenability or otherwise of the rival submission, as above. 12. In the counter filed by the second respondent-Central Government, Specific details as relatable to the consideration and disposal of the representation by the second respondent-Central Government had been referred to. The details, if culled out from the said counter, the following factors are getting revealed. (a) The Superintendent, Central Prison, Madras sent a copy of the representation, along with his letter dated 17. 1996 to the COFEPOSA Unit of the Ministry, which, in turn, received the same on 27. 1996, comments were called on 27. 1996. The comments, however, did not come. Consequently, a remainder was sent on 18. 1996. Thereafter, the comments dated 28. 1996 were received in the COFEPOSA Unit on 30.8.1996. The file was subsequently processed and the representation was disposed of by way of rejection on 9. 1996. 13. Apart from the details as above, no explanation had been offered as to the reason or the cause for the delay in sending the comments by the sponsoring authority. 1996 were received in the COFEPOSA Unit on 30.8.1996. The file was subsequently processed and the representation was disposed of by way of rejection on 9. 1996. 13. Apart from the details as above, no explanation had been offered as to the reason or the cause for the delay in sending the comments by the sponsoring authority. In order to ascertain the cause or reason for the delay so caused, we made a probe into the files produced for our perusal and consideration. Our probe revealed that the comments called for from the COFEPOSA Unit at New Delhi were received in the Officer of the Additional Commissioner of Customs, Madras on 27. 1996, who forwarded the same to the Assistant Commissioner, Customs, COFEPOSA Unit, Madras, who, in turn, received the same on 27. 1996. The Assistant Commissioner, Customs, COFEPOSA Unit, Madras simply despatched the comments. The COFEPOSA Unit at New Delhi received the same only on 28. 1996. He appeared to have despatched the comments on 28. 1996 only after the receipt of the remainder from the COFEPOSA Unit, New Delhi on 18. 1996, that is to say, he was to be reminded about his statutory duty to forward the comments to the concerned authorities. 14. One other startling factor that got revealed is that the very same Assistant Commissioner, Customs, COFEPOSA Unit, Madras forwarded his comments to the first respondent Government of Tamil Nadu even on 27. 1996. On an identical representation. Along with his comments, it transpires that he had also sent a copy of the manifesto to the said first respondent - State Government we are actually at a loss to understand as to why the Assistant Commissioner of Customs, COFEPOSA Unit, Madras was idle and dormant in not taking any steps in forwarding the comment’s and the copy of the manifesto to the COFEPOSA Unit, New Delhi, when especially he had already forwarded his comments and the copy of the passenger manifesto to the first respondent -state Government as early as 27. 1996, as already indicated, such sort of an attitude of the Assistant Commissioner of Customs, COFEPOSA Unit, Madras is nothing but reflection of callous and supine indifferent in the discharge of his duty, in forwarding his comments to the COFEPOSA Unit, New Delhi, when especially the duty to be discharged by him is in relation to the constitutional guarantee inheriting in favour of the detenu under Art.22(5) of the Constitution of India in the consideration and disposal of his representation in the quickest fashion possible without in the least any avoidable and unreasonable delay. We are to point out here that the affidavit on behalf of the second respondent-Central Government had been filed by the Jamna Das, s/o Shri Daya Ram, Under Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi, As we have already indicated no explanation is traceable in the affidavit as to why the Sponsoring authority, namely, the Assistant Commissioner of Customs, COFEPOSA Unit, Madras was lying idle and dormant without forwarding the comments, as called for from him to the COFEPOSA Unit, New Delhi. 15. The other sordid fact is that the Assistant Commissioner of Customs, COFEPOSA Unit, Madras at whose hands the inordinate delay was caused, had not even filed any affidavit explaining the circumstances which impelled or compelled him to forward the comments to the COFEPOSA Unit, New Delhi, in such a belated fashion, when especially, he is the best person to explain the explain the delay so caused. The reason why no such affidavit forth came from the Assistant Commissioner of Customs, COFEPOSA Unit, Madras is rather obvious, on the facts and in the circumstances of the case. The nonfiling of any affidavit by him is a pointer to make it appear that he has no explanation to offer for such an inordinate delay caused in forwarding the comments to the COFEPOSA Unit, New Delhi and therefore, he kept mum and silent and if any attempt is made to file an affidavit explaining the delay so caused, then it is party certain that he would have known that an impairable dent is to be caused to the case of the department, in the sense of such an unexplained delay being considered as a factor vitiating the impugned order of detention. Thus, the fact remains that there is an inordinate delay of about 26 days in the process of consideration and disposal of the representation by the second respondent - Central Government. 16. Mr.K.Kumar learned Additional Central Government Standing Counsel, realising the gravity of the situation, in a bid to rather salvage the image of the Department, made an attempt in contending that though the second respondent Central Government has also a right to dispose of the representation as early as possible, the delay occurred on the part of the second respondent-Central Government should not be subjected to a rigorous scrutiny, as is done in the case of the delay caused by the first respondent-State Government. In support of such a contention, he would seek to place implicit reliance on what a Division Bench of the Kerala High Court in the case of Ramla Haris v. State of Kerala, 1996 Crl.L.J. 3325 hasstated in paragraph at page 3328 and the said paragraph 6 reads as under: “6. In the instant case, the Central Government is not the Detaining Authority. The Detaining Authority was the State Government. The State Government disposed of the detenu’s representation on 28. 1995. There was no delay whatsoever in disposing of that representation. In such a situation, though the Central Government is also obliged to dispose of representation as early as possible, such a delay should not be subjected to a rigorous scrutiny as is done in the case of a delay caused by the appropriate Government (Vide: Abdul Salam v. Union of India, A.I.R. 1990 S.C. 1446: 1990 Crl.L.J. 1502. In these circumstances, we are not inclined to interfere with the order of detention. 17. By daunt of curiosity, we perused the decision of the Apex Court in Abdul Salam v. Union of India, A.I.R. 1990 S.C. 1446: 1990 Crl.L.J. 1502. In that decision, the consideration and disposal of the representation had been discussed at paragraph 12 (at page 1449-1450 the relevant portion necessary for our present purpose is reflected therein as below: "We have already noted that the representation was made on 29. 1988 and disposed of by the Central Government on 11. 1988, i.e., within a month and five days. In the counter-affidavit filed on behalf of the Central Government, it is stated that the representation dated 29. 1988 was received in the COFEPOSA Section of the Ministry of Finance on 10. 1988 and disposed of by the Central Government on 11. 1988, i.e., within a month and five days. In the counter-affidavit filed on behalf of the Central Government, it is stated that the representation dated 29. 1988 was received in the COFEPOSA Section of the Ministry of Finance on 10. 1988 and the representation was in Malayalam. It is also stated that there were some allegations regarding the non-placement of certain documents and non-supply of certain documents to him. Therefore, a copy of the representation was sent to the sponsoring authority i.e., Collector of Customs, Cochin on that very day and the comments from the Collector of Customs, Cochin dated 210. 1988 were received in the COFEPOSA Section on 210. 1988 and that the Additional Secretary examined them and with his comments, they were forwarded to the Minister of State for Revenue on 310. 1988, since 29th and 30th October, 1988 were holidays. The Minister of State for Revenue with his comments forwarded the representation on the same day, i.e., 310. 1988 to the Finance Minister. The Finance Minister considered and rejected the representation on 11. 1988 and the file was received in the office and on 11. 1988 and on the same day, a memorandum rejecting the representation was sent to the detenu. From the explanation, it can be seen that the representation was considered most expeditiously and there is no negligence or callous in action or avoidable redtapism. For these reasons, we are unable to accept the contention of the learned counsel." From what we have extracted as above, it is rather crystal clear that the Apex Court found that the representation had been considered most expeditiously and there was no negligence or callus in action or available red-tapism on the part of the Central Government. Only on such a finding, the Apex Court rejected the contention on behalf of the detenu’s learned counsel appearing in that case that there was undue and unexplained delay on the part of the Central Government, in the process of consideration and disposal of the representation. The Apex Court did not at all express any opinion or view, as had been stated by the Division Bench of Kerala High Court in the case of Ramla Haris v. State of Kerala, 1996 Crl.L.J. 3325. The Apex Court did not at all express any opinion or view, as had been stated by the Division Bench of Kerala High Court in the case of Ramla Haris v. State of Kerala, 1996 Crl.L.J. 3325. Even otherwise, we respectfully agree disagree with the view, as expressed by the Division Bench of the Kerala High Court in Ramla Haris, 1996 Crl.L.J. 3325. The reason is rather obvious. 18. Rather an axiomatic proposition of law it is that the salient statutory provisions, as adumbrated under Sec.11 of the COFEPOSA Act, when read in the context of the relevant clauses of Art.22 of the Constitution of India make it clear that they are intended to satisfy the Constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order and viewed in this perspective, it cannot be said that the power conferred by Sec.12 of the COFEPOSA Act has no relation whatsoever will the Constitutional obligation cast by Art.22 (5) of the Constitution, of India. Vide: Paragraph 3 (at page 1988) of the decision rendered by Ahmadi, J. (as he then was) in the case of Amir Shad Khan v. L. Hmingliana, A.I.R. 1991 S.C. 1983. 19. The further settled position is that the right to make a representation against the detention order flows from the constitutional guarantee enshrined in Art.22 (5) of the Constitution, which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires, (Vide: Kundanbhai D. Shaikh v. District Magistrate, Ahmedabad, J.T (1996)2 S.C. 532. 20. As we have already pointed out, there was an inordinate delay of 36 days in forwarding the comments by the sponsoring authority-the Assistant Commissioner of Customs, COFEPOSA Unit, Madras to the COFEPOSA Unit, New Delhi, which delay stands unexplained, in the instant case. 21. In these circumstances, we are constrained to hold that the undue and unexplained delay in the present case in the disposal of the representation had rendered the impugned order invalid. 22. In the result, the impugned order of detention is set aside and the detenu is directed to be set at liberty forthwith, unless his detention is required for any other cause. 23. The Habeas Corpus petition is thus allowed.