Judgment :- Janarthanam, J. Challenge, in this action as to the order dated 24. 1996 made by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi (1st respondent) in his proceedings F.No.673/36/96 CUS.VIII, in exercise of the powers under Sec.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974) as amended by Act 23 of 1987 (hereinafter referred to as the Act’) to detain and keep one A.Abdul Arshath-detenu - in custody, in the Central Prison, Madras, with a view to preventing him in future from acting in any manner prejudicial to the augumentation of foreign exchange, is thrown by the detenu himself figuring as the petitioner. 2. The factuals matrix relevant and essential-for appreciating the contentions raised in this action, as culled out from the files produced for our perusal and consideration, reflects as below. (i) The detenu is a native of Chakkarakottai village in Ramnad District. His father, one A.Ahamed Sheriff had been transacting business in sea-food in Ramnad. He was, however, residing at Tiruchy. (ii) The detenu, while pursuing his college career and staying in hostel, came into contact with one Syed Mohideen, employed as a clerk in an office at Doha Qatar, Dubai, through his hostel-mate, one Syed Abdullah. During March, 1995, the detenu contacted the said Syed Mohideen and expressed his willingness to take up some employment abroad. The said Syed Mohideen, inturn, informed the detenu that it would be very difficult to get a job abroad. He, however, suggested a profitable employment for him. What all he had to do was, that he had to disburse the amounts that would be sent to him through some persons, to the local parties, as per the instructions and for the services so rendered, he would be given certain amounts by way of commission. The offer so made was accepted by the detenu and he expressed his willingness to get himself engaged in such transactions over phone to the said Syed Mohideen. (iii) The said Syed Mohideen informed the detenu to take a house on rent at Madras and employ trusted persons as carriers to disburse the amounts to local parties as per the instructions given to them. (iii) The said Syed Mohideen informed the detenu to take a house on rent at Madras and employ trusted persons as carriers to disburse the amounts to local parties as per the instructions given to them. Accordingly, the detenu came to Madras and fixed up the house at No.11, Periyar Paadhai in Choolaimedu, Madras on a rent of Rs.1,000 per mensem. He also informed that address to the said Syed Mohideen over phone. This apart, he went to his native place and brought the following persons to Madras to act as carriers. (1) Mohd. Ibnu Massod, S/o.Mohd.Ali, (2) Jalaludeen, S/ o.Alla Pitchai; (3) Subbair Ali, S/o.Ahamed Basheer; (4) A.Abdul Rawoof, S/o.Alaudeen; (5) A.Mohd Nuh, S/o.Amanulla, (6) Shariff, (7) Barsith Ali, S/o.Noor and (8) Ramzan Ali, S/o. Hanifa. He informed the aforesaid persons that he was going to start hundial business at Madras and if they carried amounts and delivered the same to the local parties as told by him, he would give them commission apart from giving them food and accommodation. He also explained to them that his friend Mr.Syed Mohideen in Doha Qatar, Dubai, would be sending amounts to him and the amounts so sent, had to be disbursed to local parties according to his instructions. (iv)(a) On the night of 110. 1995, there was a vehicular check by the Customs authorities at Kolianur Railway Gate. During the process of such check, the customs authorities found three persons to be in possession of huge amounts on Indian currency, in that Subbair Ali was found to be in possession of Rs.2,08,000 Jalaludeen was found to be in possession of Rs.2,19,000 and Meeran Hussain was found to be in possession of Rs.1,85,000. Besides, they were found in possession of certain chits. The aforesaid Indian Currency as well as the chits found in their possession, were seized by the customs authorities. (b) On 110. 1995, the Customs authorities referred the matter to the Enforcement Directorate and handed over the Indian currency and the chits so seized to them for further investigation. On enquiry by the Enforcement Directorate, the aforesaid three person divulged that they were carrying huge amounts of Indian currency for distribution to third parties at the instance of the detenu. (c) On 110. On enquiry by the Enforcement Directorate, the aforesaid three person divulged that they were carrying huge amounts of Indian currency for distribution to third parties at the instance of the detenu. (c) On 110. 1995, the detenu was intercepted in his residence at Choolaimedu and the search of the house yielded in the seizure of certain incriminating documents relating to compensatory payment transactions. A statement had also been recorded from him. The detenu disclosed his involvement in such compensatory payment transaction at the instance of his friend one Syed Mohideen. He also disclosed as to how he came into contact with him during his College career. This apart, he had candidly admitted that the huge amount of Indian currency seized from the aforesaid persons during the vehicular check by the customs authorities at the Kolianur Railway Gate, has handed over to them by him for distribution to certain parties, as per his instructions. The aforesaid persons also identified the detenu, as the person, who handed over huge amount to them for distribution to certain persons according to his instructions. Further follow up action had been taken up by the Enforcement Directorate in tracing persons, to whom monies had been distributed by way of compensatory payment at the instance of the detenu. Those persons also, it is said, admitted receipt of amounts by them sent by their relatives residing abroad. However, they were unable to name the person responsible for effecting the distribution of the amounts to them. (v) On 110. 1995, the detenu was arrested and remanded to custody. He was however released on bail on 12. 1995. (vi) The 1st respondent/Joint Secretary to Government of India clamped upon the detenu the impugned order of detention on 24. 1996. The order so passed was, however, executed, in the sense of the detenu being detained in Central Prison, Madras on 26. 1996. (vii) On 8. 1996, the detenu was produced before the Central Advisory Board, COFEPOSA, New Delhi, and he was heard. The detenu gave representation addressed to the Advisory Board. The Advisory Board, after taking into consideration the relevant materials in the file, however, opined that there was justification for the preventive detention of the detenu. The Advisory Board forwarded the representation of the detenu dated 8. 1996 along with the file, to the 2nd respondent/Central Government, (viii) On 28. The detenu gave representation addressed to the Advisory Board. The Advisory Board, after taking into consideration the relevant materials in the file, however, opined that there was justification for the preventive detention of the detenu. The Advisory Board forwarded the representation of the detenu dated 8. 1996 along with the file, to the 2nd respondent/Central Government, (viii) On 28. 1996, the 2nd respondent/Central Government, it is said, rejected the representation of the detenu and the result had been communicated to him. However, the rejection of the representation by the empowered officer, that is to say, the 1st respondent/Joint Secretary to Government of India, had not at all been communicated to the detenu, there by making it appear that no order of rejection had in fact been passed by the 1st respondent/Detaining Authority. This aspect of the matter had been specifically pleased in the affidavit filed in support of the petition by the detenu. Despite this, it is not the case as pleaded by the respondents in the counter, that the 1st respondent/Detaining Authority had taken any decision, much less an independent decision, thereof. 3. From the pith and substance of the submissions projected by Mr.B.Kumar, learned counsel for the. petitioner and Mr.K.Kumar, learned Additional Central Government Standing Counsel, represent in the respondents, the points as below emerge and merit consideration. (1) When only one representation and that too addressed only to the Advisory Board, is received in COFEPOSA UNIT of the second respondent/ Central Government, does not the law cause a requirement that the representation must be considered by the empowered Authority- the 1st respondent/ Detaining Authority - since he has the independent power of revocation, which is relat-able to the power under Art.22(5) of the Constitution of India? (2) A very reading of the counter would show that the 2nd respondent/ Central Government had abdicated its responsibility to consider the representation independently; but merely dovetailed the nothings of the very Authority 1st respondent/ Detaining Authority - who had exercised the power of detention in this case. 4. The above two points are inter-connected and inter-linked in such a way, as is not possible to consider them independently and if such an exercise is under taken, jarring repetition of projection of ideas is found to occur and in that view of the matter, better it is, we feel to have a compendious discussion and consideration if both the points together. 5.Points 1 and 2: It is not as if the questions of this sort had not come up for consideration at any anterior point of time before the superior courts of jurisdiction Apex Court of this Country and the High Courts of Judicature and the plain fact is that such a tangle had been posed for consideration before such courts, on occasions more than one and some of the decisions rendered therefor if referred to at this juncture, will be of immense use and guidance in answering the points raised, with ease and grace and without any difficulty whatsoever. (i)(a) In R. Geetha v. State of Tamil Nadu, 1989 L. W. (Crl.) 368, the order of detention was passed on 8. 1988 by the State Government under Sec.3(1)(iv) of the Act with a view to preventing the detenu from dealing in smuggling goods. The detenu therein was an Indian national, who was having a jewellery shop at Coimbatore. On inspection, the officers concerned found gold bars having foreign markings ‘Union Bank of Switzerland, 10 Tolas, 999.0’ and one gold bar was cut in one corner and all the three gold bars weighed 349.750 girls, and valued at Rs.1,08,740 The detenu was not in a position to justify the possession of the primary gold. (b) The only ground urged by learned counsel for the petitioner was that his sole representation, which he had addressed to the Advisory Board was not independently considered by the Government, which fact was accepted by learned Public Prosecutor. The ground so raised, was answered by a Bench of this Court and the relevant portion in para 4 is couched in the following terms: “It is well-settled law now that when a representation sent by the detenu either to the Advisory Board or to any other agency, as soori as it reaches the Government, it is the duty of the Government to consider the representation independently in compliance with Art.22(5) of the Constitution. The non-consideration of the representation by the Government which passed the detention order is violative of the constitution and renders the order of detention as null and void.” (ii)(a) In Gracy v. State of Kerala, 1991 S.C.C. (Crl.) 467, the detenu was arrested oil the accusation of illicit cultivation of ganja in violation of the Narcotic Drugs and Psychotropic Substances Act, 1985, and his bail application was rejected. Thereafter, the order of detention was served on the detenu under Sec.3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The detenu was informed that he had a right to make his representation to the Detaining Authority, Central Government and the Central Advisory Board, against the detention order. The mode of address of the representation to the Central Government and the Central Advisory Board, was also indicated in the detention order along with the grounds of detention in accordance with Art.22(5) of the Constitution of India. (b) The detenu’s case was subsequently referred to the Central Advisory Board. The Advisory Board considered the reference relating to the detenu made by the Central Government and also the detenu’s representation submitted to it and gave its opinion that there was sufficient cause to justify his prevention detention. The Central Government then made the order, confirming his detention. However, there was no independent consideration of the detenu’s representation by the Central Government at any time. (c) In the counter-affidavit, the Central Government’s stand was that since the representation was addressed to the Advisory Board and not to the Central Government, there was no obligation on it to consider the same independently. (d) What their Lordships of the Supreme Court said in paragraphs 6, 8 and 9 in rejection this stand of the Central Government and allowing the writ petition filed on behalf of the detenu by his mother, is relevant for the present purpose and it reads as under: 6. It is thus clear that the obligation of the Government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government. Consideration of the representation by the Government has to be influenced by the view of the Advisory Board. In short, the detenu’s right to have the representation considered by the Government under Art.22(5) is independent of this consideration of the detenu’s case and his representation by the Advisory Board. This position in law is also not disputed before us. .... 8. In short, the detenu’s right to have the representation considered by the Government under Art.22(5) is independent of this consideration of the detenu’s case and his representation by the Advisory Board. This position in law is also not disputed before us. .... 8. It is undisputed that if there be only one representation by the detenu addressed to the Detaining Authority, the obligation arises under Art.22(5) of its consideration by the Detaining Authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board, while giving its opinion. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board. The question, therefore, is: Whether one of the requirements of consideration by Government is dispensed with when the detenu’s representation instead of being addressed to the government or also to the government is addressed only to the Advisory Board and submitted to the Advisory Board, instead of the government? On principle, we find it difficult to uphold the learned Solicitor General’s contention when would reduce the duty of the Detaining Authority from one of substance to mere form. The nature of duty imposed on the Detaining Authority under Art.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. Art.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 implies the duty to consider and decide the representation when made as soon as possible. Art.22(5) speaks of the detenu’s representation against the order’, and imposes the obligation on the Detaining Authority. Thus, any representation of the detenu against the order of his detention has to be considered and decided by the Detaining Authority the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Art.22, even though express mention in Art.22(5) is only of the Detaining Authority. Thus, any representation of the detenu against the order of his detention has to be considered and decided by the Detaining Authority the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Art.22, even though express mention in Art.22(5) is only of the Detaining Authority. Moreover, the order of detention is by the Detaining Authority and so also the order of is revocation if the representation is accepted, the Advisory Board’s rold being merely advisory in na-ture without the power to make any order itself. It is not as if there are two separate and distinct provisions for representation to two different authorities, viz., the Detaining Authority and the Advisory Board, both having independent power to act on its own. 9. It being settled that the aforesaid dual obligation of consideration of the detenu’s representation by the Advisory Board and independently by the Detaining Authority flows from Art.22(5), when only one representation is made addressed to the Detaining Authority, there is no reason to hold that the detaining authorities relieved of his obligated merely because the representation is addressed to the Advisory Board instead of the Detaining Authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Art.22(5) in support of the contention of the learned Solicitor General. The contents of Art.22(5) as well as the nature of duty imposed there by on the Detaining Authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Art.22(5) arises irrespective of the fact whether the representation is addressed to the Detaining Authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Art.22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention." (iii) What their Lordships of the Supreme Court said in paragraph 3 in the cases of Amir Shad Khan v. L. Hmingliana, A.I.R. 1991 S.C. 1983, is relevant and the relevant portion thereof reflect as below: ‘The law of preventive detention is harsh to the person detained and, therefore, there can be nod doubt that it must be strictly construed. Art.22(3)(b) denies to a person, who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said Article. Clause (4) thereof rejoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Art.22 reads as under: ‘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.‘ This clause-casts a dual obligation on the Detaining Authority, namely, (i) to communicate to the detenu the grounds on which the detention order has been made, and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently, the failure to communicate the grounds promptly or afford the detenu an opportunity of making a representation against the order would clearly violate the constitutional guarantee afforded to the detenu by clause (5) of Art.22 of the Constitution. It is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant-detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the Constitutional guarantee enshrined in Art.22(5) 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. The right to make a representation against the detention order thus flows from the Constitutional guarantee enshrined in Art.22(5) 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. The necessity of casting a dual obligation on the authority making the detention order is obviously to acquaint the detenu of what had weighed with the Detaining Authority for exercising the extraordinary powers of detention without trial conferred by Sec.3(1) of the Act and to give the detenu an opportunity to point out any error in the exercise of that power so that the said authority gets an opportunity to undo the harm done by it, if at all, by correcting the error at the earliest point of time. Once it is realised that Art.22(5) confers a right of representation, the next question is to whom must the representation be made. The grounds of detention clearly inform the detenu that he can make a representation to the state Government, the Central Government as well as the Advisory Board. There can be no doubt that the representation must be made to the authority which has the power to rescind or revoke the detention, if need be. Our search for the authority, must, therefore, take us to the a statute since the answer cannot be found from Art.22(5) of the Constitution read in isolation. As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest opportunity to make a representation against the detention order. If we are to go by the statement in the grounds of detention our search for that authority would end since the grounds of detention themselves state the authorities to which the representation must be made. The question must be answered in the context of the relevant provisions of the law. Now as stated earlier by clause (5) of Art.22 a dual obligation is cast on the authority making the detention order one of which is to afford to the detenu an earliest opportunity of making a representation against the order which obligation has been met by informing the detenu in the grounds of detention to whom his representation should be addressed. But the authority to which the representation is addressed must have statutory backing. But the authority to which the representation is addressed must have statutory backing. In order to trace the source for the statutory backing it would be advantageous to notice the scheme of the Act providing for preventing detention. Sec.2(b) defines a detention order to mean an order made under Sec.3, Sub-sec.(1) of Sec.3 empowers the Central Government or the State Government or any officer of the Central Government not below the rank of a Joint Secretary to the 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, to make an order of detention with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view of preventing him from doing any one of the five prejudicial acts enumerated thereunder. Sub-sec.(2) of that Section provides that when any order of detention is made by a State Government or by a officer empowered 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 evident from this provision that whenever a detention order is made by the State Government or its officer specially empowered for that purpose an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within ten days. The purpose of this provision is clearly to enable the Central Government to keep an eye on the exercise of power under Sec.3(1) by the State Government or its officer. Then comes Sub-sec.(3) which reads as under: “For the purposes of clause (5) of Art.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.” This provision is clearly intended to meet the obligation cast by Art.22(5) that the grounds of detention shall be communicated ‘as soon as may be’. The legislation has, therefore, fixed the outer limit within which the grounds of detention must be communicated to the detenu. “Thus the first part of the obligation cast by Art.22(5) is met by Sec.3(3) of the Act. Sec.8 provides for the Constitution of Advisory Boards. This section is clearly to meet the obligation of Sub-clause (a) of clause (4) and Sub-clause (c) of clause (7) of Art.22 of the Constitution. Sec.8(f) which has some relevance provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case, where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. This provision clearly obliges the appropriate Government to order revocation of the detention order if the Advisory Board reports want of sufficient cause for detention of that person. Then some Sec.11 which reads as under: ”Revocation of detention orders: (1) without prejudice to the provisions of Sec.21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified- .(a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; .(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.“ Sub-sec.(2) is not relevant for our purpose. It is obvious from a plain reading of the two clauses of Sub-sec.(1) of Sec.11 that where an order is made by an officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order. Where, however, the detention order is passed by an officer of the Central Government, or a State Government, the Central Government is empowered to revoke the detention order. Where, however, the detention order is passed by an officer of the Central Government, or a State Government, the Central Government is empowered to revoke the detention order. Now this provision is clearly without prejudice to Sec.21 of the General Clauses Act which lays down that where by any Central Act a power to issue orders is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind any order so issued. Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in like manner. This provision when read in the context of Sec.11 of the Act makes it clear that the power to rescind conferred on the authority making the detention order by Sec.21 of the General Clauses Act is saved and is not take away. Under Sec.11 an officer of the State Government of that of the Central Government specially empowered under Sec.3(1) of the Act to make a detention order is not conferred the power to revoke, it; that power for those officers has to be traced to Sec.21 of the General Clauses Act. Therefore, where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention order needs to be revoked he can do so by virtue of Sec.21 of the General Clauses Act since Sec.11 of the Act does not entitle him to do so. If the State Government passes an order of detention and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled to do so under Sec.21 of the General Clauses Act, but if the Central Government desires to revoke.....” ‘any order passed by the State Government or its officer it can do so only under Clause (b) of Sec.11(1) of the Act and not under Sec.21 of the General Clauses Act. This clarifies why the power under Sec.11 is conferred without prejudice to the provisions of Sec.21 of the General Clauses Act. This clarifies why the power under Sec.11 is conferred without prejudice to the provisions of Sec.21 of the General Clauses Act. Thus, on a conjoint reading of Sec.21 of the General Clauses Act and Sec.11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, viz., the officer of the State Government or the Central Government, the State as well as the Central Government. The power of revocation conferred by Sec.8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Sec.8(f) of the Act satisfies the requirement of Art.22(4) whereas Sec.11 of the Act satisfies the requirement of the latter part of Art.22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Art.22, 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. Viewed in this perspective, it cannot be said that the power conferred by Sec.11 of the Act has no relation whatsoever with the constitutional obligation cast by Art.22(5)." (iv)(a) In a recent decision of the Apex Court in Kamleshkumar Ishwardas Patel v. Union of India, J.T. (1995)3 S.C. 639, which arose out of a Full Bench decision of the Bombay High Court reported in 1994 Mah.L.J. 1669, before the Full Bench of the Bombay High Court, one of the questions which arose for its consideration, was: ‘Does failure to take independent decision of revocation of order of detention by the specially empowered officer under the COFEPOSA Act and merely forwarding the same with recommendation to reject, result in non-compliance with the constitutional safeguards under Art.22(5) of the Constitution." That question was answered in the negative by the Full Bench of the Bombay High Court and it was held that the failure on the part of the Officer making the order of detention to consider the representation made by the detenu, was of no consequence because the representation of the detenu, in fact, in effect and substance, was considered by the Finance Minister, who was the appropriate Authority for the purpose of consideration of such representation. (b) The challenge of such a finding before the Supreme Court was couched in the following terms: ‘The failure on the part of the Officer, who made the order of detention to consider the representation of the detenu, results in denial of right of the detenu to make a representation recognised by Art.22(5) of the Constitution and the said denial renders the detention of the detenu illegal and without the authority of law." .(c) After making reference to a catena of decisions rendered by it, the Supreme Court has observed in para 46 as below: ‘Having found that the representation of the person detained was not considered by the Officer making the order of detention the High Court was in error in holding that the said failure on the part of the Detaining Authority to consider and decide the representation is not fatal to the order of detention. We are, therefore, unable to uphold the answer given by the Full Bench to question No.3, and on our view, the said question should be answered in the affirmative. On that basis, it has to be held that since there was a denial of the Constitutional safeguard provided to the detenu under Art.22(5) of the Constitution on account of the failure on the part of the officer who had made the order of detention to independently consider the representation submitted by the detenu against his detention and to take a decision on the said representation the further detention of the detenu Ishwardas Bechardas Patel is rendered illegal. The appeals, therefore, deserve to be allowed.‘ 6. In the light of the backdrop and setting of the propositions of law, by superior Courts of jurisdiction, we may now embark into the are of discussion as to whether the representation of the detenu dated 8. 1996 given before the Advisory Board, had been independently considered by the 1st respondent/ Detaining Authority, who has the power of revocation, which is relatable to the power under Art.22(5) of the Constitution of India. 7. The detenu’s case relatable to the non-consideration of the representation he had made before the Advisory Board on 8. 1996 given before the Advisory Board, had been independently considered by the 1st respondent/ Detaining Authority, who has the power of revocation, which is relatable to the power under Art.22(5) of the Constitution of India. 7. The detenu’s case relatable to the non-consideration of the representation he had made before the Advisory Board on 8. 1996, not having been considered independently by the 1st respondent/ Detaining Authority/ Joint Secretary to the Government of India, had been couched in para 11 of the affidavit filed in support of the petition, and the same reads as below; ‘The detenu had submitted before the Hon’ble Advisory Board three copies of the representation drafted in English and submitted the same in person. The petitioner says and submits that both the respondents are bound to satisfy this Hon’ble court that the said representation was also considered by both of them and they have take a decision and disposed of the representation. It is further enjoined upon the respondents to satisfy this Hon’ble Court since each one of the respondents have independent power to dispose of the representation. The representation was disposed of by them independent of each other and uninfluenced by the views of each other. Even though now more than 30 days have elapsed, the petitioner has not received any communication disposing of the representation from either of the respondents. There appears therefore to be serious constitutional breach." 8. The case, as put forward by the detenu, is countered by the first respondent in the counter-affidavit at pages 7 and 8 and the relevant portion reflect as under: ‘In reply to para 11 of the petition, it is submitted that the petitioner’s representation dated 8. 1996 addressed to Hon’ble Chairman, Advisory Board for revocation of detention order which was received with Advisory Board report on 18. 1996. Parawise comments were called for from the sponsoring authority, i.e. Enfra Madras on 18. 1996 by Speed Post. Reminder was issued on 18. 1996 to Enforcement Directorate, Madras. Parawise comments was received in the Cofeposa Unit on 18. 1996 by Fax through Madras Zonal Office. Parawise comments alongwith the case records were processed and submitted to Joint Secretary (Cofeposa) on the same day, i.e., 18. 1996. Joint Secretary (Cofeposa) considered the representation and submitted to Secretary (Rev.) on 20.8.1996. Secretary (Rev.) Considered the representation and rejected the same on 28. 1996 by Fax through Madras Zonal Office. Parawise comments alongwith the case records were processed and submitted to Joint Secretary (Cofeposa) on the same day, i.e., 18. 1996. Joint Secretary (Cofeposa) considered the representation and submitted to Secretary (Rev.) on 20.8.1996. Secretary (Rev.) Considered the representation and rejected the same on 28. 1996, the case file was received back in the Cofeposa Unit on 28. 1996. A memo was issued to the petitioner intimating the rejection of his representation by the Central Government on 28. 1996.‘ 9. The relevant portion of the counter-affidavit as extracted above does not at all reveal in unequivocal and clear-cut terms as respects the rejection of the representation made by the detenu before the Advisory Board dated 8. 1996., by the Detaining Authority/ 1st respondent, after due consideration by him. It simply refers to the consideration of the representation by the 1st respondent/ Joint Secretary on 18. 1996 and the submission of the file to the Secretary, Revenue, on 20.8.1996 and nothing further. What is further stated therein, is, that the Secretary, Revenue, considered the representation and rejected the same on 28. 1996 and thereafter, a memo was issued to the detenu intimating the rejection of his representation by the Central Government on 28. 1996. .10. Mere consideration of the representation and passing on of the file to the Superior Officer can, by no stretch of imagination, be stated to be resulting in an order of rejection being passed, leave alone independent consideration. In view of such a slippery stand taken by the first respondent in the counter affidavit, in order to satisfy our conscious as to what had happened exactly, at the level of the 1st respondent, we made a probe into the file produced for our perusal and consideration. Our probe revealed that the under Secretary, Cofeposa, put up a note relatable to the consideration and disposal of the representation dated 8. 1996 made by the detenu. The note was circumlated to the 1st respondent/ Joint Secretary. In the said note, the 1st respondent minuted his views by stating that the representation merits rejection. Thereafter, the file was circulated to the Secretary Revenue and he, in turn, passed the order of rejection. While passing the Order, however, the Secretary had minutes that the representation had been considered independently. In the said note, the 1st respondent minuted his views by stating that the representation merits rejection. Thereafter, the file was circulated to the Secretary Revenue and he, in turn, passed the order of rejection. While passing the Order, however, the Secretary had minutes that the representation had been considered independently. After the rejection order was passed by the Secretary, Revenue, the Section Officer, Cofeposa Unit, minuted for the issuance and communication of the order of the rejection to the detenu. 11. The manner and methodology of the movement of the file makes it crystal clear that the file had been initially prepared by the Under Secretary, then, sent to the 1st respondent/ Joint Secretary for his hues of views to be recorded and ultimately, to the Secretary for passing the necessary and requisite order, to be followed by the issuance of a communication of the order so passed to the detenu. In the hierarchy of administrative set up, it is very well open to the individual officers, through whom the file is circulated to express their view or opinion so that the ultimate decision is taken by the echelon of the administration and that is what is perhaps had been done in the case on hand the 1st respondent/ Joint Secretary made his minutes, that the representation merits rejection and that is all and nothing further. In such state of affairs, it cannot at all be said that the 1st respondent has passed any specific order rejecting the representation. .12. It is to be borne in mind that the 1st respondent clothed with the power of revocation of the order of detention which is relatable to the power under Art.22(5) of the Constitution, cannot at all be legitimately expected to function as a subordinate officer in discharging the said constitutional obligation and he is required to act independently and pass the order relatable to the consideration and disposal of the representation of the detenu. That he has not done. It is apparent on the face of the record. That he has not done. It is apparent on the face of the record. Similarly, the Secretary to the Government of India, 2nd respondent cannot at all, on the facts and circumstances of the case, he stated to have passed the order of rejection independently, without his opinion being influenced or contaminated by the view of the first respondent which is staring at his face in the file before even he was asked to pass an order. What is necessary to be taken into consideration here is not the real risk of his being influenced or contaminated by the views expressed by the 1st respondent; but the possibility or feasibility of such a risk being there, cannot at all be ruled out of consideration. 13. In this view of the matter, we are persuaded to hold the view that the 1st respondent/ Joint Secretary to the Government of India/ Detaining Authority had failed to consider and dispose of the representation of the detenu in exercise of his independent power of rejection, which is relatable to the power under Art.22(5) of the Constitution and the Secretary to Government/2nd respondent abdicated his responsibility to consider the representation of the detenu independently; but merely dovetailed the notings of the 1st respondent. Both these points are answered accordingly. 14. In fine, this H.C.P. is allowed, the impugned order of detention is set aside and the detenu is ordered to be set at liberty forthwith unless and until he is required to be detained in connection with any other cause or case.