Judgment :- 1. This habeas corpus petition is filed by the husband of the detenue by name Tharmar Samuthiram, a resident of Pudukkottai District. The detenue was detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) and confined in Special Prison for Women, Tiruchirapalli pursuant to the order of detention passed in G.O.No.SR.I/369-5/2011 dated 12.7.2011.The said Government Order was subsequently amended by order dated 15.7.2011 substituting the name of the Central Prison, Tiruchirapalli, to Special Prison for Women, Tiruchirapalli. 2. The case of the petitioner is that on 25.5.2011 the detenue came from Colombo by Jet Flight No.SG 002 and arrived at Anna International Airport, Chennai. The Immigration Officers attached to the Airport Customs Department intercepted the detenue as if she brought gold and attempted to smuggle the same without making declaration. The Officers examined the detenue and recovered 1000 gms of gold and its value was assessed as Rs.22,51,000/-.The Officers prepared a seizure mahazar. The detenu was arrested on 25.5.2011 at 5.00 p.m. for contravening the provisions of the Customs Act, 1962.The detenue was produced before the Additional Chief Metropolitan Magistrate Court (E.O.II) on the same day at 7.00 p.m. and she was remanded till 8.6.2011.The learned Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Chennai granted bail on 1.6.2011 on condition that the detenue shall appear daily before the respondent, who registered the crime and execute sureties. The detenue came out from prison on 13.6.2011. The detenue filed an application to modify/relax the bail condition on 29.6.2011 and during pendency of the said application seeking modification/relaxation of the condition, the impugned detention order was passed by the first respondent on 12.7.2011. 3. The detention order dated 12.7.2011 is challenged in this petition by the husband of the detenue raising several grounds such as retraction letter of the detenue dated 1.6.2011 addressed to the Commissioner of Customs (Air), Customs House, Rajaji Salai, Chennai, through the Superintendent of Special Prison for Women, Puzhal, Chennai, wherein she retracted her confession statement made before the sponsoring authority, even though was received by the jail authority viz., the 4th respondent, the same was not forwarded to the concerned authority/detaining authority. The detenue also sent a post detention representation to the detaining authority on 21.9.2011 with specific reference about the retraction letter dated 1.6.2011. 4. The detenue also sent a post detention representation to the detaining authority on 21.9.2011 with specific reference about the retraction letter dated 1.6.2011. 4. The second ground of attack is that after the detention order was passed and during the confinement of the detenue in prison, the customs authorities issued show cause notice on 11.8.2011 for which the detenue sent a reply on 15.9.2011 to the Additional Commissioner of Customs (Air), Air Cargo Complex, Meenambakkam, Chennai-27 and the same was also acknowledged by the concerned authority. The said show cause notice and the reply of the detenue were not placed before the Advisory Board/Confirming authority. The State Advisory Board meeting was held on 21.7.2011 and confirmation order was passed by the State Government on 12.10.2011.Not placing the show cause notice and reply before the State Advisory Board/Confirming Authority has vitiated the order of detention. 5. The third ground of attack is that there is delay in considering the representation sent by the detenue on 28.7.2011 through the Jail Superintendent to the State and Central Government. The representation was received by the Government on 4.8.2011; parawar remarks were called for from the Customs Department on 5.8.2011; remarks were received from the Customs Department, Chennai on 9.8.2011; file was sent to the Public (SC) Department on 9.8.2011, which was returned on 10.8.2011; circulation note was put up on 11.8.2011; Under Secretary, Additional Secretary and Secretary to Government, Public Department considered the same on 12.8.2011; Secretary to Government, Law Department considered the same on 16.8.2011; Chief Secretary to Government considered on 17.8.2011; Minister for Law Department considered the representation on 18.8.2011; and the Chief Minister considered the representation and rejected on 25.8.2011.Thus there is six days delay in considering the representation of the petitioner by the Chief Minister and the said delay is not explained. 6. Even though several other grounds are raised in the petition, the learned counsel for the petitioner emphasised the above three grounds and prayed for quashing the order of detention and set the detenue at liberty. 7. The Additional Secretary to Government, Public (Law and Order) Department, Chennai filed counter affidavit. 6. Even though several other grounds are raised in the petition, the learned counsel for the petitioner emphasised the above three grounds and prayed for quashing the order of detention and set the detenue at liberty. 7. The Additional Secretary to Government, Public (Law and Order) Department, Chennai filed counter affidavit. Insofar as the first ground raised viz., not placing the retraction letter dated 1.6.2011 before the detaining authority, it is stated in paragraph 6 that the representation dated 1.6.2011 said to have been sent by the detenue addressed to the Sponsoring Authority has not been received either by the sponsoring authority or by the detaining authority. Insofar as the second ground viz., not placing the show cause notice dated 11.8.2011 and the reply of the detenue dated 15.9.2011 before the State Advisory Board/Confirming Authority, it is stated in the counter affidavit that placing of show cause notice and reply to the same before the State Advisory Board does not arise as the show cause notice and the reply have not been received in the department. Insofar as the delay in considering the representation is concerned, it is stated that the representation was considered by the Honourable Minister for Law on 18.8.2011.20.8.2011 and 21.8.2011 being Saturday and Sunday, there is no undue and unexplained delay in disposal of the representation. 8. Separate counter affidavit is filed by the second respondent. 9. We have considered the rival submissions made by the learned counsel for the petitioner as well as learned Additional Pubic Prosecutor and the learned counsel appearing for the second respondent/Central Government. 10. The retraction letter of the detenue dated 1.6.2011 was addressed to the Commissioner of Customs (Air), Customs House, Rajaji Salai, Chennai, through the Superintendent of Central Prison, Special Prison for Women, Puzhal, Chennai, while the detenue was imprisoned and the said authority received the same and acknowledged on 2.6.2011 and the original acknowledgement card is produced before us for perusal and a xerox copy of the same is filed in the typed set of papers. Thus, it is evident that the retraction letter was received by the 4th respondent on 2.6.2011.The said fact was not ascertained/verified from the 4th respondent by the first respondent while filing the counter affidavit, which shows how casually the counter affidavit is filed by the State while justifying the order of detention. Thus, it is evident that the retraction letter was received by the 4th respondent on 2.6.2011.The said fact was not ascertained/verified from the 4th respondent by the first respondent while filing the counter affidavit, which shows how casually the counter affidavit is filed by the State while justifying the order of detention. Whether placing the retraction letter has any effect on the detention order, is a separate issue. The contention of the learned counsel for the petitioner is that not placing the relevant documents, namely the retraction statement dated 1.6.2011 before the detaining authority, before passing the order of detention has vitiated the detention order. In the detention order the detenue's alleged voluntary statement dated 25.5.2011 given before the Customs Officer is relied on.When the detaining authority relied on the voluntary statement of the detenue dated 25.5.2011, if the retraction statement of the detenue dated 1.6.2011 was placed, a different conclusion might have been arrived at by the detaining authority. Thus, the retraction statement dated 1.6.2011 is a relevant document. In support of the same, the learned counsel relied on the decision of the Honourable Supreme Court reported in (1981) 4 SCC 481 (Rattan Singh v. State of Punjab) and Division Bench decision of this Court made in HCP No.152 of 2005.In the decision of the Supreme Court it is held that the failure of the Jail Superintendent either to forward the representation to the Government concerned or to forward to the State Government with a request for onward transmission has deprived their valuable right to have the detention revoked. Even though the said judgment is relating to forwarding of the representation, which was submitted after the detention order, in this case, not placing the retraction letter before the detaining authority before passing the order of detention has vitiated the detention order. As stated supra, if the retraction statement was placed, the detaining authority might have come to a different conclusion. 11. As regards the second ground i.e, the show cause notice issued to the detenue dated 11.8.2011 subsequent to the order of detention and the reply submitted by the detenue dated 15.9.2011 were not placed before the State Advisory Board/Confirming Authority in its meeting held on 21.9.2011, the order of confirmation issued by the first respondent in G.O.Rt.No.3481 Public (Law and Order) Department, dated 12.10.2011 nowhere refers the show cause notice and reply of the petitioner. (a) In the decision reported in 2000 (3) CTC 97 (Rajeswari v. Joint Secretary to Government) this Court considered the issue as to whether show cause notice and reply to show cause notice are bound to be placed before the State Advisory Board and not placing the same will vitiate the decision of the Advisory Board. In paragraph 23 it is held as follows: "23. In their counter affidavit, the respondent Central Government points out that such a show cause notice was, in fact, served on 24.7.1999 while the detenu was in jail but before that itself, the detention order was already passed on 14.7.1999 and, therefore, there was no question of the said show cause notice being considered by the detaining authority so far there can be no notice being considered by the detaining authority so far there can be no complaint. The counter makes a reference to the reply by the detenu dated 3.8.1999 wherein the detenu had stated about the liberalized policy for importation of gold and had also offered some explanation for licit import or acquisition/possession of the seized gold-bars. While it is the admitted position that the said documents were not placed before the Advisory Board, it is tried to be suggested that the document which originated after the passing of the detention order and which could not be within the knowledge of the detaining authority need not be produced before the Advisory Board. This is how the contention goes: "The role of the Hon'ble Advisory Board is clearly stipulated in Section 8(c) of the COFEPOSA Act, 1974. It is far too much to stretch an argument/contention to the effect that the documents accrued after the passing of the Detention Order which could not therefore be within the knowledge of the Detaining Authority while passing the Detention Order must also be placed before the Advisory Board by the Department. As per this provisions of Section 8(b) of the COFEPOSA Act a reference is required to be made by the appropriate Government to the Advisory Board within the prescribed period in respect of a Detention Order and to place before the Advisory Board, the Detention Order, the Grounds of detention and the relied upon materials. Thereafter, the role of the Advisory Board is clearly stipulated in Section 8(c) of the Act, including the opportunity to be given to the detenu for hearing. Thereafter, the role of the Advisory Board is clearly stipulated in Section 8(c) of the Act, including the opportunity to be given to the detenu for hearing. It is respectfully submitted that these provisions were strictly complied with in this case. In this case the Hon'ble Advisory Board heard the detenu through his counsel Shri B.Kumar and thereafter only expressed its opinion. It was for the detenu to put forward his case and submit whatever documents he deemed fit in is interest during the hearing before the Advisory Board. It is incorrect on the part of the petitioner to suggest that the Detaining Authority should have placed the said documents which came into existence after passing the order of detention but before the date of hearing by the Hon'ble Advisory Board." Very significantly, the counter does not say that the above referred documents were neither relevant nor material. In the counter, the authorities take a bald stand that the show cause notice and the replies thereto need not have been placed before the Advisory Board. In this behalf, the learned counsel for the petitioner took a very clear stand that these documents were extremely relevant and material documents. He points out that the said documents clarified the stand on facts as also on law by the detenu regarding the possession of the gold-bars and, therefore, these documents were extremely relevant documents and could have helped the Advisory Board to come to the conclusion whether there was in fact any justification for passing the order of detention or not. Unfortunately, this aspect has not been countered by the respondents and then it is a tacit admission that the documents were relevant and material documents. In this behalf, our attention was invited to the decisions of this Court in K.V.Jesudasan v. State of Tamil Nadu, 1989 Crl.L.J. 637; H.C.P.No.1459 of 1999, decided on 23.4.1996; as also the H.C.P.No.1672 of 1998, decided on 17.3.1999, to the last judgment one of us (V.S.Sirpurkar, J.) was a party. In all these cases, the principle is accepted that even in spite of the documents coming into being after the passing of the order of detention, if such documents are relevant and material to the subject of detention, the detaining authority is under a duty to put those documents before the Advisory Board. In all these cases, the principle is accepted that even in spite of the documents coming into being after the passing of the order of detention, if such documents are relevant and material to the subject of detention, the detaining authority is under a duty to put those documents before the Advisory Board. In coming to this conclusion initially the Division Bench in Jesudasan's case, 1989 Crl.L.J.637, had relied upon the celebrated judgment of this Court in Vellanai Pandian v. Collector & District Magistrate, Tiruhklvkli, 1984 Crl.L.J. 68.The two judgments of the Division Bench of this Court are binding on us and, therefore, it would have to be held that in not placing these relevant and material documents before the Advisory Board there is a breach of duty on the part of the detaining authority and the subsequent detention has thus become illegal." (b)The said decision is followed in (2009) 4 MLJ (Crl) 945 (Elizabeth Rani v. State of T.N.) and in paragraphs 10 and 11 it is held thus, "10. So far as the second contention that there was a show cause notice which was followed by a reply were not actually placed before the Advisory Board is concerned, it is not disputed by the State that actually the show cause was issued and following the same, a detailed reply was given by the detenu on 6.1.2009 but they were not actually placed before the Advisory Board. Paragraph 3 of the counter filed by the State reads as follows: "The show cause notice was issued on 19.12.2008 i.e., after the issue of the detaining order and hence not relied upon for passing detention order. The show cause notice is part and parcel of the adjudication proceedings which is quasi-judicial in nature and it issued without prejudice to the action under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974). The proposals in the show cause notice nowhere deviates from the sponsoring authority's stand before the detaining authority that the watches are liable for confiscation and do not interfere with the detention order. The proposals in the show cause notice nowhere deviates from the sponsoring authority's stand before the detaining authority that the watches are liable for confiscation and do not interfere with the detention order. During the State Advisory Board proceedings, it was open to the detenu to place on record any material in his support including Show Cause Notice dated 19.12.2008 and his reply dated 6.1.2009.The fact that the Honourable State Advisory Board also did not call for any further information from the Government as provided under clause of Section 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 shows that the Honourable State Advisory Board was convinced of the actions against the detenu. Therefore, it may be seen that the contentions of the petitioner are frivolous in nature. Hence, the allegations are denied." “11. A reading of the above paragraph of the counter would clearly indicate that according to the State, a show cause notice was sent and a reply was received and they need not be placed before the Advisory Board in fact they were actually not placed also. As far as the contention that whether it is necessary to place the show cause notice and the reply sent by the detenu or not, this Court had occasion to consider this fact in the judgment Rajeswari v. Joint Secretary to Government (supra) in HCP.No.1444 of 1999 wherein their Lordships have held as follows:” "In all these cases, the principle is accepted that even in spite of the documents coming into being after the passing of the order of detention, if such documents are relevant and material to the subject of detention, the detaining authority is under a duty to put those documents before the advisory Board. In coming to this conclusion initially the Division Bench in Jesudasan's case, 1989 Crl.L.J.637, had relied upon the celebrated judgment of this Court in Vellanai Pandian v. Collector & District Magistrate, Tiruhklvkli, (1984) Crl.LJ. 68. In coming to this conclusion initially the Division Bench in Jesudasan's case, 1989 Crl.L.J.637, had relied upon the celebrated judgment of this Court in Vellanai Pandian v. Collector & District Magistrate, Tiruhklvkli, (1984) Crl.LJ. 68. The two judgments of the Division Bench of this Court are binding on us and therefore, it would have to be held that in not placing these relevant and material documents before the Advisory Board there is a breach of duty on the part of the detaining authority and the subsequent detention has thus become illegal." This Court is unable to see any reason to deviate from this decision taken by this Court following the earlier judgment. It is a case where those documents have been considered to be relevant and material. Though the documents came into existence subsequent to the passing of the order of detention, so long as it is considered as relevant and material, the authorities are duty bound to place those documents before the Advisory Board but they have not done so. Under such circumstances, the detention order has got to be declared illegal." Not placing the show cause notice and reply, which are also relevant documents for consideration by the State Advisory Board, is a material irregularity/illegality committed by the respondents. Therefore the detention order confirmed on 12.10.2011, without placing the relevant documents before the State Advisory Board has vitiated the order of confirmation. 12. Insofar as the third ground, i.e., delay in considering the representation of the detenue is concerned, even though the delay upto 18.8.2011 is explained, there is no explanation for not sending the file to the Honourable Chief Minister on 19.8.2011, 22.8.2011, 23.8.2011 and 24.8.2011.There is a gap of six days from the date of considering the representation by the Law Minister and Chief Minister, out of which only two days delay is explained as holidays i.e, Saturday and Sunday. In the counter affidavit filed by the first respondent, no explanation is stated for the four days delay in considering the representation by the Chief Minister. 13. The above said issue is considered in many decisions. At this juncture, the following decisions can be usefully referred to. In the counter affidavit filed by the first respondent, no explanation is stated for the four days delay in considering the representation by the Chief Minister. 13. The above said issue is considered in many decisions. At this juncture, the following decisions can be usefully referred to. (i) The Honourable Supreme Court in the decision reported in 1999 AIR SCW 139 (Rajammal v. State of Tamil Nadu) emphasised the point that if there is delay in consideration of the representation it has to be seen as to whether the delay had occasioned due to permissible reasons or unavoidable causes. Any unexplained delay in disposal of the representation would be breach of constitutional imperative and it would render the continued detention impermissible and illegal. In paragraphs 8 to 10 the Supreme Court held thus, "8. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words "as soon as may be" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India, (1991) 1 SCC 476 : 1991 AIR SCW 362. The following observations of the Bench can profitably be extracted here (para 12 of AIR): "It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) ofArticle 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. The words "as soon as may be" occurring in clause (5) ofArticle 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal." “9. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. 10. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. Thus, there is some explanation for the delay till 9.2.1998.Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14.2.1998.Though there is explanation for the delay till 9.2.1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14.2.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Merely stating that the Minister was on tour and hence he could pass orders only on 14.2.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen." (ii) This Court in HCP No.108 of 2011 (K.M.,J. and G.M.A.,J.) order dated 9.11.2011 considered the issue regarding delay. In the said order the order in H.C.P.No.1385 of 2000 dated 27.11.2010 was relied on wherein unexplained delay of four days was considered to be fatal to the order of detention and on that ground the detention order was quashed. It is held in the said order dated 9.11.2011 that though no period is prescribed in Article 22 of the Constitution of India for the decision to be taken on the representation, the words "as soon as may be" contained in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. It is not enough to say that the delay was very short. The test is not the duration or range of delay, but how it is explained by the authority concerned. (iii) In Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65, the Hon'ble Supreme Court has held thus;- "The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India. (iv) In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554 the Hon'ble Supreme Court has held as follows:- The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by the detenu.This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. ....... ....... When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5). (v) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, 1986 (1) SCC 650 , the Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. (vi). In Rashid sk. v. State of West Bengal reported in 1973 (3) SCC 476 , the Hon'ble Supreme Court has held as follows: "The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion." Here in this case, the four days delay as stated above has not been explained in the counter affidavit filed by the first respondent. The said delay is also treated as a valid ground to quash the detention order. 14. In the light of the above cited decisions and findings arrived at on the referred grounds, we are of the view that the petitioner is entitled to succeed on all three ground raised. Consequently, the detention order dated 12.7.2011 is set aside. The detenue is ordered to be set at liberty forthwith, if her detention is not required in any other case. Connected M.P.No.1 of 2011 is closed.