JUDGMENT N. Paul Vasanthakumar, J 1. The Detention order passed by the First Respondent, by his proceedings in G.O.SR.1 of 461-11 of 2009, Public (SC) Department, dated 23.9.2009, under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), [for brevity “the Act”], against the detenue – S. Sebastian, is challenged by the father of the detenu on various grounds. Now, the detenue is confined at Central Prison, Palayamkottai, Tirunelveli District. The Detention Order, dated was executed only on 23.9.2011 by arresting the detenu. 2. Thefacts of the case, in brief, are as follows: (i) The Directorate of Revenue Intelligence (DRI), Tuticorin, said to have intercepted and conducted preliminary examination in respect of four containers on 12.5.2008 at PSA Sical Container Stacking yard, New Port, Tuticorin. And, seized 1,160 pieces of red sanders wooden logs, totally weighing about 28.110 Mts, under the provisions of the Customs Act, 1962. The Red Sanders were allegedly smuggled from India to Malaysia under the place of gait through M/s. Deepak Enterprises, Chennai, covered by Shipping Bill Nos. 1920159, dated 30.4.2008 & 1923482, dated 8.5.2008 respectively. One T.P. Jothiprakash is the owner of M/s. Deepak Enterprises and he has lent IEC to a third party for export of salt. One Victor Fernando, owner of a Godown at Tuticorin, gave a statement alleging that the detenue has signed as witness in the Rental Agreement and the said Godown owner also stated to have identified the detenu through photograph. (ii) In the year 2009, the officers of DRI got a reliable information that the Red Sanders were transported from Chennai to Tuticorin, which were stored in a Godown at Tuticorin and being exported by one Chitty Raja and one such consignment of Red Sanders procured by him were transported by road from Chennai to Tuticorin with the help of the said T.P. Jothiprakash, driver, namely, Palani, the detenu and one Ravi. For one such consignment, the said Chitty Raja has filed a Shipping Bill dated 1.7.2009 in the name of M/s. MSD Manufacturing Company, Sivakasi, declaring the export goods as “Natural Wall Tiles” and the officers of DRI, Tuticorin, detained the export consignment by issuing a letter dated 5.7.2009, addressed to M/s. PSA Sical, Tuticorin. For one such consignment, the said Chitty Raja has filed a Shipping Bill dated 1.7.2009 in the name of M/s. MSD Manufacturing Company, Sivakasi, declaring the export goods as “Natural Wall Tiles” and the officers of DRI, Tuticorin, detained the export consignment by issuing a letter dated 5.7.2009, addressed to M/s. PSA Sical, Tuticorin. According to the Petitioner, the seized container was opened by the DRI officers on 14.7.2009 and it was found that it contained declared wall tiles alone and no contraband was seized from the export container. (iii) Summons dated 4.7.2009 was issued and on 7.7.2009 the detenu appeared before DRI Officers and alleged to have given a confessional statement that he knew Chitty Raja, who indulged in smuggling of Red Sanders and the detenu was entrusted with the work of maintenance of a vehicle belonging to Chitty Raja and he used to get salary of Rs.5,000/- per month. On 1.7.2009, the detenu started from Chennai with one Palani in a lorry with Red Sanders to Tuticorin Godown, belonging to Chitty Raja and stayed in the said godown on 2.7.2009. (iv) On the very next day, i.e., on 3.7.2009, he left for Chennai. Thereafter, on 7.7.2009, the detenu was arrested and later on, released on bail. Retracted Statements of the detenu, other co-Accused – T.P. Jothiprakash and the said Palani were made on Without placing the said retracted statements, the Sponsoring Authority submitted a proposal for detaining the detenu under Section 3(1)(ii) of the Act (Central Act 52 of 1974). Based on the above proposal, the Detaining Authority passed the impugned detention order. 3. Theimpugned Detention order is challenged on various grounds. The first ground is that the show cause notice dated and the reply to the show cause notice dated 31.3.2009 were not placed before the Detaining Authority, who passed the Detention Order on 23.9.2009 and the same were also not placed before the Advisory board in its meeting held on 21.9.2011. Not placing the relevant documents before the Detaining Authority while passing the Detention Order as well as before the Advisory Board, which met on 21.9.2011 has vitiated the Detention order as well as the confirmation order, as relevant materials were not placed before the authorities concerned to arrive at a subjective satisfaction. 4. Not placing the relevant documents before the Detaining Authority while passing the Detention Order as well as before the Advisory Board, which met on 21.9.2011 has vitiated the Detention order as well as the confirmation order, as relevant materials were not placed before the authorities concerned to arrive at a subjective satisfaction. 4. In support of his contention, the learned Counsel for the Petitioner has relied on the following Judgments: (i) Kurjibai Dhanjibhai Patel v. State, 1985 (1) Scale 136 SC; (ii) ElizabethRani v. State of Tamil Nadu, 2009 (4) MLJ Crl 945; (iii) G. Krishnamoorthy v. State of Tamil Nadu, 2012 (1) CWC 116; H.C.P. No.2350 of 20101, dated 1.8.2011. 5. The second ground raised in this Habeas Corpus Petition is that the Retraction letter of the codetenu, i.e., T.P. Jothiprakash, made prior to the order of detention, was not placed. On that ground, the detention order passed as against the said T.P. Jothiprakash on a similar ground was already set aside by this Court in H.C.P. No.1853 of 2009, dated 22.7.2010. The grounds, for which the said Habeas Corpus Petition was allowed, are equally applicable to the detenu herein also, and therefore, the impugned detention order is liable to be set aside. 6. The third ground raised in this Habeas Corpus Petition is that the representation dated 18.8.2011 sent to the Secretary to the Government, Ministry of Finance, Government of India, the Second Respondent herein, was disposed of in a callous manner only on after an inordinate and unexplained delay. 7. The fourth ground raised in this Habeas Corpus Petition is that the arrest of the detenue, pursuant to the detention order, was not communicated to the family members of the detenue. 8. The learned Additional Public Prosecutor appearing for Respondents 1 & 3, on the other hand, submitted that the delay is properly explained in the Counter Affidavit and the show cause notice dated 4.11.2008 and reply to the show cause notice dated as well as retraction letter of the codetenu dated are not material for passing the detention order and the relatives of the detenue were given intimation regarding the arrest of the detenu on 8.7.2009. Heard the learned Senior Standing Counsel appearing for the Second Respondent. 9. Heard the learned Senior Standing Counsel appearing for the Second Respondent. 9. We have considered the above rival submissions made by the learned Counsel appearing for the Petitioner, learned Additional Public Prosecutor appearing for Respondents 1 & 3, learned Senior Standing Counsel appearing for the Second Respondent and also perused the records carefully. 10. Admittedly, Show Cause Notice was issued to the detenu on and Reply to the Show Cause Notice was submitted by the detenu on 31.3.2009. Even though the Detention Order was passed on 23.9.2009, the said Show Cause Notice and Reply to the Show Cause were not placed by the Sponsoring Authority before the Detaining Authority as well as before the Advisory Board, which met on 21.9.2011. Thus, the Detaining Authority and the Advisory Board were not appraised of full facts of arriving at subjective satisfaction. A similar issue came up for consideration before the Hon’ble Supreme Court in the decision in Kurjibai Dhanjibhai Patel v. State, 1985 (1) Scale 136 SC. In Paragraph No.6, the Hon’ble Supreme Court held thus: “6. It cannot be disputed that the Show Cause Notice and the detenu’s Reply thereto, particularly the latter, though these documents formed part of Adjudication proceedings constituted the most relevant material which was essential to be placed before the Detaining Authority before the issuance of the impugned order and admittedly this has not been done. All that has been stated on behalf of the Respondent in the Counter Affidavit of Shri Agnihotri, Under-Secretary to the Government of India, Ministry of Finance dated 11th April, 1985 is that this reply dated 5th March 1984 was considered by the Detaining Authority along with the detenu’s representation made by him against the detention order. It has further been averred that the said representation of the detenu along with the reply was considered by the Advisory Board and after considering all the facts, the Advisory Board had opined that there was sufficient cause for detention. But, in our view, such post facto consideration of the detenu’s reply dated 5th March 1984 after the impugned detention order had been served upon the detenu cannot fill up the lacuna of non-consideration thereof by the Detaining Authority before the issuance of the detention order. But, in our view, such post facto consideration of the detenu’s reply dated 5th March 1984 after the impugned detention order had been served upon the detenu cannot fill up the lacuna of non-consideration thereof by the Detaining Authority before the issuance of the detention order. The relevant material, namely the detenu’s reply dated 5th March 1984 certainly had a bearing and would have influenced the subjective satisfaction of the Detaining Authority one way or the other before issuing the detention order and such relevant material was not placed by the Sponsoring Authority before the Detaining Authority at the appropriate time and this, in our view, would go to vitiate the subjective satisfaction of the Detaining Authority.” 11. In the decision in Ellizabeth Rani v. State of Tamil Nadu, 2009 (4) MLJ (Crl.) 945, this Court, relying on the Judgment in the decision in Rajeswari v. Joint Secretary to Government, 2000 (3) CTC 97 , also considered the issue and the order of detention, on a similar ground, was set aside. 12. Regarding Retraction Letter of the co-detenu was not placed before the Detaining Authority, this Court has already set aside the detention order passed against the co-detenu – T.P. Jothiprakash @ R. Prabhu in the decision in T. P. Jothiprakash @ R. Prabu v. State of Tamil Nadu and others, 2010 (2) MWN (Cr.) 476 (DB). 13. Similar issue came up for consideration before the Hon’ble Supreme Court in the decision in P. Saravanan v. State of Tamil Nadu and others, 2001 (107) Cr.L.J. 3285, wherein the Hon’ble Supreme Court set aside the ordered detention. The operative portion of the Judgment of the Hon’ble Supreme Court reads as follows: “7. When we went through the grounds of detention enumerated by the Detaining Authority we noticed that there is no escape from the conclusion that the subjective satisfaction arrived at by the Detaining Authority was the cumulative result of all the grounds mentioned therein. It is difficult for us to say that the Detaining Authority would have come to the subjective satisfaction solely on the strength of the confession attributed to the Petitioner dated 7.11.1999, particularly because it was retracted by him. It is possible to presume that the confession made by the co-accused Sowkath Ali would also have contributed to the final opinion that the confession made by the Petitioner on 7.11.1999 can safely be relied on. It is possible to presume that the confession made by the co-accused Sowkath Ali would also have contributed to the final opinion that the confession made by the Petitioner on 7.11.1999 can safely be relied on. What would have been the position if the Detaining Authority was apprised of the fact that Sowkath Ali had retracted his confession is not for us to make a retrospective judgment at this distance of time. 8. The second contention that non-placement of the retraction made by Sowkath Ali would not have affected the conclusion as ‘the petitioner’s confession stood unsullied, cannot be accepted by us. The Detaining Authority had relied on different materials which led him to his subjective satisfaction. What is enumerated in Section 5-A of the COFEPOSA Act cannot, therefore, be applied on the fact situation in this case. 9. In this context, it is to be mentioned that the detention order passed against Sowkath Ali was quashed by this Court when he challenged that detention order under Article 32 of the Constitution vide A. Sowkath Ali v. Union of India. 10. We are therefore unable to sustain the detention order passed against this Petitioner and accordingly we quash the same. We order the Petitioner to be set at liberty if his further detention is attributable only to the “detention order challenged in the Writ Petition.” Thus, the said ground raised by the learned Counsel for the Petitioner, is also held in favour of the detenu. 14. Insofar as delay in considering the representation dated is concerned, the representation of the detenu was received by the Superintendent of Central Prison, Palayamkottai, Tirunelveli District, on 23.8.2011. The Prison Authority forwarded the said representation on 30.8.2011, which was received by the Central Government on 6.9.2011. The Central Government, in turn, called for remarks from the Sponsoring Authority on 6.9.2011 and the Sponsoring Authority forwarded the remarks, which were received by the Central Government on 26.9.2011. Further information was sought for on 27.9.2011 and the same was received on 11.10.2011 and ultimately, on 20.10.2011, the Central Government rejected the representation of the detenu, which was communicated to the detenue on 27.10.2011. 15. Admittedly, between 23.8.2011 and 30.8.2011, there is a delay of seven days in forwarding the representation of the detenu by the Prison Authority to the Central Government. 15. Admittedly, between 23.8.2011 and 30.8.2011, there is a delay of seven days in forwarding the representation of the detenu by the Prison Authority to the Central Government. Further, the Central Government sought for remarks from the Sponsoring Authority and the same were received on 26.9.2011. In the Counter Affidavit filed by the First Respondent, four days, i.e., on 9.9.2011 – Onum, on Sunday, on 17.9.2011 Saturday and on 18.9.2011 – Sunday have been mentioned as “holidays” and there is no explanation for the remaining days. 16. The said issue was also considered by the Hon’ble Supreme Court in the decision in Rajammal v. State of Tamil Nadu, 1999 AIR SCW 139, and held that 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 Paragraph Nos.8 to 10, it is held thus: “8. It is a Constitutional obligation of the Government to consider the representation forwarded by the detenue 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 & B.I. 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) of Article 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. 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 a 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 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 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. 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.” 17. This Court in H.C.P. No.108 of 2011, dated 9.11.2011 (K.M., J & G.M.A., J.), considered the issue regarding delay. 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.” 17. This Court in H.C.P. No.108 of 2011, dated 9.11.2011 (K.M., J & G.M.A., J.), considered the issue regarding delay. In the said order, the order dated 27.11.2010 made in H.C.P. No.1385 of 2000 was relied on, wherein unexplained delay of four days was considered to be fatal to the further detention of the detenu 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. 18. In Ram Sukrya Mhatre v. R.D. Tyagi, 1992 Supp (3) SCC 65,the Hon’ble Supreme Court 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.” 19. In Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others, 1989 SCC (Crl.) 554, the Hon’ble Supreme Court has held as follows: “The supine indifference, slackness and callouts 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. 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 from 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 invalidate the order of detention as having infringed in mandate of Article 22(5).” 20. In the decision in Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 , and in the decision in Raghavendra Singh v. Superintendent, District Jail, 1986 (1) SCC 650 , the Hon’ble Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. 21. In the decision in Rashid Sk. V. State of West Bengal, 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.” 22. We have also considered similar issue in H.C.P. (MD) No.635 of 2011 and by order dated 5.1.2012, set aside similar order of detention on the ground of unexplained delay. 23. The last submission made by the learned Counsel for the Petitioner is that relatives of the detenu were not informed about the arrest of the detenu while executing the Detention order, which was made only on 3.8.2011. In the Counter Affidavit filled by the First Respondent, it has been stated that the arrest of the detenu and his remand by the learned Judicial Magistrate were intimated to the father of the detenu on 8.7.2009. In the Counter Affidavit filled by the First Respondent, it has been stated that the arrest of the detenu and his remand by the learned Judicial Magistrate were intimated to the father of the detenu on 8.7.2009. The said date is obviously not after the detention order. The Petitioner was detained only on 3.8.2011. The intimation dated 8.7.2009 is only in respect of the arrest of the detenu in the ground case, who was also subsequently released on bail. The detenu having been detained under the Act only on 3.8.2011, close relatives of the detenu are bound to be informed, which is a fundamental right guaranteed under Article 22 of the Constitution of India. Thus, the said ground is also held in favour of the detenu. 24. The said question was considered by this Court in the decision reported in Anitha v. State of Tamil Nadu, 2008 (1) MLJ (Crl.) 229, and in paragraph 9 it is held thus,— “9. The object and purpose of informing the members of the detenu’s household in writing of the passing of the order of detention and taking in custody of the detenu as also the place of detention immediately after the detenu is taken in custody pursuant to the order, is that the family members of the detenu should not be kept in darkness by withholding the information about the passing of the order of detention and the place of detention thereby preventing them from having any access and from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of meeting his relations and getting any help or assistance, vide Union of India v. Vasanbhrathi, AIR 1990 SC 1216 : 1990 (2) SCC 275 .” 25. The Hon’ble Supreme Court in the decision in Sahdeo v. State of U.P., 2010 (3) SCC 705 , following the Judgment in the decision in D.K. Basu v. State of West Bengal, 1997 (1) SCC 416 : 1997 SCC (Crl) 92, and also various Judgments, considered similar issue and in paragraph No.35 held thus: “35. The Hon’ble Supreme Court in the decision in Sahdeo v. State of U.P., 2010 (3) SCC 705 , following the Judgment in the decision in D.K. Basu v. State of West Bengal, 1997 (1) SCC 416 : 1997 SCC (Crl) 92, and also various Judgments, considered similar issue and in paragraph No.35 held thus: “35. In D.K. Basu this Court has issued a many as eleven directions to the Police Authorities inter alia, furnishing the information of the person arrested to his relatives; the person should be arrested only by the Police officials with clear identification marks; a memo of arrest is to be prepared at the time of arrest, which should be attested at least by some person from the locality; the time, place of arrest and venue of custody must be disclosed, etc. etc. This Court further observed that non-observance of any of the directions issued therein would make the Police personnel liable for departmental action and render them liable to be punished for contempt of Court and proceedings for contempt of Court would be initiated in the High Court having Territorial jurisdiction over the matter. 26. Considering all the above facts, as well as the decisions of the Hon’ble Supreme Court and of this Court, cited supra, we are of the view that the detention order cannot be sustained and the same is liable to be set aside. 27. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order passed by the First Respondent, by his proceedings in G.O.SR.1 of 461-11 of 2009, Public (SC) Dept. dated is quashed. The detenu by name, S. Sebastian is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.