JUDGMENT : C.T. RAVIKUMAR, J. 1. This Habeas Corpus Writ Petition in re one Muhammed Shafi U.V. is filed by his brother Muhammed Sahi U.V. The said Muhammed Shafi was detained preventively in execution of Ext.P1 order dated 12.02.2019 passed invoking the power under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity ‘COFEPOSA Act’). The said order was executed on 21.02.2019 and the order was served on him on 22.02.2019. According to the petitioner, the detenu requested, as per Ext.P6, for additional materials to enable him to file an effective representation availing the right under Article 22(5) of the Constitution of India and they were not supplied. On 20.03.2019, the day on which the detenu sought for additional materials vide Ext.P6, his case was referred to the COFEPOSA Advisory Board, the 4th respondent. The 2nd respondent-Union of India sent Ext.P6 as well to the 4th respondent. The Advisory Board considered the case of the detenu and forwarded its opinion to the Central Government. It is to be noted that the petitioner got a case that the meeting of the Board was not proper and there was no sufficiently advanced intimation of the meeting to the detenu inasmuch as he was intimated of the scheduling of hearing on 05.04.2019 by the Advisory Board only after the visiting hours on 03.04.2019 viz. at about 6 p.m. It is also the case of the petitioner that in such circumstances, on behalf of the detenu, his counsel sought for an adjournment as per Ext.P13. It is further stated that the specific prayer was to adjourn the case in case the detenu would not be ordered to be released. However, hearing was conducted on 05.04.2019 itself, as scheduled. On 08.04.2019, the detenu received Ext.P14 communication dated 03.04.2019. It is the further case of the petitioner that what was received by the detenu was nothing but the forwarding letter sans the para-wise comments on Ext.P6 representation. In short, the contention of the petitioner is that Ext.P6 was only a request for furnishing materials to file an effective representation and the authority mistook it as a representation submitted availing the right under Article 22(5) of the Constitution of India. Subsequent to the receipt of the opinion of the State Advisory Board, the 2nd respondent passed Ext.P15 order of confirmation in terms of Section 8(f) of the COFEPOSA Act. Subsequent to the receipt of the opinion of the State Advisory Board, the 2nd respondent passed Ext.P15 order of confirmation in terms of Section 8(f) of the COFEPOSA Act. The period of his detention of one year from 21.02.2019 was confirmed thereunder. After passing the order of confirmation vide Ext.P16 dated 15.05.2019, the factum of rejection of Ext.P6, which was treated by the authorities as the representation, was communicated. It is in the aforesaid circumstances that raising various contentions against Ext.P1 order of detention, Ext.P15 order of confirmation and Ext.P16 order this writ petition has been filed. 2. Heard the learned counsel for the petitioner, the learned ASGI appearing for respondents 1 and 2, learned Standing Counsel appearing for the 3rd respondent and learned Public Prosecutor appearing for the 5th respondent. 3. Though several contentions were raised by the petitioner, it is submitted by the learned counsel that if one of his contentions, viz. the challenge against Exts.P15 and P16 on the grounds specifically raised in the writ petition, is considered and accepted, based on the binding judicial precedent, the other contentions would pale into insignificance for the purpose of deciding whether the detenu could be released or not. 4. Exts.P15 and 16 are assailed, inter-alia, contending that the detenu was deprived of opportunity to make an effective representation availing the right under Article 22(5) of the Constitution of India. It is further contended that a mere glance at Ext.P6 would reveal that at no stretch of imagination, it could have been treated as a representation submitted under Article 22(5) seeking the release of the detenu. It is also submitted by the learned counsel for the petitioner that the contents would undoubtedly go to show that it is only a request for supplying materials to enable the detenu to submit an effective representation. However, Ext.P6 was treated as a representation for release and it was forwarded by the 5th respondent. Admittedly, Ext.P6 was received by the 1st respondent. In such circumstances, Ext.P6 was also forwarded to the Advisory Board. In view of the manner in which we are proposing to consider the contentions, we do not propose to consider the contentions raised against the conduct of proceedings before the Advisory Board. Admittedly, Ext.P6 was received by the 1st respondent. In such circumstances, Ext.P6 was also forwarded to the Advisory Board. In view of the manner in which we are proposing to consider the contentions, we do not propose to consider the contentions raised against the conduct of proceedings before the Advisory Board. Admittedly, after considering the case of the detenu, based on the materials, the Advisory Board gave an opinion that there are sufficient reasons for detaining the detenu and later on, accepting the opinion, Ext.P1 order of detention was confirmed as per Ext.P15. 5. The learned counsel appearing for the petitioner contended that Ext.P1 order of confirmation would reveal total non-application of mind. It is submitted that when Ext.P6 was treated as a representation, despite the opinion of the Advisory Board, it ought to have been considered at the time of considering the question of confirmation of Ext.P1. The precise contention is that a scanning of Ext.P15 would not reveal consideration of Ext.P6 at the time of consideration of the question of confirmation. We will deal with the said issue a little later, if it becomes necessary. Admittedly, after passing the order of confirmation, the detenu was intimated about the rejection of Ext.P6 as per Ext.P16 order. In Ext.P16 order, it is stated thus:- “Shri Muhammed Shafi U.V. COFEPOSA detenu is hereby informed that the aforesaid representation has been carefully examined and considered by the Joint Secretary (COFEPOSA), the Detaining Authority, but it is regretted that the same has been rejected.” (Underline supplied) Thus, it is evident what was done under Ext.P16 is that rejection of his representation was regretfully intimated to the detenu and naturally, the manner of consideration of Ext.P6 was not reflected in Ext.P16. 6. It is narrating the aforesaid facts and circumstances that the petitioner assails Exts.P15 and P16, inter-alia, contending that they are orders passed without any application of mind. 7. The learned ASGI appearing for respondents 1 and 2 and the learned counsel for the 3rd respondent resisted such contentions. Evidently, they vehemently opposed the contentions of the petitioner. According to the learned counsel appearing for the said respondents, Ext.P6 is nothing but a representation filed by the detenu availing the right under Article 22(5) of the Constitution of India against the order of detention. Evidently, they vehemently opposed the contentions of the petitioner. According to the learned counsel appearing for the said respondents, Ext.P6 is nothing but a representation filed by the detenu availing the right under Article 22(5) of the Constitution of India against the order of detention. We think that the question whether it is, in fact, a representation or a request for furnishing documents as contended by the petitioner, need be considered only if it becomes necessary. 8. The question firstly to be considered is whether, on treating Ext.P6 as a representation under Article 22(5) of the Constitution against the order of detention, it was considered in accordance with law? The learned counsel for the petitioner would submit, without conceding his original contention, that even if it is taken as a representation availing the statutory right, the fact is that there occurred non-compliance with the requirements under Article 22(5) and at the same time, the respondents would refute it with vehemence. In view of Article 22(5) of the Constitution of India, an unassailable right is conferred on the detenu to challenge the order of his detention and in that regard to make an effective representation. The purpose of providing for an effective representation is necessarily to make the authority concerned to consider it in accordance with law and by application of mind. In short, the initial question is whether Ext.P6, even if it is taken as a representation filed under Article 22(5) of the Constitution of India, was considered in accordance with law while passing Exts.P15 and P16 or during the period in between as per any other separate order. We do not have to make too much labour to find out its answer as it is virtually contained in Exts.P15 and P16 themselves. In the contextual situation, it is only apposite to extract Exts.P15 and P16 in their entity. Ext.P15 reads thus:- “WHEREAS an order F. No. PD-12001/04/2019-COFEPOSA dated 12.02.2019 was passed by the Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 for the detention of Shri Muhammed Shafi U.V. S/o. Shri Hussainkuty Haji, R/o Unnaracham Veettil, Kareettiparamba East, Post Manipuram, Kozhikode-673572 and the same was executed on 21.02.2019. WHEREAS the case of Shri Muhammed Shafi U.V. was placed before the State Advisory Board, High Court of Kerala who is of the opinion that there are sufficient reasons for the continued detention of Shri Muhammed Shafi U.V. WHEREAS, the Central Government has considered the report of the State Advisory Board and other materials on record. NOW, THEREFORE, in exercise of the powers conferred by Section 8(f) of the aforesaid Act, the Central Government hereby confirms the aforesaid detention order and further directs under Section 10 ibid that Shri Muhammed Shafi U.V. be detained for a period of one year from the date of his detention i.e. from 21.02.2019.” Ext.P16 reads thus:- “With reference to his representation dated 20.03.2019 addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B Wing, Janpath Bhavan, Janpath, New Delhi, Shri Muhammed Shafi U.V. COFEPOSA detenu is hereby informed that the aforesaid representation has been carefully examined and considered by the Joint Secretary (COFEPOSA), the Detaining Authority, but it is regretted that the same has been rejected.” (Underline supplied) 9. Article 22(5) does not say as to whom the representation is to be made or, what is to be done with it. The Hon'ble Apex Court, in order to make it meaningful and convert it into a safeguard to the detenu, interpreted it to mean that the Government must consider the detenu's representation. In Abdul Karim vs. State of West Bengal, AIR 1969 SC 1028 , the Apex Court held that though Article 22(5) did not expressly provide that Government should consider the representation, it is implicit in Article 22(5) that Government should do so, if the right conferred by the Article on the detenu was not to be illusory. 10. In Mohinuddin vs. District Magistrate, Beed, AIR 1987 SC 1977 , the Hon'ble Apex Court had reasoned that the detenu's right to make representation would be illusory if the Government were not obligated to consider it. Consideration of detenu's representation by the Government is a safeguard available in addition to the consideration of his case by the Advisory Board. 10. In Mohinuddin vs. District Magistrate, Beed, AIR 1987 SC 1977 , the Hon'ble Apex Court had reasoned that the detenu's right to make representation would be illusory if the Government were not obligated to consider it. Consideration of detenu's representation by the Government is a safeguard available in addition to the consideration of his case by the Advisory Board. Further it was held:- “It goes without saying that the constitutional right to make a representation guaranteed by Article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality.” This was virtually re-asserted in the decision in R. Kesava vs. M.B. Prakash, AIR 2001 SC 301 . 11. In Abdulla v. Union of India reported in AIR 1991 SC 574 , the Apex Court held that if a representation is sent to the Chairman, Advisory Board through the Superintendent of jail, the Central Government must consider it. Furthermore, it was held that even when the representation was received after the passing of order of confirmation by the Government, the Government must consider it. 12. In R.D. Borade vs. V.K. Saraf, (1989) 3 SCC 173 , the Apex Court held thus:- “The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release to consider the said representation within the reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty - the highly cherished right - which is enshrined in Article 21 of the Constitution. True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the words “as soon as may be” occurring in Article 22(5) of the Constitution reflect that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory. Such delay could vitiate the order of detention.” (Underline supplied) 13. In the contextual situation, it is appropriate to refer to the decision of the Hon'ble Apex Court in K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India, AIR 1991 SC 574 . It was held therein that so long as the representation was independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention order makes little difference on the validity of detention or the confirmation of detention. In the light of the said decision, the contention of the petitioner that Ext.P6 was not considered at the time of consideration of the question of confirmation of Ext.P1 order cannot invalidate the said order of detention. 14. In the case on hand, there is no case for respondents 1 and 2 that besides Ext.P16 in relation to consideration of Ext.P6 representation, another order was passed after considering it, with application of mind, though a perusal of Ext.P16 would clearly give such an impression. This is because in Ext.P16 it is stated:- “Detenu is hereby informed that the aforesaid representation has been carefully examined and considered by the Joint Secretary (COFEPOSA), the Detaining Authority, but it is regretted that the same has been rejected.” In the said situation, we have carefully scanned the contentions of respondents 1 and 2 in their counter affidavit.” 15. Despite our careful scrutiny, we could not find any specific reference about any other order whereby, upon consideration of Ext.P6, it was rejected. Despite our careful scrutiny, we could not find any specific reference about any other order whereby, upon consideration of Ext.P6, it was rejected. We have seen that in Ext.P15 there is no reference about consideration of Ext.P6 and it obviously the order of confirmation of the order of detention and in the light of the decision in K.M. Abdulla Kunhi's case, it ipso facto will not invalidate Ext.P15 or Ext.P1. 16. Now, we will consider the challenge against Ext.P16. There is no contention raised before us by the learned counsel for respondents 1 and 2 as also by the learned counsel appearing for the 3rd respondent that upon passing of order of confirmation of the order of detention the constitutional obligation to consider and pass orders on representation submitted by the detenu against the order of detention would cease to exist or in other words, the appropriate Government would not be relieved of its obligation to consider the representation under Article 22(5) of the Constitution upon passing an order confirming the order of detention. Therefore, such a contention is not available to be raised. Though the petitioner claimed that Exts.P9, P10 and P11 were sent respectively to respondents 1, 2 and 4, the specific stand of the respondents is that Ext.P6 is the only representation received from the detenu and it is a representation under Article 22(5) and not a mere petition requesting for documents. Therefore, the questions to be considered are in what manner Ext.P6 representation was considered and whether there occurred non-compliance with the requirements under Article 22(5) of the Constitution of India? 17. As noticed hereinbefore, in Ext.P16, what is stated is that the COFEPOSA detenu is hereby informed that the aforesaid representation (the reference is with respect to Ext.P6 representation dated 20.03.2019 addressed to the Joint Secretary (COFEPOSA) Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B Wing, Janpath Bhavan, Janpath, New Delhi) had been carefully examined and considered by the Joint Secretary and it was rejected. Thus, going by its tenor, it is indisputably only a communication intimating the detenu regarding rejection of his representation. If it is taken so, the question is where is the order rejecting Ext.P6? In fact, respondents 1 and 2 did not produce any separate order whereunder Ext.P6 was dealt with. Thus, going by its tenor, it is indisputably only a communication intimating the detenu regarding rejection of his representation. If it is taken so, the question is where is the order rejecting Ext.P6? In fact, respondents 1 and 2 did not produce any separate order whereunder Ext.P6 was dealt with. Conspicuously, the number and the date and, in fact, no details regarding such an order passed by Joint Secretary rejecting Ext.P6 representation were given in the counter affidavit by respondents 1 and 2. This assumes relevance in the context of ‘Ground B’ raised by the petitioner, which reads thus:- “Ext.P16 order has been issued by the 2nd respondent without proper application of mind to the relevant materials, documents and circumstances. It has been based on irrelevant circumstances. It is therefore vitiated and is null and void ab initio.” 18. The right to make a representation against the order of detention is the most cherished and valuable right conferred upon a detenu under Article 22(5) of the Constitution. Hence, to make it a true and meaningful safeguard, the corresponding obligation to consider the same, pass orders thereon with reasonable promptness and diligence as also transmitting the same to detenu, should be read into it. We are of the view that otherwise it would be illusory. The respondents got no case that an order passed on the representation preferred by the detenu availing the constitutional right under Article 22(5) of the Constitution is not amenable to judicial review. As noticed hereinbefore, it is the case of the respondents that Ext.P6 is a representation under Article 22(5) of the Constitution. So long as an order on the representation is amenable to judicial review, the same is to be communicated promptly to the detenu to let him know whether all the valuable grounds raised were considered or not. At any rate, the respondents cannot be heard to contend that a detenu is not having any right to have a copy of the order passed on his representation. The action on the part of the respondents in not stating the bare details of the order of rejection, non-production of the same and in not making the files available for perusal would suggest that they are of the view that besides getting the communication regarding rejection, the detenu got no other rights as relates the representation made by him. The action on the part of the respondents in not stating the bare details of the order of rejection, non-production of the same and in not making the files available for perusal would suggest that they are of the view that besides getting the communication regarding rejection, the detenu got no other rights as relates the representation made by him. In the contextual situation, it is only apposite to refer to the decision in Harish Pahwa vs. State of U.P. and Others, AIR 1981 SC 1126 , wherein, while dealing with delay in consideration of representations under Article 22(5) of the Constitution of India, the Hon'ble Apex Court held thus:- “We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu.” (Underline supplied) 19. In the circumstances, a decision of the High Court of Delhi in Shakir Ahmed vs. Union of India and Others, 1988 (2) DLT 312(3) is also noteworthy. The relevant portion, rendered relying on Harish Pahwa vs. State of U.P. and Others, AIR 1981 SC 1126 , reads thus:- “....THE Supreme Court in the case of Harish Pahwa vs. State of U.P. 1981 Cri.L.J. 750 has laid emphasis on the fact that no only that the representation of the detenu must be considered and dealt with continuously but that final decision be taken and that the decision be communicated to the detenu. In this case, it seems to me that the Supreme Court has viewed the communication part of this rejection as a necessary facet to the consideration of the representation. Normally, and ordinarily also, if a representation is made or it there is an appeal for the redressal of a grievance and a decision is taken it must be pronounced to the persons who is interested therein. Having found that the representation has been dealt with expeditiously but not communicated to the detenu as required by Harish Pahwa's case, supra. Normally, and ordinarily also, if a representation is made or it there is an appeal for the redressal of a grievance and a decision is taken it must be pronounced to the persons who is interested therein. Having found that the representation has been dealt with expeditiously but not communicated to the detenu as required by Harish Pahwa's case, supra. I find that there has been non-compliance with the requirements of Article 22(5) of the Constitution.” (Underline supplied) In another decision of the High Court of Delhi in Harvimder Singh vs. Union of India and Others, 1990 (1) Crimes 514 , the decision in Shakir Ahmed's case was followed and after quoting the afore-extracted portion, the continued detention was interfered with and the detenu was ordered to be released. 20. In the light of the decisions referred (supra) we have no hesitation to hold that non-communication of the final decision on the representation, rather, rejecting the same to the detenu concerned is unconstitutional. Our view is fortified by a Division Bench decision of this Court in Lekha Nandakumar vs. Joint Secretary to Government of India, 2004 (2) KLT 1094 , wherein it was held:- “But from the order it should appear that the authority has applied its mind while disposing of the representation. The order should be sent to the detenue. Here the order passed by the Secretary was not sent to the detenue, but only the factum of rejection of his representation was intimated by the Under Secretary keeping the detenue in dark regarding the way in which his representation was disposed of. There is nothing on record to show that the concerned authority has applied its mind. Even if the Under Secretary informed him that Secretary has disposed of his representation, this is not the way a constitutional obligation is to be discharged by the Government Secretary. Therefore, there is no proper disposal of the representation. We are of the view that on this ground alone the detention order will not stand as there is procedural violation.” 21. In this case, it is to be noted that even if a separate order was passed, the respondents have not only not produced the same but also not revealed even the date of the said decision, if at all such a decision is there. In this case, it is to be noted that even if a separate order was passed, the respondents have not only not produced the same but also not revealed even the date of the said decision, if at all such a decision is there. When the transmission of the decision to the detenu is necessary and even the delay in communicating the final decision on the representation of the detenu to him is fatal, we have no hesitation to hold that failure to divulge the date of the decision referred to in Ext.P16 or in the counter affidavit filed by respondents 1 and 2 or even by furnishing the files has to be viewed seriously as in the absence of the same delay in communicating the final decision on Ext.P6 representation to the detenu, even after treating it as a representation under Article 22(5) cannot be calculated. Thus, viewing the issue on any angle, it can only be found that there is non-compliance with the requirements of Article 22(5) of the Constitution of India. In R.D. Borade's case (supra), the Apex Court held that if the constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty - the highly cherished right - which is enshrined in Article 21 of the Constitution. 22. In that context, it is relevant to refer to a decision of the Division Bench of this Court in Sulaiman vs. State of Kerala and Others, 2010 (3) KLJ 127 . This Court expressed the agony of interfering with an order of preventive detention on technical grounds solely due to the failure of the authorities in not bestowing proper attention to take into consideration the relevant decisions while dealing with such cases at the time of passing order of detention, at the time of confirmation of such orders and also at the time of consideration of the representation filed by the detenu against the order of detention, availing the right under Article 22(5) of the Constitution of India. We think that it is high time to restate the above expression of concern and agony shown in the said decision. We think that it is high time to restate the above expression of concern and agony shown in the said decision. In view of the non-compliance with the requirements of Article 22(5) of the Constitution and in view of the decisions referred supra, the continued detention of Sri. Muhammed Shafi U.V. is constitutionally impermissible and illegal. 23. When faced with such a situation, the learned counsel appearing for the 3rd respondent submitted, in the light of a decision of the Apex Court in Meena Jayendra Thakur vs. Union of India and Others, AIR 1999 SC 3517 and by giving special reference to paragraph 12 therein, that if an order of confirmation or an order of rejection of representation is interfered with on technical ground, that could not or would not invalidate in toto and it could still be relied on as the basis for applying the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, for short SAFEMA. The learned counsel appearing for the petitioner submitted that the right of the petitioner may be reserved to defend, if any, further order based on Ext.P1 order is passed applying SAFEMA, by raising all available contentions to challenge such order as also the very against order of detention, viz. Ext.P1, if it becomes necessary. We do not think it necessary or proper to make any observation as to the permissibility or legality to initiate any such action in this proceedings in view of the rival submissions. However, we make it clear that in the event of passing of such an order, the petitioner would be having the liberty as sought for. At the same time, in this proceedings we have no option but to declare that the continued detention of the detenu based on Ext.P1 order is illegal and as such he is entitled to be released. 24. In such circumstances, this Writ Petition (Crl.) is allowed and consequently, Exts.P15 and P16 are set aside. The continued detention of the detenu based on Exts.P15 and P16 is illegal. Therefore, he is ordered to be released forthwith, in case his detention is not required in connection with any other case. 25. Registry is directed to send the gist of this judgment forthwith to the Central Prison, Poojappura.