Malih Sharief-Ud-Din, J.

1. In this petition the order of detention of Murali Lilaramani passed on 5th of March 1988 is being challenged. The detention order was passed by Joint Secretary to Government of India under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) (as amended) with a view to preventing the detenu from acting in any manner prejudicial to the augmentation of foreign exchange. The detention order is based on an incident dated 8th January, 1988 when the detenu was caught in Hotel Regal, Fatehpuri, Delhi and a sum of Rs. 1,51,000. 00 and 8 gold guineas and some documents were recovered from him. On investigation it was found that the detenu has been receiving and making compensatory payments on instructions from abroad (commonly known as Hawala transactions). This illegal business was being done by the detenu from Hotel Regal, Fatehpuri.

2. Mr. R. M. Bagai, learned counsel for the petitioner, has submitted that the detention order stands vitiated on a short ground that there has been a long and unexplained delay in consideration of his representation as a result of which there has been violation of his rights under Article 22 (5) of the Constitution. This ground he had specifically taken in ground c of his writ petition.

3. In the counter affidavit it is stated by the respondents that the representation of the petitioner dated 4th April, 1988 was received in the COFEPOSA unit on 19th of April 1988. It is also stated that as some of the points raised in the representation required comments from the Directorate of Enforcement the representation was sent to the Directorate of Enforcement on 22nd April, 1988 and the comments with a covering letter of 13th May 1988 were received from the Directorate of Enforcement on 16th May, 1988. Further explanation is that 14th and 15th of May . were public holidays and since 18th of May was also a holiday, a note incorporating the points raised by the petitioner along with the comments of the Directorate of Enforcement were put up before the detaining authority on 19th May, 1988 when it was considered and rejected. In the rejoinder: affidavit the case of the detenu further is that this order of rejection of his representation was actually communicated to him on 26th May 1988. Mr. Bagai submits that the detaining authority is duty bound to explain each days delay and unless there is a reasonable and sufficient explanation the detention will stand vitiated.

4. There is no dispute on the point of law that a detenu has a right to make arepresentation and he has a right to get it considered at the earliest possible occasion. No allowance can be given to the detaining authority for any sort of lethargy or indifference shown towards the representation of the detenu. This is so mandated by law because the personal liberty of a citizen is in peril.

5. I am told by Mr. Sat Pal, learned counsel for the Union of India, that the representation was received by registered post and the record shows that it was despatched from Jaipur Jail where the detenu was lodged on 11th of April 1988. Common case of the parties is that the representation is dated 4th of April 1988. It is not understandable nor explained as to why the jail authorities at Jaipur took about 6 days to despatch the representation. Not only that there has been about 20 days delay in the submission of comments by the Directorate of Enforcement to the detaining authority, even though both the offices of the detaining authority and the Directorate of Enforcement are situated at Delhi. The respondent has not taken the court into confidence as to what happened during these 20 days. It is clearly a case where the delay is not properly explained. But I am not allowing this petition only on that ground atone as the petition will also have to be allowed on the ground that from the date it was received by the detaining authority, the detaining authority has not applied its mind to this two and a half page representation. I have held in a number of cases that in some cases it may be necessary for the detaining authority to call for the records or for further comments from the concerned authorities before passing final orders on the representation. This course if followed by the detaining authority by itself may not be objectionable but what is staring in the face is the fact that the representation of the detenu cannot be dealt with by any other authority excepting the person to whom it is addressed and when a representation is addressed to the detaining authority it must be shown as a matter of fact that it was placed before the detaining authority and comments, if any, were sought and sent for at the asking of the detaining authority. With that point in my mind I asked Mr. Sat Pal to show me from the record if the representation was put up before the detaining authority and if he has sought comments of the Directorate of Enforcement. . I am told by Mr. Sat Pal that the representation was put up before the detaining authority on 19th April but he marked it to Under Secretary without seeking any comments from any quarter. This clearly shows that the representation of the detenu has not been dealt with as the law required of the detaining authority and there has been also if not much at least an unexplained delay of 20 days between the calling for the comments and the submission of comments by the Directorate of Enforcement. In that view of the matter there is a violation of the rights of the detenu under Article 22 (5) of the Constitution which vitiates his detention. The petition is allowed and the continued. detention of the detenu is quashed. It is directed that the detenu shall be. released forthwith unless required in some other case.