JUDGMENT

S. M. FAZAL ALI, J.:—This Writ Petition has been filed with a prayer that an order of detention passed against the petitioner on the 7th September, 1979, under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 be quashed. After the order was served on the detenu he made a representation on the 27th September, 1979 to the Government who received it on the 28th September, 1979. In support of the Rule Mr. A. K. Sen has raised a number of points, but in view of one of them which is to the effect that there has been an inordinate and unexplained delay on the part of the detaining authority in deciding the representation and that the detention is therefore vitiated, we need not go into the other points. On the question of delay the petitioner had expressly taken a plea in para 11 of the petition but in their reply the respondents have not at all explained or detailed any reason why there was inordinate delay in disposing of the representation submitted by the detenu to the detaining authority. The admitted position is that the representation was received by the Government on the 28th September, 1979 and it was rejected on 3rd November, 1979, that is to say, after about one month and five days of the receipt. It is now well settled that any unexplained delay in deciding the representation filed by the detenu amounts to a clear violation of Article 22 (5) of the Constitution of India and is sufficient to vitiate the detention. Our attention was drawn by the counsel for the petitioner to a recent decision of this Court reported in (1979) 2 SCR 315 (Narendra Purshotam Umrao v. B. B. Gujral) where the Court while relying on an earlier decision of this Court in Pankaj Kumar Chakrabarty v. State of West Bengal, (1970) 1 SCR 543 pointed out that under Clauses (4) and (5) of Art. 22 of the Constitution the detenu has a dual right, viz.

1. to have the representation, irrespective of the length of detention, considered by the appropriate Government, and

2. to have the representation considered by the Board only constituted under the concerned Act.

We might further mention that the constitutional right to file a representation to the Government carries with it impliedly a right that the representation must be disposed of as quickly as possible and any unexplained delay would amount to a violation of the constitutional guarantee contained in Art. 22 (5). This Court has also pointed out that the obligation of the appropriate detaining authority to take a decision on the representation filed by the detenu is quite apart and distinct from its obligation to constitute a Board and to send the representation to it. The detaining authority is not entitled to wait for the opinion of the Board but has to take its decision without the least possible delay. In Writ Petn. No. 246 of 1969 decided on 10-9-1969# this Court observed as follows :

# Reported in (1969) 2 SCWR 529

"It is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. There was, therefore, no reason for the Government to wait for considering the petitioners representation until it had received the report of the Advisory Board. As laid down in Sk. Abdul Karim v. State of West Bengal (supra), the obligation of the appropriate Government under Art. 22 (5) is to consider the representation made by the detenu as expeditiously as possible. The consideration by the Government of such representation has to be, as aforesaid, independent of any option which may be expressed by the Advisory Board.

The fact that Art.22 (5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representation must, when made, be considered and