JUDGMENT - A.C. AGRAWAL, J.:---The petitioner who is the son of the detenue seeks to impugn an order of detention passed by Shri Mahendra Prasad, Joint Secretary to the Government of India in his capacity as an officer specially empowered under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'Act'), bearing No. F. No. 673/91/94-CUS.VIII dated 1st June, 1994. The said order was served on the detenue on 28th of June, 1994 and the grounds of detention were served on the detenue pari passu with the order of detention. The order of detention and the consequent detention of the detenue is impugned in the present petition.

2. Shri Karmali, learned Counsel appearing in support of the petition has agitated only one ground viz., the ground which he has taken up by way of additional ground of challenge being ground No. 12, which has been permitted to be taken by virtue of petition being permitted to be amended. It has been submitted in the said ground as under :

(xii) The petitioner says and submits that on or about 18-7-1994 the detenue had submitted a representation against the impugned order of detention which was addressed to the Advisory Board. The petitioner says and submits that by a reply dated 23rd September, 1994 the detenue was informed that his representation was considered and rejected by the Central Government. Hereto annexed and marked Annexure 'L' is a copy of the said reply. The petitioner says and submits that it was incumbent upon the detaining authority to have independently considered and decided the said representation and if it was so considered and decided, it was further incumbent upon the detaining authority to have communicated to the detenue the decision if any, arrived at by the detaining authority. The petitioner says and submits that if the detaining authority had failed to have considered and decided independently the said representation, and even if the detaining authority had independently considered and decided the representation, the detaining authority having failed to have communicated to the detenue his decision arrived at thereof, the detention of the detenue stands vitiated".

3. In substance, it is the contention of Mr. Karmali that the representation of the detenue has not been considered by the detaining authority and this has resulted in the infraction of his right guaranteed under Article 22(5) of the Constitution of India.

4. Shri Agrawal, the learned Counsel appearing on behalf of the respondents has placed for re-perusal the concerned file in respect of the representation made by the detenue, to the Advisory Board. It appears that after the Advisory Board rejected the representation and opined that there is sufficient cause for detaining the detenue, the file was passed on to the detaining authority and thereafter to the Finance Minister. As far as the detaining authority is concerned it has made the following remarks "

"The representation should be rejected. The Advisory Board has found sufficient cause for the detention of Shri Rajkumar Seth. The detention order may be confirmed".

5. A question that arises for consideration is whether the detaining authority is enjoined with an obligation to consider a representation addressed by a detenu and whether non-consideration of the same results in denial of the constitutional safe-guards of Article 22(5) of the Constitution of India. A further question that arises for re-consideration is whether the noting made by the detaining authority 'representation should be rejected' can satisfy the requirement of consideration of the representation by the detaining authority so as to fulfil the requirement of Article 22(5) of the Constitution of India.

6. In case of (Smt. Gracy v. State of Kerala)1, A.I.R. 1991 S.C. 1090, the Supreme Court has observed :

"The nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preven