Non-consideration of representation by Central Government violates the right under Article 22(5) of the Constitution and Section 12 of the PITNDPS Act. Delayed service of order of declaration deprives the detenu of the opportunity to represent against the continued detention before the Advisory Board.

SANKARASUBBAN, J.

This Original Petition filed under Article 226 of the Constitution is by the mother of the detenu, V. K. Padmakumar, to quash the detention order No. 31743/SSA 1/95/Home D/11-7-1995 passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the PITNDPS Act) and the order of confirmation dated 11-9-1995 passed under Section 9(f) of the PITNDPS Act read with Section 11 of the Act.

2. Detenu was arrested under section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 2-11-1995 on the accusation that detenu was traffiking in brown sugar. He was produced before the Sessions Court. Thiruvanathapur and was remanded to the judicial custody. Application for bail was rejected by the Sessions Judge by order dated 16-5-1995. Thereafter, on 11-7-1995 first respondent/State of Kerala passed an order under section 3(1) of the PITNDPS Act. True copy of the said order is produced along with the Original Petition as Ext. P1. It is stated in Ext. P1 order that with a view to prevent the detenu from engaging in illicit traffic in narcotic drugs it is necessary to make an order directing that the said person shall be detained. Ext. P1 order was served on the detenu on 12-7-1995 and hence his detention under the PITNDPS Act commenced from 12-7-1995. Subsequently the grounds of detention were furnished to the detenu along with copies of certain documents which allegedly formed the basis of the said order. Detenu filed Ext. P3 representation before the first respondent. Representation is dated 11-7-1995. The grounds furnished on the detenu are produced along with the Original Petition as Ext. P2. In Ext. P2, it has been stated, if the detenu wishes to make representation against his detention to the detaining authority and/or the Central Government, he may do so and forward the representation through the Superintendent, Central Prison, Thiruvananthapuram.

3. As already stated, detenu submitted Ext. P3 representation before the State Government. Ext. P4 is the order dated 18-8-1995 passed by the Commissioner & Secretary (Home), Government of Kerala, wherein it is stated that the representation has been forwarded to the PITNDPS Advisory Board. Thereafter, Ext. P5 order was passed on 21-8-1995. In Ext. P5, it is stated that Government finds no reason to agree to the request for vacating the detention order. Ext. P6 is the order of confirmation passed under section 9(f) of the PITNDPS Act read with Section 11 of the Act. In Ext. P6, it is stated that the case of the detenu was referred to the Advisory Board on 11-8-1995 and Ext. P3 representation was also forwarded to the Advisory Board and that the Advisory Board in its report has opined that there are sufficient grounds for the detention and for the continued detention of the detenu, under Section 3(1) of the PITNDPS Act. Thus, under Ext. P6, Government ordered detention of the detenu for a period of two years from 12-7-1995. Ext. P6 order was served on the detenu on 12-9-1995. Along with Ext. P6, a communication from the second respondent/Union of India styled as a declaration purportedly issued under section 10(1) of the PITNDPS Act was also served on the detenu on the said day. The order of declaration passed by the Central Government is produced along with the Original Petition as Ext. P7. Ext. P7 states that detenu has a right to represent to the Central Government as well as to the State Advisory Board against the declaration. Original Petition has been filed to quash Exts. P1 and P6 and to set the detenu free.

4. Counter affidavits have been filed on behalf of 1st and 2nd respondents. First respondent in the counter affidavit submits that there are no grounds to set aside the detention order. According to the first respondent, the representation submitted by the detenu was considered by the first respondent as well as by the Advisory Board. All the documents were furnis