Honble FAROOQ HASAN, J.—This Habeas Corpus Petition has been filed by Smt. ASHA Devi, the petitioner, wherein she has challenged the legality of the detention of her husband, Kishori Sharan Garg, the detenu, in pursuance of the detention order dated January 28, 1992, passed by the Commissioner & Secretary to the Government, Home Department (Gr.9), Jaipur, under Section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (for brevity, COFEPOSA Act). The detention order has been served upon the detenu on May 1, 1992. 2 The detention order seems to have arisen out of the alleged two incidents On May 30, 1989, Maruti Gypsy-RNX 1917 was intercepted near Achrol on Delhi-Jaipur national highway. It was registered in the name of M/s Jamna Lal Lashkatri Sarraf & Co , Ramganj Bazar, Jaipur-of which the detenu is one of the partners, and was being driven by Badri Narain and riden by Sarwanlal Sharma; and both of them upon interrogation allegedly admitted that they were employees of the detenus firm. Upon search of the vehicle Indian currency, notes of different denominations worth Rs. twelve lacs only were found there in a hidey-box manufactured for the purpose. Presuming the currency notes as sale proceeds of smuggled gold and being liable to confiscation under Section 121 of the Customs Act, both, the vehicle so also the currency were seized by the Customs Authorities. The detune apprehending his arrest and upon his application for grant of ore-arrest bail was allowed anticipatory bail by the Sessions Judge, Jaipur, City Jaipur on June 5, 1939. Thereupon the detune himself appeared before the Customs Authorities and got his statement recorded under Sec. 103 of the Customs Act. According to the detenu in his statement (ibid) the currency was not the sale proceeds of smuggled gold but, was the money of Sanjay Gupta alias Sanju Gupta r/o 262, Chhatta Pratap Singh Kinan Bazar Delhi who had sent it to Ridha Govind Lashkari-younger brother of the detenu for purchase of a constructed house in Jaipur through Gopal Dhamani a local broker. Statement of Sanjay Gupta who verified the version of the detenu, was recorded under section 108 of the Customs Act on August II, 1939, Statement of Badri (driver) and Sarwanlal was also recorded to which they retracted immediately upon their release on June 3, 1989 by sending telegrams (Annexures 1 & 2) and stating in the-telegrams that the currency was of Sanju Gupta and did not constitute sale proceeds of any gold. According to the petitioner, both these persons had also written detailed letters under registered cover vide Annexures 3 & 4 on June 4 1989 to Collector Customs reiterating their version given out in the telegrams as to the belonging of the currency, and denying every allegation entailing alleged smuggling of gold. The petitioner asserts, Sanjay Gupta in his statement before the Customs Authorities explained the source of earning Rs 12 lacs and according to him, in gambling he used to place high bets on cricket matches and it was his undisclosed income on which he was prepared to pay income-tax. The hosue of detenu and Sanjay Gupta was also searched but nothing incriminating was found. And, undisputedly, not even an ounce of smuggled gold was recovered from any person involved in the search of May 30, 1989,s incident. - However, show cause notice dated November 24, 1989 under Sec. 124 of the Customs Act was issued to the detenue, his employees, & Sanjay Gupta, and to which, all sent their reply denying allegation of smuggling. Thereupon no criminal prosecution has so far been allegedly launched. 3 Another incident relates to interrogation of one, Hari Narain-formerly an employee of the detenus firm who had left his services in April, 1991 and from whose possession, the Custom Authorities had seized on July 2,1991 10 pieces of gold weighing 1166.650 gms. Hari Narain in his statement has allegedly given out that the recovered gold was smuggled and his employer (the detenu) was engaged in smuggling gold. On the very day, business premises of the detenus firm & his house were searched but, again, nothing incriminating was allegedly found there, except cash worth Rs. 80 100/- with it corresponding entries in the case book. On the very day, business premises of the detenus firm & his house were searched but, again, nothing incriminating was allegedly found there, except cash worth Rs. 80 100/- with it corresponding entries in the case book. Again, apprehending his arrest and upon his application for pre-arrest bail, the detenu was granted anticipatory bail by Sessions Judge, Jaipur City on July 5, 1991 and before it on July 3, 1991, Hari Narain was also released on bail by Special Judge (Economic Offences Cases) Jaipur. Hari Narain himself wrote letter (Ann. 36 to the detention order) retracting all allegations of the smuggled gold but, admitting the seizure of the gold from his possession, asserted it to be his personal property and not smuggled gold. Hari Narain had also given his affidavit on July 3, 1991 (Ann. 5 to the present petition at hand) denying on oath his involvement in smuggling, etc. According to the petitioner & detenu, show cause notice under Section 124 of the Customs Act was also issued but, no criminal prosecution has been initiated as yet. 4. Upon these two incidents, the detenu apprehending that there was every likelihood of his being detained under the COFEPOSA Act, before execution of the detention order upon him, approached this Court by filing petition under Art. 226 of the Constitution seeking a writ of mandamus for revoking impending order of detention and for restraining the respondents from proceeding further. His writ petition No. 1199/92 was admitted on February 4, 1992 and the respondents were directed not to proceed against the detenu till February 14, 1992. After reply to the writ petition by the respondents, and hearing the parties, the writ petition No. 1199/92 was ultimately dismissed on February 25, 1992 and against the dismissal, D.B. Special Appeal (Writ) No. 162/92 was filed and it too was dismissed on April 13, 1992 by the Division Bench consisting of one of us (Farooq Hasan, J) Against dismissal of writ petition & special appeal, the detenu filed Special Leave Petition No. 1183/92. The Apex Court dismissed the detenus special leave petition with the following observations on April 28, 1992: "The dismissal will not preclude the petitioner from filing a petition if the detention order is ultimately sought to be executed, in which case the observations made herein will not prejudice the petitioner". And, on May 1, 1992, the detention order was executed. The Apex Court dismissed the detenus special leave petition with the following observations on April 28, 1992: "The dismissal will not preclude the petitioner from filing a petition if the detention order is ultimately sought to be executed, in which case the observations made herein will not prejudice the petitioner". And, on May 1, 1992, the detention order was executed. Hence this habeas corpus petition. 5. The arguments of both the parties were heard and the documents appended to the habeas corpus petition were gone through. 6. The grounds apart from others urged in the petition, but stressed during the course of the arguments by Shri S.R.Bajwa, for challenging the validity of the order of detention are : (i) Withholding of vital facts/material/documents/circumstances (which will be stated a little later while dealing with this question) from the notice of detaining authority has resulted in "non-application of mind" vitiating the detention order on this ground alone. (ii) Copies of some of the documents were not ever supplied to the detenu and it resulted in serious prejudice to him in preparing his effective representation and hence the protection of fundamental right guaranteed to him under Article 22 of the Constitution was denied to him. (iii) There is delay of seven months in passing the impugned detention order and this delay also remained totally unexplained. (iv) There is total lack of material/evidence to presume that the detenu has been engaging in activities prejudicial to conservation of foreign exchange. 7. Learned Additional Advocate General and learned Standing Counsel for the responded Nos. 2 to 4, raised a preliminary objection as to the maintainability of the petition being barred as res judicata. In this regard their contention is that the detenu challenged the legality of his detention order in writ petition No. 1199/92 seeking relief of its revocation generally on almost the same grounds as now being taken in the petition at hand: the writ petition was dismissed and that dismissal was upheld not only by the Division Bench but also by the Supreme Court in his Special Leave Petition. 8 So far as the preliminary objection as to the maintainability of the petition is concerned, the same is no longer res Integra in view of the decision of the Supreme Court in Lallu Bhai Jogibhai Patel Vs. Union of India (1) and Kirit Kumar Chamanlal Kundalia Vs. State of Gujarat (2). In Lallubhai Vs. 8 So far as the preliminary objection as to the maintainability of the petition is concerned, the same is no longer res Integra in view of the decision of the Supreme Court in Lallu Bhai Jogibhai Patel Vs. Union of India (1) and Kirit Kumar Chamanlal Kundalia Vs. State of Gujarat (2). In Lallubhai Vs. Union of India (Supra), it has been laid down as under :- The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principles of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petitioner for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief. In Kirit Kumar Vs. State of Gujrat (Supra), while explaining and relying on the decision in Ghulam Sarwar Vs. Union of India (3) and Lallu Bhai Vs. Union of of India (supra), the Apex Court laid down that the principles of res judicata neither apply to cases where points were not agitated before the High Court but were raised for the first time in the Supreme Court in a writ petition under Art. 32, nor even to successive writ petition in the Supreme Court. It is settled law that the doctrine of finality of judgment or the principles of res judic ta are founded on the basic principles that where a court of competent jurisdiction has decided an issue, the same ought not to be allowed to be agitated again and again- However, such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions. Concededly in the instant case, the learned Single Judge decided the petition of the detenu under Article 226 seeking writ of mandamus for revocation of the order of detention before it was executed upon the detenu which was a discretionary jurisdiction whereas the jurisdiction to grant relief in a habeas corpus petition is guaranteed by the Constitution.The order of the learned Single Judge dismissing the writ petition filed by the detenu challenging the legality of the detention order and asking for the issue of a writ of mandamus is not a judgment and does not operate res judicata. That order does not operate as a bar to the application asking for the issue of a writ of habeas corpus for the protection of his right of liberty which is fundamental right of the detenu, on the same facts. In the earlier writ petition asking for mandamus, it was the pre-detention stage and no order of detention was before the learned Single Judge and while deciding that writ petition, the learned Single Judge found no justification for restraining the respondents from passing/executing the order of detention. Obviously in view of these peculiar facts and circumstances, noted above, their Lordships of the Apex Court while dismissing the detenus Special Leave Petition granted indulgence to the detenu for filing a petition if the detention order is ultimately sought to be executed, by specifically observing that the dismissal of the special leave petition would not preclude the petitioner from moving afresh. Thus, lending supporting from the law laid down by the Apex Court in the decision in Kirit Kumar Vs. Union of India (supra) that the doctrine of res judicata cannot be allowed to whittle down or over-ride the express constitutional mandate, and moreover, the present petition at hand is the first petition asking for writ of habeas corpus for the protection of his right of liberty before this Court, the preliminary objection is thus rejected being misconceived in the facts and circumstances of the case at hand. The present petition must, therefore, be entertained and examined on the merits. 9. This Habeas corpus petition must succeed on the ground (i). It will, therefore be not necessary to dwell on other grounds. Ground (i) was not taken in the earlier writ petition asking for mandamus. 10. Shri S.R. Bajiwa urged that as would be evident from Annexure 26 to the grounds of detention the Custom authorities had examined Siya Saaran Garg -elder brother of detenu but, his statement under s. 108 of the Customs Act has been kept away from the view of the detaining authority. He added that the gold pieces allegedly seized from Hari Narain were never shown to the detaining authority and that apart, the mint report which was concededly received by the sponsoring authority on February, 6, 1992 after issuing the order of detention dated 28.1.1992, has not been placed before the detaining authority. 11. As regards recovery of Rs. He added that the gold pieces allegedly seized from Hari Narain were never shown to the detaining authority and that apart, the mint report which was concededly received by the sponsoring authority on February, 6, 1992 after issuing the order of detention dated 28.1.1992, has not been placed before the detaining authority. 11. As regards recovery of Rs. 80,100/- from the shop of the detenu, the corresponding entries to that amount were shown to the custom authorities in the cash and accounts books of his firm and it verified those entries, but that verification has also been kept away from the detaining authority. 12. Shri S.R. Bajwa then urged that in the grounds of detention, while stating antecedants of the detenu, the facts as to the recovery and seizure of rupees 12 lacs from the Maruti Gypsy of the detenu in the year 1989 were relied upon in paras 7, 13 &15, but the sponsoring authority with held all vital documents pertaining to the said recovery of rupees twelve lacs. In this regard, the following instances have been pointed out as vital material and documents which were with held by the sponsoring authority and were not produced before the detaining authority. (i) Bail application of detenu moved before Sessions Judge, Jaipur City on June 3, 1989; (ii) Order dated June 5, 1989 granting bail to the detenu by the , Sessions Judge; (iii) Statement of detenu under s. 108, Customs Act categorically explaining the facts as to the seizure, of rupees twelve lacs from his Maruti Gypsy; (iv) Telegrams (Ann. 1 &2) dated June 3, 1989 by Gypsys driver Bad; and its co-traveller Shrawanlal; (v) Letter dated June 4, 1939 (Ann. 3&4) written by driver Bad and Shrawanlal Sharma to the Corrector, Customs, Jaipur; (vi) Show cause notice under Sec. 124 of the Custom Act in respect of confiscation of rupees twelve lacs recovered from Gypsy, to the detenu, San-jay Gupta, driver-Badri, & Shrawanlal Sharma, and their reply to the said show cause notice; (viii) Statement of Sanjay Gupta under Sec. 108, Custom Act, wherein he accepted the ownership of rupees twelve lacs as his money earned from betting on Cricket matches. 13. As to subsequent incident of July, 1991, in addition to the documents viz. statement of Siya Satan Garg, corresponding entries as to Rs. 13. As to subsequent incident of July, 1991, in addition to the documents viz. statement of Siya Satan Garg, corresponding entries as to Rs. 80,100/- & verification by the custom authorities in.the accounts books, mint report, & instance of not showing gold pieces recovered from Hari Narain to the detaining authority, (which have been discussed above), Shri S.R. Bajwa also urged that statement of Pradeep in whose shop the bucuits were allegedly taken for erasing marking, has also been withheld by the sponsoring authority, and not shown to the detaining authority. Shri S.R. Bajwa therefore, contended that the afore pointed out instances material and documents are vital one which could have influenced the mind of the detaining authority one way or the other, but those were withheld thereby were not considered by the detaining authority before issuing the order 6f detention in question and thus, the satisfiaction postulated for issue of detention order is vitiated. 14. During the course of the arguments, it is wrung out that both, the learned Additional Advocate General and the learned Standing Counsel, failed to controvert the claim of Shri S.R. Bajwa that those documents with held by the sponsoring authority did exist, were in possession of the sponsoring authority. Thus, it is precise that both the learned counsel for the respondents neither denied the existence of those documents nor explained as to why those documents were withheld while they were relied upon during issuance of the order of deten-tion in question. 15. In Union of India Vs. Manoharlal Narang (4), the Apex Court held that non-consideration of the interim order which constituted a relevant and important material, is fatal to the subsequent detention order on ground of non-application of mind. 16. In Dharamdas Shamlal Agarwal Vs. Police Commissioner (5), the Apex Court held that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order, will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. 17. 17. Both the learned counsel for the respondents urged that interference in the subjective satisfaction of the detention order cannot be made a ground to assail the order of detention because, the Courts are not obliged to give any finding as to sufficiency or adequacy of the subjective satisfaction of the detaining authority. The aforesaid contention of the learned counsel for the respondents is barren of force and is merely delusion, in view of the decisions of the Apex Court in Shafiq Ahmad Vs. District Magistrate, Meerut (6) followed in Anand Prakash Vs. State of U.P. (7) wherein it has been held that detaining authoritys satisfaction regarding prejudicial activities of the detenu must be based on credible information or material or cogent reasons and mere bald statement of detaining authority is not enough and, therefore, the Court can look into the material on record. What has been laid down by the Apex Court is being reproduced below:- "Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner of such detention must, therefore, subject to the closest scrutiny and examination by the Courts". Thus, having benefitted by the enlightments from the above observations, it is settled position that there must be conduct relevant to the formation of the satisfaction having reasponable nexus with the action of the detenue which are prejudicial under the preventive detention Act/law. In other words, the court has to ensure that the order of detention is based on materials before it. If it is found that the order passed by the detaining authority was on materials on record, the Court can examine the record only for the purpose of seeing whether the order of detention was based on material or whether the materials have rational nexus with satisfaction that the activities of the detenu were prejudiced. 18. In M. Ahamed Kutty Vs. Union of India (8), while following the decision in Khudiram Vs. 18. In M. Ahamed Kutty Vs. Union of India (8), while following the decision in Khudiram Vs. State of West Bengal (9), took into account the observations made in para 13 p. 96 there of that "it is, therefore, not only the right of the court, but also its duty as well, to examine what are the basic facts and materials which actually in fact weighed with the detaining authority in reaching the requisite satisfaction and the judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction". 19. In M. Ahamed Kuttys case (supra), it has been held that the detenu has right to have copies of vital documents irrespective * of whether he knows about their contents or not, and the bail application and bail order were constituted vital materials, and, therefore, non-consideration of these documents by detaining authority or non-supply of copies thereof to detenu would be violative of Article 22 (5) and continued detention would be illegal, as also held in State of UP. Vs. Kamal Kishore Sani (10). 20. Considering the facts in the case at hand, no doubt, in order to base the order of detention in qusstion, antecedents of detenu has been considered by taking into account the facts of recovery of rupees twelve lacs in the incident of May JO, 1939 and, thus, the documents, stated at page 10 of this order from S. Nos. (i) to (viii) i.e. bail application, bail order, statements of detenu & Sanjay Gupta, telegrams seat by driver Bddri & Sarawanlal, and especially show cause notices under Sec. 124 of the Customs A.ct in respect of confiscation of rupees twelve lacs in question issued to the detenu, Sanjay Gupta, driver-Badri, & Shrawanlal Sharma & their reply to the said show cause notices, were vital materials for considerations. Similarly, for the subsequent incident of July, 1921, statement of Siya Sharan Garg was recorded, corresponding entries to Rs.80,100/-recovered at the shop of the detenu, were shown from the accounts books of the detenu to and verified by the custom authorities during investigation; and that mint report having been received after passing the order of detention in question and the gold pieces recovered from Hari Narain were not seen by the detaining authority. These instances & materials (ibid) were also vital materials for considerations. Thus viewed, the contention of Shri S.R. Bajwa has legal substances that if those would have been placed before the detaining authority and it would have applied its mind it was posssible that as a result of those vital materials, the subjective satisfaction of the detaining authority which was necessary for the reasons enumerated in Section 3 of the COFEPOSA Act to make the detention order, might not have been there and the detaining authority would not have made the detention order. Had those been considered, they would be documents relied on by the detaining authority but, in fact, those vital materials were not considered as is evident from the material on record that there is no specifically mention thereof in the annexure to the order of detention, and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without then the grounds themselves could not be said to have been complete. Therefore, there is no alternative but to hold that it amounted to denial of the detenus right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution and that apart, the subjective satisfaction of the detaining authority is vitiated as the sponsoring authority withheld the vital and material documents mentioned above, rendering the continued detention of the dutenu illegal and entitling the detenu to be set at liberty in the case at hand. 21. In the result, this writ petition asking for habeas corpus is allowed. The order of detention suffers from non-application of mind by the detaining authority as its subjective satisfaction is vitiated because of withholding of the vital materials, and it is in violation of Article 22(5) of the Constitution of India & also Section 3(1) of the COFEPOSA Act, and, therefore, the impugned order of detention is set aside. The order of detention suffers from non-application of mind by the detaining authority as its subjective satisfaction is vitiated because of withholding of the vital materials, and it is in violation of Article 22(5) of the Constitution of India & also Section 3(1) of the COFEPOSA Act, and, therefore, the impugned order of detention is set aside. Detenu, Kishori Sharan Garg, is ordered to be set at liberty unless his presence in jail is required in connection with some other offence. Rule is made absolute with no order as to costs.