JUDGMENT - VISHNU SAHAI, J.:---Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who styles himself as the friend of the detenu one Noor Mohammed Siddique Lakhani @ Bababhai has impugned the order dated 30-5-2001 passed by the second respondent Joyce Sankaran, Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention) Mantralaya, Mumbai-400 032 detaining the detenu under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) (hereinafter referred to as the COFEPOSA Act). The detention order along with the grounds of detention, which are also dated 30-5-2001, was served on the detenu on 23-11-2001 and their true copies are annexed as Annexures A and B respectively to this petition. 2. The prejudicial activities of the detenu impelling the second respondent to pass the impugned order are contained in the grounds of detention Annexure B. In short, a perusal of Annexure B would show that on the basis of the specific information recorded, co-detenues Mohanlal Mishraji Purohit, and Sadanand Sambhaji Rasam were intercepted and searched on 29-7-2000 along with two vehicles bearing No. MH-01-B-4869 and DL-96-B-3644 outside the exit of the parking lot of Module- I of Chhatrapati Shivaji Terminus and the search resulted in recovery of 830 Digital Video Discs of various English movies, valued at Rs. 83,000/- and 7105 assorted wrist watches, valued at Rs. 9,50,575/-. Both the vehicles and the said articles were seized under a panchanama. Thereafter, statements of the aforesaid co-detenues were recorded under section 108 of the Customs Act, 1962. The co-detenu Mohanlal Mishraji Purohit stated that he was working as telephone operator in the firm of M/s. Rian Communication the owner of which was one Noor Mohammed Lakhani @ Bababhai (detenu) and he received Rs. 10,000/- as salary and Noor Mohammed Siddique Lakhani @ Bababhai had asked him to go to Dubai/Hongkong on a number of occasions in relation to getting articles smuggled into India and all the expenses had been borne by Noor Mohammed Siddique Lakhani. He also stated therein that at the instance of the detenu, he and Sadanand Rasam had visited the airport to receive the consignment smuggled into India by two carriers namely Sanjay Chhabria and Rahul, both N.R.Is. and the above mentioned goods were recovered from him. He also stated therein that at the instance of the detenu, he and Sadanand Rasam had visited the airport to receive the consignment smuggled into India by two carriers namely Sanjay Chhabria and Rahul, both N.R.Is. and the above mentioned goods were recovered from him. A perusal of para 3 of the grounds of detention would show that the detenu's statement under section 108 of the Customs Act was recorded on 3-8-2000 and he admitted therein that he was running six stores on rent at Musafirkhana, Mumbai; they being: (1) Rian Communication STD Booth, (2) Sheetal Times (3) Benzer Stores (4) Lighter Shop (5) A to Z Shop and (6) Kavita Stores. Its perusal would also show that the said stores were run by various working partners of the detenu and he was not concerned with the day to day activities. It would further show that co-detenu Mohanlal is a working partner of Sheetal Stores and was looking after its day to day affairs and the detenu denied that Mohanlal was working as a telephone operator with him. It would further show that he also denied that a maruti esteem Bearing No. MH-01-B-4969 was owned by him and was given by him to Mohanlal for personal use and that he knew that Harbansingh through Mohanlal used to supply the watches. A perusal of para 7 of the grounds of detention would show that the Detaining Authority was satisfied that in order to prevent the detenu from indulging in smuggling activities, it was imperative to detain him under the COFEPOSA Act. 3. We have heard learned Counsel for the parties. This is a single point petition. The point has been pleaded as ground No. 3(a). In short, the said ground is that since the sponsoring authority placed before the Detaining Authority the show cause notice dated 10-1-2001, it was also imperative for it to have placed before the Detaining Authority the replies of the detenu and the co-accused dated 12-2-2001, (a copy of which is annexed as Annexure D to the petition) and 27-3-2001 (a copy of which is annexed as Annexure E to the petition) to the said show cause notice because, they were documents of a vital nature which were liable to influence the subjective satisfaction of the Detaining Authority one way or the other. The pleading is that the aforesaid default would vitiate the detention of the detenue on a dual count namely:--- (i) on account of the failure of the sponsoring authority to place before the Detaining Authority copies of vital documents, the subjective satisfaction of the latter to detain the detenu under the impugned order would be vitiated on the vice of non-application of mind; and (ii) since copies of vital documents were not furnished by the Detaining Authority and the sponsoring authority to the detenu, his right to make an effective representation, guaranteed to him under Article 22(5) of the Constitution of India, would stand impaired. 4. Ground No. 3(a) has been replied to in para 5 of the return of the Detaining Authority and her burden of song in short is as under:--- Since the show cause notice is referred to in the grounds of detention only to complete the narration of facts and the impugned order was not founded on it, and the said show cause notice was not relied upon for the purpose of issuing the impugned order and the reply to the show cause notice was not received by her when the grounds of detention were served on the detenu, there is no substance in the ground. 5. We have considered the averments contained in ground No. 3(a) of the petition, those contained in para 5 of the return of the Detaining Authority wherein the said ground has been replied to and heard learned Counsel for the parties. We have no reservation in observing that ground No. 3(a) is pregnant with substance and this petition deserves to succeed. 6. It is well-settled that if a piece of evidence which could have reasonably influenced the subjective satisfaction of the Detaining Authority one way or the other, is not placed by the sponsoring authority before the Detaining Authority, the impugned detention order would be vitiated on the vice of non application of mind. The proposition is far too well-settled to require elucidiation by authorities but, since reference to and reverence of authorities has become the order of the day, we do not wish to deviate. The proposition is far too well-settled to require elucidiation by authorities but, since reference to and reverence of authorities has become the order of the day, we do not wish to deviate. To eschew prolixity, we only intend referring to three decisions of the Supreme Court namely those reported in A.I.R. 1979 Supreme Court page 44 (Ashadevi v. K. Shivraj another)1, A.I.R. 1988 Supreme Court page 208 (State of U.P. v. Kamal Kishor Saini)2, and A.I.R. 1989 Supreme Court page 364 (Alya alias Ayub, petitioner v. State of U.P. and another, respondents)3. 7. The question is whether the detenu's replies to the aforesaid show cause notices were vital documents or not? Apart from the fact that the Supreme Court in the case of (Khurjibhai Dhanjibhai Patel v. State of Gujarat)4, reported in 1985(1) Scale 964, in para 6 has held in a preventive detention under the COFEPOSA Act that reply to the show cause notice issued by the customs authorities under section 124 of the Customs Act is a vital document, we find from a perusal of the reply of the detenu to the said show cause notice, contained in Annexure E, that the said reply is a vital document. A perusal of Annexure E would show that the detenu, co-detenues Harban Singh Golba, Rahul R. Vyas, and Mohanlal Purohit sent a common reply dated 27-3-2001. It would also show that the co-detenues Rahul and Mohanlal retracted their statements under section 108 of the Customs Act wherein they had named the detenu. It would further show that they stated that the said statements were not true and voluntary. A perusal of Annexure E would also show that the detenu has denied the allegations levelled against him by Rahul and Mohanlal and has candidly stated that in no way, he was concerned with the affairs of the said persons. It would further show that therein it has been averred that except the confessional statement, there was no material to connect the detenu, with the alleged offence. It is also been mentioned in Annexure E that the department has prepared a false story to save the informant and a question mark has been raised therein as to why the department failed to arrest both the carriers on the spot as they were having the information. 8. It is also been mentioned in Annexure E that the department has prepared a false story to save the informant and a question mark has been raised therein as to why the department failed to arrest both the carriers on the spot as they were having the information. 8. It would thus be manifest that the averments contained in Annexure E vis a vis the detenu, were of vital import which could have influenced the subjective satisfaction of the Detaining Authority one way or the other. It may be that had the sponsoring authority placed Annexure E before the Detaining Authority, she may still have passed the impugned order, but it may equally be that she may not have passed it. Which way her mind would have worked, we cannot conjecture because that was a matter which was in the realm of her subjective satisfaction. It should be borne in mind that objective yard stick cannot be applied while dealing with the question of impact of non-placement of a vital document before the Detaining Authority because, the satisfaction to detain the detenu under a preventive detention statute which would also include a detention under section 3(1) of the COFEPOSA Act, is a subjective satisfaction. 9. Before parting with the judgment, we would like to refer to the decision of the Supreme Court rendered in the case of Alya alias Ayub v. State of U.P. A perusal of para 13 of the said decision would show that the vital document in question was a telegram which was not forwarded by the sponsoring authority to the Detaining Authority. The relevance of the telegram lay in the fact that the detenu had disputed the time of his arrest, Venkatchaliah, J. (as he then was) did not exclude the possibility that the telegram was not sent at the purported time but later on, as urged by respondent's Counsel Mr. Yogeshwar Prasad but, despite that, he observed thus :--- "What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the Detaining Authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. It is not disputed that the telegram was not placed before and considered by the Detaining Authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be failure of application of mind which, in turn vitiates the detention. The Detaining Authority might very well have come to the same conclusion after considering this material but, in the facts of the case the omission to consider the material assumes materiality. (emphasis supplied) 10. Since in our view, the detenu's reply to the show cause notice contained in Annexure E was a vital document and was not placed by the sponsoring authority before the Detaining Authority, the two corollaries contained in ground No. 3(a) of the petition would follow :--- (A) on account of non-placement of a vital document by the sponsoring authority before the Detaining Authority, the impugned detention order would be vitiated on the vice of non-application of mind; and (B) since copy of a vital document was not furnished to the detenu, his fundamental right to make an effective representation guaranteed by Article 22(5) of the Constitution of India would stand impaired. 11. For the aforesaid reasons; this petition is allowed; the impugned detention order is quashed and set aside; the detenu-Noor Mohammed Siddique Lakhani alias Bababhai is directed to be released forthwith unless wanted in some other case; and rule is made absolute. Petition allowed. -----