JUDGMENT [ENTITY], J.
1. Both these writ petitions which arise out of identical facts can be disposed of by this common judgment.
2. In [CASE NUMBER] [ENTITY] who is the detenu is the petitioner. [CASE NUMBER] is filed by [ENTITY] who is the other detenu in that case.
3. In both the cases the sponsoring authority Collectorate of Customs, Panaji, Goa, forwarded two proposals to the detaining authority for the purpose of detaining the detenus under the provisions of [SECTION] of the [ACT] (hereafter the Act). It is now no longer in dispute that the sponsoring authority forwarded additional material right upto 11th July, 1991 in respect of both the detenus. The detaining authority who is the Chief Minister of State of Goa, holding the portfolio of Home Department (General) applied its mind to the material placed before it and on 13th July, 1991 passed two detention Orders in respect of the two petitioners directing their detention under [SECTION] of the Act. The grounds in support of the respective detention Orders were formulated on the same day. Both the detention Orders were served on the petitioners on 26th July, 1991 while both of them were in judicial custody. The petitioners made representations to the concerned authorities, but they were rejected. It is thereafter that the present petitions came to be filed on 19th October, 1991 under [SECTION] of the [ACT].
4. We have heard Shri. [ENTITY], the learned Counsel appearing for the petitioners as well as Shri [ENTITY], the learned Public Prosecutor at length. Several points were urged before us; but in our view for the reasons that will follow these two petitions can be disposed of on a narrow point namely that all the relevant material that was available on the date when the detaining authority passed the detention Order was not placed before the detaining authority and consequently the detention order is vitiated on that ground.
5. In the course of the arguments Shri [ENTITY], the learned counsel for the petitioners produced before us authenticated copy supplied to the petitioners of the complaint dated 12th July, 1991 filed against the petitioners under [SECTION] of the [ACT] before the Judicial Magistrate, Panaji, Shri [ENTITY] relying on this complaint supplied to the petitioners pointed out that this complaint shows that as per the directions given by the learned Sessions Judge, panaji dated 5th July, 1991 the Customs authorities obtained the necessary sanction to prosecute the petitioners by sanction Order dated 11th July, 1991 and filed the complaint before the Chief Judicial Magistrate, panaji on 12th July, 1991. Relying on these facts Shri [ENTITY] submitted that these two vital facts which have a bearing on the subjective satisfaction of the detaining authority were not brought to the notice of the detaining authority although other material right upto 11th July, 1991 was updated and the actual order of detention came to be passed on 13th July, 1991 when this additional material could have been made available to the detaining authority. Shri. [ENTITY] invited our attention to [PRECEDENT], , [PRECEDENT], and The [PRECEDENT], in support of his aforementioned argument.
6. So far as this part of the argument on behalf of the petitioners is concerned Shri [ENTITY], the learned Public Prosecutor submitted that no doubt sanction to prosecute was obtained by the Customs authorities on 11th July, 1991 and a complaint came to be filed on 12th July, 1991 yet it was not incumbent on the sponsoring authority to place this material before the detaining authority and what the Court has got to see is whether on the material that was placed before the detaining authority on the date on which it passed the detention order whether the detaining authority had applied its mind to the said material and nothing more.
7. It is precisely this argument that was repelled in The [PRECEDENT], (supra). In paragraph 9 it is observed :
"The Court proceedings and adjudication proceedings are initiated and conducted by different authorities which are not required under the law to submit their reports or communicate their actions to the detaining authority. The detaining authority in turn, is not required under the law to carry out the process of collection any material about any Court proceeding or proceedings before other authorities for the purpose of issuance of a detention order. The contents of the paragraph refer to such proceedings which are not required to be collected by the detaining authority from such authorities or courts."
This was the contention raised on behalf of the detaining authority and the Supreme Court repelled it in the following words :-
"We are not very happy with the manner in which this important contention has been met in the counter-affidavit. An order of this Court is not an inconsequential matter. It cannot be assumed for a moment that the detaining authority or the sponsoring authority did not know at the time the detention order was passed, that this Court had refused stay of the judgment of the Delhi High Court and that [ENTITY] was allowed freedom of movement subject to certain conditions. It is to be regretted that the portion extracted above from the counter-affidavit betrays an attitude to put it mildly, that lacks grace., Be it understood that the bracketed portion was made to meet a case that there existed an order of this Court which was a relevant and vital material. We can use stronger language to express our displeasure at the manner in which reference was made indirectly to this Court's order but we desist from doing so. If the sponsoring authority and the detaining authority are to adopt such cavalier attitude towards orders of courts and of this court in particular, their orders will meet with the same fate as the one under review.
"If the detaining authority had considered the order of this Court, one cannot state with definiteness which way his subjective satisfaction would have reacted. This order could have persuaded the detaining authority to desist from passing the order of detention since this Court had allowed freedom of movements Detention is only a preventive act. This Court did not find it necessary to restrict the liberty of [ENTITY] when the order on the stay application was passed. It may also be that the detaining authority after considering the order of this court carefully could still feel, that an order of detention is necessary with reference to other materials which outweight the effect of this court's order. In all these cases, non-application of mind on vital and relevant material need not necessarily lead to the conclusion that application of mind on such material would always be in favour of the detenu. Application of mind in such cases is insisted upon to enable the detaining authority to consider one way or the other, as to what effect a relevant material, could have, on the authority that decides the detention. In our view the absence of consideration of this important document amounts to non-application of mind on the part of the detaining authority rendering the detention order invalid."
8. In our view these observations of the Supreme Court quoted above clearly meet the argument advance by Shri. [ENTITY] in support of the detention order. In the present case the sanction order as well as the complaint filed before the Chief Judicial Magistrate were available on 13th July, 1991 and one does not know what view the detaining authority would have taken if the said material had been placed before it. We therefore hold that in the absence of consideration of these important documents by the detaining authority, the detention order is vitiated and rendered invalid on account of non-application of mind on the part of the detaining authority to the material that ought to have been placed before it, but was not placed. It is not necessary therefore to refer to the other authorities on the same point.
9. The result is that both the writ petitions succeed. The detention order dated 13th July, 1991 in respect of both the petitioners is declared illegal and null and void and consequently both the petitioners are directed to be released from detention in pursuance of the said detention order passed under [SECTION] of the Act and set at liberty if they are not required in any other proceeding.