JUDGMENT (Per Hon’ble Sri Justice Joymalya Bagchi) Detention order bearing No.Ref:C1/48/M/2021 dated 15.03.2021 affirmed in G.O.RT.No.901, General Administration (SC.I) Department, dated 07.05.2021 has been assailed by the petitioner, who is the son of the detenu. Detention order was passed against the detenu on the following reasons: “1. It is evident that Machupalli Sreenivasulu @ Sreenivasulu Naidu @ Jandlavaram Srinu @ Don Sreenu, S/o Venkataiah, Age: 50 years, Caste: Patra Naidu, Occ: Red Sanders Smuggling, Jandlavaram Village, Mydukur Mandal, YSR District, Kadapa, is a dreaded-notorious Red Sander wood thief and smuggler, he has involved in Six (06) different Red Sanders cases and arrested in scene of offence in one (01) case i.e., Cr.No.452/2020 of Mydukur U/G PS and he was granted bails in one (01) case i.e., Cr.No.452/2020 of Mydukur U/G PS from the Hon’ble Courts. Further it is noticed that earlier PD Act was also initiated him but he didn’t change his attitude and indulged in a Red Sanders smuggling case and got arrested in Cr.No.452/2020 of Mydukur U/G PS and sent for remand and presently he is lodged in sub-jail, Kamalapuram. He did not change his attitude and continued smuggling of pristine Red Sander wood and didn’t show any respect for Forest and Wildlife Laws/Acts, which is prejudicial to the maintenance of Public order. 2. It is further submitted that, the then Collector & District Magistrate, YSR District, Kadapa has initiated AP Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 against Machupalli Sreenivasulu @ Sreenivasulu Naidu @ Jandlavaram Srinu @ Don Sreenu, S/o Venkataiah, Age: 50 years, Caste: Patra Naidu, Occ: Red Sanders Smuggling, Jandlavaram Village, Mydukur Mandal, YSR District, Kadapa vide Ref.No.C1/473/M/2014, dt: 06.06.2014. The Government of Andhra Pradesh has approved and confirmed the detention orders vide G.O.RT.No.2416, dt: 18.06.2014 and G.O.RT.No.2616, dt: 16.07.2014 respectively against him. 3. Cases registered against him have not shown any deterrent effect on him so far. The Government of Andhra Pradesh has approved and confirmed the detention orders vide G.O.RT.No.2416, dt: 18.06.2014 and G.O.RT.No.2616, dt: 16.07.2014 respectively against him. 3. Cases registered against him have not shown any deterrent effect on him so far. He indulged in the similar activities, which are detrimental to public order and therefore his activities are required to be prevented by a detention order and being satisfied that there is every likelihood of the detenue being granted/released on bail and there is every possibility of the accused to continue his activities of Red Sander trees illegal felling and cutting into logs by dressing, theft and smuggling as Goonda which leads to theft and prejudice to the maintenance of Public Order. 4. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him.” While arriving at such conclusions, detaining authority had relied upon six criminal cases which are as follows: (a). Crime No.327 of 2019, Dated 01.08.2019 of Mydukur U/G Police Station. (b) Crime No.295 of 2019, dated 20.11.2019 of Khajipet Police Station. (c) Crime No.55 of 2020, dated 24.03.2020 of T.Sundupalli Police Station. (d) Crime No.193 of 2020, dated 26.07.2020 of Khajipet Police Station. (e) Crime No.233 of 2020, dated 09.09.2020 of Railway Kodur Police Station. (f) Crime No.452 of 2020, dated 14.12.2020 of Mydukur U/G Police Station. 5. Learned counsel appearing for the petitioner challenges the detention order on the following grounds: i). Although the detention order was passed while the detenu was in custody, there is gross non-application of mind of the detaining authority with regard to the fact whether the detenu was at all in custody or not. While on the one hand detaining authority observed that the detenu who had been arrested in Crime No.452 of 2020 of Mydukur U/G Police Station was granted bail in the said case, on the other hand in another part of the detention order it observed that the detenu is presently lodged in sub-jail in respect of the self same crime and proceeded to pass the order of detention. ii) In paragraph No.10 of the counter filed by the State it is averred that the detenu was in detention pursuant to a PT warrant issued in connection with Crime No.197 of 2020 of T.Sundupalli Police Station. ii) In paragraph No.10 of the counter filed by the State it is averred that the detenu was in detention pursuant to a PT warrant issued in connection with Crime No.197 of 2020 of T.Sundupalli Police Station. Neither the PT warrant nor F.I.R. in Crime No.197 of 2020 of T.Sundupalli Police Station was placed before the detaining authority. Thus, the detaining authority did not take into consideration the aforesaid relevant materials while arriving at its subjective satisfaction to issue the order of preventive detention while the detenu was already shown arrested and in detention in the aforesaid regular crime. iii). Relevant documents, namely, F.I.R. of T.Sundupalli Police Station in Crime No.197 of 2020 and the PT warrant issued for showing the detenu arrest in the said case were neither referred to in the order of detention nor relied upon by the detaining authority as relevant documents. Hence, subjective satisfaction of the detaining authority, i.e., there is real likelihood of release on bail was arrived at without considering the relevant facts and is vitiated in law. Thus, triple requirements i.e., (i) satisfaction of detaining authority that the detenu is in jail; (ii) there is real likelihood of release on bail; and (iii) upon release on bail there is every possibility of the detenu indulging in prejudicial activity were not satisfied and the detention order is liable to be set aside on such score. Learned counsel relies on Champion R.Sangma Vs. State of Meghalaya, (2015) 16 SCC 253 in support of his contention. 6. On the other hand, Sri Syed Khader Mastan, learned Government Pleader, representing learned Advocate General submits that the aforesaid triple requirements have been clearly set out in the order of detention. It is undisputed that the detenu was in custody in connection with Crimes, namely, No.452 of 2020 of Mydukur U/G and No.197 of 2020 of T.Sundupalli Police Stations at the time of detention and such fact was in the knowledge of the detaining authority in view of the involvement of the detenu in the crimes referred to above. Real likelihood of the detenu being released on bail in cases and his indulging in similar activity if released on bail were also recorded in the detention order. Thus, the detention order does not call for interference. An order of detention may be passed even if a detenu is in custody in connection with a regular crime. Real likelihood of the detenu being released on bail in cases and his indulging in similar activity if released on bail were also recorded in the detention order. Thus, the detention order does not call for interference. An order of detention may be passed even if a detenu is in custody in connection with a regular crime. However, to do so, the detaining authority requires to satisfy itself with regard to the triple requirements as laid down by the Hon’ble Apex Court in Kamarunnissa v. Union of India, (1991) 1 SCC 128 as follows: “13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in Ramesh Yadav was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.” 7. Hence, we have chosen to examine the order of detention with regard to satisfaction of the aforesaid triple tests laid down by the Hon’ble Apex Court. In the order of detention, the detaining authority has recorded as follows: “….he has involved in Six (06) different Red Sanders cases and arrested in scene of offence in one (01) case i.e., Cr.No.452/2020 of Mydukur U/G PS and he was granted bails in one (01) case i.e., Cr.No.452/2020 of Mydukur U/G PS from the Hon’ble Courts. Further it is noticed that earlier PD Act was also initiated him but he didn’t change his attitude and indulged in a Red Sanders smuggling case and got arrested in Cr.No.452/2020 of Mydukur U/G PS and sent for remand and presently he is lodged in sub-jail, Kamalapuram….” 8. A perusal of the said finding in the detention order shows gross non-application of mind on the part of the detaining authority with regard to the issue whether the detenu was in jail at the time of passing the order of detention. While on one hand the detaining authority has recorded that detenu was granted bail in Crime No.452 of 2020 of Mydukur U/G Police Station, on the other hand he has observed that the detenu has been in sub-jail in the said case. 9. Learned counsel for the State drew our attention to the averment in paragraph No.10 of the counter wherein it is stated that the detenu while in custody in Crime No.452 of 2020 of Mydukur U/G Police Station had been shown as arrested pursuant to issuance of a PT warrant in connection with a different case, namely, Crime No.197 of 2020 of T.Sundupalli Police Station. 10. We have scanned the order of detention as well as the documents relied upon by the detaining authority. 10. We have scanned the order of detention as well as the documents relied upon by the detaining authority. Neither in the detention order nor in the relied upon documents there is any whisper of the detenu being in custody pursuant to issuance of PT warrant in Crime No.197 of 2020 of T.Sundupalli Police Station. 11. On the other hand, the detaining authority arrived at a subjective satisfaction that the detenu was in jail on the premise that the latter was in sub-jail in connection with Crime No.452 of 2020 of Mydukur U/G Police Station, although in another part of the order it observed that he was on bail in that case. Thus, there was gross non-application of mind on the part of the detaining authority with regard to issue whether the detenu was in jail or not. 12. Learned counsel for the State would argue admittedly the detenu was in jail and therefore, such order would not vitiate the order of detention. 13. We are unable to accept such contention. An order of detention ought not to be mechanically issued and far less in such a cavalier manner. Satisfaction of the detaining authority appears to be vitiated by gross non-application of mind and non- consideration of relevant materials. This issue has more far reaching implications with regard to the second test, namely, whether there was real likelihood of release of detenu on bail or not. To arrive at such satisfaction it was incumbent on the part of the detaining authority to be appraised of the circumstances in which the detenu was in custody, namely, the allegations in Crime No.197 of 2020 of T.Sundupalli Police Station and the PT warrant issued against the detenu. Neither Crime No.197 of 2020 of T.Sundupalli Police Station nor the PT warrant seeking arrest of the detenu in the said case were brought to the notice of the detaining authority at the time of passing of the detention order. In fact, such materials are disclosed for the first time in the counter affidavit in order to justify the order of detention. It is settled law non-consideration of relevant materials which are germane to arrive at subjective satisfaction would vitiate an order of detention. 14. In this case, the detaining authority was not aware that the detenu was shown ‘arrested’ pursuant to PT warrant in Crime No.197 of 2020 of T.Sundupalli Police Station. It is settled law non-consideration of relevant materials which are germane to arrive at subjective satisfaction would vitiate an order of detention. 14. In this case, the detaining authority was not aware that the detenu was shown ‘arrested’ pursuant to PT warrant in Crime No.197 of 2020 of T.Sundupalli Police Station. This relevant fact was not considered by the detaining authority while arriving at the purported satisfaction, i.e., there is real likelihood of the detenu being released on bail. A detention order must be sustained on the basis of the grounds stated therein and on the documents relied upon. Additional materials in the counter affidavit cannot sustain and support an order of detention. Thus, we are of the opinion that the order of detention suffers from gross non-application of mind, whether the detenu was in custody in Crime No.452 of 2020 of Mydukur U/G Police Station or not and on the score of non- consideration of relevant materials, namely, showing the detenu ‘arrested’ in Crime No.197 of 2020 of T.Sundupalli Police Station by issuing PT warrant, thereby, vitiating its subjective satisfaction relating to the triple test requirements for issuance of detention order with regard to the detenu in custody. 15. The Writ Petition is allowed setting aside the detention order dated 15.03.2021 passed by the 2nd respondent, in relation to petitioner’s father, Manchupalli Sreenivasulu @ Sreenivasulu Naidu @ Jandlavaram Srinu @ Don Sreenu, S/o. Venkataiah, Jandlavaram Village, Mydukur Mandal, YSR Kadapa District, and also the consequential confirmation order vide G.O.RT.No.901, General Administration (SC.I) Department, dated 07.05.2021. The detenu-Manchupalli Sreenivasulu @ Sreenivasulu Naidu @ Jandlavaram Srinu @ Don Sreenu, S/o. Venkataiah, Jandlavaram Village, Mydukur Mandal, YSR Kadapa District, shall be set at liberty forthwith unless his confinement is required in relation to any other case. There shall be no order as to costs. As a sequel, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.