JUDGMENT (Per Hon’ble Sri Justice Joymalya Bagchi) Detention order passed by the 2nd respondent in Ref:C1/23/M/2021, dated 08.02.2021, which was confirmed by 1st respondent vide G.O.Rt.No.648 General Administration (SC.I) Department, dated 31.03.2021, has been assailed by the petitioner, who is the wife of Shaik Masthan @ Babu (hereinafter referred to as ‘the detenu’). 2. Detention order was passed holding that the detenu falls within the definition of ‘Goonda’ under Section 2(g) of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act of 1986 (hereinafter referred to as ‘the Act of 1986’) as the offences registered against him under the provisions laid down under Chapter XVI and XVII of the Indian Penal Code, 1860, defined in Section 2(g) of the Act of 1986 and as the offences are of similar in nature and committed repeatedly establishes that he is a habitual offender. To come to such conclusion, the detaining authority relied on the following crimes registered against the detenu for the last two years: 1. Crime No.178 of 2019 of Vontimitta Police Station, dated 23.09.2019. 2. Crime No.295 of 2019 of Khajipet Police Station, dated 20.11.2019. 3. Crime No.19 of 2020 of Chitvel Police Station, dated 27.02.2020. 4. Crime No.55 of 2020 of T.Sundupalli Police Station, dated 24.03.2020. 5. Crime No.150 of 2020 of Sidhout Police Station, dated 25.07.2020. 6. Crime No.233 of 2020 of Railway Kodur Police Station, dated 09.09.2020. 7. Crime No.217 of 2020 of Sidhout Police Station, dated 02.12.2020. 3. Having observed so, the detaining authority passed the order of detention for the following reasons: “1. It is evident that Shaik Masthan @ Babu, S/o. Khader Basha, Age: 39 Years, Caste: Muslim, Occ: Red Sanders Smuggling, R/o Ranganayakulapeta Street, Railway Kodur Town and Mandal, Now residing at Isukapalli, Rajampet Mandal, YSR District, Kadapa, is a dreaded-notorious Red Sander wood thief and smuggler, he has involved in seven (07) different Red Sanders Cases and arrested in scene of offence in one (01) case i.e., Cr.No.217/2020 of Sidhout PS. Further, he is evading his arrest from the Police and continuing the illegal transportation of Red Sanders logs by killing the Police or Forest officials, if they obstruct his illegal smuggling activities. Further, he is evading his arrest from the Police and continuing the illegal transportation of Red Sanders logs by killing the Police or Forest officials, if they obstruct his illegal smuggling activities. Previously, after getting release from jail 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. 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. 3. 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”. 4. Learned counsel appearing for the petitioner submits that the detenu was in custody in Crime No.217 of 2020 of Sidhout police station when the order of detention was passed. He had moved a bail application to be released on bail in connection with the said case which came to be rejected on 06.01.2021. No other bail application was pending. Without considering such circumstances, the detention order came to be passed on 08.02.2021. It is further submitted that no material was placed on record before the detaining authority and his satisfaction that after getting released from jail, he had continued smuggling of pristine Red Sander wood and did not show any respect for Forest and Wildlife Laws is wholly perverse. Hence, the requirement of Triple test for passing detention order against a person already in custody as laid down by the Hon’ble Apex Court in Kamarunnissa v. Unioin of India and another, (1991) 1 SCC 128 is not satisfied. 5. Learned Government Pleader submits that the detenu was involved in as many as seven cases in the last two years involving smuggling of red sander wood. 5. Learned Government Pleader submits that the detenu was involved in as many as seven cases in the last two years involving smuggling of red sander wood. Preservation of the ecology particularly Red Sanders is a fundamental duty and therefore, in order to curb repeated illegal activities of the detenu which brings him within the ambit of ‘habitual offender’ and affects maintenance of ecology and Public order, the detention order was passed. Detaining authority was aware that the detenu was in custody in one case and there was likelihood that he may be released on bail in the said case and other cases also. In view of his past conduct and daring nature, the detaining authority was of the view that upon release on bail, he shall indulge in similar activity. Hence, the Triple test was satisfied and the detention order is valid. 6. In Kamarunnissa’s case (supra), the Hon’ble Apex Court inter alia held that an order of detention may be passed against a person who is in custody in connection with a regular crime provided the detaining authority is satisfied as follows: “……..even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid.” 7. Let us examine whether the said requirement of law is satisfied in the facts of case. From the reasons referred to in the detention order, it appears that the detaining authority was aware that the detenu had been arrested in Crime No.217 of 2020 of Sidhout police station. Hence, the first requirement of the detaining authority being aware that the detenu was in custody at the time of passing of the detention order is satisfied. 8. From the reasons referred to in the detention order, it appears that the detaining authority was aware that the detenu had been arrested in Crime No.217 of 2020 of Sidhout police station. Hence, the first requirement of the detaining authority being aware that the detenu was in custody at the time of passing of the detention order is satisfied. 8. Coming to the second requirement with regard to the reasonable belief that there is real possibility of the detenu being released on bail, it is argued that relevant materials were not placed before the detaining authority. Bail application of the detenu had been rejected on 06.01.2021 by a speaking order. Neither such rejection assailed before a superior Court nor a fresh bail application had been filed till the date of order of detention. These facts are not disputed on behalf of the State. Rejection of a bail application and the fact that no other bail application is pending on the date of passing of the order of detention are relevant considerations for the detaining authority to arrive at the subjective satisfaction whether there is real likelihood of release of the detenu on bail or not. 9. In Rekha v. State of Tamil Nadu through Secretary, (2011) 5 SCC 244 the Hon’ble Apex Court while dealing with a similar situation held as follows: “25. In this connection, it may be noted that there is nothing on the record to indicate whether the detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 8- 4-2010. On the other hand, in Para 4 of the grounds of detention it is mentioned that “Thiru. Ramakrishnan is in remand in Crime No.132 of 2010 and he has not moved any bail application so far”. Thus, the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bail had been granted by the courts. We have already stated above that no details of the alleged similar cases have been given. Hence, the detention order in question cannot be sustained.” 26 …. 27. We have already stated above that no details of the alleged similar cases have been given. Hence, the detention order in question cannot be sustained.” 26 …. 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed”. 10. Applying the aforesaid ratio to the facts of the present case, we are of the opinion relevant materials viz., rejection of bail order in Crime No.217 of 2020 of Sidhout police station and the non-consideration of fact whether any other bail application had been filed or not renders the subjective satisfaction a vulnerable one. Furthermore, with regard to the third requirement of the Triple test i.e., possibility of detenu indulging in similar activity on being released on bail, we note such satisfaction has been arrived at on the basis of a non-existent fact. To arrive at such satisfaction, the detaining authority in the detention order held as follows: “……….Previously, after getting release from jail 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. Likewise in those cases he is likelihood of getting bails. As such I am issuing detention orders.” 11. Nothing has been referred to be relied upon in the detention order with regard to any previous case wherein the detenu had been arrested and released from jail and thereafter had indulged in similar criminal activities. Likewise in those cases he is likelihood of getting bails. As such I am issuing detention orders.” 11. Nothing has been referred to be relied upon in the detention order with regard to any previous case wherein the detenu had been arrested and released from jail and thereafter had indulged in similar criminal activities. On the other hand, the detaining authority did not consider the fact that the detenu had not been shown arrested by resorting to the ordinary law i.e.., issuance of PT warrants with regard to other cases relied in the order of detention which may suffice the very purpose for which the detention order is passed. 12. In the light of the aforesaid circumstances, we are of the opinion that the requirements of the Triple test for issuance of order of detention against the detenu in the facts of the case are not satisfied. Hence, the detention order is set aside. In the result, the Writ Petition is allowed setting aside the detention order dated 08.02.2021 passed by the 2nd respondent in Ref: C1/23/M/2021, in relation to the petitioner’s husband, Shaik Masthan @ Babu, S/o Khader Basha, R/o Ranganayakulapeta street, Railway Kodur Town and Mandal, and also the consequential confirmation order vide G.O.Rt.No.648 General Administration (SC.I) Department, dated 31.03.2021. The detenu - Shaik Masthan @ Babu, S/o Khader Basha, R/o Ranganayakulapeta street, Railway Kodur Town and Mandal, 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 the Writ Petition shall stand closed.