ORDER : Cheekati Manavendranath Roy, J. This batch of writ petitions for Habeas Corpus are filed by the wives of the respective detenues in all these writ petitions seeking direction to produce their respective husbands by name Theerthan Kanaka Raju, Shaik Simpathi @ Chimpathi, Dhanababu Sivan Babu @ Siva, Shaik Simpathi Jakeer and Erangamreddy @ Iragamreddy Naga Dasthagiri Reddy, who are detained in the Central Prison pursuant to the impugned orders of the preventive detention passed by the detaining authority in all these matters under the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land- Grabbers Act, 1986 (for short “the Act”) and to declare the detention orders passed in all the matters are illegal and unconstitutional and then to pass appropriate orders deemed fit in the facts and circumstances of the case. 2. As all the writ petitioners in this batch of writ petitions have common grievance, whereby they have challenged the legal validity of the preventive detention orders passed under Section 3(1) and 3(2) of the Act, which are confirmed by way of issuance of a G.O. by the Government, we have heard these matters together and they are being disposed of by this common order. 3. The alleged detenues were involved in various crimes, which are enumerated in the impugned orders of preventive detention passed by the detaining authority. All of them were arrested in connection with the said crimes and they were remanded to judicial custody. While the crimes are pending investigation, the Superintendent of Police concerned, as sponsoring authority, has recommended, for passing an order of preventive detention against them, to the detaining authority, who is the Collector-cum-District Magistrate, who is competent to pass the said order of preventive detention under Section 3 of the Act. The F.I.Rs relating to registration of crimes against them were forwarded to the detaining authority by the sponsoring authority. Considering the said request and the said material placed before him, the detaining authority has passed the impugned orders of preventive detention against the detenues on the ground that it is essential to pass the said orders of preventive detention against them to prevent them from committing similar nature of offences in future in the public interest, as their acts are prejudicial to the public order. 4.
4. As the detenues were in judicial custody as on the date of passing the impugned orders of preventive detention in various Sub-Jails, on the letter addressed by the detaining authority informing the jail authorities regarding passing of the impugned orders of the preventive detention against them and requesting them to transfer them to the Central Prison notified under Section 5 of the Act, it is stated that all the detenues are now transferred to Central Prison, notified under Section 5 of the Act and they were detained in the Central Prison, in view of the preventive detention orders passed against them. 5. Therefore, aggrieved by the said orders of preventive detention that were passed against the detenues, the petitioners being their wives, filed the instant writ petitions challenging the legal validity of the said orders and to pass appropriate orders deemed fit in the facts and circumstances of the case. 6. Heard learned counsel for the petitioners and Sri Syed Khadar Mastan, learned Government Pleader attached to the office of the learned Advocate General. 7. Learned counsel for the petitioners mainly challenged the legal validity of the impugned orders of preventive detention on the ground that as per the ratio laid down by the Apex Court in the case of Champion R. Sangma v. State of Meghalaya, (2015) 16 SCC 253 , the orders of preventive detention passed under the Act should satisfy the triple test laid down in the said judgment and if the order fails to satisfy the said triple test, that the order is liable to be set aside. It is contended that when the impugned orders are tested by applying the said triple test laid down by the Apex Court, that they do not stand for the scrutiny of the said triple test and they are all liable to be set aside on the sole ground. According to it, one of the tests is that the detaining authority must record a finding that he has reason to believe on the basis of reliable material placed before him (a) that there is reasonable possibility of the detenues being released on bail in the crimes registered against them, and (b) that on being so released that he would in all probability indulge in prejudicial activity.
It is only after recording the same that if it is felt that it is essential to detain him to prevent him from coming the similar offences in future, which may be prejudicial activities, then only, he has to pass the order of preventive detention. 8. It is contended by all the learned counsel for the petitioners in this batch of writ petitions that the said requirement is mandatory in nature and the impugned orders show that they were not complied with. They would further contend that considering the said ratio laid down in Champion R. Sangma’s case (supra), the Division Bench of this Court also in Cheemparthi Parvin v. State of Andhra Pradesh and others passed in W.P.No.1803 of 2021, has set aside the orders of preventive detention, which is subsequently again followed by another Division Bench of this Court in W.P.No.12946 of 2022. Therefore, they would pray to set aside the impugned orders in this batch of writ petitions, as the impugned orders are also not satisfying the said triple test and set the said detenues at liberty. 9. Repelling the said contention, learned Government Pleader would contend that in majority of the crimes registered against the detenues, they all pertains to smuggling of red sandals, which is a serious crime and as they are frequently indulging in commission of the said crimes, which is prejudicial to the public order and to prevent them from committing the similar offences in future, that the detaining authority felt it imperative to pass the impugned orders of preventive detention. Therefore, he would submit that the impugned orders are perfectly justifiable under law and they are not liable to be set aside. He would submit that the detaining authority has clearly recorded his satisfaction in all the orders after considering the material placed before him, stating that he was satisfied that it is essential to pass the said orders of preventive detention to prevent them from committing the similar nature of offences in future and to maintain the public order. Therefore, he would pray for dismissal of the writ petition. 10. We have carefully gone through the judgment of the Apex Court rendered in the case of Champion R. Sangma’s case (supra) and we have also carefully gone through the impugned orders of preventive detention passed in this batch of writ petitions.
Therefore, he would pray for dismissal of the writ petition. 10. We have carefully gone through the judgment of the Apex Court rendered in the case of Champion R. Sangma’s case (supra) and we have also carefully gone through the impugned orders of preventive detention passed in this batch of writ petitions. The Apex Court in Champion R. Sangma’s case (supra), has prescribed a triple test to test the legal validity of the orders of preventive detention passed under the Act. It is as follows: (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. 11. It is stated in the above judgment that if the authority passes an order after recording his satisfaction in this behalf, the said order cannot be struck down on the ground that the proper course for the authority was to oppose bail and if bail is granted notwithstanding such opposition, to question it before the higher court. Further held that what this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to preempt and circumvent to enlarge 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 draw since they do not hold otherwise. 12. The said judgment of Apex Court in Champion R. Sangma’s case (supra), wherein the concept of this triple test was laid down and introduced, was considered by the Division Bench of this Court in Cheemparthi Parvin v. State of Andhra Pradesh and others’ case.
12. The said judgment of Apex Court in Champion R. Sangma’s case (supra), wherein the concept of this triple test was laid down and introduced, was considered by the Division Bench of this Court in Cheemparthi Parvin v. State of Andhra Pradesh and others’ case. Applying the said triple test to test the legal validity of the orders of preventive detention order impugned in the said case, the Division Bench of this Court held that there must be material placed before the detaining authority for his consideration to satisfy himself that there is a real possibility of the detenue being released from the jail on bail and that thereafter there is possibility of committing the similar nature of crimes by them in future. It is stated that on the basis of the said material, the detaining authority shall record reasons to that effect justifying his satisfaction to pass any such order of preventive detention to uphold the validity of the same. As there is no such reasons recorded in the said case by the detaining authority, ultimately the order of preventive detention was set aside in the said case. 13. Almost, a similar order that was passed in the present writ petitions, was also passed in the case that was decided by the Division Bench in Cheemparthi Parvin v. State of Andhra Pradesh and others’. In the order that was challenged in the said case also, it is held that having examined the facts and circumstances of the case and the material produced before the detaining authority that he is satisfied that there is every likelihood of detenue being released on bail and committing the similar offences in future. What is the material that is placed and how the said material indicated that the detenue would be released on bail and that thereafter there is likelihood of detenue committing the similar nature of offences was not discussed in the order of the detaining authority in the said case before the Division Bench and even in the present batch of cases.
A careful perusal of the impugned orders clearly show that except stating in a vague manner that the material was placed and he is satisfied from the said material that there is likelihood of the detenue being released on bail and that he would repeat the commission of the same offences, what is that material and how it indicates that they would be released on bail and that they would repeat the commission of the said offences, is not discussed by the detaining authority, so as to ascertain whether he is really satisfied with the said material to arrive at the said conclusion or not. Therefore, the impugned orders of the detaining authority are devoid of valid reasons to record his satisfaction that the detenues are likely to be released on bail or that there is likelihood of committing the similar crimes by them in future. Such an order sans reasons for recording such satisfaction cannot be upheld and accepted as valid. 14. Therefore, the impugned orders fail to satisfy the triple test that is laid down by the Apex Court which is invariably required to be satisfied to uphold the legal validity of the impugned orders. 15. In this context, it is apposite to note here that the orders of preventive detention passed under the Act, have to be also tested on touchstone of Article 21 of the Constitution of India which protects the personal liberty of a citizen of this country. Any order of preventive detention passed under the Act will have the effect of depriving the personal liberty of a citizen of this country, which is a precious and valuable right guaranteed under Article 21 of the Constitution of India. Time and again, the Constitutional Courts have held that the Constitutional Courts would jealously guard such valuable right of liberty of a citizen of this country guaranteed under Article 21 of the Constitution of India. Therefore, keeping in mind the said precious and valuable right of personal liberty of an individual of this nation, every order of preventive detention has to be tested with circumspection to see that they satisfy the parameters of law laid down by the Apex Court, which is the law of the land, which is binding on the Courts under Article 141 of the Constitution of India.
So tested, as discussed supra, the impugned orders of preventive detention passed in this batch of writ petitions, do not stand for the judicial scrutiny and they are liable to be set aside. 16. Therefore, the Writ Petitions are allowed setting aside the impugned orders of preventive detention and the consequent G.Os. passed confirming the said orders of preventive detention. The detenues shall be set at liberty, if they are not required in any other crime. In the instant case, as the detenues are in judicial custody in view of the orders of remand passed by the concerned Courts, till they are released on bail, if they are not already released on bail, they should not be released pursuant to this order. There shall be no order as to costs. Miscellaneous petitions, if any pending, in the Writ Petition, shall stand closed.