ORDER : U. Durga Prasad Rao, J. The petitioner, who is the brother of the detenue namely Veluganti Venkatesh S/o Venkata Ramana, Aged 26 years, R/o D.No.7-63, Vinayakudi Temple Street, Raghunandapuram Village of Rajanagaram Mandal, East Godavari District prays for writ of habeas corpus directing the respondent authorities to set the detenue at liberty by declaring the detention order in Roc.No.M1 (SEB.SOUTH)/ 479794/2023, dt.28.12.2023 passed by the 2nd respondent and consequential confirmation order issued by 1st respondent vide G.O.Rt.No.468, General Administration (SC-1) Department, dated 28.02.2024 is contrary to law, arbitrary and violative of Article 21 of the Constitution of India and to pass such other orders deemed fit. 2. The factual matrix of the case is thus: (a) On the information furnished by the Sponsoring Authority / 2nd respondent, the Detaining Authority / R2 having considered that the detenue is involved in following five crimes and those crimes fall within the ambit of Section 2(b) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (1 of 1986) [for short, „the Act 1 of 1986’] and he was a bootlegger and acting in a manner prejudicial to the maintenance of public order, passed the detention order dated 28.12.2023 and later, the 1st respondent by virtue of G.O.Rt.No.468, General Administration (SC-1) Department, dated 28.02.2024 confirmed the detention and the detenue shall be detained in Central Prison, Rajamahendravaram, until further orders. Sl. No. Crime No. and section Name of Police Station Date 1 Cr.No.302/2020 U/s 34(e) r/w 34(2) of A.P.Excise Act, 1968 Proh. & Excise South Station, Rajamahendravaram 28.04.2020 2 Crl.No.400/2020, U/s 7(A) r/w 8(e) of A.P.Prohibition Act, 1995 SEB, South Station, Rajamahendravaram 22.05.2020 3 Cr.No.159/2022, U/s 7(B) R/w 8(A) of A.P.Prohibition (Amendment) Act, 2020 Special Enforcement Bureau, South Station, Rajamahendravaram 03.02.2022 4 Cr.No.210/2023 U/s 7(B) r/w 8(A) & 8(B) of A.P.Prohibition (Amendment) Act, 2020 Special Enforcement Bureau, South Station, Rajamahendravaram 17.10.2023 5 Cr.No.267/2023 U/s 7(B) r/w 8(A) & 8(B) of A.P.Prohibition (Amendment) Act, 2020 Special Enforcement Bureau, South Station, Rajamahendravaram 12.12.2023 3. The respondents filed counter and opposed the writ petition. 4. Heard arguments of Sri P.S.P.Suresh Kumar, learned counsel representing Sri Babuji Tenneti, learned counsel for the petitioner and Sri Khadar Masthan, learned Special Government Pleader representing learned Advocate General for respondents. 5. The respondents filed counter and opposed the writ petition. 4. Heard arguments of Sri P.S.P.Suresh Kumar, learned counsel representing Sri Babuji Tenneti, learned counsel for the petitioner and Sri Khadar Masthan, learned Special Government Pleader representing learned Advocate General for respondents. 5. Severely fulminating the detention order, learned counsel for petitioner mainly contended that out of the five cases which were considered for ordering preventive detention, in three cases i.e., in Cr.Nos.302/2020, 400/2020 and 159/2022 the physical presence of detenue namely Veluganti Venkatesh was highly doubtful, inasmuch as, even according to police report, when the police went for raid one person was available at the scene of offence and he ran away on seeing the police and the police identified him as the detenue and shouted and tried to catch him but he skulked away. Learned counsel would thus submit that the entire case in those three crimes pivots on the alleged identification by the police of the raid party and not by any independent mediators. Therefore, the involvement of the detenue in those cases is the prime question which has to be decided by the trial Court after full-fledged trial. In that view, the Detaining Authority ought not to have taken those cases for consideration to order preventive detention. Learned counsel further argued that considering the fact that the detenue’s participation in the offence as highly doubtful, Hon’ble High Court has granted him bail in Cr.No.159/2022. Learned counsel thus strenuously argued that in view of taking into consideration irrelevant material relating to the three crimes without proper application of the discretion, the subjective satisfaction arrived at by the Detaining Authority per se became illegal. He thus prayed to allow the Writ Petition and set aside the detention order. 6. Learned counsel would submit that the detention order is illegal also for the reason that in Cr.No.267/2023, admittedly the detenue was in judicial custody and lodged in Central Prison, Rajamahendravaram and in that view, his committing any further offences is highly impossible. However, without considering this fact, the Detaining Authority has mechanically ordered preventive detention. 6. Learned counsel would submit that the detention order is illegal also for the reason that in Cr.No.267/2023, admittedly the detenue was in judicial custody and lodged in Central Prison, Rajamahendravaram and in that view, his committing any further offences is highly impossible. However, without considering this fact, the Detaining Authority has mechanically ordered preventive detention. Learned counsel would submit that though there is no embargo for ordering preventive detention even when a particular detenue was in judicial custody by the date of detention order, still the Detaining Authority shall give cogent reasons for passing the detention order by specifically mentioning in the order that though the detenue was in judicial custody, the material placed before the said authority revealed that there was every likelihood of detenue getting bail and repeat the offences as a habitual offender and thereby his activities prejudice the public order. Without arriving such subjective satisfaction with the aid of material placed before it, the Detaining Authority cannot simply pass detention order. Learned counsel lamented that in the instant case, though detenue was in judicial custody, the Detaining Authority has not made a clear mention that the material placed before him manifested the likelihood of detenue getting bail and repeating his past illegal activities. Hence, the detention order is liable to be set aside on that ground also. 7. Per contra, learned Sri Khadar Masthan, learned Special Government Pleader representing the office of learned Advocate General while vehemently opposing the Writ Petition firstly argued that in three crimes referred by the learned counsel for petitioner, the detenue was physically present at the scene and on seeing the raid party he ran away and since he is a habitual offender, the raid party identified him and shouted with his name to stop and apprehend him but he fled away and this fact was clearly mentioned in the concerned police reports. Learned SGP thus argued that there is no identity problem in this case. So far as the fact that detenue was in custody by the date of detention order is concerned, learned SGP argued, the Detaining Authority has specifically mentioned that in spite of booking number of cases by the Special Enforcement Bureau, SEB Rajamahendravaram South against the detenue, he is continuing his activities in violation of provisions of A.P.Prohibition (Amendment) Act, 2020. So far as the fact that detenue was in custody by the date of detention order is concerned, learned SGP argued, the Detaining Authority has specifically mentioned that in spite of booking number of cases by the Special Enforcement Bureau, SEB Rajamahendravaram South against the detenue, he is continuing his activities in violation of provisions of A.P.Prohibition (Amendment) Act, 2020. The authority has also clearly mentioned that the I.D.Liquor sold by the detenue is injurious to the health and affecting the public order. Action taken against him under normal provisions of law had no effect in curbing the illegal activities. Learned SGP would strenuously argue that after mentioning all these facts, detention order was passed and hence the same is legally valid. He thus prayed to dismiss the Writ Petition. 8. Point: The point for consideration is whether the detention order suffers the vices of considering irrelevant material on one hand and not taking into consideration the fact that the detenue was in judicial custody as on the date of detention order? 9. We gave our anxious consideration to the above respective arguments. The first argument of the petitioner is concerned in Cr.No.302/2020, 400/2020 and 159/2022, as per the police reports, a person who was at the scene of offence tried to run away on seeing the raid party and the police allegedly identified him as the detenue in this case and shouted to catch him but he fled away. Thus basing on their identification, those cases were booked against the detenue. There were no independent mediators at the spot who have identified the detenue. In this backdrop, we find force in the argument of learned counsel for petitioner that the involvement of the detenue in those cases is highly a doubtful one and the concerned trial Court has to decide the matters basing on the reliable evidence against him. However, in our considered view for ordering a preventive detention, such doubtful cases ought not to have been taken up for consideration by the Detaining Authority. As rightly submitted by counsel for petitioner in Crl.P.No.1477/2022, a learned Single Judge of this Court while considering bail application of the detenue in Cr.No.159/2022 made the following observations: “Admittedly, the petitioner was not apprehended at the scene of offence while he was in possession of any such contraband. The person, who was found at the scene of offence, ran away. The person, who was found at the scene of offence, ran away. Although it is stated that the police have identified the said person as the petitioner herein, there is no valid basis for the said identification. Therefore, the very identity of the person, who ran away from the scene of offence, is in serious dispute. So, in the said facts and circumstances of the case, the accusation made against the petitioner is prima facie not well founded. Therefore, the petitioner is entitled for pre-arrest bail on certain conditions.” Thus, as observed by learned Single Judge, the participation of the accused in those three cases is doubtful and the accusation made against him is prima facie not well founded. In that view, the Detaining Authority ought not to have taken into consideration such irrelevant material for ordering preventive detention. Added to it, as rightly argued by counsel for petitioner, in Cr.No.267/2023 admittedly the detenue was in judicial custody and lodged in Central Prison, Rajamahendravaram as on the date of detention order. That being so there was no possibility for him to commit offences. Though there is no embargo for ordering preventive detention, however, the Detaining Authority has to mention in its order that as per the material available before him there is a likelihood of detenue’s getting bail and after coming out repeating his crimes. Only on such subjective satisfaction the preventive detention can be ordered. 10. In W.P. No.1803 of 2021, a Division Bench of this Court has observed as follows: “9. On a reading of the above, does not, in our view, show that there was any apprehension or any possibility of the detenu being released on bail. As observed by the Hon'ble Apex Court in Kamarunnisa's v. Union of India, (1991) 1 SCC 128 even in a 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 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. From a reading of the above, it is very much evident, the detaining authority was aware the detenu was in custody as on the date of passing of the order, but, there is no material placed before him to show that there is every likelihood of he being released on bail. Merely saying that there is every likelihood of detenu being granted/released on bail, as he was released in other cases may not satisfy the test as laid down in Champion R. Sangma's, (2015) 16 SCC 253 case and Kamarunnisa's case (supra). Though the petitioner has been released in 7 out of 10 cases, no material has been placed on record to show that he has made any application seeking release on bail in the following five cases: (i) Crime No.55 of 2020 of T.Sundupalli P.S.; (ii) Crime No. 150 of 2020 of Sidhout P.S.; and (iii) Crime No.122 of 2020 of Vontimitta P.S.” 11. From the above decision, it is clear that when a detenu is already under judicial custody in connection with some or all cases, the Detaining Authority has to take note of the factum of his judicial custody and record its satisfaction that there is a likelihood of his being released on bail so as to buttress the preventive detention order. In the instant case, there is no such discussion in the impugned detention order. In this ground also, the preventive detention fails. Thus in view of the above infirmities, the detention order is illegal and unsustainable. 12. However, we hasten to mention here that the concerned trial Court shall dispose of the concerned criminal cases on merits without being influenced by the observations made in this order. 13. Accordingly, the Writ Petition is allowed and the detention order in Roc.No.M1(SEB.SOUTH)/479794/2023, dt.28.12.2023 passed by 2nd respondent – The Collector & District Magistrate, East Godavari District at Rajamahendravaram is hereby set aside and the detenue namely Veluganti Venkatesh S/o Venkata Ramana is directed to be released forthwith by the respondents, if the detenue is not required in any other cases. No costs. As a sequel, interlocutory applications pending, if any, shall stand closed.