"Triple Test" To Pass Preventive Detention Order Against Person Already In Judicial Custody? Andhra Pradesh High Court Reiterates

The Andhra Pradesh High Court has set aside the preventive detention order against an alleged sandalwood smuggler lodged in judicial custody, stating that the satisfaction of detaining authority, necessary as per the triple test, was not recorded in the detention order.

The Division bench of Justice D.V.S.S.Somayajulu and Justice V. Srinivas reiterated that an order of preventive detention can be validly passed against a person in judicial custody (1) if the authority has reason to believe on the basis of reliable material placed before it there is a real possibility of accused being released on bail, and (2) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain accused to prevent him from so doing.

The counsel for accused argued that detention order was passed when the accused was in judicial custody. It was submitted that when a person is in judicial custody the authority should record its satisfaction before passing an order of detention that there is an imminent possibility of the detenu being released on bail and that he would commit another offence or a series of offences which would affect public good, public safety etc.

Further, it was submitted that the penal laws are enough to deal with the alleged offence and there is no necessity to detain the accused under the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 ( Act No.1 of 1986).

The counsel for the respondent argued that the person is accused of serious offences under the Forest Act and that he is a red sandalwood smuggler and order clearly considered all the aspects before coming to conclusion that the petitioner is to be placed in Preventive Detention. He further contended that the order of detention is a precautionary measure based upon a reasonable prognosis of the future behavior of the accused.

After hearing both the parties and considering the material on record the court noted that a similar case was decided by a Division Bench of the High Court in Rishi Kumar Bhaskaran case (MANU/AP/0694/2021) in which Supreme Court's decision in Kamarunnisa v Union of India (3 (1991) 1 SCC 128) was followed and triple test was applied.

The court noted that the detaining authority did not discuss, on the basis of available material, the possibility of the accused being released on bail and committing similar offenses that would be detrimental to the state at large.

The court said that, “In the case on hand, in the concluding part of the order, the Collector and District Magistrate clearly stated that there is every likelihood of him being granted/released on bail in other cases also. Other than this there is no reference to the satisfaction of a future crime being committed based upon his past record. This order, therefore, runs foul of the case law that has been laid down by the Hon’ble Supreme Court of India and the Division Bench of this Court.”

The High Court decided that although the person was accused of serious offenses, the necessary satisfaction as per the triple test was not recorded in this case. Therefore, the detention order is liable to be set aside.

Case-Venkatesan v. The State of Andhra Pradesh

Citation: 2023 LiveLaw (AP) 10

Click Here To Read/Download Order