IMPORTANT POINT
Amendment by substitution has effect of wiping out earlier provision from statute and replacing it with amended provision, as if the unamended provision never existed.

JUDGMENT

P.B. Suresh Kumar, J.—This is a proceedings instituted seeking a writ of habeas corpus commanding the respondents to produce the brother of the petitioner, Mobish, who is detained as per Ext.P1 order issued under Section 3 (1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (the Act) and to set him at liberty. Ext.P1 order of detention was issued on 23.11.2024 and the same was confirmed as per Ext.P6 order on 22.01.2025. In terms of Ext.P6 order, the period of detention is for one year.

2. Six cases in which the detenu was involved during the last seven years were considered for the purpose of issuing Ext.P1 order. Among the said cases, the last case is Crime No.794 of 2024 registered at Ollur Police Station on 24.08.2024 under Sections 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The detenu is the first accused in the said case. He was arrested in that case on 24.08.2024 itself and has been in custody since then. It was whilst so, the competent authority made the proposal for his detention under the Act on 22.10.2024. Later, two additional reports were also submitted before the detaining authority by the competent authority which made the proposal on 08.11.2024 and also on 14.11.2024. It is thereafter, on a consideration of the proposal as also the additional reports, the order of detention was issued on 23.11.2024.

3. Heard the learned counsel for the petitioner as also the learned Government Pleader.

4. The learned counsel for the petitioner contended that inasmuch as the detenu was in judicial custody when the order of detention was issued, there should be compelling reasons for the detaining authority to detain him under the Act, and the order of detention does not show any reason, much less any compelling reason, to detain him under the Act. It was also contended by the learned counsel that there was a long delay of almost three months between the date of the last prejudicial activity and the date of the order of detention and that the said delay snaps the live link between the order of detention and the purpose of detention. It was also contended by the learned counsel that the last case in which the detenu is involved namely, Crime No.794 of 2024 of Ollur Police Station is a case which is pending investigation, and it is placing reliance on the records in that case, including the mahazar in terms of which the contraband involved in that case was allegedly seized from the detenu, that the order of detention was issued. According to the learned counsel, in the circumstances, the detenu is entitled to be given copies of every document which are relied on, to issue the order of detention and he was not given a legible copy of the seizure mahazar in the case. The detenu is a person who was detained under the Act once and the impugned order is the second detention order against him. The last contention advanced by the learned counsel is that inasmuch as the first order of detention against the detenu was one issued prior to the amendment made to Section 12 of the Act with effect from 31.12.2014, the present order of detention has to be treated as the first detention order against him under the Act and if that be so, Ext.P6 order directing his detention beyond the period of six months, is illegal. The learned counsel relied on the decision of the Apex Court in Supdt., Narcotic Control Bureau v. Parash Singh, (2008) 13 SCC 499, in support of his argument.

5. In Kamarunnissa v. Union of India, (1991) 1 SCC 128, it was held by the Apex Court that a detention order can validly be passed even against a person who is in custody, if the detaining authority has reason to believe, on the basis of reliable materials placed before him, that (a) there is a real possibility of his being released on bail and (b) on being so released he would, in all probability, indulge in prejudicial activities. Reverting to the case on hand, the detaining authority has rendered a finding in Ext.P1 or