Kerala High Court
Mobitha M.M vs State Of Kerala on 27 March, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:25791
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947
WP(CRL.) NO. 116 OF 2025
PETITIONER:
MOBITHA M.M, AGED 34 YEARS
D/O MURALEEDHARAN, MADASSERY VEEDU,
ELAMTHURUTHY, KUTTANNALLUR P.O, PUTHOOR,
VETTUKADU, THRISSUR, PIN - 680014
BY ADVS.
M.H.HANIS
T.N.LEKSHMI SHANKAR
NANCY MOL P.
RIA ELIZABETH T.J.
SINISHA JOSHY
SAHAD M. HANIS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
CIVIL STATION, THRISSUR DIST, PIN - 680003
3 THE CITY POLICE CHIEF, THRISSUR, PIN - 680020
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA,
ERNAKULAM DIST, PIN - 682026
W.P.(Crl.) No.116 of 2025
2025:KER:25791
-: 2 :-
5 THE SUPERINTENDENT OF JAIL
CENTRAL PRISON, KANNUR, PIN - 670004
BY GOVERNMENT PLEADER SRI.K.A.ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 18.03.2025, THE COURT ON 27.03.2025 DELIVERED
THE FOLLOWING:
W.P.(Crl.) No.116 of 2025
2025:KER:25791
-: 3 :-
C.R.
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
W.P.(Crl.) No.116 of 2025
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Dated this the 27th day of March, 2025
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
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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
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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
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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 order of detention
that there is a real possibility of the detenu being released on
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bail and on being so released, he would, in all probability,
indulge in prejudicial activities. The relevant portion of Ext.P1
order reads thus:
"ഇപക ര ജ മ വ വസകൾ നലനൽക ഒലർ പ ലസ പ ഷൻ ക .
1191/2019 U/s 143, 147, 148, 452, 427, 212, 149 IPC പകസൽ ബഹ. തശർ
കസഷൻസ പക ടതയകട ജ മ ഉതരവകല 'The petitioners shall not indulge in
any other offences, while on bail' എന വ വസ ല ഘച എതർകക ഒലർ
പ ലസ പ ഷൻ ക . 1367/2021 U/s 341, 323, 294 (b) IPC എന പകസൽ
ഉൾക0ടതകന തടർന എതർകകയകട ജ മ റദ ക5യനതന യ ഒലർ പ ലസ പ ഷൻ
ഇൻക8കർ 27-09-2024 തയത ബഹ. JFCM No. III പക ടത, തശർ മമ കക അപ ക
സമർ0ചടളത ആയത ബഹ. പക ടതയകട രഗണനയലമ ണ.
ഇപക ര ഒലർ പ ലസ പ ഷൻ ക 1189/2019 u/s 143, 147, 148,
354, 427, 326, 452, 212, 149 IPC പകസൽ ബഹ. തശർ കസഷൻസ പക ടതയകട
ജ മ ഉതരവകല "The petitioner shall not indulge in any other offences, while
on bail' എന വ വസ ല ഘച എതർകക ഒലർ പ ലസ പ ഷൻ ക .1367/2021
U/s 341, 323, 294(b) IPC എന പകസൽ ഉൾക0ടതകന തടർന എതർകകയകട
ജ മ റദ ക5യനതന യ ഒലർ പ ലസ പ ഷൻ സബ ഇൻക8കർ 27-09-2024 തയത
ബഹ. JFCM No. III പക ടത, തശർ മമ കക അപ ക സമർ0ചടളത ആയത ബഹ.
പക ടതയകട രഗണനയലമ ണ പമൽ അപ കകൾ രഗണച എതർകകയകട ജ മ
ന ളതവകരയ യ റദ ക5യട ല കയനതന ല , ഇ ര തൽ പക ടത നട ട മങൾ
പർതയ കനതന ക ലത മസ ഉണ കകമനതന ല ഇതര നട ട കൾ കക ണ
എതർകക തടർനവരനത യ സ മഹ വരദ പവർതനങളൽ നന എതർകകകയ
അട യനരമ യ തടയവ ൻ കഴയകയല കയന പബ ധ മ കനണ. ആയതന ൽ
എതർകകകയ സ മഹ വരദ പവർതനങളൽ നന അട യനരമ യ തടയനതന യ
എതർകകകUതകര പകരള സ മഹ വരദ പവർതനങൾ (തടയൽ) നയമ - 2007 കല
വക0 3(1) r/w 13 (2) (1) പക ര നട ട കയടപ ണത അത ന പ കതമ കണന
പബ ധ0ചകക ളന.
പമൽ വസതകളൽ നന ബഹ. പക ടതകൾ കറകത ങളൽ ഉൾക0ടരകതന
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കർശന വ വസപയ ടകട ജമ നൽകയതന പശഷവ പസത വ വസകകള
ല ഘചകക ണ വണ കറകത ങളൽ ഉൾക0ടയ ള ണ എതർകകകയന .
എതർകകകയ കറകത ങളൽ നന തടയനതന, ര പമ യ ജ മ വ വസകൾ
നലവലല കയന , എതർകക ജഡഷ ൽ ക ഡയൽ കഴഞവരനത യ പകസൽ
ബഹ. പക ടത കർ ശമ യ വ വസകപള ടകട ജ മ അനവദ ച ൽ തകനയ പസത
വ വസകൾ ലചകക ണ എതർകക കറകത ങളൽ നന വട നൽകകമന
കരതവ ൻ നർവ ഹമ ല കയന കവളവ കനണ."
The detenu has no case that he is not likely to be released on
bail in Crime No.794 of 2024, especially since it is the first case
registered against him under the NDPS Act. As evident from
the extracted portion of the order, the detenu is a person who
got himself indulged in other crimes, despite being released on
bail in earlier crimes on the condition that he shall not indulge
in any other offences while on bail. Whether the aforesaid
materials are sufficient to order detention of a person who is in
custody, is a matter that falls within the subjective satisfaction
of the detaining authority and what this Court is expected to
examine in a proceedings of this nature is as to whether there
is due application of mind on the part of the detaining
authority on the aspect whether there is a real possibility of he
being released on bail and (b) on being so released, he would,
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in all probability, indulge in prejudicial activities. Inasmuch as
the detaining authority considered those aspects based on the
materials placed before it, we are unable to countenance the
contention that there were no compelling reasons to issue the
order of detention to the detenu who was in judicial custody.
6. We are not impressed by the contention that
the delay between the last prejudicial activity and the order of
detention snaps the live link between the order of detention
and the purpose of detention. As noted, even though the last
prejudicial activity attributed against the detenu is one that
took place on 24.08.2024, he was in judicial custody ever since
24.08.2024. Inasmuch as the detenu was in custody all
throughout, we fail to understand, how the live and proximate
link between the grounds of detention and the purpose of
detention would be snapped on account of the delay. The
issue of snapping the live link would arise only when the
person concerned does not indulge in any prejudicial activities
when he is free to do so and the said scenario would not arise
in the case of a person who is in judicial custody.
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7. No doubt, the seizure mahazar in Crime
No.794 of 2024 is one of the documents considered by the
detaining authority in the matter of issuing the order of
detention. Even assuming that a legible copy of the seizure
mahazar has not been furnished to the detenu as claimed by
him, it is seen that the detenu has been served with a copy of
the First Information Report in that case which contains the full
particulars of the seizure mahazar. The learned counsel for the
petitioner has no case that the First Information Report does
not contain the full particulars of the seizure mahazar. The
learned counsel has also no case that the copy of the First
Information Report served on the detenu is not legible. The
rationale behind the insistence that copies of every document
relied on in the order of detention shall be furnished to the
detenu is to enable him/her to prefer an effective
representation against the order of detention as provided for
under Article 22(5) of the Constitution of India. Inasmuch as a
legible copy of the First Information Report in the case, which
contains the particulars of the seizure mahazar has been
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served on the detenu, no prejudice has been caused to him in
the matter of invoking his constitutional right to prefer an
effective representation against the order of detention.
Needless to say, the contention raised in this regard is only to
be rejected.
8. Section 12 of the Act as it stood prior to its
substitution was as follows:
"12. Maximum period of detention.--The maximum period for
which any person may be detained in pursuance of any
detention order made under this Act, which has been
confirmed under section 10, shall not exceed six months from
the date of detention."
Section 12 of the Act as substituted in terms of Act 41 of 2014
reads thus:
"12. Maximum period of detention. -- In pursuance of the first
detention order made against any person under this Act and
confirmed under Section 10, he may be detained for a period
which may extend upto six months from the date of the
detention and in pursuance of such subsequent detention
order made against such person, he may be detained for a
period which may extend upto a maximum of one year."
The contention is that inasmuch as the first order of detention
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against the detenu was issued prior to Act 41 of 2014, the
present order of detention has to be treated as the first order
against him under the Act. It is trite that an amendment by
substitution has the effect of wiping out the earlier provision
from the statute and replacing it with the amended provision,
as if the unamended provision never existed. In other words,
the substituted provision has to be understood independent of
the earlier provision. Going by the plain words used in Section
12 as it stands now, what is discernible is that the period for
which a person can be detained under the Act for the first time
shall not exceed six months and the period can exceed six
months but shall not exceed one year, in subsequent detention
orders made against the same person. In the light of the words
used in the provision, there is absolutely no scope to raise an
argument that the expression "the first detention order" used
in Section 12, refers only to the first detention order after Act
41 of 2014. According to us, if one reads the provision
independent of the earlier provision, the expression "the first
detention order" can only be understood as the first detention
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against the person under this Act, irrespective of the fact
whether it is prior to or after Act 41 of 2014. The judgment of
the Apex Court in Supdt., Narcotic Control Bureau dealing
with the provision contained in Article 20(1) of the Constitution
cannot have any application to the facts of the present case.
Needless to say, there is no merit in this argument as well.
In the light of the discussion aforesaid, the writ
petition is devoid of merits and the same is accordingly
dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
ds 21.03.2025
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APPENDIX OF WP(CRL.) 116/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCTSR/11976/2024-C1 DATED
23.11.2024 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 17.12.2024 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE POSTAL RECEIPT
EVIDENCING THE ISSUANCE OF EXT P2
Exhibit P4 A TRUE COPY OF THE REPRESENTATION
DATED 17.12.2024 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
Exhibit P5 A TRUE COPY OF THE POSTAL RECEIPT
EVIDENCING THE ISSUANCE OF EXT P4
Exhibit P6 A TRUE COPY OF THE G.O.
(RT).NO.218/2025/HOME DATED 22.01.2025
