Repeated Property Offences Like Theft, Trespass Can Justify Preventive Detention As They Affect Public Order: Kerala High Court

A Division Bench comprising Chief Justice Soumen Sen and Justice Syam Kumar V.M. was considering a petition challenging the preventive detention under KAAPA.

The petitioner argued that the criminal cases relied upon by the authorities were merely private disputes and personal offences and did not affect "public order," a prerequisite for invoking preventive detention under KAAPA.

The Court relied on Ashok Kumar v Delhi Administration [1 AIR 1982 SC 1143], where it was held that the true distinction between the areas of “public order” and “law and order” lies not in the nature or quality of the act, but in the degree and extent of its reach upon society.

The Court examined whether the criminal incidents relied upon by the detaining authority for passing an order of detention under KAAPA falls within the domain of 'public order' or 'law abd order'.

The Court noted that Section 2(a) of the Act defines 'anti-social activity' to mean acting in such a manner as to cause, or be likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section, or any danger to the safety of individuals, public safety, public health or the ecological system , or any loss or damage to the public exchequer or to any public or private property.

It was further noted that the crimes relied upon by the detaining authority for passing the detention order predominantly relate to offences of theft, house-breaking and lurking house trespass. The Court observed that since the detenu has a history of repeatedly involving himself in such offences, the incidents cannot be regarded as isolated or stray occurrences.

“Such repeated involvement in property offences, particularly those involving trespass into residential houses and commercial establishments, cannot be viewed as mere individual disputes. By their very nature and frequency, such activities have the tendency to create a sense of insecurity and fear amongst members of the public regarding the safety of their persons and properties.” Court observed.

The Court held that the repeated criminal activities by the detenu establishes his habitual criminal conduct that are capable of disturbing the even tempo of life. The Court thus held that the challenge to the detention order on the ground that the offences are private in nature cannot be maintained.

However, the Court found merit in the challenge based on delay. It noted that although the sponsoring authority submitted the detention proposal within about 15 days of the detenu's arrest, the detaining authority took another 47 days to issue the detention order without offering any satisfactory explanation.

Referring to Supreme Court decisions in Licil Antony v. State of Kerala (2014) and Adishwar Jain v. Union of India (2026), the Bench observed that while delay alone is not fatal, unexplained delay can snap the "live and proximate nexus" between the alleged prejudicial activities and the necessity for preventive detention. The Court held that the unexplained delay undermined the genuineness of the Detaining Authority's subjective satisfaction.

The Court also found that the detention order expressly relied upon CCTV footage allegedly showing the detenu committing the theft. However, the footage was neither supplied to the detenu nor made available for inspection.

Relying on the Supreme Court's decision in Icchu Devi Choraria v. Union of India [6(1980) 4 SCC 531], the Bench held that any document forming the basis of a detention order must be furnished to the detenu to enable an effective representation under Article 22(5) of the Constitution. Since the CCTV footage constituted a vital relied-upon document, its non-supply amounted to a violation of constitutional safeguards and rendered the detention order legally unsustainable.

The Court thus allowed the writ petition, and quashed the detention order and directed the Superintendent of Central Prison, Kannur, to release the detenu provided his custody was not required in any other case.

Case Title: Ambika Mohanan v State of Kerala and Ors.

Case No: WP(Crl.) 651/ 2026

Citation: 2026 LiveLaw (Ker) 395

Counsel for Petitioner: Ajeesh M Ummer

Counsel for Respondents: Biju Meenattoor (Sr. PP)