Preventive detention should not be based on stale incidents and should not be used as a mode of punishment without trial.

JUDGMENT :

1. Heard learned counsel for the parties and perused the writ pleadings and the record therewith.

2. This is a writ petition under Article 226 of the Constitution of India filed by the petitioner acting through his brother whereby the petitioner is seeking a writ of Habeas Corpus for earning his release from his preventive detention custody which he alleges to be illegal and unwarranted amounting to violation of his fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India.

3. The petitioner came to be ordered to suffer preventive detention by the respondent No. 2-District Magistrate, Kishtwar by virtue of an Order No. 4th/DM/K/PSA of 2023 dated 08.06.2023 passed under Section 8(2) of the Jammu and Kashmir Public Safety Act, 1978 by reckoning the petitioner’s alleged reported activities to be harmful/prejudicial to the maintenance of public order and upon his detention to be lodged in District Jail, Kishtwar.

4. In seeking a preventive detention order against the petitioner, the respondent No. 2-District Magistrate, Kishtwar was approached by the Senior Superintendent of Police (SSP), Kishtwar with a dossier forwarded vide letter No. CS/PSA/2023/6098-6102/C dated 10.05.2023 thereby purportedly putting on record the material which, in the assessment and opinion of the Senior Superintendent of Police Kishtwar, makes out a case for preventive detention order of the petitioner.

5. In the said dossier, the petitioner came to be projected as a habitual bovine smuggler as part of an organized gang operating from Chatroo, Kishtwar and other areas of the District Kishtwar to Kashmir valley.

6. In connection with that, Senior Superintendent of Police (SSP), Kishtwar came to refer to FIR No. 213/2015 under sections 188 RPC read with Section 3 of the Prevention of Cruelty to Animals Act, 1960 registered by the Police Station Kishtwar, FIR No. 14/2016 under sections 452/336/188/147 RPC read with section 3 of the Prevention of Cruelty to Animals Act, 1960 registered by the Police Station Chatroo, FIR No. 47/2016 under sections 188 RPC read with section 3 of the Prevention of Cruelty to Animals Act, 1960 registered by the Police Station Chatroo and FIR No. 19/2019 under sections 188 RPC read with section 11 of the Prevention of Cruelty to Animals Act, 1960 registered by the Police Station Chatroo.

7. By reference to all the aforesaid FIRs, the petitioner was shown to be on bail but undergoing criminal trial before the competent court of law in which regard, Police Report/Challan No. 184/2015 dated 19.12.2016, Police Report/Challan No. 13/2016 dated 28.04.2016, Police Report/Challan No. 38/2016 dated 27.12.2016 and Police Report/Challan No. 19/2019 dated 22.10.2019 were mentioned.

8. The dossier did not cite any fresh incident related to the petitioner’s alleged involvement in linking his bent of indulgences with his past alleged acts of indulgences so as to pose a threat to maintenance of public order. In the dossier, the Senior Superintendent of Police, Kishtwar did not divulge as to what was the precipitating circumstance which warranted a case for preventive detention of the petitioner by co-relating to his past indulgences in reference to the aforementioned four FIRs and criminal cases undergoing trial against him.

9. The respondent No. 2-District Magistrate, Kishtwar came to draw grounds of detention for his purported subjective satisfaction proceeding upon the same set of references to the FIRs and the criminal cases related therewith with no latest input from the end of the Senior Superintendent of Police, Kishtwar so as to reckon the petitioner a very potent risk to maintenance of public order warranting his preventive detention.

10. The preventive detention warrant of the petitioner came to be executed on the petitioner by his arrest on 09.06.2023.

11. The passing of the preventive detention Order No. 4th/DMK/PSA of 2023 dated 08.06.2023 was followed by its approval by the Home Department, Govt.