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IN THE HIGH COURT OF JAMMU AND KASHMIR
M A Chowdhary, J
Saif Din Th. Mohd Shabir - Appellant
Versus
Ut of J And K Th. Principal Secretary To Government Home Departmentjammu And Others - Respondent
HCP 111 OF 2024
Decided On : 11-02-2025
(A) Jammu and Kashmir Public Safety Act, 1978 - Section 8 - Detention order quashed - The petitioner challenged the detention order claiming it was arbitrary and lacked proper grounds, asserting non-compliance with constitutional protections under Article 22(5) - The court found that the detaining authority failed to demonstrate how the detenue's actions posed a threat to public order, emphasizing that preventive detention should only be used in exceptional cases. (Paras 1, 3, 12, 14, 16)
(B) Preventive Detention - Legal standards - Preventive detention should not be a shortcut for law enforcement to bypass the criminal justice system; it must be justified by a clear threat to public order, which was not established in this case. (Paras 12, 15)
Facts of the case:
The petitioner, a driver, was detained under the J&K Public Safety Act, 1978, on allegations of being involved in bovine smuggling, which he denied, claiming the detention order was based on insufficient grounds and lacked clarity. (Paras 1, 2, 4)
Findings of Court:
The court found that the detention order did not substantiate a clear threat to public order and that the detaining authority exceeded its jurisdiction. (Paras 14, 15, 16)
Issues: The main issues included whether the detention order was justified under the J&K Public Safety Act and if the detaining authority had sufficient grounds to detain the petitioner. (Paras 3, 12)
Ratio Decidendi: The court ruled that preventive detention must be reserved for grave situations and cannot be used merely as a means to address law and order issues without clear evidence of a threat to public order. (Paras 15, 16)
Result: Petition allowed; detention order quashed.
JUDGMENT :
01. Through the medium of this Habeas Corpus Petition, the petitioner-Saif Din S/O Qamar Din R/O Village Chandak, Tehsil Haveli, District Poonch (hereinafter called "detenue‟) seeks quashment of Order No. 07/DMP/PSA of 2024 dated 23.04.2024 (hereinafter called "detention order‟) passed by the respondent No. 2-District Magistrate, Poonch (hereinafter called "detaining authority‟) whereby and whereunder in terms of Section 8 of the J&K Public Safety Act, 1978, he had been ordered to be detained to prevent him from engaging in activities prejudicial to the public order.
02. The detenue has pleaded that he is a Driver by profession and is an illiterate person, not involved in the commission of any offence but the detaining authority, arbitrarily and in a cavalier manner, has passed the detention order detaining the detenue vide impugned detention order; that he was arrested on 23.04.2024 but he was not informed as to why he had been arrested as he was not provided with any other document than the order of detention; that the detention order has been passed by the detaining authority on baseless dossier suppressing the material facts without application of mind.
03. The detenue has pleaded in the grounds of his petition that the detention order has been passed in a language which is neither comprehensible nor understandable by the detenue and the detention order suffers from vices; that he had not been supplied with the material on which the detention order has been passed depriving him from making an effective representation to the Government/detaining authority in this behalf; that the detention order axiomatically proves non-compliance of the provisions of Jammu and Kashmir Public Safety Act, 1978 as well as the constitutional protection under Article 22 (5) of the Constitution of India; that all the allegations against the detune are false and the sponsoring agency has suppressed the material facts that out of four cases against the detenue, two have been disposed of by the competent court and this fact was not brought to the notice of the detaining authority by the sponsoring authority; that he never indulged in any anti- social activity let alone in any anti-national activity; that the detaining authority has not reflected as to how the public order of the State will get affected in case of non- detention of the detenue under preventive custody; that the detaining authority had passed the order in a mechanical manner based only on the dossier prepared by the police.
04. Pursuant to notice, the respondents in their counter affidavit have stated that the detenue has evolved himself into a notorious bovine smuggler, repeatedly found involved in bovine smuggling cases including cruelty to animals; that he had invariably made bovine smuggling a profession to earn easy money and that he was a part of strong nexus operating in the district to transport bovine animals from district Poonch to Kashmir valley via Mughal road; that his activities are detrimental to maintain public peace and order as well as amounts to hurting the religious sentiments of minority community in twin districts of Poonch and Rajouri and there is due apprehension that his felonious activities will create communal strife further leading to law and order problem in the district; that the constant engagement by the detenue in these criminal activities have created disturbance, fear and an atmosphere of insecurity in the peaceful living of innocent general public as well as impediment to the government functionaries in deliverance of their duties and such activities are prejudicial to the maintenance of public order.
05. It has been further pleaded that the contention of the detenue that whole of the material had not been supplied to him pales into insignificance in the light of the execution report duly acknowledged by him that he had received 34 leaves or documents including detention order, notice of detention, grounds of detention, dossier of detention,
Preventive detention must be justified by a clear threat to public order, not merely law and order issues, and should be reserved for exceptional cases.
Preventive detention under the Jammu and Kashmir Public Safety Act requires clear evidence linking alleged activities to public order threats, which was absent in this case.
Preventive detention requires specific grounds and independent application of mind by the detaining authority; mere reproduction of police dossiers is insufficient.
Preventive detention under the Public Safety Act is justified based on repeated criminal activities, even if prior acquittals exist, provided all statutory requirements are met.
The necessity to place all material, including orders of granting bail, before the detaining authority to enable them to derive subjective satisfaction for the detention.
The main legal point established in the judgment is that activities must have the potential to disturb public order by affecting the community or public at large to be considered prejudicial to publi....
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