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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
M A CHOWDHARY, J.
Zaffar Ahmad S/O late Fareed Ahmad – Appellant
Versus
UT of J&K through Commissioner/Secretary Department of Home, Civil Secretariat, Srinagar/Jammu. – Respondent
HCP No. 66 of 2024
Decided on : 15-10-2024
(A) Jammu and Kashmir Public Safety Act, 1978 - Section 8(1)(a) - Constitution of India - Article 226 - Preventive detention - Detention order quashed due to lack of grounds justifying detention based on non-heinous offences and absence of public order issues - Petitioner not provided with grounds in a comprehensible language, nor served with all materials for effective representation - Previous bail granted in related FIRs not considered - Court agrees with earlier judgments stating that offences of bovine smuggling and cruelty do not inherently threaten public order. (Paras 1-12)
(B) Preventive Detention - Legal safeguards - Detaining authority must demonstrate a clear link between alleged activities and public order threats, which was absent in this case. (Paras 10-11)
Facts of the case:
The petitioner challenged a detention order for alleged involvement in bovine smuggling and cruelty to animals, asserting that the offences were not heinous and lacked public order implications. The petitioner claimed inadequate communication of grounds and materials for representation.
Findings of Court:
The court found no evidence of public disorder linked to the petitioner’s alleged activities and ruled that the detention order was unjustified.
Issues: The main issues included whether the detention order was legally valid given the nature of the alleged offences and the adequacy of the grounds provided.
Ratio Decidendi: The court held that the detaining authority failed to establish a connection between the petitioner’s actions and a threat to public order, reaffirming that preventive detention requires clear justification.
Result: Petition allowed; detention order quashed.
JUDGMENT :
01. The petitioner through the medium of this petition filed under Article 226 of the Constitution of India seeks quashment of Order No. PSA 17 of 2024 dated 12.04.2024 (hereinafter to be referred as "detention order") passed by the District Magistrate, Jammu (hereinafter to be referred to as "detaining authority‟) whereby he has been ordered to be detained under Section 8(1) (a) of the Jammu and Kashmir Public Safety Act, 1978 and release from the custody.
02. The petitioner has challenged the detention order on various grounds, inter alia, that he has not been furnished the grounds of detention in his language which he understands as he is not well conversant with the English language being an illiterate person; that the detention order has been passed against him on the allegations of commission of offences of smuggling of bovine animals and cruelty to animals, however, none of the offences are heinous or against the violation of public order as such, the detention order is illegal; that the petitioner has not been served with whole of the material on which the detention order has been passed, such as, copies of the FIR and other documents, as such, he has been deprived of making an effective representation; that the grounds of detention are verbatim repeat of dossier submitted by the SSP, Jammu; that the petitioner had already been enlarged on bail in connection with the FIRs which have been mentioned in the detention order and with respect to the said FIRs he has been facing trial as such the detention order is bad in law; that the detaining authority has refused to consider the petitioner’s representation and he has also not been shown any time limit within which he could make a representation; that the detention order has been passed by the detaining authority without application of mind and finally it was prayed that the detention order be quashed and the petitioner be directed to be released from the custody.
03. Pursuant to the notice, the respondents filed a counter affidavit through the respondent No. 2, asserting therein that keeping in view the prejudicial activities of the detenue, the preventive detention has been ordered so as to deter him from acting and/or indulging in those activities; that the detention order does not suffer from any malice or legal infirmity; that the petitioner has raised disputed questions of facts which cannot be adjudicated upon in a writ petition; that the petitioner has not availed the remedy of filing representation against his detention order despite communication of this right to him; that the detaining authority has observed all the safeguards enshrined in Article 22 (5) of the Constitution of India as well as the provisions of the Jammu and Kashmir Public Safety Act, 1978 while directing his detention; that the liberty of the detenue is subservient to the welfare, safety and interest of society at large as such, the detention order has been passed by the detaining authority within the ambit of law observing all the safeguards.
04. It has been further asserted that the petitioner was involved in the commission of several offences punishable under the Indian Penal Code and Prevention of Cruelty to Animal Act, registered at different police stations and the detaining authority had drawn its satisfaction on the basis of cogent, credible and incriminating material against the petitioner to prevent him from the activities prejudicial to the maintenance of public order and finally it was prayed that the petition be dismissed and the impugned order be upheld.
05. Mr. Gagan Oswal, learned counsel for the petitioner has argued, the sole ground that the petitioner could not be detained on the basis of the FIRs which have been made basis for invoking the preventive detention as all the FIRs are related to the transportation of bovine animals without permission of the competent authority and cruelty to animals, as such, this could not be made a basis for invoking preventive detention.
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 must be justified by a clear threat to public order, not merely law and order issues, and should be reserved for exceptional cases.
The judgment established the principle that preventive detention should only be resorted to when the alleged activities pose a threat to public order and when alternative remedies, such as cancelling....
Preventive detention under the Jammu & Kashmir Public Safety Act must be justified by current threats to public order, not merely by past criminal activities.
Preventive detention under the Jammu & Kashmir Public Safety Act must be justified by a clear threat to public order, not merely based on past criminal activities.
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....
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.
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