Jammu & Kashmir High Court
Reserved On : 17.07.2025 vs Ut Of J&K on 22 July, 2025
Sr. No.
2025:JKLHC-JMU:1865
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.56/2025
Reserved on : 17.07.2025
Pronounced on: 22.07.2025
Mohd. Mansha @ Gunnu, Age 35 years ..... Petitioner(s)
S/O Mohd. Yousuf, R/O Raipur Jaggir,
Tehsil Marh, District Jammu
At present lodged at Central Jail, Kot Bhalwal
through mother
Banoo Bibi, age 60 years
W/O Mohd. Yousuf R/O Raipur Jaggir,
Bhad-Rode, Jammu
Through: Mr. Gagan Oswal, Advocate.
Vs
1. UT of J&K ..... Respondent(s)
through Commissioner Secretary
Department of Home,
Civil Secretariat, Srinagar/Jammu.
2. District Magistrate, Jammu.
3. Senior Superintendent of Police,
Jammu.
4. Superintendent,
Central Jail, Kot Bhalwal,
Jammu.
Through: Mr. Pawan Dev Singh, Dy. AG.
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Petitioner challenged the Detention Order No. PSA-31 of 2024
dated 28.12.2024 (impugned order), issued by respondent No.2, District
Magistrate, Jammu (“the detaining authority”), whereby petitioner namely
Mohd. Mansha @ Gunnu S/O Mohd. Yousuf R/O Raipur Jaggir, Tehsil
Marh, District Jammu (for short „the detenue‟) has been placed under
preventive detention, in order to prevent him from acting in any manner
prejudicial to the maintenance of „public order‟.
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02. The petitioner has contended that the detaining authority has passed
the impugned order mechanically without application of mind; that the petitioner
was not explained the contents of the detention warrant and grounds of detention
in the language he understands; that the detaining authority has not informed the
petitioner of his right to file representation and that too, within stipulated
timeframe to the government, which prevented the petitioner in making effective
and meaningful representation to the government; that there is delay in
considering the representation and also the outcome of the representation was
not conveyed to the petitioner; that detaining authority detained the petitioner in
bovine smuggling cases which are not covered under the Public Safety Act as
the respondents have not alleged any specific incident against the petitioner
which has led to the disturbance of the public order; that whole of the material
was not provided to the petitioner; that no satisfaction is recorded in the grounds
of detention that normal law is not sufficient to deal with the alleged activities of
the petitioner; that the petitioner though on bail, the detaining authority has not
discussed the conditions of bail in the grounds of detention; that grounds of
detention is the Xerox copy of the dossier; and that for the aforestated reasons,
impugned order is liable to be quashed.
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
representation of the petitioner was duly considered by the competent authority
and the outcome thereof was also duly conveyed to the petitioner; that the
petitioner has raised disputed questions of facts which cannot be adjudicated
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upon in a writ petition; 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. It
has been further asserted that the petitioner was involved in the cases of
commission of several offences punishable under the Indian Penal Code and
Prevention of Cruelty to Animals 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.
04. Mr. Gagan Oswal, learned counsel for the petitioner while making
reference to the grounds raised, has, inter alia, restricted his arguments and
argued that detaining authority has shown involvement of the detenue in the
several cases of the commission of offences punishable under the Indian Penal
Code and Prevention of Cruelty to Animals Act, registered at different police
stations and on the basis of it, has drawn satisfaction to detain the detenue under
preventive detention, which cannot be done in view of various judgments passed
by this court on the subject. In support of his submissions, he has relied upon the
law laid down by this Court in two earlier cases “Hamid Mohd Vs UT of J&K
& Ors” (HCP No. 4/2024) and “Muskan Ali Vs. UT of J&K & ors” (HCP
No. 72/2024) in similar facts and circumstances, holding that the involvement of
a person in cases of bovine smuggling or cruelty to animals, there being no
instance of creating communal disharmony resulting into “public disorder” , the
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preventive detention cannot be ordered in terms of J&K Public Safety Act. It is
also argued that the detenue was disabled in making an effective and meaningful
representation as the impugned detention order and its execution report does not
specifically state the time limit within which the detenue can make
representation, which has severely prejudiced the detenue in contravention to the
fundamental rights enshrined in the Constitution of India. He has also taken this
court to the various other grounds, enumerated in the petition and argued
extensively in support thereof. Lastly, it is prayed that the writ petition be
allowed and impugned detention order be quashed.
05. Mr. Pawan Dev Singh, Dy. AG argued that smuggling of bovines and
subjecting them to cruelty while transporting, is a sensitive issue, as such
activities do hurt religious feelings of a particular community, which revers the
cow. He further submits that on religious feelings being hurt, there is always an
apprehension in the minds of law enforcement agencies that it can result into
communal disharmony and consequently to law and order problem. It was
finally prayed that the petitioner being a potential threat, to the „public order‟
was rightly placed under preventive detention, in view of his continuous
involvement in such activities. The learned counsel for the respondents also
produced the detention record to lend support to the stand taken in the counter
affidavit.
06. Heard learned counsel for the parties, perused the detention record and
considered.
07. The detention record, as produced, reveals that the detune was
involved in following 05 cases registered at different Police Stations:-
1) FIR No.15/2021 U/Sec 457/380 IPC P/S Janipur 2) FIR No. 373/2023 U/Sec 379/201 IPC P/S Domana 5 2025:JKLHC-JMU:1865 3) FIR No. 530/2023 U/Sec 457/380 IPC P/S Nagrota 4) FIR No. 24/2024 U/Sec 379/201 IPC P/S Bari Brahmana 5) FIR No. 267/2024 U/Sec 223/299 BNS P/S Jhajjar Kotli.
Involvement of the detenue in the aforementioned cases appears to have heavily
weighed with the detaining authority, while passing impugned detention order.
08. First ground as argued is that the detenue was not informed about his
right to make representation within the stipulated time before the detaining
authority as well as government, thereby violating his statutory and
constitutional rights. It is translucently clear from a perusal of the impugned
detention order that the Detaining Authority has not communicated to the
detenue the time limit, in which, he could make a representation to it, till
approval of the detention order by the Government. In a case of National
Security Act, titled “Jitendra Vs. Dist. Magistrate, Barabanki & Ors.”,
reported as 2004 Cri.L.J 2967, the Division Bench of Hon‟ble Allahabad High
Court, has held:-
“10. We make no bones in observing that a partial communication of
a right (in the grounds of detention) of the type in the instant
case, wherein the time limit for making a representation is of
essence and is not communicated in the grounds of detention,
would vitiate the right fundamental right guaranteed to the
detenue under Article 22(5) of the Constitution of India, namely,
of being communicated, as soon as may be the grounds of
detention.”
09. Since the detenue‟s right to make a representation to the detaining
authority was only available to him till approval of detention order by the
Government, it follows as a logical imperative that the detaining authority
should have communicated to the detenue, the time limit, within which, he could
make a representation to it i.e., till the approval of the detention order by the
6 2025:JKLHC-JMU:1865
State Government. There is, therefore, force in the above argument of the
detenue. On this count alone, the impugned detention order cannot sustain and is
liable to be quashed.
10. Second ground argued, referring judgment passed by a Coordinate
Bench of this Court while deciding a petition titled “Hamid Mohd Vs. UT of
J&K & Ors” (HCP No. 4/2024) on 06.08.2024 is that on record there is not
even a single incident referred or reported that by alleged involvements of the
petitioner in anyone of the said FIRs registered for bovine smuggling, the so
called communal tension or disharmony took place on such and such occasion
which led to the law and order enforcement agency suffering a difficult time in
bringing under control the disturbed „public order‟ so as to showcase the
petitioner to be a threat to maintenance of public order. Para 14 of the judgment
titled “Hamid Mohd Vs. UT of J&K & Ors” (HCP No. 4/2024) decided on
06.08.2024 is reproduced for convenience as under:
“In the grounds of detention, the very fact that in almost in all
the cases related to the FIRs registered against the petitioner, it
is the offences under section 188 Indian Penal Code read with
offence under the Prevention of Cruelty to Animals Act, 1969
which are involved and that is a pointer to the fact that the same
are not relatable in any manner to maintenance of public order.
On record there is not even a single incident referred or reported
that by alleged involvements of the petitioner in anyone of the
said FIRs, the so called communal tension or disharmony came
to take place on such and such occasion which led to the law and
order enforcement agency suffering a difficult time in bringing
under control the disturbed public order so as to showcase the
petitioner to be a threat to maintenance of public order.”
7 2025:JKLHC-JMU:1865
Another Coordinate Bench in a judgment titled as “Muskan Ali Vs. UT of J&K
& Ors” (HCP No. 72/2024) decided on 29.08.2024 has followed the dictum laid
down in the case of “Hamid Mohd Vs. UT of J&K & Ors” (supra).
11. On a perusal of the grounds of detention, it is apparent that the
petitioner has been accused of being involved in the commission of thefts of
cows/oxen regarding which five FIRs had been registered at different police
stations viz FIR No. 15/2021 u/s 457/380 IPC at Police Station, Janipur; FIR
No.373/2023 u/s 379/201 IPC P/S Domana; FIR No. 530/2023 u/s 457/380 P/S
Nagrota; FIR No.24/2024, u/s 379/201 IPC P/S Bari Brahmana and FIR No.
267/2024 at Police Station, Jhajjar Kotli. The petitioner has been ordered to be
detained in preventive custody, preventing him from indulging into the activities
prejudicial to the maintenance of the “public order.”
12. All the cases registered vide FIRs were regarding thefts of
cows/oxens, except one which pertained to deliberate and malicious acts
intended to outrage religious feelings, with allegations that detenue was found
involved in smuggling of cows. Therefore, it cannot be stated that detenue was
involved in smuggling of bovines in many cases and a solitary case of
transporting the cows but with no detail with regard to number of bovines but
just that a vehicle was seized by Police on 18.12.2024 by Jhajjarkotli Police.
13. The detention order, however, is conspicuously silent with regard to
any development based on the cases relating to the maintenance of public order.
Though the detaining authority has apprehended the public order based on the
FIRs (supra), however, the detaining authority has failed to record as to what
was the “law and order problem” much less as that of “public order” in the year
2021 or in the year 2023 or immediately after registration of the last FIR in the
year 2024. Communal disharmony erupts at the spur of the moment and cannot
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be expected at a later stage. Since the registration of all the cases which has been
made basis for the passing of the detention order has neither evoked any such
public order or communal tension and no problem of “law and order” is shown
to have erupted which is even far away from “public order.”
14. This court, in view of the aforesaid opinion of the Coordinate
Benches and the discussion made hereinabove, has no reason to take a different
view in this regard and is persuaded to agree with the view expressed by the
Coordinate Benches in the aforesaid cases.
15. The other grounds urged by the learned counsel for the petitioner need
not be deliberated upon by this court, in view of succeeding of the writ petition
on the grounds discussed in the preceding paragraphs.
16. For the aforesaid reasons, the petition is allowed and impugned
Detention Order No.PSA 31 of 2024 dated 28.12.2024 issued by respondent
No.2, District Magistrate, Jammu is quashed. The petitioner- Mohd. Mansha @
Gunnu S/O Mohd. Yousuf R/O Raipur Jaggir, Tehsil Marh, District
Jammu is directed to be released forthwith, in case he is not required in any
other case.
17. The detention record produced by the counsel for the respondents be
returned to the respondents through their counsel.
( ( M A Chowdhary )
Judge
Jammu
22.07.2025
Raj kumar
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