Jammu & Kashmir High Court
Reserved On : 17.07.2025 vs Ut Of J&K Through on 23 July, 2025
Sr. No. 85
2025:JKLHC-JMU:1908
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.21/2025
Reserved on : 17.07.2025
Pronounced on: 23.07.2025
Mohd. Akram, Aged 26 years ..... Petitioner(s)
S/O Maskeen Ali, R/O Jojran Talab,
Tehsil & District Udhampur
Through his wife Shamshad Begum
Through: Mr. Irfan Khan, Advocate.
Vs
1. UT of J&K through ..... Respondent(s)
Commissioner Secretary
Department of Home,
Civil Secretariat, Srinagar/Jammu.
2. District Magistrate, Udhampur.
3. Senior Superintendent of Police,
Udhampur.
4. Superintendent, District Jail,
Udhampur.
Through: Mr. Sumeet Bhatia, GA.
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Petitioner has challenged the Detention Order No.13/PSA-2024
dated 09.12.2024 (impugned order), issued by respondent No.2, District
Magistrate, Udhampur (“the detaining authority”), whereby petitioner namely
Mohd. Akram S/O Maskeen Ali R/O Jojran Talab Tehsil and District
Udhampur („the detenue‟) has been placed under preventive detention, in order
to prevent him from acting in any manner prejudicial to the maintenance of
„public peace and order‟.
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
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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 on
the basis of alleged 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 was shown
involved in 03 case FIRs for the allegedly petty offences in which the petitioner
himself pleaded guilty and was convicted and the aforesaid FIRs stand
compounded and the petitioner was sentenced to fine only in this regard,
therefore there was absolutely no need to pass the impugned detention order on
the basis of FIRs (supra) against the petitioner.
03. Pursuant to the notice, the respondents filed 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 was duly
informed of his right to make representation; as a result whereof he filed
representation through his wife, which was duly considered by the competent
authority and outcome thereof conveyed to the petitioner; that the petitioner has
raised disputed questions of facts which cannot be adjudicated upon in a writ
petition; that the detaining authority has observed all the safeguards enshrined in
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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 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.
04. Mr. Irfan Khan, learned counsel for the petitioner while making
reference to the grounds urged, 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 Police Station
Udhampur 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 preventive detention cannot be ordered in terms of J&K Public
4 2025:JKLHC-JMU:1908Safety 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 do not specifically state the time limit within which the detenue
can make representation, which has severely prejudiced the detenue and has
made inroads in 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 quashed.
05. Mr. Sumeet Bhatia, GA, 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 as sacred animal. 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 FIRs/DDRs cases registered at Udhampur and Chenani
police stations:-
01. FIR No.566/2022 U/S 188 IPC, 11 PCA Act at P/S Udhampur.
02. FIR No. 506/2023 U/S 188 IPC, 11 PCA Act at P/S Udhampur.
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03. FIR No.265/2023 U/Sec 188/IPC, 11 PCA Act at P/S Udhampur.
04. DDR No.07 dated 16.03.2024 at P/S Chenani.
05. DDR No. 19 dated 17.03.2024 at P/S Chanani.
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 a stipulated time before the detaining
authority as well as government, thereby violating his statutory and
constitutional rights. It is translucently clear from perusal of the impugned
detention order that the Detaining Authority has not communicated to the
detenue the time limit, within 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 in the grounds of detention the time
limit, within which, he could make a representation to it i.e., till the approval of
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the detention order by the 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 of 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.”
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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 offences of bovine
smuggling regarding which 03 FIRs had been registered at police station
Udhampur in the years 2022 and 2023, viz FIR No.566/2022 U/S 188 IPC, 11
PCA Act, FIR No. 506/2023 U/S 188 IPC, 11 PCA Act, FIR No.265/2023
U/Sec 188/IPC, 11 PCA Act, besides two DDRs entries at P/S Chenani namely
DDR No.07 dated 16.03.2024 and DDR No. 19 dated 17.03.2024. 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. Perusal of the detention record would show that all the three cases, in
which petitioner was shown allegedly involved, stood disposed of on confession
and the detenue was sentenced to fines. 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 2022, or in the year 2023 or
immediately after registration of the last FIR in the year 2023. Communal
disharmony erupts at the spur of the moment and cannot 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 communal tension nor
problem of “law and order” is shown to have erupted, which is even far away
from “public order.”
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13. 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.
14. 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 in the preceding paragraphs.
15. For the aforesaid reasons, the petition is allowed and impugned
Detention Order No.13/PSA-2024 dated 09.12.2024 issued by respondent
No.2, District Magistrate, Udhampur is quashed. The petitioner- Mohd. Akram
S/O Maskeen Ali R/O Jojran Talab Tehsil and District Udhampur is
directed to be released forthwith, in case he is not required in any other case. No
order as to costs.
16. The detention record produced by the counsel for the respondents be
returned to the respondents through their counsel.
( ( M A Chowdhary )
Judge
Jammu
23.07.2025
Raj kumar
Whether the order is speaking? : Yes
Whether the order is reportable? : Yes.
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