Jammu & Kashmir High Court
Hafeez Mohammad vs Union Territory Of Jammu & Kashmir on 11 August, 2025
Serial No.93
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 48/2025
Reserved on 07.08.2025
Pronounced on 11.08.2025
Hafeez Mohammad, Age 30 years
S/O Shareef Mohamad
R/O Dubbli Gali Mongari
District Udhampur Through his wife Shatti.
.......Petitioner
Through: Mr. Mohd. Akram, Advocate.
Vs
1. Union Territory of Jammu & Kashmir
Through Commissioner/Secretary(Home)
Civil Secretariat, Jammu/Srinagar.
2. The District Magistrate, Udhampur.
3. The Senior Superintendent of Police,
Udhampur.
4. The Superintendent, District Jail,
Udhampur.
..... Respondents
Through: Mr. Sumeet Bhatia, GA.
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Petitioner has challenged the Detention Order No.01-PSA-2025
dated 18.01.2025 (impugned order), issued by respondent No.2, District
Magistrate, Udhampur (“the detaining authority”), whereby petitioner namely,
Hafeez Mohammad S/O Shareef Mohammad R/O Village Dubigali Tehsil
Moungri District Udhampur („the detenue‟) has been placed under preventive
2 HCP No. 48/2025
CM No. 3543/2024
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 detenue
was not explained the contents of the detention warrant and grounds of detention
in the language he understands; that the detaining authority has supplied the
detention order to the father of the detenue, who is an old age person; that the
detenue has not been supplied the copies of FIRs and detention record in
stipulated time, due to this reason, he submitted his representation to the
government on 05.03.2025; 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 the petitioner was shown
involved in 03 cases for the allegedly petty offences in which the petitioner
himself pleaded guilty and was convicted and the aforesaid cases were disposed
of with sentence of fine only, therefore there was absolutely no need to pass the
impugned detention order on the basis of FIRs against the detenue.
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 the activities prejudicial to „public order‟;
that the detention order does not suffer from any malice or legal infirmity; that
the detenue was duly informed of his right to make representation; as a result
3 HCP No. 48/2025
CM No. 3543/2024
whereof he filed representation through his wife, which was duly considered by
the competent authority and outcome thereof conveyed to the detenue; that the
detenue 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 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 detenue was involved in the 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 detenue 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. Mohd Akram, learned counsel for the petitioner while making
reference to the grounds urged, has 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 Panchari and on this basis, 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
three earlier cases “Zaffar Ahmad vs. UT of J&K & Ors.” (HCP
4 HCP No. 48/2025
CM No. 3543/2024
No.66/2024), 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 Safety Act. It is also argued that the detenue
had submitted representation on 05.03.2025 as the impugned detention order and
its execution report did not specifically state the time limit within which the
detenue can make representation, which has severely prejudiced the detenue and
has made inroads in his 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, on the other hand, 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.
5 HCP No. 48/2025
CM No. 3543/2024
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 03 FIRs/Istgasa cases registered at Police Station
Panchari:-
03. FIR No.67/2024; U/S 223/BNS, 11 PCA Act.
04. Complaint/Istgasa No.89/6-10PSP U/S 126/129/170 BNSS
Dated 13.12.2024.
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. Distt. 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
6 HCP No. 48/2025
CM No. 3543/2024communicated 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
the detention order by the State Government. There is, therefore, force in the
above argument advanced on behalf 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
7 HCP No. 48/2025
CM No. 3543/2024petitioner, 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.”
The aforesaid view taken was followed by this court in judgments titled as
“Muskan Ali Vs. UT of J&K & Ors” (HCP No. 72/2024) decided on
29.08.2024 and “Zaffar Ahmad Vs. UT of J&K & Ors.” (HCP No.66/2024),
decided on 15.10.2024.
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
Panchari in the years 2020, 2021 and 2024, viz FIR No.24/2020 U/S 188 IPC,
11 PCA Act, FIR No. 33/2021 U/S 188 IPC, 11 PCA Act and FIR No.67/2024
U/S 223/BNS, 11 PCA Act. Besides above FIRs, complaint/Istgasa No.89/6-
10 PSP U/S 126/129/170 BNSS Dated 13.12.2024 at P/S Panchari was also
taken into consideration. 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.”
8 HCP No. 48/2025
CM No. 3543/2024
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 2020, 2021 or in the year 2024 or
immediately after registration of the last FIR in the year 2024. 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.”
13. Learned counsel for the detenue argued that the detenue belonged to the
peasantry class and rearing of cattles/bovines were part of their
vocation/economy. It is apparent from the record of the cases registered against
the detenue that he was taking the cattles to some other places within the
jurisdiction of the same district, as such, even the commission of penal offence
U/S 188 was not made out, as the order issued by the District Magistrate was
alleged to have been violated by transporting the cattles without permission
from the territorial jurisdiction of the district Udhampur, whereas, fact of the
matter is that cattles were being herded to upper reaches of Panchari area, within
the district, that too on foot. Even story of cruelty to the animals seems to be
9 HCP No. 48/2025
CM No. 3543/2024
remote, so as to offend the sentiments of any particular community was also
being villagers and farmers, is into the same vocation.
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 in the preceding paragraphs.
16. For the aforesaid reasons, the petition is allowed and impugned
Detention Order No.01-PSA-2025 dated 18.01.2025 issued by respondent
No.2, District Magistrate, Udhampur is quashed. The petitioner-Hafeez
Mohammad S/O Shareef Mohammad R/O Village Dubigali Tehsil Moungri
District Udhampur, is directed to be released forthwith, in case he is not
required in any other case(s). No order as to costs.
17. The detention record produced by the counsel for the respondents be
returned to the respondents through their counsel.
(M A CHOWDHARY)
JUDGE
JAMMU
11.08.2025
Surinder
Whether the order is speaking? : Yes/No
Whether the order is reportable? : Yes/ No
Surinder Kumar
2025.08.11 16:25
I attest to the accuracy and
integrity of this document