HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No.27/2025 Reserved on: 31.07.2025 Pronounced on: 05.08.2025 Rafiq, Age 45years S/O Isrial, R/O Village Salada, Pakhlai, Tehsil & District Udhampur. ….. Petitioner(s) Through: Mr. R. S. Kotwal, Advocate. Vs 1. UT of J&K through Principal Secretary Department of Home Affairs, Civil Secretariat, Jammu. 2. District Magistrate, Udhampur. 3. Senior Superintendent of Police, Udhampur. 4. Superintendent, Central Jail, Kot Bhalwal, Jammu. .…. Respondent(s) Through: Mr. Sumeet Bhatia, GA. CORAM: HON’BLE MR. JUSTICE M A CHOWDHARY, JUDGE JUDGMENT 01. Petitioner challenged the Detention Order No. 11-PSA-2024 dated 05.12.2024 (impugned order), issued by respondent No.2, District Magistrate, Udhampur (“the detaining authority”), whereby his brother namely Neef @ Billu S/O Isrial, R/O Salada, Pakhlai, Tehsil & District Udhampur (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 peace and order‟. Sr. No. 45 2 HCP No.27/2025 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 Gojri language; that the detaining authority has not informed the detenue of his right to file representation and that too, within stipulated timeframe to the government, which prevented the detenue in making effective and meaningful representation to the government; that detaining authority detained the detenue in bovine smuggling cases which are not covered under the Public Safety Act as the respondents have not alleged any specific incident against the detenue which has led to the disturbance of the public order; that whole of the material was not provided to the detenue; that no satisfaction is recorded in the grounds of detention that normal law is not sufficient to deal with the alleged activities of the detenue; and that for the afore-stated reasons, impugned order is liable to be quashed. 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 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 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 3 HCP No.27/2025 the ambit of law observing all the safeguards. It has been further asserted that the detenue 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 Police Station, Udhampur 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. R. S. Kotwal, 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, 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 Safety Act. It is also argued that the detenue was disabled in making an effective and meaningful representation as whole of the material relied upon by the detaining authority for passing the impugned 4 HCP No.27/2025 detention order is not supplied to the detenue, which has severely prejudiced the detenue in contravention to the fundamental rights enshrined in the Constitution of India. He has also taken the 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. 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, where cow is revered and considered sacred. 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 detenue 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 03 cases registered at Police Station, Udhampur:- 1) FIR No.337/2022 U/Sec 188 IPC, 11 PCA Act. 2) FIR No. 404/2022 U/Sec 188 IPC, 11 PCA Act. 3) FIR No. 419/2024 U/Sec 223(a) BNS, 11 PCA Act & 184 MV Act. 5 HCP No.27/2025 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 before the detaining authority 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 that he can make representation to the detaining authority against the impugned detention order. The above fact of not communicating to the detenue that he has a right to approach the detaining authority itself for revocation of the impugned detention order is conspicuously missing, on a bare reading of the communication No.DMU/JU/1366-1371 issued by the District Magistrate, Udhampur to the detenue. 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, at the first hand, that he has right to file representation before her as well and secondly, the detaining authority should have informed 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 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 6 HCP No.27/2025 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 detenue in anyone of the said FIRs registered for alleged 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 detenue 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.” This Court again 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 detenue has been accused of being involved in the commission of illegal 7 HCP No.27/2025 transportation of bovines and cruelty against the animals regarding which 3 FIRs had been registered at Udhampur Police Station viz FIR No. 337/2022 u/s 188 IPC, 11 PCA Act, FIR No.404/2022 u/s 188 IPC, 11 PCA Act and FIR No.419/2024 u/s 223(a) BNS/11 PCA Act/184 MV Act. The detenue 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 illegal transportation of bovines. A perusal of grounds of detention would show that the said FIRs do not specifically or categorically insinuate that the detenue is involved in illegal transportation of such animals which are revered by a particular community. 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 2022 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 such public order or communal tension and no problem of “law and order” which is even far away from “public order,” is shown to have erupted. 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 8 HCP No.27/2025 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. 11-PSA-2024 dated 05.12.2024 issued by respondent No.2, District Magistrate, Udhampur is hereby quashed. The detenue- Neef @ Billu S/O Isrial, R/O Salada, Pakhlai, Tehsil & District Udhampur is directed to be released forthwith, in case he is not required in any other case(s). 17. The detention record produced by the counsel for the respondents be returned to the respondents, through their counsel. ( ( M A Chowdhary ) Judge Jammu 05.08.2025 Raj Kumar Whether the order is speaking? :Yes Whether the order is reportable? :Yes Raj Kumar 2025.08.05 13:28 I attest to the accuracy and integrity of this document