HCP (86/2025) P a g e |1 Supple S- 163 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP 86/2025 Pronounced on 29.04.2026. Uploaded on 29.04.2026 Rashid through Jamat Ali …Petitioner(s)/Appellant(s). Through: Mr. Ankush Sharma, adv. Vs. 1.Union Territory of Jammu and Kashmir Through Additional Chief Secretary Government of J&K Home Department Civil Secretariat, Jammu 2. The District Magistrate Udhampur. UT of J&K 3. The Senior Superintendent of Police, Udhampur. 4.Station House Officer, Police Station Chenani 5. The Superintendent Central Jail, Kot Bhalwal, Jammu ...Respondent(s). Through: Mr. Sumeet Bhatia, GA CORAM: HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE JUDGMENT 1. Impugned in the instant petition, filed under the provisions of Article 226 of the Constitution of India by the petitioner through his father is an order of detention bearing No. 04-PSA-2025 dated: 07.05.2025 passed by the respondent No. 2 (hereinafter referred to as the „Detaining Authority‟ for short), while invoking his powers under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as the HCP (86/2025) P a g e |2 „Act‟ for short), whereby the petitioner has been ordered to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public peace & order and lodged in the Central Jail Kot Bhalwal, Jammu. 2. The petitioner-detenu has assailed the impugned detention order on the grounds, inter alia, that he is a citizen of India and a domicile of UT of Jammu and Kashmir, as such, within his rights to seek the enforcement of his constitutional as well as other legal/statutory rights; that he is of the age of 23 years and a permanent resident of Village Bupp Sarar, Tehsil Chenani, District Udhampur, who has been falsely branded as a habitual bovine smuggler for managing his prevention detention; that the impugned detention order has not been passed on any proximate or compelling necessity but on generalized and unverified allegations; that the grounds of detention reflect his involvement in two case FIR‟s both of which have been disposed; that some DDRs dated 21.12.24, 22.12.24 & 17.02.2025 allegedly indicate his involvement in bovine smuggling, though no FIR/ charge sheet stands registered pursuant to said DDRs is pending in any court; that the ld. Detaining Authority has mechanically acted on the police dossier without conducting any independent verification or otherwise applying its own mind in respect of the matter; that even if the allegations against him are supposed to be true for arguments sake, they still pertain to law and order violations and not to acts prejudicial to public peace & order as alleged; that he was not furnished with the complete set of the detention record which has made him unable to make a timely representation against HCP (86/2025) P a g e |3 his detention order; that his detention is punitive in nature and camouflaged as preventive; that the impugned detention order is vitiated by procedural irregularities, absence of subjective satisfaction and colourable exercise of power by the Detaining Authority which make the same unconstitutional, illegal and liable to be set aside; that the grounds of detention are the verbatim of police dossier, thereby indicating the non-application of mind by the learned Detaining Authority and that his illegal and unjustified detention tantamounts to the infringement of his Fundamental Right to Life and Liberty guaranteed under Article 21 of the Constitution of India. 3. The respondents through their counter affidavit filed by the learned Detaining Authority i.e. respondent No. 2 resisted the instant petition on the grounds that none of the legal, fundamental or statutory rights of the petitioner-detenue have been infringed and the petition is utterly misconceived, false and frivolous deserving its dismissal. That the concerned SSP forwarded a dossier vice communication No. Con/PSA/2025/248-51 dated 08.04.2025, of activities of the petitioner to the answering respondent i.e. the Detaining Authority, making out a case for his detention being a habitual bovine smuggler in the area. That his rising involvement in bovine smuggling characterized by a blatant disregard for the law, has profoundly disrupted the peaceful equilibrium of the region. That the actions of the petitioner-detenu are deeply detrimental to the public & order, have instilled fear and animosity among the local population, disrupting the harmonious rhythm of community life. That the activities of the petitioner-detenu are anti-social which can hurt the HCP (86/2025) P a g e |4 sentiments of particular community at large and create the feeling of enmity, hatred and disharmony on the ground of religion thereby likely to disturb the public order in the area. That the petitioner-detenu has been found to be implicated in numerous instances of bovine smuggling. That the petitioner-detenu is a habitual bovine smuggler and demonstrates the failure of conventional legal measures to deter his criminal behavior. That the petitioner-detenu was time and again warned to shun the path of illegal bovine smuggling and other criminal act. That the grounds of detention, were read over and explained to the detenu in the language the detenu understands. That the representation of the petitioner-detenu has been duly considered and rejected being without any merit. That the petitioner-detenu is a bovine smuggler by profession. That despite the registration of the aforesaid FIR(s) against the petitioner, he did not mend his behaviour and remained adamant in continuing the smuggling of bovine animals, leaving no alternative for the answering respondent but to invoke the provisions of the Act in the larger public interest. That the answering respondent was aware that the petitioner/detenue is already involved in substantive offences, but keeping in view his activities which were highly prejudicial to the public law and order, the detenu was booked under Public Safety Act, strictly as per the provisions of the same. That the answering respondent, after thoroughly perusing the contents of the dossier and the ground reports so received, was satisfied that, in view of the volatile nature of the petitioner-detenue and his repeated tendency to commit illegal activities prejudicial to public peace & order, recourse to the normal laws may HCP (86/2025) P a g e |5 provide an opportunity to the petitioner-detenu to continue his nefarious designs of creating ill-will among the people, leading to disturbance of public order. That the petitioner was lastly involved in case FIR No. 30/2024 under Sections 188 IPC 11 PCA Act of Police Station Chenani. That the whole of the material relied upon by the answering respondent has been furnished to the petitioner-detenu and also read over and explained to him in the languages which he understood fully and in token of which his signature was obtained. That moreover the petitioner/detenue was informed that he can make a representation to the Government as well as the Detaining authority against his detention. That all the statutory requirements and constitutional guarantees have been fulfilled and complied with by the answering respondent. That the petitioner-detenue filed a detailed representation before the Government which was considered and found without merit. That the petitioner-detenue is operating in a secret and systematic manner actively working to establish and expand the smuggling of bovine animals. That despite being arrested in previous cases, he has not shown any inclination to reform and instead he has resumed his criminal behaviour immediately after release, continuing to act in a way that is detrimental to the maintenance of public order. That the detention order in question has been passed by the answering respondent upon proper application of his mind on the basis of the record before him. 4. Heard the learned counsel for the parties in the matter. HCP (86/2025) P a g e |6 5. The learned counsel Mr. Ankush Sharma, Advocate, while reiterating the stand already taken in the petition contended that the impugned detention order is the outcome of illegality and incorrectness for being devoid of application of mind and subjective satisfaction on the part of the ld. Detaining Authority. He contended that petitioner-detenue is alleged to be involved in case bearing FIR Nos. 125/23 & 30/2024 both registered at Police Station, Chenani u/s 188 IPC 11 PCA besides some DD Reports. The learned counsel very vehemently contended that the ld. Detaining Authority has misused its power vested in it under the Act by ordering the preventive detention of the petitioner-detenue on the allegation of his illegal activities which may amount to infraction of ,General “Law and Order” and not “public disorder” in the society. He contended that none of the allegations/involvements amount to breach of “public order” as defined under Section 8(3) of the Act. He further submitted that it is well settled by Hon‟ble Supreme Court in a catena of judgments that there lies a marked distinction between the acts amounting to breach of law and order and the acts prejudicial to the social order. The learned counsel also contended that the detention record in its entirety especially the grounds of detention, the Police Dossier and the documents regarding criminal cases were not furnished to him which amounts to the violation of the mandatory provisions of Article 22(5) of the Constitution of India read with Section 13 of the Act. HCP (86/2025) P a g e |7 The learned counsel submitted that in the facts and circumstances of the case, it is quite clear that the detention of the petitioner-detenue is apparently illegal, as not being justified under the provisions of Section 8 of the Act. He contended that the impugned detention order is the outcome of non-application of mind on the part of ld. Detaining Authority. 6. The leaned counsel for the petitioner in support of his arguments placed reliance on the authoritative judgments cited as, “Kewal Kirshan vs U.T. of J&K (2023 SCC Online J&K 940 Krishan Lal v. State (UT of J&K), 2023 SCC Online J&K 2O4”. The learned counsel for the petitioner sought the quashment of the impugned detention Order. 7. Per contra, the ld. UT Counsel submitted that the petition is liable to be dismissed as none of the constitutional or any other statutory rights of the petitioner have been infringed by the respondents. He submitted that the detention order impugned in the petition has been passed on the due application of mind by the ld. Detaining Authority who was satisfied on the basis of the record of the dossier and the field inputs gathered by him that the activities of the petitioner are likely to endanger the public order. He contended that despite earlier registration of criminal cases against the petitioner and his being convicted in both the cases, he did not mend his character but continued to indulge in aforesaid activities especially smuggling of bovine animals. He further contended that the object of the detention under the Act is preventive rather than punitive and is aimed at to debar an individual beforehand from indulging in activities prejudicial to HCP (86/2025) P a g e |8 the public order. The ld. State Counsel further contended that the petitioner/detenue who is of the age of about 30 years is known as habitual bovine smuggler in the area. That his criminal behaviour is becoming more serious and the general public has been registering its strong resentment for the actions of the petitioner-detenu regarding bovine smuggling. 8. The learned UT counsel further contended that the copies of the detention record in entirety were furnished to the petitioner/detenue who has acknowledged the receipt of the same at the time of his detention. That he was also informed of the grounds of detention in the language understood by him with further information that he has a right to make a representation to the detaining authority as well as to the Government. 9. I have perused the instant petition, the reply affidavit and have also gone through the detention record produced by the ld. UT Counsel. 10. Keeping in view the aforesaid perusal and the consideration of the rival arguments advanced on both the sides in the light of law on the subject, this Court is of the opinion that a ground is made out for interfering with the impugned detention order as the same suffers from patent illegality, misuse of power and non-application of mind on the part of the detaining authority. 11. The main issues for redressal in the instant case are: I. Whether the allegations against the petitioner culminating into registration of two Case FIR‟s both already disposed of and recording of some DD Reports have the tendency to be prejudicial to the social order and if the answer is in the negative, whether the impugned detention order suffers from non-application of mind? HCP (86/2025) P a g e |9 12. Taking the issue for determination, the Court in the facts and circumstances of the case is of the opinion that although the criminal acts of petitioner which have culminated into the registration of two case FIRs and three DD Reports, no doubt, amount to infraction of law and order by falling within the definition of relevant offences under IPC/BNS, yet this does not constitute any public disorder. 13. It is apt to reproduce the provisions of Section 8(3) of the Act which defines the social order for the purposes of Section 8(1)(a) of the Act. “8. Detention of certain persons (3) For the purposes of sub-section (1) [(a) omitted. (b) “acting in any manner prejudicial to the maintenance of public order” means – (i) promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region; (ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise, abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order; (iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order; (iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order; [(c) “smuggling” in relation to timber or liquor means possessing or carrying of illicit timber or liquor and includes any act which will render the timber or liquor liable to confiscation under the Jammu and Kashmir Forest Act, Samvat, 1987 or under the Jammu and Kashmir Excise Act, 1958, as the case may be;] [(d) “timber” means timber of Fir, Kail, Chir or Deodar tree whether in logs or cut up in pieces but does not include firewood;] [(e) “Liquor” includes all alcoholic beverages including beer]”. HCP (86/2025) P a g e |10 14. The Hon„ble Apex Court has in a catena of judgments noted the difference between, “law and order” and “public order”. 15. In Ram Manohar Lohia Vs. State of Bihar (1966) 1 SCR 709, it was held by the Hon„ble Apex Court through Hon„ble M. Hidayatullah. J. (as the Chief Justice then was) at para 54 as under: - “54. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are.” 16. In Arun Ghosh vs. State of West Bengal (1970) 1 SCC 98 again Hon„ble M. Hidayatullah, (CJ) observed that it is not the every case of a general disturbance to public tranquility which can be termed as public disorder and the test to be applied in such cases is whether the alleged act leads to the disturbance of the current of life of the community so as to amount to disturbance of the public order. That if the alleged act affects some individual or individuals leaving tranquility of the society undisturbed, the act cannot be termed as amounting to public disorder. In that case the petitioner/detenu was detained by an order of a district magistrate since he had been indulging in teasing, harassing and molesting young girls and assaults on individuals of a locality. While holding that the HCP (86/2025) P a g e |11 conduct of the petitioner/detenu could be reprehensible, it was further held that it (read: the offending act) does not add up to the situation where it may be said that the community at large was being disturbed or in other words there was a breach of public order or likelihood of a breach of public order. The observations made by the Hon„ble Apex Court in the said case at para 3 are reproduced as under:- “3. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. … It is always a question of degree of the harm and its affect upon the community.…This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.” 17. In Kuso Sah vs. The State of Bihar (1974) 1 SCC 195, the Hon„ble Apex Court through Hon‟ble Y.V. Chandrachud, J. (as the Chief Justice then was) speaking for the Bench held at paras 4 & 6 as under:- “4. The two concepts have well defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder.” “6. The power to detain a person without the safeguard of a court trial is too drastic to permit a lenient construction and therefore Courts must be astute to ensure that the detaining authority does not transgress the limitations subject to which alone the power can be exercised.” HCP (86/2025) P a g e |12 18. The allegations against the petitioner-detenu as per the pending DD Reports bearing No. 14 dated 21.12.2024, No. 08 dated 22.12.2024 & No. 16 dated 17.02.2025 at Police Station Chenani are regarding the smuggling of bovine animals, not having resulted in the commission of any social disorder by affecting the society as a whole. It is not even the allegation or in reports that any resentment was shown by the public at large. The alleged activities of the petitioner/detenue, which present a law and order situation to be dealt with under the normal law, cannot warrant or justify preventive detention on the pretext of “public disorder.”. 19. On the basis of the afore referred authoritative Judgments, this Court is of the opinion that the Detaining Authority has not applied its mind before passing the impugned detention order. 20. It was incumbent upon the Detaining Authority to satisfy itself as to how the ordinary criminal law is inadequate to deal with the petitioner. No case FIR stands registered against the petitioner subsequent to disposal of the earlier two case FIRs, three DD Reports being unverified and not proceeded by any formal FIR cannot be acted upon. There appears no proximity or live link between the alleged allegations and the need for passing of the detention order. 21. The Hon‟ble Supreme Court in case of “Rekha Vs. State of Tamil Nadu through Secretary to Government and Anr” reported in (2011) 5 SCC 244, has laid emphasis on the fundamental right to life and personal liberty of a citizen of India guaranteed under Article 21 of our Constitution HCP (86/2025) P a g e |13 and has, accordingly, stressed for taking great care and caution while passing any preventive detention orders so that same are passed in case of genuine and inevitable need only without any misuse or abuse of the powers. 22. The preventive detentions need to be passed with great care and caution keeping in mind that a citizen‟s most valuable and inherent human right is being curtailed. The arrests in general and the preventive detentions in particular are an exception to the most cherished fundamental right guaranteed under Article 21 of the Constitution of India. The preventive detentions are made on the basis of subjective satisfaction of the detaining authority in relation to an apprehended conduct of the detenue by considering his past activities without being backed by an immediate complaint as in the case of the registration of the FIR and, as such, is a valuable trust in the hands of the trustees. The provisions of Clauses (1) and (2) of Article 22 of our Constitution are not applicable in the case of preventive detentions. So, the provisions of Clause (5) of the Article 22 of our Constitution, with just exception as mentioned in Clause (6), requiring for application of mind, subjective satisfaction, inevitability of the detention order, proper and prompt communication of the grounds of detention and the information of liberty to make a representation against the detention order, are the imperative and detention order. 23. For the foregoing discussion, the impugned order appears to be the outcome of the non-application of mind and misuse of powers. HCP (86/2025) P a g e |14 24. The petitioner/detenue has already suffered detention of about more than 11 months pursuant to the detention order. 25. Accordingly, the petition is allowed and the impugned detention order bearing No. 04-PSA-2025 dated: 07.05.2025 passed by the respondent No. 2 i.e. District Magistrate, Udhampur, is quashed with the direction to the respondents to release the petitioner/detenu, namely Rashid s/o Ibrahim r/o Bupp Sarar, Tehsil Chenani, District Udhampur forthwith from his preventive detention in the instant case. (Mohd Yousuf Wani) Judge Jammu 29.04.2026 Ayaz Whether the judgment is speaking? No Whether approved for reporting? No.