Jammu & Kashmir High Court
Zaffar Ahmad vs Ut Of J&K Through ... on 15 October, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 10.10.2024
Pronounced on: 15.10.2024
HCP No. 66/2024
Zaffar Ahmad, Age 23 years
S/O late Fareed Ahmad
R/O Majeen Ragoora, Tehsil Nagrota District
Jammu At present lodged at Central Jail,
Kot Bhalwal.
.....Petitioner
Through: Mr. Gagan Oswal, Advocate.
Vs
1. UT of J&K 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.
..... Respondent(s)
Through: Mr. Rajesh Thappa, AAG
CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. The petitioner through the medium of this petition filed
under Article 226 of the Constitution of India seeks
quashment of Order No. PSA 17 of 2024 dated 12.04.2024
(hereinafter to be referred as „detention order‟) passed by
the District Magistrate, Jammu (hereinafter to be referred
to as „detaining authority‟) whereby he has been ordered
to be detained under Section 8(1) (a) of the Jammu and
Kashmir Public Safety Act, 1978 and release from the
custody.
02. The petitioner has challenged the detention order on
various grounds, inter alia, that he has not been furnished
the grounds of detention in his language which he
understands as he is not well conversant with the English
language being an illiterate person; that the detention order
has been passed against him on the allegations of
commission of offences of smuggling of bovine animals and
cruelty to animals, however, none of the offences are
heinous or against the violation of public order as such, the
detention order is illegal; that the petitioner has not been
served with whole of the material on which the detention
order has been passed, such as, copies of the FIR and other
documents, as such, he has been deprived of making an
effective representation; that the grounds of detention are
verbatim repeat of dossier submitted by the SSP, Jammu;
that the petitioner had already been enlarged on bail in
connection with the FIRs which have been mentioned in the
detention order and with respect to the said FIRs he has
been facing trial as such the detention order is bad in law;
that the detaining authority has refused to consider the
petitioner's representation and he has also not been shown
any time limit within which he could make a
representation; that the detention order has been passed by
the detaining authority without application of mind and
finally it was prayed that the detention order be quashed
and the petitioner be directed to be released from the
custody.
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 petitioner has raised disputed
questions of facts which cannot be adjudicated upon in a
writ petition; that the petitioner has not availed the remedy
of filing representation against his detention order despite
communication of this right to him; 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.
04. 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.
05. Mr. Gagan Oswal, learned counsel for the petitioner has
argued, the sole ground that the petitioner could not be
detained on the basis of the FIRs which have been made
basis for invoking the preventive detention as all the FIRs
are related to the transportation of bovine animals without
permission of the competent authority and cruelty to
animals, as such, this could not be made a basis for
invoking preventive detention. He has not pressed other
grounds in his arguments. 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.
06. Mr. Rajesh Thappa learned AAG, argued that smuggling of
bovines and subjecting them to cruelty while transporting,
is a sensitive issue, as such activities do hurt religious
feelings of the community which refers the bovine as
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 petitioner being a potential
threat, to the public order was rightly placed under
preventive detention, in view of his continuous involvement
in such activities.
07. 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 elaborately laid down in para 14,
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."
08. 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).
09. 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 four FIRs had been registered at different police
stations viz FIR No. 32/2021 and FIR No. 197/2023 at
Police Station, Jhajjar Kotli, FIR No. 232/2023 and FIR No.
108/2024, registered at Police Station, Nagrota. 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.‟
10. 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 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.‟
11. 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
inclined to agree with the view expressed by the Coordinate
Benches in the aforesaid cases.
12. For the aforesaid reasons, the petition is allowed and the
impugned detention order is quashed. The petitioner is
directed to be released forthwith, in case he is not required
in any other case.
13. The detention record produced by the counsel for the
respondents is returned back against proper receipt.
14. The petition is disposed of, accordingly.
(M A CHOWDHARY)
JUDGE
JAMMU
15.10.2024
NARESH/SECY.
Whether the order is speaking: Yes
Whether the order is reportable: Yes
