[Cites 8, Cited by 0]

Jammu & Kashmir High Court

Reserved On: 05.02.2026 vs Ut Of J&K & Ors on 13 February, 2026

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                                                             2026:JKLHC-JMU:330



    IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                              HCP No. 91/2025

                                              Reserved on: 05.02.2026
                                           Pronounced on : 13.02.2026
                                             Uploaded on : 13.02.2026
                                       Whether the operative part or full
                                         judgment is pronounced: Full

Makhan Lal @ Makhni
                                                                 ....Petitioners

                  Through:-        Mr. Mohinder Kumar, Advocate.

                              V/s

UT of J&K & Ors
                                                            .....Respondents

                  Through:-        Mr. Sumeet Bhatia, GA.
\

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

(JUDGMENT)

01. The petitioner, through the medium of the present

petition, has challenged Order No. 06-PSA of 2025 dated

13.06.2025 issued by District Magistrate, Udhampur-

respondent No. 2 herein whereby the petitioner, namely,

Makhan Lal @ Makhni has been placed under preventive

detention so as to prevent him from acting in any manner

prejudicial to maintenance of public order.

02. The impugned order of detention has been

challenged by the petitioner on the grounds that the same has

been passed by the detaining authority without application of

mind. It has been contended that there were no compelling

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reasons with the detaining authority to pass the impugned

order of detention when the petitioner was already facing

prosecution in some of the FIRs registered against him.

According to the petitioner, the allegations leveled against him

in the grounds of detention are fabricated and concocted and

even if the same are taken to be true still then having regard to

the nature of these allegations, it cannot be stated that

activities of the petitioners are prejudicial to the maintenance

of public order. It has been further contended that the

petitioner was not informed of the grounds of detention in a

language which he understands. It has also been contended

that representation of the petitioner against the impugned

order of detention was considered belatedly by the respondents

as a result of which the impugned detention order is vitiated.

03. The respondents have contested the writ petition by

filing counter affidavit. In the counter affidavit, it has been

submitted that the petitioner is a hardened criminal involved

in numerous cases of bovine smuggling and assault. It has

been alleged that activities of the petitioner have disrupted

public order and instilled fear among local citizen. According

to the respondents, the petitioner, by forming a nexus with

other criminals and organizing bovine smuggling operations,

posed a threat to the co-existence of the community and his

being at large could lead to disturbances and exacerbate the

prevailing law and order situation in Udhampur district. It has

been contended that impugned order of detention has been

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passed by the detaining authority after drawing subjective

satisfaction from the dossier submitted by the police

authorities and the material on record after proper application

of mind.

04. It has been further contended that all the statutory

and constitutional imperatives have been adhered to by the

respondents while detaining the petitioner pursuant to the

impugned order of detention. It has further been contended

that grounds of detention were read over and explained to the

petitioner in dogri language which he understands. Regarding

the representation of the petitioner, it has been submitted that

the same was considered and rejected by the Government,

whereafter information was conveyed to the petitioner in terms

of communication dated 04.08.2025. To lend support to their

contentions, the respondents have produced the detention

record.

05. I have heard learned counsel for the parties and

perused record of the case including the detention record.

06. Learned counsel for the petitioner while seeking

quashment of the impugned detention order has projected

various grounds but his main thrust during the course of the

arguments was on the following grounds:

(i) That the activities in which the petitioner is alleged to have been involved cannot form a basis for passing an order of preventive detention as the same, at worst, can have an effect on law and order

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but do not have potential to disturb the public order and

(ii) That the representation of the petitioner against the impugned order of detention has not been considered by the respondents with promptitude.

07. So far as the first ground projected by the learned

counsel for the petitioner is concerned, the grounds of

detention would reveal that the petitioner is shown to have

been involved in as many as four FIRs. FIR No. 177/2023 of

Police Station, Rehmbal pertains to involvement of the

petitioner in bovine smuggling. He is stated to have been

convicted for offences under Section 188 IPC and section 11 of

Prevention of Cruelty to Animals Act in the said FIR. FIR No.

207/2023 of Police Station, Rehmbal also pertains to bovine

smuggling and in the said case also, the petitioner has been

convicted and fine has been imposed upon him. The third and

fourth FIRs bearing Nos. 76/2024 and 56/2025 of Police

Station, Ramnagar pertain to alleged attack by the petitioner

upon the respective complainants with sharp edged weapons.

In FIR No. 76/2024, the challan is stated to have been filed

while FIR No. 56/2025 is stated to be still under investigation.

08. The question that arises for determination is as to

whether on the basis of two instances of bovine smuggling and

two instances of attack by the petitioner upon the

complainants, it can be stated that activities of the petitioner

had potential of endangering public order.

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09. In order to find an answer to the aforesaid question,

it would be necessary to understand the concept of public

order in distinction to the concept of law and order. This issue

has been dealt with by the Supreme Court in the case of K.K.

Saravana Babu Vs. State of Tamil Nadu and anr

(2008) 9 SCC 89. In the said case, the Supreme Court has

observed that public order would mean the tempo of the life of

the community taking the country as a whole or even a

specified locality whereas law and order has been set up in the

hierarchy below the public order. Security of the State has

been set up above the public order in the hierarchy.

Thus, activities which tend to disturb the society as a whole

would constitute a threat to the public order whereas, acts

which are directed against an individual cannot be stated to be

endangering the public order though their acts may disturb

the law and order.

10. A Single Bench of this Court in HCP No. 4/2024

decided on 06.08.2024 while dealing with the issue as to in

what circumstances, a person can be detained for endangering

the public order has made the following observations:-

"Maintenance of Public Order as being one of the grounds of subjecting a person to preventive detention is not to be easily assumed to be readily available by a just reference to series of FIRs reporting crimes against a particular individual which would at the most render him to be branded as a habitual offender for which the Code of Criminal Procedure, 1973 in itself has conceived a preventive measure under section 110 which enlists a number of

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categories for an Executive Magistrate to take cognizance and bind a person so as to prevent him from indulging in repeat of the alleged activities. What is meant to be effectively cured and dealt with under section 110 of the Code of Criminal Procedure, 1973 cannot be diverted to be dealt with by the application of prevention detention mode of J&K Public Safety Act, 1978 by depriving a person of his personal liberty for any given period of time. A preventive detention cannot be resorted to by the debunking ordinary criminal procedure and trial of cases."

11. In view of the foregoing analysis of the legal

position, it is clear that it is only if the activities of a person

sought to be detained under J&K Public Safety Act are of such

a degree as would endanger the public order meaning thereby

disturb the society to the extent of causing disturbance to the

public tranquility, that preventive detention order can be

passed against such person.

12. In the instant case, as already noticed, the

allegations against the petitioner are that he has indulged in

bovine smuggling on two occasions. Both these instances

pertain to the year 2023 and there is nothing on record to

suggest that anybody has complained about the apprehension

of breach of public order on account of these two incidents. In

any case, both these incidents are stale in nature when read in

context of the date of passing of the impugned order of

detention.

13. So far as the other two incidents in which the

petitioner is stated to be involved, which are more recent in

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time, the same relate to alleged attack on the complainants by

the petitioner. These activities of the petitioner cannot be

bracketed in the category of activities endangering the public

order. These activities of the peitioner are directed against a

particular individual and not against the society as a whole.

Therefore, by no stretch of reasoning, it can be stated that the

recent activities of the petitioner have the potential of

endangering the public order.

14. While this Court is conscious of the legal position

that subjective satisfaction of the detaining authority cannot

be a subject matter of judicial review but at the same time, the

detaining authority cannot pass an order of preventive

detention on flimsy grounds, which appear to be irrational and

extraneous to the object sought to be achieved. In the present

case, the recent activities of the petitioner can, by no stretch of

reasoning, be stated to be a danger to the public order.

Therefore, the impugned order of detention passed by the

detaining authority is not sustainable in law.

15. So far as the second ground urged by learned

counsel for the petitioner is concerned, it is to be noted that

the petitioner has posted the representation against the

impugned order of detention on 28.06.2025. The detention

record produced by the respondents would reveal that upon

receipt of the said representation by the Government, vide

communication dated 03.07.2025, the Home Department of

the Government sought comments of Additional Director of

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Police, CID. It was only on 04.08.2025 that the representation

of the petitioner was rejected by the Government and a

communication was sent to the District Magistrate, Udhampur

informing about the result of consideration. The petitioner, it

appears, has been informed about the disposal of his

representation thereafter. Thus, the respondents have

consumed more than one month in deciding the representation

of the petitioner.

16. The Supreme Court in the case of Sarabjeet Singh

Mokha vs. District Magistrate, Jabalpur and others,

(2021) 20 SCC 98 has held that failure to decide the

representation of a detenue within a reasonable time in an

expeditious manner strikes at the valuable right of the

detenue. This position of law has been consistently followed

by this Court in a number of judgments and in this regard,

observations made by this Court in Mohd. Tahir Pall Vs. UT

of J&K & ors (HCP No. 114/2025) are quoted below:

"From the foregoing analysis of law on the subject, it is manifest that delaying of decision on the representation of the detenue amounts to an infringement of a valuable right which is available to a detenue in terms of provisions contained in Section 13 of the Jammu & Kashmir Public Safety Act, which makes it obligatory on the detaining authority to communicate to the detenue the grounds on which the order of detention has been made within a maximum period of ten days from the date of detention and to afford him the earliest opportunity of making representation against the order of detention. The purpose of furnishing the grounds of detention within a maximum period of ten days is to

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enable a detenue to make a representation against the order of detention at the earliest opportunity. Thus, a duty is cast upon the detaining authority or the government to consider the said representation at the earliest opportunity. Failure to decide the representation of a detenue within a reasonable time in an expeditious manner strikes at the valuable right of a detenue emanating from the provisions of Section 13 of the Jammu & Kashmir Public Safety Act."

16. In the present case, the respondents have decided

the representation of the petitioner after more than one month.

This slackness on the part of the respondents to decide the

representation of the petitioner renders the impugned order of

detention illegal.

17. Viewed in the aforesaid context, the impugned order

of detention becomes unsustainable in law and the same is

accordingly quashed. The respondents are directed to release

the petitioner from the preventive custody forthwith, provided

he is not required in connection with any other case.

17. The petition stands allowed in the above terms.

The record be returned to learned counsel for the respondents.