Mere Allegation Of Involvement In Transportation Of Cows Without Permission Not Sufficient To Impose Preventive Detention: Jammu & Kashmir and Ladakh HC
The petitioner approached the Jammu & Kashmir and Ladakh High Court challenging the order of detention issued by the District Magistrate of Kathua.
While directing the release of a man accused of transporting cows by violating the orders of the District Magistrate, the Jammu & Kashmir and Ladakh High Court has held that merely because he was alleged to be involved in the offences relating to transportation of bovine animals without permission is not a sufficient ground to invoke the remedy of preventive detention.
The petitioner approached the High Court challenging the order of detention issued by the District Magistrate, Kathua, who placed him under preventive detention with a view to preventing him from continuing his criminal activities.
The Single Bench of Justice Sanjay Dhar held, “From the foregoing analysis of legal position, it is clear that merely because the petitioner is alleged to be involved in the offences relating to transportation of bovine animals without permission is not a sufficient ground to invoke the remedy of preventive detention, particularly, in a case where the detaining authority has not recorded any subjective satisfaction that such activities of the detenue have either resulted or have the potential to lead to public outrage. The impugned order of detention is, therefore, unsustainable in law on this ground as well”
Advocate Jagpaul Singh represented the Petitioner while Government Advocate Suneel Malhotra represented the Respondent.
Factual Background
In the grounds of detention, reference was made to eight FIRs wherein it was alleged that the petitioner was indulging in the transportation of bovine animals, thereby violating the prohibitory orders issued by the concerned District Magistrate.
Arguments
It was the case of the petitioner that there was an unexplained delay in the passing of the impugned detention order by the detaining authority since the impugned order of detention came to be passed after a lapse of one month. It was further submitted that activities alleged to have been committed by the petitioner could not be termed as prejudicial to the public order.
Reasoning
On a perusal of the facts of the case, the Bench noted that no satisfactory explanation was furnished by the detaining authority in his counter-affidavit for the delay of one month in passing the impugned order of detention. The detention record also did not furnish any explanation in this regard. “There has been no correspondence between the detaining authority and the sponsoring agency during this period of one month either to seek clarification or to seek further information with regard to the present case, it noted.
Referring to its judgment in Javed Iqbal Itoo Vs. UT of J&K & Ors. (2022), the High Court stated, “From the foregoing analysis of legal position on the subject, it is clear that unexplained delay in passing the impugned order of detention gives rise to an inference that situation was not of such an emergent nature as would have warranted preventive detention of the detenue. In the present case, as already stated, the detaining authority did not act upon the dossier submitted by the sponsoring agency for good one month, which clearly shows that there was no urgent need to put the petitioner behind the bars. The impugned order of detention, therefore, gets vitiated.”
Taking note of the District Magistrate’s opinion in the grounds of detention, the Bench found that while drawing subjective satisfaction for the need to pass the impugned order of detention against the petitioner, the Magistrate had nowhere stated that the activities of the petitioner had the potential of causing hurt to the feelings of any particular community.
“It is not indicated in the grounds of detention as to whether there was an apprehension of causing hurt to the religious feelings of any particular community in the face of alleged activities of the detenue.In the absence of any such satisfaction having been recorded by the detaining authority while formulating the grounds of detention, it cannot be stated that the alleged activities of the petitioner had the potential of disturbing the communal harmony or causing hurt to the religious feelings of any particular community”, the order read.
Thus, allowing the Petition and quashing the impugned order of detention, the Bench directed the respondents to release the petitioner from the preventive custody.
Cause Title: Kamal @ Kaka v. UT of J&K & Ors. (Neutral Citation: 2026:JKLHC-JMU:796)