“Ordinary Criminal Law Sufficient”: J&K High Court Quashes Preventive Detention Of Man Accused In Repeated Livestock Theft Cases

Setting aside the detention of one Tariq Ahmad Dar under the Jammu and Kashmir Public Safety Act (PSA), a Division Bench comprising Chief Justice Dr. Pushpendra Singh Bhati and Justice Mohd Yousuf Wani held that the ordinary criminal law machinery was sufficient to deal with the allegations against him, and that resorting to preventive detention in the circumstances amounted to an unjustified exercise of power.

The Bench observed that “the material brought before the detaining authority by the District Superintendent of Police, Kulgam was not of such a nature which could have been understood and apprehended as prejudicial to the 'public order'.”

Dar had been detained under Section 8(1)(a)(i) of the Jammu and Kashmir Public Safety Act through an order passed by the District Magistrate, Kulgam. The detention order was based on his alleged involvement in a series of cases concerning house trespass and theft of cattle or sheep.

The grounds of detention referred to 11 incidents, mostly during 2025, involving alleged house trespass or housebreaking after sunset and before sunrise for the purpose of stealing livestock in Kulgam, Anantnag and Shopian districts.

The authorities alleged that the repeated incidents had created fear and insecurity among residents and affected public order. They also contended that the detenue had been granted bail in several criminal cases and that ordinary criminal proceedings had not prevented the alleged repetition of offences.

The Single Judge had dismissed Dar's habeas corpus petition on September 25, 2026, upholding the detention order. His wife, Nahida Akhter, challenged that decision before the Division Bench.

Court Distinguishes Law And Order From Public Order

The Division Bench reiterated that the distinction between a breach of law and order and an activity prejudicial to public order depends on the nature and impact of the conduct, rather than merely the number of criminal cases registered against a person.

The Court examined the allegation that the incidents, because of their frequency and geographical spread, had disturbed the peace of the community. It found, however, that the material relied upon by the detaining authority did not establish the requisite connection between the alleged criminal acts and a threat to public order.

Referring to the Supreme Court's decision in Ameena Begum v. State of Telangana (2023), the Bench emphasised that preventive detention is an exceptional measure and cannot be invoked as a substitute for ordinary criminal prosecution.

The court noted that the allegations against Dar were already being dealt with under the general criminal law, with chargesheets filed before competent courts and bail granted in the relevant cases.

The Court observed,

“The alleged actions of the appellant/detenue no doubt amount to infraction of laws for which legal mechanism in place was already pressed into service.”

It added that the invocation of the PSA, instead of pursuing the existing criminal proceedings, “appears to be an unjustified exercise and abuse of process of law.”

Repetition Of Offences Did Not Automatically Justify Detention

The State had argued that the alleged repetition of livestock theft incidents after Dar had secured bail demonstrated that ordinary criminal law had proved inadequate. It had submitted that the incidents had generated fear among residents and that preventive detention was necessary to protect public order.

The Bench acknowledged that preventive detention is not invariably incompatible with the fundamental right to personal liberty. It observed that individual liberty must be balanced against the collective liberty of citizens to live peacefully, and that preventive detention may be invoked in good faith for a preventive purpose.

However, the Court found that the facts of the case did not justify bypassing the criminal justice system. It observed that the criminal courts dealing with the pending cases could take the accused's antecedents and alleged repetition of offences into account while considering bail applications or applications for cancellation of bail.

“..It appears that the repetition of crime by the appellant/detenue after being enlarged in earlier case FIRs has either not been brought to the knowledge of criminal courts seized of subsequent bail petitions or if brought to the knowledge of the court, underestimated”, opined Justice Wani authoring the judgment for the bench.

Observing that the prosecution wing of the Police Department entrusted with prosecution of the criminal cases in the Courts of Law was expected to shoulder their responsibility of bringing the repeated criminal activities of an accused before the Court during the hearing of bail matters, the court thus remarked,

“In the opinion of the court, the ordinary criminal law and order machinery was sufficient to deal with the appellant/detenue.”

The Bench also noted that the authorities had not established that the ordinary criminal process had become ineffective in a manner that justified the exceptional measure of preventive detention.

Dar had further challenged the detention on the ground that he had not been supplied with the complete detention record and that the grounds of detention, including documents in English, had not been read over and explained to him in his vernacular language. He argued that these omissions impaired his constitutional right to make an effective representation against the detention.

The Bench reiterated that the safeguards under Article 22(5) of the Constitution and Section 13 of the PSA are mandatory requirements in preventive detention matters. The detaining authority must apply its mind to the material, communicate the grounds of detention promptly and enable the detenue to exercise the right to make a representation.

The Court observed that these requirements, including the communication of the grounds and the opportunity to represent against detention, are “imperative and inevitable conditions rather mandatory requirements for passing of a detention order.”

Finding the impugned judgment legally unsustainable, the Division Bench set it aside and quashed the detention order. It directed the authorities to release Dar forthwith from detention in the case.