Illegal Mining Cannot Be Labelled As Threat To Public Order To Justify Preventive Detention: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that repeated involvement in illegal mining activities, even if brazen and in persistent violation of the Mines and Minerals (Development and Regulation) Act, cannot, by itself, be treated as conduct prejudicial to the maintenance of "public order" so as to justify preventive detention under the Jammu & Kashmir Public Safety Act, 1978.The Court observed that where the alleged acts constitute penal offences, the State must prosecute the offender under the ordinary criminal law and secure conviction rather than resort to preventive detention as a substitute for criminal prosecution. The Court was hearing a habeas corpus petition challenging his preventive detention under Order passed by the District Magistrate, Anantnag, on the ground that his activities were allegedly prejudicial to the maintenance of public order. Justice Rahul Bharti, while allowing the petition, observed, "Howsoever brazen the act of the petitioner may be related to violation of Mines and Minerals (Development and Regulation) Act, the same cannot qualify as being prejudicial to the maintenance of Public Order and for that recourse against the petitioner ought to have been taken under the penal provisions drawn from Bharatiya Nyaya Sanhita (BNS), 2023 or other penal provisions so as to book the petitioner and take the charge against him so as to earn his conviction and his consequent imprisonment for a term which would then mean to serve as a deterrent not only to him but also to other persons who may try to follow the petitioner's footsteps in playing such mischief." The petitioner was taken into preventive custody pursuant to a detention order subsequent to a detention proposal originating from a dossier submitted by the Senior Superintendent of Police, Anantnag, who alleged that the petitioner was repeatedly involved in illegal extraction of sand in violation of the Mines and Minerals (Development and Regulation) Act. The dossier also referred to other FIR's for offences punishable under Sections 329(3) and 303(2) of the Bharatiya Nyaya Sanhita, 2023. The petitioner challenged the detention before the High Court after remaining in preventive custody for over a month. During the pendency of the detention, the Government had approved the detention order and following a favourable opinion of the Advisory Board, confirmed the detention Upon examining the detention record, the Court found that the District Magistrate had substantially reproduced the allegations contained in the police dossier while recording subjective satisfaction for invoking preventive detention. The Court noted that the entire foundation of the detention rested upon allegations relating to illegal sand extraction and the petitioner's involvement in offences already punishable under the existing criminal law. The Bench held that even assuming the allegations to be correct, violations of the Mines and Minerals (Development and Regulation) Act and the offences alleged under the Bharatiya Nyaya Sanhita did not, by themselves, constitute activities prejudicial to the maintenance of public order so as to warrant preventive detention. The Court emphasised that preventive detention cannot replace the ordinary criminal justice process where the legislature has already provided penal consequences for the alleged misconduct. Observing that ordinary criminal law provided an adequate legal framework to deal with such offences, the Court held that the appropriate course for the authorities was to investigate the alleged offences, prosecute the petitioner before a competent criminal court and, if the charges were proved, secure his conviction and imprisonment, thereby serving the object of deterrence contemplated by criminal law. The Court thus concluded that the detention order could not be sustained as the material relied upon by the detaining authority failed to establish any conduct affecting public order within the meaning of the Public Safety Act. Holding that the petitioner's alleged involvement in illegal mining activities did not furnish a valid basis for invoking preventive detention, the High Court quashed the Detention Order along with all consequential approval, confirmation and extension orders passed by the Government. The Court directed that the petitioner be released forthwith from the concerned jail, unless required in connection with any other case. Case Title: Amir Ahmad Wani v. Union Territory of J&K & Ors.Citation: 2026 LiveLaw (JKL) 301Click Here To Read/Download Judgment

Illegal Mining Cannot Be Labelled As Threat To Public Order To Justify Preventive Detention: J&K&L High Court

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Illegal Mining Cannot Be Labelled As Threat To Public Order To Justify Preventive Detention: J&K&L High Court

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