The Court held that the apprehension expressed by the detaining authority regarding communal disharmony had no basis and demonstrated a mechanical exercise of power.

The Court was hearing a Habeas Corpus Petition challenging an order issued by the District Magistrate, Kishtwar, whereby the petitioner was placed under preventive detention with a view to prevent him from acting in a manner prejudicial to the maintenance of public order.

The petition was heard by Justice Sanjay Dhar, who observed,

“It is to be noted that in all the FIRs mentioned in the grounds of detention, the petitioner is alleged to have been involved in transportation of male bovine animals, including yaks. Therefore, even according to the material on the basis of which the grounds of detention have been formulated, the petitioner has not indulged in the transportation of cows, which are held in reverence by a particular community. The fact that the detaining authority has not taken these aspects of the matter into account while arriving at its subjective satisfaction demonstrates the mechanical exercise of power.”

The petitioner had challenged the impugned order on the grounds that it was illegal, arbitrary, and contrary to law. It was contended that the detaining authority exceeded its jurisdiction and passed the order without application of mind, as there were no compelling reasons for detention. It was further contended that there was no material to establish involvement in activities posing a threat to public order, and that the entire material was not furnished to the petitioner, preventing him from making an effective representation.

The detaining authority filed a counter affidavit submitting that the order was passed after an independent, objective, and conscientious examination of the dossier, and that subjective satisfaction was arrived at after due application of mind. It was submitted that the detention was necessitated by the petitioner's persistent involvement in activities disturbing public tranquility and communal harmony. It was stated that three FIRs were registered against the petitioner pertaining to bovine smuggling, which possessed serious communal overtones and were inherently capable of generating communal disharmony.

Court's Observation

The Court observed that the main thrust of the arguments advanced by the learned counsel for the petitioner was upon the contention that the activities alleged to have been committed by the petitioner could not be termed prejudicial to public order. The Court noted that the grounds of detention referred to three FIRs registered at Police Station Kishtwar and Police Station Chatroo for offences under Section 188 IPC and Section 11 of the Prevention of Cruelty to Animals Act, as well as Section 223 of the Bharatiya Nyaya Sanhita.

The Court observed that the respondents contended that because bovine animals include cows, which are held in reverence by a particular community, the petitioner's activities had the potential to create communal disharmony. However, the Court noted that the grounds of detention did not indicate whether there was any apprehension that the alleged activities would hurt the religious feelings of any particular community, nor was there any mention of complaints or reports about apprehension of communal disharmony.

The Court further noted,

“The detaining authority has recorded that out of three FIRs, the petitioner has been discharged in two FIRs, meaning thereby that these two cases were not even worth proceeding to trial stage. Therefore, on the basis of a solitary incident, the detaining authority could not have concluded that normal law has not proved sufficient to deter the petitioner. The satisfaction recorded by the detaining authority in this regard is misplaced.”

The Court relied on the decision of a Coordinate Bench in Bhupinder Kumar alias Pappu Krishan Lal v. UT of J&K and ors (2025), which dealt with the effect of allegations relating to the transportation of bovine animals and cruelty against animals. The Court quoted the observations,

“It appears that the detenue was charged for having contravened the order issued by the District Magistrate to have transported the bovine animals without permission, therefore, simply registering a case under Section 188 IPC does not 'ipso facto' constitute an offence of 'bovine smuggling'. Instead of being contended with, investigation into, prosecution therefore, with regard to penal offences, the State should not take recourse to preventive detention of an accused of such offences, without there being any right to bail, as during trial.”

The Court concluded that merely because the petitioner was involved in offences relating to the transportation of bovine animals without permission was not a ground to invoke preventive detention, and the detaining authority had misused the power vested in it under the Act.

Accordingly, the petition was allowed, the impugned order of detention was quashed, and the respondents were directed to release the petitioner from preventive detention forthwith, provided he was not required in connection with any other case.