Upholding the preventive detention of Tariq Ahmad Dar, who was implicated in 11 FIRs concerning alleged theft of livestock and cattle, the Court observed that the detaining authority had considered the repeated nature of the allegations and their impact on the community rather than relying on an isolated criminal incident.

The Court was hearing a habeas corpus petition challenging detention order passed by the District Magistrate, Kulgam, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of public order.

Justice M. A. Chowdhary, dismissing the petition, observed,

“It may not be out of place to say that the repeated commissions of thefts, even after his release on being admitted to bail, amounts to create fear psychosis in the local population, worrying about the safety of their properties, alarming them to be alert, spoiling their peace of mind.”

Background:

The detention order was based on the petitioner's alleged involvement in 11 FIRs registered for offences under Sections 331(4) and 305 of the Bharatiya Nyaya Sanhita (BNS), relating to theft of livestock and cattle. According to the grounds of detention, charge-sheets had been filed in the cases and the petitioner had obtained bail.

The District Magistrate concluded that the allegations did not represent isolated incidents affecting individual victims but disclosed a continuing pattern of activity capable of disturbing the even tempo of public life and adversely affecting public order.

Challenging the detention, the petitioner argued that the allegations, at their highest, concerned ordinary law-and-order offences that could be dealt with through regular criminal proceedings.

He also contended that the bail orders referred to in the grounds of detention had not been supplied to him and that the grounds, being in English, had not been translated into a language he understood. He argued that these omissions violated Article 22(5) of the Constitution and Section 13 of the Public Safety Act.

The respondents defended the detention, submitting that the authority had independently considered the relevant material and that the grounds and supporting material had been explained to the petitioner in a language he understood. They also maintained that the bail orders had been mentioned to indicate the status of the criminal cases rather than as substantive material forming the basis of detention.

Court's Observations:

The High Court began by reiterating that preventive detention is an exceptional measure and that the safeguards under Article 22(5) of the Constitution and Section 13 of the Public Safety Act must be scrupulously observed. At the same time, judicial review is limited to examining whether the statutory and constitutional safeguards have been followed and whether the detaining authority's subjective satisfaction rests on relevant material. The Court cannot substitute its own assessment for that of the authority.

The Court noted that the detention order was not based on a single criminal case. Instead, the grounds referred to 11 FIRs involving similar allegations of livestock and cattle theft, indicating repeated involvement in the alleged activities. The fact that charge-sheets had been filed and bail granted in the criminal cases had also been considered by the detaining authority, the court said.

Distinguishing ordinary law and order from public order, the Court observed that the distinction cannot be determined merely by the name or classification of an offence. The nature, frequency and continuity of the alleged activities, as well as their impact on the community, must also be examined, it underscored.

The Court explained that the relevant question was whether the activities affected “the even tempo of public life” and thereby moved beyond the ordinary law-and-order domain. In the present case, it found that the detaining authority had considered the repeated nature of the alleged thefts, the number of criminal cases and the continuing pattern attributed to the petitioner. It therefore declined to characterise the detention as founded on a solitary or stale incident.

The Bench further held that the pendency of criminal proceedings does not, by itself, bar preventive detention. The question was whether the antecedent activities and their continuing tendency provided material for the authority to conclude that preventive action was necessary to protect public order.

Rejecting the objection concerning non-supply of bail orders, the Court noted that the grounds of detention themselves disclosed that the authority was aware of the petitioner's release on bail. Their reference was intended to demonstrate that, despite his release, the petitioner remained at liberty and the authority apprehended a recurrence of the alleged activities.

The Court clarified that the position would be different if a document forming the very foundation of the authority's subjective satisfaction had been withheld. However, the bail orders had not been shown to constitute such independent foundational material in this case.

On the language objection, the Court observed that the constitutional requirement is effective communication of the grounds so that the detenue can make a meaningful representation. The respondents' material indicated that the grounds had been explained to the petitioner in a language he understood and that he had been informed of his right to make a representation.

The Court emphasised that it was not deciding whether the petitioner was guilty of the offences underlying the FIRs, as that question remained for the competent criminal courts. Its task was limited to determining whether the preventive detention order suffered from any constitutional or statutory infirmity warranting interference. On the material before it, the Court found no such infirmity.

Dismissing the habeas corpus petition, the High Court upheld the detention order passed by the District Magistrate, Kulgam.