'Gap Of 3.5 Yrs Between Last 'Illegal' Activity & Detention Order': J&K High Court Quashes Detention Of Alleged Bovine Smuggler

Justice Rajnesh Oswal also acknowledged the Detenue's willingness to furnish an undertaking with the District Magistrate of Rajouri, assuring that he would not indulge in any bovine smuggling activity in the future.

“In view of the voluntary offer made by the learned counsel for the petitioner under instructions from the petitioner that the petitioner is ready to file an undertaking that he would not henceforth indulge himself in any act of bovine smuggling, this Court deems it proper to direct the petitioner to furnish an undertaking with the District Magistrate, Rajouri that he will not indulge in any activity of bovine smuggling in future”, Justice Oswal recorded.

The court was hearing a challenge to the order issued by the District Magistrate, Rajouri, under Section 8 of the J&K Public Safety Act, 1978. The petitioner sought the annulment of the detention order on various grounds, including the contention that the FIRs referenced in the order did not pertain to offenses related to the disturbance of public order.

The petitioner's counsel, Mr. Ashok Sharma, vehemently argued that the order of detention was issued with a delay of more than 3½ years, citing the latest FIR registered against the petitioner on 30.10.2019 for non-public order offenses. He contended that the detaining authority was unaware that four out of the six FIRs mentioned in the order had already been disposed of by the courts. Additionally, he expressed the petitioner's willingness to provide an undertaking that he would refrain from engaging in bovine smuggling activities in the future.

In contrast, Mr. Bhanu Jasrotia, the learned Government Advocate, asserted that the petitioner was a habitual offender, referencing convictions in charge sheets arising from previous FIRs. He argued that the order of detention was justified due to the petitioner's criminal antecedents and illegal activities, including repeated attempts of bovine smuggling.

Upon reviewing the record, Justice Oswal noted a significant gap of more than 3 ½ years between the petitioner's last illegal activity and the issuance of the detention order.

Though concerned about the potential for bovine smuggling to disrupt regional peace, the court found the detention order against the petitioner unjustified. The court noted the long gap of over three years between the most recent alleged offence in October 2019 and the April 2023 detention order. This gap, the court reasoned had severed the necessary "live link" between the alleged activity and the purpose of preventive detention, rendering the order invalid.

Referencing 'Saeed Zakir Hussain Malik vs. State of Maharashtra' (2012), the bench emphasised that such a delay can vitiate the detention itself if not satisfactorily explained by the detaining authority.

While quashing the detention order, the court directed the petitioner to furnish the undertaking with the District Magistrate as promised. It also ordered his immediate release unless required in any other case.

Case Title: Bari Shah Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 315

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