In a big jolt to those who indulge in cow smuggling, it is most significant to note that none other than the Jammu and Kashmir High Court itself in a most learned, laudable, landmark, logical and latest judgment titled Shakeel Mohd vs UT of Jammu and Kashmir that was delivered by the Single Women Judge Bench comprising of Hon’ble Ms Justice Moksha Khajuria Kazmi in Case HCP No. 55/2024 CM No.2131/2024 that was reserved on 7.11.2024 and then finally pronounced on 21.11.2024 that the act of smuggling bovine animals such as cows and calves can hurt religious sentiments and is, therefore, a threat to public order. This was held so while upholding the preventive detention of a man accused of smuggling cattle. Those who always try to bring religious angle on this cow issue must take note that the Single Judge Bench who delivered this most commendable judgment is herself a Muslim just like we see in so many other cases which is the biggest proof that in acts of crime, religion just does not matter at all and a crime is a crime!

It must be noted that the Bench most clearly observed that the alleged activities (cattle smuggling) of the detenue – one Shakeel Mohd – not only poses a law and order problem but would be a threat to the maintenance of public order in the area. The Bench categorically stated that:
Bovine animals include cows and calves and their illegal smuggling is always viewed by one community only for the purpose of slaughter and, therefore, there is a feeling amongst the people belonging to such community that the activity hurts their religious sentiments. The Bench therefore opined most clearly after hearing was concluded that the detenue’s preventive detention was justified. No denying!

At the very outset, this brief, brilliant, bold and balanced judgment sets the ball in motion by first and foremost putting forth in para 1 that:
In the instant petition, the detenue herein, through his mother namely Bano Bibi, has challenged Order No. PSA 12 of 2024 dated 16.03.2024 issued by respondent No. 2, by virtue of which the detenue has been detained under preventive detention in terms of the provisions of Section 8(1) (a) of J&K Public Safety Act, 1978.

As we see, the Bench envisages in para 2 that:
It is stated that FIR No. 09/2020, FIR No. 415/2020, FIR No. 298/2021 and FIR No. 240/2023 under Section 188 of the IPC came to be registered against the detenue at Police Stations, Ghagwal, Nagrota, and Satwari, whereas FIR No. 51/2023 under Sections 451, 341, 323, 506 & 34 IPC and FIR No. 173/2023 under Sections 452, 323, 506 IPC came to be registered against the detenue at Police Station, R S Pura.

Briefly stated, the Bench states in para 3 that:
In FIR No 09/2020, FIR No. 415/2020, FIR No. 298/2021 and FIR No.240/2023, it is alleged that the detenue was smuggling bovine animals from Jammu towards Srinagar in violation of the prescribed permission from District Magistrate concerned, whereas in FIR No. 51/2023 and FIR No. 173/2023 of Police Station, R. S. Pura, it is alleged that the detenue entered into the house of the complainant, beat them with Gandasa and lathies, torn the clothes of ladies and outraged their modesty.

Do note, the Bench notes in para 11 that:
Perusal of the detention record produced by the learned State counsel indicates that the Senior Superintendent of Police, Jammu submitted dossier in respect of the detenue to the Detaining Authority on 16.03.2024 with a request to detain the detenue under the provisions of J&K Public Safety Act and the detaining authority by virtue of the order impugned issued on 16.03.2024 itself has ordered detention of the detenue under preventive detention. The detention order came to be executed on 18.03.2024.

The Execution Report reveals that the notice of detention was given to the detenue and contents of the detention warrant and grounds of detention have been read over and explained to the detenue/detenue in Hindi/Dogri language, which he understood fully. The relevant material consisting of detention order (01 leaf), notice of detention (01 leaf), ground of detention (04 leaves), dossier of detention (10 leaves), copies of FIR, statement of witnesses and other related relevant documents (91 leaves) total 107 leaves have been supplied to the detenue, which has been acknowledged by him by affixing his signatures on the execution receipt. The detenue was also informed by the executing officer that he can make representation to the Government as well as Detaining Authority against his detention, if he so desires.

Do further note, the Bench then notes in para 12 that:
In the instant case, the detenue has been ordered to be detained in preventive detention under the provisions of Jammu & Kashmir Public Safety Act in order to prevent him from acting in any manner prejudicial to the maintenance of public order.

While citing relevant case laws, the Bench hastens to add in para 14 stating that:
The concept of ‘public order’ and ‘law and order’ has again been dealt with by the Supreme Court in the case of Pushkar Mukherjee and others v. The State of West Bengal, AIR 1970 SC 852. Relying upon the work of Dr. Allen on ‘Legal Duties’ the Supreme Court had spelled out the distinction between public and private crimes in the realm of jurisprudence. In the case of Babul Mitra alias Anil Mitra v. State of West Bengal and others (1973) 1 SCC 393 while dealing with the question of public order and law and order, the Supreme Court had observed that the true distinction between the areas of law and order is one of degree and extent of the reach of the act in question upon society. The Supreme Court pointed out that the act by itself is not detriment of its own gravity. In its quality it may not differ but in its potentiality it may be very different.

While citing yet another relevant case law, the Bench states in para 16 that, In the case of R. Kalavathi v. State of Tamil Nadu, (2006) 6 SCC 14, Hon’ble the Supreme Court has observed that even a single act which has the propensity of affecting the even tempo of life and public tranquility would be sufficient for detention.

Most significantly, what encapsulates the cornerstone of this notable judgment is then laid bare in para 17 postulating that:
In view of the distinction drawn by the Hon’ble Supreme Court of India, it is crystal clear that what is relevant to determine is not the nature of act, but its potentiality to disturb even tempo of life of the community, which makes it prejudicial to the maintenance of the public order. The effect of alleged activities of the detenu in the present case is not limited to the individuals directly involved. The bovine smuggling besides being a criminal offence has the potential of creating a feeling of discontent and indignation amongst a particular community. The bovine animals include cows and calves and their illegal smuggling is always viewed by one community only for the purpose of slaughter and, therefore, there is a feeling amongst the people belonging to such community, that the activity hurts their religious sentiments.

Equally significant is what is then pointed out in para 18 disclosing that:
The activities of the detenue, against whom number of FIRs stand registered for illegal smuggling of bovine animals, have the potential to disturb even tempo of current life of the community and not only poses law and order problem but would also be a threat to the maintenance of public order in the area.

Be it noted, the Bench notes in para 19 that:
Insofar as plea of the detenue that he has been deprived of his right to make effective representation is concerned, it is evident from the execution report that the entire material relied upon by the detaining authority was supplied to the detenue, which he has acknowledged by affixing his signature on the receipt. The detenue was also informed of his right to make representation against the detention order before the detaining authority as well as the Government. However, the detenue has chosen not to make any representation before the competent authority.

Most forthrightly, the Bench then enunciates in para 20 propounding that:
The reliance placed by the learned counsel for the detenue on a judgment of a Coordinate Bench of this Court in Tanveer Ahmed @ Jimmy (supra) to contend that the detenue has not been informed about the time limit within which he could make representation against his detention is misconceived. In the instant case the detenue was informed of his right to make representation against his detention and if the detenue was aggrieved by his detention, he was expected to have made representation with promptness without wasting any time. The plea of time limit within which he was to make representation would only be available to the detenue if he had made representation and the same has either not been considered or rejected for being filed or moved after the detention was approved by the Government. However, in the instant case the record does indicate that the detenue has not filed any representation. Therefore, the plea of non-communication of the time limit is not available to the detenue.

As a corollary, the Bench then expounds in para 21 stating that:
From the discussion made above, it becomes manifest that all the procedural safeguards have been adhered to by the detaining authority while detaining the detenue under preventive detention, including subjective satisfaction, providing of all the relevant material, informing about detenue’s right to make representation, as such, there is no perversity in the impugned detention order.

Finally and far most significantly, the Bench then concludes by holding and directing in para 22 that:
In the premises, this petition is found to be without any merit and is, accordingly, dismissed. The record produced by the learned counsel for the respondents be returned against proper receipt.

In conclusion, we thus see that the Bench has made it indubitably clear that cow smuggling not only just hurts religious sentiments but also threatens public order. To put it briefly, it cannot be glossed over that the Bench opines in para 13 while citing the relevant case law that:
Public order is a broad concept that refers to the conditions that allow people to live together in society with freedom, security, and peace of mind. It is often associated with public safety and peace. In the case of Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98, Hon’ble Supreme Court has dealt with the question of Public order and law and order. In this judgment by giving various illustrations, Supreme Court has explained the distinction between public order and law and order. The relevant extract of the judgment reads thus:-

Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished, from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order.

Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large Sections of the community and incite them to make further breaches of the law and order and to subvert the public order.

An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted.

The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society.

The Bench in para 15 also very rightly pointed out that:
Hon’ble the Supreme Court in the case of Commissioner of Police and others v. C. Anita (Smt.), (2004) 7 SCC 467 again examined the issue of ‘public order’ and ‘law and order’ and observed as under:-

The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression ‘law and order’ is wider in scope inasmuch as contravention of law always affects order. ‘Public order’ has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ‘law and order’ and ‘public order’ is one of the degree and extent of the reach of the act in question on society.

It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting ‘public order’ from that concerning ‘law and order’. The question to ask is:

Does it lead to disturbance of the current life of the community so as to amount to as disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?

So it merits just no reiteration that the Bench very rightly convicted and upheld the preventive detention of a man accused of smuggling cattle. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh