SRINAGAR: The High Court of Jammu & Kashmir and Ladakh has quashed the preventive detention of a Rajouri resident under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PIT-NDPS) Act, holding that the detention order was passed mechanically, without recording compelling reasons as to why ordinary legal measures were inadequate.
Justice Rajesh Sekhri delivered the judgment on April 23, 2026, allowing the habeas corpus petition filed by Mohd. Kabir through his elder brother, Imtyaz Ahmed. Advocate Rahul Raina appeared for the petitioner, while Senior Additional Advocate General Monika Kohli represented the Union Territory authorities.
Allowing the petition, the Court directed the immediate release of the detenue.
“The impugned detention order on vague and specious grounds does not sustain. Hence, present petition is allowed and impugned order is quashed. Petitioner is directed to be immediately released from detention,” the Court held.
The petition challenged Detention Order No. PITNDPS 36 of 2025 dated June 16, 2025, issued by the Divisional Commissioner, Jammu, under Section 3 of the PIT-NDPS Act, pursuant to which Mohd. Kabir was lodged in Central Jail, Kot Bhalwal.
According to the detention record, the Senior Superintendent of Police, Rajouri, had recommended preventive detention on the basis of two NDPS-related FIRs, several Daily Diary Reports (DDRs), and a report of the District Screening Committee alleging that the petitioner was continuously involved in drug trafficking activities detrimental to public health and public order.
The petitioner contended that he was already facing trial in the criminal cases relied upon by the authorities and that preventive detention had been invoked without any compelling circumstances. He further argued that proceedings had already been initiated against him under Section 129 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), making the preventive detention arbitrary and reflective of non-application of mind.
The respondents maintained that the petitioner continued to indulge in illicit trafficking despite being granted bail in criminal cases, making preventive detention necessary to protect public order. They submitted that all statutory safeguards had been complied with and that the detention had subsequently been confirmed by the Home Department after consideration by the Advisory Board.
After examining the detention records, the High Court found that proceedings under Section 129 BNSS had been initiated against the petitioner barely a month before the detention order and that he had been released on bail by the Executive Magistrate on May 31, 2025. The preventive detention order was passed just 16 days later.
The Court observed that neither the sponsoring authority nor the detaining authority had explained why the ongoing security proceedings under Section 129 BNSS were insufficient to prevent the petitioner from engaging in activities prejudicial to public order.
“Neither the recommending officer-SSP, Rajouri nor the detaining authority-respondent No. 2 has recorded any reason as to why the security proceedings were found insufficient to prevent the petitioner from engaging in activities prejudicial to the public order,” Justice Sekhri observed.
Explaining the distinction between preventive security proceedings and preventive detention, the Court held that while both may legally coexist, the detaining authority must independently demonstrate compelling reasons for invoking preventive detention where ordinary preventive measures are already in operation.
The Court held: “When a person is already in custody or facing legal proceedings under Section 129 BNSS, detaining authority is obliged to specifically demonstrate the ‘compelling reasons’ and an independent application of mind and record as to why security proceedings under Section 129 BNSS were insufficient to prevent him from engaging in activities prejudicial to public order.”
The Court also emphasised that executive authorities cannot curtail personal liberty through routine or mechanical exercise of preventive detention powers.
“State cannot be allowed to whittle down liberty of its citizens in a mechanical and arbitrary fashion. Conduct of the detaining authority exercising such a vast jurisdiction, ought to be reasonable and in tune with the concept of fairness,” the judgment said.
Justice Sekhri further observed that preventive detention cannot become a substitute for ordinary criminal law.
“Preventive detention cannot be allowed to be invoked by the executive in a perfunctory fashion to clip the wings of an individual unless there is emergency-based justification which ordinary laws cannot address. It can’t be ipse dixit of the administration,” the Court observed.
The Court also found that the detaining authority had misunderstood the nature of the PIT-NDPS Act itself.
“Another staggering aspect of the matter… is that detaining authority is oblivious of the fact that PIT NDPS Act is not a penal legislation… The object of the statute is preventive in nature and not punitive. This reflects total non-application of mind on the part of the detaining authority,” the judgment said.
Holding that the detention order suffered from non-application of mind and failed to satisfy the constitutional safeguards governing preventive detention, the High Court quashed the detention order and directed the immediate release of the petitioner.
