SRINAGAR: The Jammu Kashmir and Ladakh High Court has quashed the preventive detention of a 31-year-old Rajouri man under the PIT NDPS Act, holding that the authorities failed to justify why ordinary legal measures were insufficient and acted without proper application of mind.
Justice Rajesh Sekhri allowed a habeas corpus petition filed on behalf of Mohd Kabir, a resident of Kotranka, is setting aside detention order No. PITNDPS 36 of 2025 dated June 16, 2025, and directing his immediate release from Central Jail, Kot Bhalwal.
The detention order was issued by the Divisional Commissioner, Jammu, based on a dossier submitted by the Senior Superintendent of Police, Rajouri. Authorities alleged that the petitioner was involved in repeated drug trafficking activities, posing a threat to public health and welfare.
The dossier cited two FIRs—one from 2020 and another from February 2025—along with multiple daily diary reports (DDRs). It also noted that proceedings under Section 129 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) had been initiated against him in May 2025, leading to his brief judicial custody before he was granted bail on May 31, 2025.
Within 16 days of his release on bail, the preventive detention order was issued.
The petitioner challenged the detention on multiple grounds, including non-consideration of his representation, lack of translated documents, and absence of compelling reasons to invoke preventive detention when he was already facing trial in criminal cases.
The High Court examined whether the detaining authority had demonstrated sufficient grounds to invoke preventive detention, particularly when other legal mechanisms were already in motion.
The court underscored that while preventive detention and ordinary criminal proceedings can coexist, the law requires clear justification.
“When a person is already in custody or facing legal proceedings… the detaining authority is obliged to specifically demonstrate the ‘compelling reasons’… as to why security proceedings… were insufficient,” the court observed.
It found that neither the recommending authority nor the detaining authority had recorded any such reasons.
Lack of Application of Mind
The court noted that proceedings under Section 129 BNSS—a preventive mechanism requiring a bond for good behaviour—had been initiated just a month before the detention order.
However, the detention record was “ominously silent” on key aspects of these proceedings.
“There is nothing to suggest… whether the petitioner was required to execute a bond for good behaviour… or whether he flouted the bond,” the court said.
It further held that the detaining authority failed to explain why preventive detention was invoked so soon after the petitioner was granted bail.
“Neither the detaining authority has recorded any compelling reason… nor recorded an independent application of mind,” the judgment stated.
Reiterating constitutional safeguards, the court cautioned against the arbitrary use of preventive detention laws.
“State cannot be allowed to whittle down liberty of its citizens in a mechanical and arbitrary fashion,” the court observed, adding that “personal liberty… cannot be curtailed on mere dogmatic assertions of the executive.”
The court also clarified the nature of the PIT NDPS Act, noting that it is preventive, not punitive.
“It is not a penal legislation… The object of the statute is preventive in nature and not punitive,” the court said, terming the detaining authority’s approach as reflective of “total non-application of mind.”
Holding the detention order to be based on “vague and specious grounds,” the High Court quashed it and ordered the immediate release of the petitioner.
The judgment reinforces that preventive detention, an extraordinary executive power, must be exercised with strict adherence to legal safeguards and cannot substitute ordinary criminal processes without demonstrable necessity.
It also highlights that failure to record “compelling reasons” and lack of independent application of mind can render such detention orders legally unsustainable.
