Justice Rajesh Sekhri, Jammu & Kashmir and Ladakh High Court

While quashing a detention order passed under the Prevention of Illicit Traffic in the Narcotic Drugs and Psychotropic Substances Act, the Jammu & Kashmir and Ladakh High Court has held that though preventive detention under Public Safety Act can be legally invoked, even while proceedings under Section 129 BNSS are ongoing, but it must meet the strict legal standards and the detaining authority must demonstrate compelling reasons as well as an independent application of mind.

The High Court was considering a petition challenging a detention order passed by the Divisional Commissioner (second respondent) whereby the petitioner came to be detained under Section 3 of the Prevention of Illicit Traffic in the Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) and was lodged in Central Jail, Kot Bhalwal, Jammu.

The Single Bench of Justice Rajesh Sekhri 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. Therefore, though preventive detention under PSA can be legally invoked, even while proceedings under Section 129 BNSS are ongoing, but it must meet the strict legal standards to avoid being declared unlawful.”

Advocate Rahul Raina represented the Petitioner while Sr. Additional Advocate General Monika Kohli represented the Respondent.

Factual Background

The petitioner was accused of being involved in continuous illegal activities of drug peddling. In the grounds of detention, furnished to the petitioner, it was mentioned that despite undergoing criminal proceedings and serving penal consequences in different FIRs, there was no observable improvement in the conduct and behaviour of the petitioner. In view of his persistent involvement in the consumption, illegal possession and distribution of narcotic substances, proceedings under Section 129 BNSS were also initiated against him by the SHO Police Station, Budhal, before the Executive Magistrate, whereby he was remanded to judicial custody for a period not exceeding 20 days.

On these recommendations, the impugned order was propounded, and the petitioner was detained. The petitioner thus approached the High Court through his brother for the quashing of the impugned order and his consequent release from detention.

Reasoning

On a perusal of the facts of the case, the Bench noted that neither the recommending officer, SSP, Rajouri, nor the detaining authority 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.

The Bench explained that the preventive measures envisaged under Section 129 BNSS is a regulatory process within the criminal justice framework, designed to prevent recurring criminal conduct of an individual. It empowers the Executive Magistrate to require security for good behaviour from repeat offenders, such as robbers, thieves or those involved in kidnapping, extortion, forgery or protecting thieves or breaching public peace, to execute a bond for up to 3 years, to ensure community safety. The Bench further explained that preventive detention under PSA is a distinct executive measure, independent of ordinary criminal or afore-stated security proceedings.

Coming to the facts of the case, the Bench found that after a passing reference to magisterial proceedings under Section 129 BNSS, against the petitioner, the grounds of detention were silent about further details of the proceedings. There was nothing to suggest further whether the petitioner was served with a show cause notice by the Executive Magistrate, as to why he should not execute a bond for good behaviour, or whether he was required to execute an interim bond as an immediate measure within the meaning of Section 135(3) BNSS and if he executed any such bond, whether he flouted the bond.

The Bench found that the detaining authority had not recorded any compelling reason which prompted him to invoke PSA against the petitioner within a period of 16 days from the date he came to be enlarged on bail by the Executive Magistrate, nor had it recorded an independent application of mind as to why security proceedings were insufficient to prevent him from engaging in activities prejudicial to the public order.“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 order read.

The Bench further stated that the detaining authority was oblivious of the fact that PITNDPS Act is not a penal legislation but an act to provide for the detention in certain cases for the purposes of preventing illicit traffic in Narcotic Drugs and Psychotropic Substances. “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”, it added.

Thus, holding the impugned detention order on vague and specious grounds could not be sustained, the Bench allowed the petition and directed the petitioner to be immediately released from detention.

Cause Title: Mohd. Kabir v. The Union Territory of Jammu and Kashmir (Neutral Citation: 2026:JKLHC-JMU:1094)

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