J&K High Court Quashes PSA Detention Based Solely on Four Incomplete BNSS Section 128 Proceedings

Justice Rahul Bharti found the District Magistrate, Kathua had abused preventive detention powers by relying on four unresolved BNSS Section 128 proceedings initiated within seven days.

The High Court of Jammu & Kashmir and Ladakh at Jammu has quashed the preventive detention of Bittu Ram, a resident of village Gali Sadotra, tehsil Lohai Malhar, who had been detained under the Jammu and Kashmir Public Safety Act, 1978 by the District Magistrate, Kathua. Justice Rahul Bharti, sitting singly, pronounced the judgment on 14 May 2026 in HCP No. 155/2025. The court found that the entire basis for the detention order — four proceedings under Section 128 of the Bharatiya Nagarik Suraksha Sanhita, 2023, all initiated within a span of seven days and none taken to a logical conclusion — could not justify curtailing a citizen's fundamental right to personal liberty. The court described the detention as a blatant abuse of process at the hands of the District Police, Kathua, complemented by the District Magistrate.

The Detention Order and Its Grounds

Detention order No. PSA/172 dated 24 July 2025 was passed by the District Magistrate, Kathua, directing that Bittu Ram be detained to prevent him from acting in a manner prejudicial to the security of the State. The grounds of detention referred to what were described as objectionable activities, all of them purportedly connected to proceedings under Section 128 of the BNSS.

The detention order used only the abbreviation “BNSS” without spelling out its full form. Justice Bharti observed that the District Magistrate did not have the time to write the full form of BNSS for the understanding of a layman detenu — Bittu Ram — who could not reasonably be expected to know that the expression referred to the Bharatiya Nagarik Suraksha Sanhita, 2023. The court held that law enforcement agencies and the magistrate concerned are themselves obliged to disclose the full form of any abbreviated expression used in a detention order.

The grounds further referred to Daily Diary Reports of 2025, which the District Magistrate, Kathua, used to corroborate the Section 128 proceedings.

The Core Legal Defect: Proceedings Never Taken to a Logical End

The court's central finding turned on the nature and outcome of the four Section 128 BNSS proceedings. Those proceedings were initiated on 20 January 2025, 26 January 2025, 5 February 2025, and 21 February 2025 — four separate occasions within a period of seven days, as the court computed them.

Section 128 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with proceedings for maintenance of public order at the executive magistrate level. The court reasoned that the very fact that four such proceedings were initiated in quick succession, and none was taken to its logical end, exposed a fundamental infirmity in the detention order. If the ordinary law of the land — the BNSS proceedings — was available and was being invoked, but was never concluded, it could not then serve as the foundation for invoking the extraordinary power of preventive detention under the Public Safety Act.

Justice Bharti also pointed out that the detention was ordered to prevent the petitioner from acting in a manner prejudicial to the security of the State, not for maintenance of public order. Yet the entire factual basis in the grounds related only to Section 128 BNSS proceedings, which are a public order mechanism. This mismatch between the stated purpose of detention and the nature of the underlying material was a further ground for the court's conclusion.

Abuse of Process: The Court's Reasoning

Justice Bharti was direct in his assessment. He held that if proceedings under Section 128 of the BNSS, supported by Daily Diary Reports, were sufficient to curtail a person's fundamental right to personal liberty through preventive detention, then no fundamental right would remain safe from the District Police and the District Magistrate. He went further, observing that on such a premise, even the ordinary law of the land would stand unofficially declared deficient at the disposal of the District Police and the District Magistrate.

The court characterised the detention as “a blatant abuse of the process of law” at the hands of the District Police, Kathua, with the District Magistrate, Kathua, having complemented that abuse by passing the detention order.

The reasoning reflects a well-established principle that preventive detention is not a substitute for ordinary criminal or executive proceedings, particularly where those proceedings were themselves initiated but left incomplete. The court's concern was that allowing such a basis to stand would render the safeguards around preventive detention meaningless.

Outcome

Justice Rahul Bharti quashed detention order No. PSA/172 dated 24 July 2025, along with any approval, confirmation, or extension order passed by the Government of the Union Territory of Jammu & Kashmir in relation to that detention.

The court directed that Bittu Ram be restored to his personal liberty forthwith by release from whichever District or Central Jail he was being held in. The Superintendent of the concerned jail was directed to release him immediately.

The petition, HCP No. 155/2025, was disposed of on 14 May 2026. The judgment was marked as a speaking judgment and reportable.