J&K High Court Quashes PITNDPS Detention Order, Faults Detaining Authority for Ignoring Ongoing Section 129 BNSS Proceedings
The Jammu & Kashmir and Ladakh High Court set aside a preventive detention order under the PITNDPS Act, holding that the detaining authority failed to explain why prior security proceedings under Section 129 BNSS were insufficient to address the petitioner’s conduct.
The High Court of Jammu & Kashmir and Ladakh at Jammu has quashed a detention order passed against Mohd. Kabir, a 31-year-old resident of Draj, Rather Mandi, Tehsil Kotranka, District Rajouri, under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). Justice Rajesh Sekhri, sitting singly, found that the Divisional Commissioner, Jammu — the detaining authority — had passed the order on 16 June 2025 without recording any compelling reason why security proceedings already initiated against the petitioner under Section 129 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) were inadequate. The court also found that the detaining authority appeared to have treated the PITNDPS Act as a penal statute, reflecting a fundamental misunderstanding of its preventive character.
The Detention Order and Its Basis
The Senior Superintendent of Police, Rajouri, submitted a dossier to the District Screening Committee, Rajouri, alleging that Mohd. Kabir had been continuously engaged in drug peddling. The dossier listed two FIRs — FIR No. 130/2020 under Sections 304/34 IPC and Sections 8/27 of the NDPS Act at Police Station Kandi, and FIR No. 13/2025 under Sections 8/21/22/29 of the NDPS Act, also at Police Station Kandi — both of which were under trial. In addition, six Daily Diary Reports (DDRs) were cited: DDR No. 17 dated 18 April 2024 of Police Station Budhal; DDR No. 25 dated 12 November 2024 and DDR No. 20 dated 14 November 2024 of Police Station Kandi; DDR No. 04 dated 1 May 2025 and DDR No. 29 dated 15 May 2025 of Police Station Kandi; and DDR No. 14 dated 16 May 2025 of Police Station Budhal.
The SSP recommended preventive detention on the ground that the petitioner’s repeated trafficking of narcotic drugs and psychotropic substances posed a serious threat to public health and welfare, and that criminal proceedings and penal consequences had produced no observable improvement in his conduct.
On 17 May 2025, the SHO of Police Station Budhal initiated proceedings against the petitioner under Section 129 BNSS before the Executive Magistrate, First Class, Koteranka. The petitioner was remanded to judicial custody in District Jail, Rajouri, for a period not exceeding 20 days from 17 May 2025 to 5 June 2025. He was, however, enlarged on bail by the Executive Magistrate on 31 May 2025. The impugned detention order under the PITNDPS Act was passed on 16 June 2025 — just 16 days after the Executive Magistrate had granted him bail in those very proceedings.
The petitioner was lodged in Central Jail, Kot Bhalwal, Jammu. The detention order was confirmed by the Home Department vide order No. Home/PB-V/1387 of 2025 dated 9 July 2025, after the Advisory Board gave its opinion on 2 July 2025.
Grounds Raised by the Petitioner
The petitioner, through his elder brother Imtyaz Ahmed, invoked the writ jurisdiction of the High Court seeking quashment of the detention order and his immediate release. Several grounds were urged.
The petitioner argued that his representation dated 26 June 2025 was decided by the Divisional Commissioner, Jammu, on 14 July 2025 — after the detention order had already been confirmed by the J&K Government on 9 July 2025. Once confirmed, the petitioner contended, the Divisional Commissioner had become functus officio and lacked jurisdiction to decide the representation; that power vested only in the Government.
It was further contended that the representation sent to the Government (respondent No. 1) through speed post remained undecided and its outcome was never communicated to the petitioner or his family, rendering the detention violative of Article 22(5) of the Constitution of India.
The petitioner also challenged the language in which the detention material was furnished. The detention order, grounds of detention, and the communication dated 16 June 2025 were provided in English, while the petitioner, a matriculate, does not understand English. He argued that the respondents were obliged to supply a translated version to enable him to make an effective representation.
On the merits, the petitioner argued that he was already on bail in both FIRs and facing trial; that his name did not appear in FIR No. 130/2020; that FIR No. 13/2025 was registered on a concocted story after he was taken from his home to Police Station Kandi on 1 February 2025; and that there were no compelling circumstances to invoke Section 3 of the PITNDPS Act when the criminal courts were already seized of the matter. He described the detention order as cryptic, stigmatic, and exhibiting non-application of mind.
The respondents, represented by Senior Additional Advocate General Mrs. Monika Kohli, denied any infringement of constitutional or statutory rights. They maintained that the detaining authority had examined the dossier and concluded that ordinary law had failed to deter the petitioner, making detention imperative. They stated that 132 leaves of documents were provided to the petitioner along with the detention order, and that the contents were explained to him in Hindi and Urdu. They also stated that both respondents No. 1 and 2 had decided the representation and communicated the decision through the Superintendent of Central Jail.
The Court’s Reasoning on Section 129 BNSS and Preventive Detention
Justice Sekhri examined the detention record of both the detaining authority and the Home Department. The court identified a central legal deficiency: neither the SSP, Rajouri, nor the Divisional Commissioner had recorded any reason explaining why the security proceedings under Section 129 BNSS were found insufficient to prevent the petitioner from engaging in activities prejudicial to public order.
The court explained the character of Section 129 BNSS. It is a regulatory process within the criminal justice framework designed to prevent recurring criminal conduct. It empowers an Executive Magistrate to require security for good behaviour from repeat offenders — including those habitually involved in offences related to drugs — and to require execution of a bond for up to three years. The provision also allows the Magistrate to require an interim bond as an immediate measure pending inquiry under Section 135(3) BNSS. Detention or imprisonment for breach of the bond follows non-compliance with a final order passed after a complete inquiry, and is subject to strict judicial scrutiny.
The court acknowledged that preventive detention under the PITNDPS Act is a distinct executive measure, independent of security proceedings, and that both can legally co-exist. The fact that Section 129 BNSS proceedings are ongoing does not legally bar the administration from invoking the PITNDPS Act. But the court identified a firm caveat: when a person is already in custody or facing proceedings under Section 129 BNSS, the detaining authority is obliged to specifically demonstrate compelling reasons and record an independent application of mind as to why those security proceedings were insufficient.
Applying this standard, the court found the impugned order wanting. The grounds of detention made only a passing reference to the Section 129 BNSS proceedings and were then “ominously silent about further details.” There was nothing to indicate whether the petitioner had been served a show cause notice by the Executive Magistrate, whether he had been required to execute an interim bond, or whether he had flouted any such bond. The detaining authority had not recorded any compelling reason for invoking the PITNDPS Act within 16 days of the Executive Magistrate enlarging the petitioner on bail.
The court was equally critical of the detaining authority’s apparent treatment of the PITNDPS Act as a penal statute. The court observed that the PITNDPS Act is not a penal legislation; its object is preventive, aimed at preventing illicit traffic in narcotic drugs and psychotropic substances and combating their abuse. Treating it otherwise, the court held, reflected total non-application of mind.
The court also restated the constitutional limits on preventive detention. While the subjective satisfaction of the detaining authority is not open to objective assessment by the writ court, and the court cannot substitute its satisfaction for that of the detaining authority, the State cannot be permitted to curtail personal liberty in a mechanical and arbitrary fashion. The rule of law requires detaining authorities to act fairly, with due regard to the fundamental right to life and liberty under Article 21. Ipse dixit of the administration is not sufficient. Preventive detention cannot be invoked perfunctorily to clip the wings of an individual unless there is emergency-based justification that ordinary laws cannot address.
Order
Justice Rajesh Sekhri allowed HCP No. 135/2025 and quashed detention order No. PITNDPS 36 of 2025 dated 16 June 2025 passed by the Divisional Commissioner, Jammu. The court directed that Mohd. Kabir be immediately released from detention. The petition was disposed of on 23 April 2026.