Jammu & Kashmir High Court
Reserved On: 16.04.2026 vs The Union Territory Of Jammu And on 23 April, 2026
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 135/2025
Reserved on: 16.04.2026
Date of pronouncement: 23.04.2026
Date of uploading:23.04.2026
Whether the operative part or full
judgment is pronounced FULL
Mohd. Kabir, Age 31 years, .....Petitioner(s)/Appellant(s)
S/o Late Ghulam Mohd,
R/o Draj, Rather Mandi,
Tehsil Kotranka, District Rajouri-
185233,
through his elder brother
Imtyaz Ahmed, age 33 years
S/o Late Ghulam Mohd,
R/o Draj, Rather Mandi,
Tehsil Kotranka, District Rajouri-
185233
q
Through: Mr. Rahul Raina, Advocate.
vs
01. The Union Territory of Jammu and ..... Respondent(s)
Kashmir through its Additional Chief
Secretary/Financial Commissioner (Home),
Civil Secretariat, Jammu-180001.
02.The Divisional Commissioner, Jammu,
Rail Head Complex, Jammu-182202.
03. The Senior Superintendent of Police,
Rajouri-185131.
04. The Superintendent,
Central Jail, Kotbhalwal, Jammu-181122.
Through: Mrs. Monika Kohli, Sr. AAG.
CORAM: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
01. Challenge in this petition has been thrown to detention order No.
PITNDPS 36 of 2025 dated 16.06.2025, passed by respondent No. 2-
Divisional Commissioner, Jammu, whereby petitioner came to be
detained under Section 3 of the prevention of illicit traffic in the
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Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter
referred to as PITNDPS Act “for short”) and lodged in Central Jail,
Kot Bhalwal, Jammu.
02. As background facts from the impugned order and grounds of
detention would emerge, Senior Superintendent of Police, Rajouri
submitted a dossier and connected documents alleging inter alia that
District Screening Committee, Rajouri had examined case of the
petitioner on the basis of various parameters and found his continuous
illegal activities of drug peddling. The dossier elaborates following
criminal cases against the petitioner:
S. No. FIR No. & Offences Police Station Status of the case
01. 130/2020 U/S Kandi Under Trial
304/34/IPC, 8/27 NDPS
Act
02. 13/2025 U/S 8/21/22/29 Kandi Under Trial
NDPS Act
03. Preventive Detention U/S 129/BNSS
DDR No. 17 dated 18.04.2024 of P/S Budhal
DDR No. 25 dated 12.11.2024 of P/S Kandi
DDR No.20 dated 14.11.2024 of P/S Kandi
DDR No. 04 dated 01.05.2025 of P/S Kandi
DDR No. 29 dated 15.05.2025 of P/S Kandi
DDR No. 14 dated 16.05.2025 of P/S Budhal
03. SSP, Rajouri has recommended preventive detention of the petitioner,
on the basis of aforesaid report of the District Screening Committee
that petitioner was engaged in repeated trafficking of Narcotics Drugs
and Psychotropic Substances, which poses a serious threat to the
health and welfare of the people.
04. In the grounds of detention, stated to have been furnished to the
petitioner, it was also mentioned that since despite undergoing
criminal proceedings and serving penal consequences in different
FIRs, there had been no observable improvement in the conduct and
behaviour of the petitioner, therefore in view of his persistent
involvement in the consumption, illegal possession and distribution of
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Narcotic substances, proceedings under Section 129 BNSS were also
initiated against him by SHO Police Station, Budhal before Executive
Magistrate, Koteranka on 17.05.2025, whereby he was remanded to
judicial custody for a period not exceeding 20 days with effect from
17.05.2025 to 05.06.2025 in District Jail, Rajouri.
05. On these recommendations, impugned order came to be propounded
and petitioner came to be detained.
06. Petitioner is aggrieved of his detention inter alia on the following
grounds:
(a). That the order to detention has been passed on 16.06.2025 and
the Principal Secretary (Home), J&K Government confirmed the
same on 09.07.2025 and the representation dated 26.06.2025
preferred by the petitioner came to be decided by the Detaining
Authority i.e. Divisional Commissioner, Jammu on 14.07.2025 when
he had become Functus Officio meaning thereby that he had no
jurisdiction/power to decide the representation of the petitioner after
the detention order had been confirmed by J&K Government on
09.07.2025 and it is only the respondent No.1 who could have taken a
decision on the representation of the petitioner particularly when the
detention order had been confirmed on 09.07.2025 and in view of the
settled legal position, the impugned detention order has rendered
illegal and is liable to be quashed.
(b). That the detention of the petitioner is also vitiated as petitioner’s
representation dated 26.06.2025 duly served upon respondent No.1
through speed post remained undecided and it was incumbent upon
the respondent No. 1 to take decision on the said representation and to
communicate its final outcome to the petitioner but the representation
of the petitioner was not considered at all by the respondent No.1 nor
its outcome was shared and conveyed to the petitioner or any member
of his family. The inaction on the part of the respondent No. 1 has
rendered the petitioner’s detention illegal and violative of Article 22(5)
of the Constitution of India and thus the detention of the petitioner is
liable to be quashed.
(c). That the material viz Detention Order No. PITNDPS 36 of 2025
dated 16-06-2025, Grounds of Detention and Communication No.
601/RA/Detention/370/CC-7463221 dated 16-06-2025 provided to the
petitioner is in English language while the petitioner is a Matriculate
and does not understand English language and thus it was an
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obligation on respondents to provide translated version of the said
material enabling him to make effective representation.
(d). That as already pointed out the petitioner is already facing
prosecution in aforementioned two FIRs and the trial is going on but
the impugned detention has stalled the criminal court to proceed
further in the matter and the respondent No.2 adopted a novel method
to curtail the freedom of the petitioner by branding him as a “Drug
Peddler” and “Notorious Criminal” when no court has convicted him
in the aforementioned FIRs. The respondent No.2 acted hurriedly
contrary to the judicial principles and there were no compelling
circumstances to book the petitioner under Section 3 of
aforementioned Act of 1988. The impugned detention is cryptic,
stigmatic and exhibits non-application of mind.
(e). That the detention of the petitioner is not only illegal/arbitrary but
also actuated with malafide considerations as the respondent No.3
illegally/malafidely/intentionally/deliberately suppressed the material
fact that the name of petitioner is nowhere reflecting in FIR No.
130/2020 dated 28-09-2020 and also on 01-02-2025, the petitioner
was taken from his home to the Police Station Kandi by the Kandi
Police and on the next day i.e. 02-02-2025 a concocted story was
made and a false/frivolous FIR No. 0013 of 2025 dated 02-02-2025
was registered against him which does not establish that the petitioner
is a habitual/drug peddler and there was no occasion for the
preventive detention when the petitioner was already facing the trial in
the aforementioned FIRs.
07. It is contention of the petitioner that he has been wrongly projected as
a notorious drug peddler, involved in drug trafficking/possession of
narcotic substances, leading to spread of drug addiction among
general public especially youth of the area, whereas he had already
been enlarged on bail and undergoing trial in both the FIRs alleged
against him. He believes in plural values. He is a strong believer in
secular ethos and mutual co-existence. He is working as a driver and
is the only bread earner of his family.
08. Petitioner has invoked writ jurisdiction of this Court through his
brother for the quashment of impugned order and his consequent
release from the detention.
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09. Per contra, respondents at the foremost are affront with the
contention that none of the constitutional, legal or statutory right of
the petitioner is found to have been infringed and disputed issues
raised by the petitioner cannot be adjudicated upon through the
medium of present petition. It is contended that representation
submitted by the petitioner to the detaining authority for the
revocation of detention order, came to be dismissed on the strong
recommendation of the sponsoring authority-SSP, Rajouri.
10. It is contention of the respondents that detaining authority on
examination of the dossier came to conclude that since petitioner after
getting bail from the concerned Courts was found involved in the
illicit trafficking of narcotic drugs posing threat to the public order
and welfare of the people and ordinary law failed to deter him, it was
imperative to detain him under the relevant provisions of PITNDPS
Act. The executing officer, at the time of execution of the impugned
detention order provided 132 leaves of the relevant documents along
with detention order and grounds of detention to the petitioner and
explained him in the language i.e, Hindi and Urdu which he
understands and accordingly, he was informed about his right to make
representation to the Government (Home Department) as well as
before the detaining authority against his detention. Representation
preferred by the petitioner was decided by respondents No. 1 and 2
and decision was conveyed to him through Superintendent, Central
Jail, Kot Bhalwal, Jammu. Impugned detention order came to be
confirmed by the Home Department vide order No. Home/PB-V/1387
of 2025 dated 09.07.2025, after opinion of the Advisory Board dated
02.07.2025.
11. Respondents have prayed for dismissal of the petition.
12. Having heard learned counsels for the parties, I have gone through the
file and examined the detention record of both the detaining authority
and the Department of Home.
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13. A perusal of the record reveals that before the impugned detention
order came to be clamped on the petitioner on 16.06.2025, he was
subjected to proceedings under Section 129 BNSS, those came to be
initiated against him in the Court of Executive Magistrate 1st Class,
Koteranka just a month ago on 17.05.2025, in which he was enlarged
on bail on 31.05.2025.
14. 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.
15. The preventive measures envisaged under Section 129 BNSS is a
regulatory process within criminal justice framework, designed to
prevent recurring criminal conduct of an individual.
16. 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 03 years, to ensure
the community safety. The target individuals also include those who
habitually commit or abet offences related to Drugs and Cosmetics
Act, Foreigners Act, Customs Act and laws relating to hoarding,
profiteering or corruption. It also covers persons deemed so
“desperate and dangerous” that there being at large without security,
is hazardous to the community.
17. The provision is aimed to protect public order by requiring the
individuals to show cause, as to why they should not execute a bond
for good behaviour. Notably, if immediate measures pending enquiry
are necessary magistrate is also vested with the power, requiring an
individual to execute an interim bond in terms of sub-Section 3 of
Section 135. The detention/imprisonment for breach typically follows
the non-compliance of final bond executed under Section 136 BNSS
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which is subject to strict judicial scrutiny and it generally occurs only
after a final order is passed following a complete inquiry.
18. Preventive detention under PSA, on the other hand, is a distinct
executive measure, independent of ordinary criminal or aforestated
security proceedings and there is no doubt that both can co-exist. The
fact that an individual is facing proceedings for good behaviour under
Section 129 BNSS does not legally bar the administration from
invoking PSA. But there is a caveat.
19. 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.
20. The recommendation of SSP, Rajouri, in the present case, is
predominantly premised on 02 FIRs of 2020 and February 2025 and
06 DDRs up to 16.05.2025. It is contention of the detaining authority
that since despite undergoing criminal proceedings and serving penal
consequences in different FIRs, there had been no observable
improvement in the conduct of the petitioner, therefore, in view of his
persistent involvement in consumption, illegal possession and
distribution of drugs, proceedings under Section 129 BNSS also came
to be initiated against him by SHO Police Station, Budhal in the Court
of Executive Magistrate, Koteranka on 17.05.2025, i.e., just a month
before impugned detention order came to be slapped on him. In the
said proceedings, he was remanded to judicial custody up to
05.06.2025 but he came to be enlarged on bail on 31.05.2025. The
impugned order of detention has been passed against the petitioner on
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16.06.2025 i.e., within a period of 16 days from the date, he was
enlarged on bail by the Executive Magistrate.
21. Nobody can take an exception to the settled position of law that
security of the state and maintenance of public peace and tranquility
is exclusive domain of the administration. Subjective satisfaction of
detaining authority to detain a person when he refuses to desist from
his past anti-social or anti-national activities is not open to objective
assessment of the Court. Writ Court has no power to substitute its
satisfaction with one of the detaining authority and decide whether it
was reasonable or proper or whether in the circumstances of a case a
particular person should be detained or not.
22. However, 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. It is the
rule of law which should prompt the detaining authorities to act
in a manner which is fair and reasonable having due regard to
the concept of fundamental right of life and liberty, enshrined in
Article 21 of the Constitution of India. Personal liberty of a
citizen cannot be curtailed on mere dogmatic assertions of the
executive.
23. What is intriguing to note is that after a passing reference to
magisterial proceedings under Section 129 BNSS, against the
petitioner, grounds of detention are ominously silent about further
details of the proceedings. There is nothing to suggest further that
whether petitioner was served upon 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.
Neither the detaining authority has recorded any compelling reason
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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 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.
24. 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.
25. Another staggering aspect of the matter which needs attention of this
Court is that detaining authority is oblivious of the fact that PIT
NDPS Act is not a penal legislation. It is an act to provide for the
detention in certain cases for the purposes of preventing illicit traffic
in Narcotic Drugs and Psychotropic Substances and combating the
abuse of such drugs and substances and for matters connecting
therewith. 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.
26. For the foregoing reasons, 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.
27. Disposed of.
(Rajesh Sekhri)
Judge
Jammu
23.04.2026
Sushant
Whether the judgment is speaking? Yes
Whether the judgment is reportable? Yes
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