16.04.2026 vs The Union Territory Of Jammu And on 23 April, 2026

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    Jammu & Kashmir High Court

    Reserved On: 16.04.2026 vs The Union Territory Of Jammu And on 23 April, 2026

                                                                                 2026:JKLHC-JMU:1094
        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
    2026:JKLHC-JMU:1094

    Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter
    referred to as PITNDPS Act “for short”) and lodged in Central Jail,
    Kot Bhalwal, Jammu.

    SPONSORED

    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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    2026:JKLHC-JMU:1094

    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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    2026:JKLHC-JMU:1094

    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.

    HCP No. 135/2025 Page No. 4

    2026:JKLHC-JMU:1094

    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.

    HCP No. 135/2025 Page No. 5

    2026:JKLHC-JMU:1094

    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

    HCP No. 135/2025 Page No. 6
    2026:JKLHC-JMU:1094

    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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    2026:JKLHC-JMU:1094

    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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    2026:JKLHC-JMU:1094

    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

    HCP No. 135/2025 Page No. 9



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