Encrypted App, VPN Use Cannot By Themselves Justify Preventive Detention Without Supporting Material: J&K&L High Court

Justice Wasim Sadiq Nargal held that the grounds of detention did not disclose the specific dates or nature of the alleged communications, the substance of information exchanged, or the particular acts through which the detenue had allegedly assisted terrorists. The Court also found that the District Magistrate had substantially reproduced the police dossier without demonstrating independent application of mind.

The Court clarified that the seriousness of allegations involving terrorist organisations was not being minimised, but preventive detention must be exercised strictly within the constitutional and statutory safeguards.

Background

The petitioner, Ajaz Ahmad Seh, a resident of Sehpora, Pulwama, was detained under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, pursuant to an order dated July 28, 2025, passed by the District Magistrate, Pulwama, on the basis of a dossier submitted by the Senior Superintendent of Police, Pulwama.

According to the grounds of detention, the petitioner was allegedly in contact with Aashiq Ahmad Nengroo, described as a Pakistan-based terrorist handler affiliated with Jaish-e-Mohammad, through a telephone number and the encrypted application Zangi, accessed through a secured Virtual Private Network (VPN).

The authorities further alleged that the petitioner was functioning as an Over Ground Worker (OGW), providing food, shelter, clothing, transportation and information to active terrorists, including Haris Nazir of Kachipora, Rajpora, Pulwama. He was also alleged to have supplied information regarding the movement of security forces and encouraged local youth to join terrorist organisations.

The detention grounds additionally referred to proceedings under Sections 126 and 170 of the Bharatiya Nagarik Suraksha Sanhita, 2023, initiated against the petitioner on three occasions in April, June and July 2025.

Challenging the detention, the petitioner contended that the allegations were vague, speculative and unsupported by adequate material. He argued that the detaining authority had merely reproduced the police dossier without independently assessing the allegations or demonstrating why preventive detention was necessary.

It was also submitted that the alleged communications with terrorist handlers had not been substantiated through supporting evidence and that the alleged activities, if constituting offences, could have been investigated and prosecuted under ordinary criminal law.

The respondents, on the other hand, maintained that the District Magistrate had passed the detention order after considering the police dossier and accompanying material and arriving at the requisite subjective satisfaction.

Court's Observations

At the outset, the Court reiterated that preventive detention is an extraordinary measure and cannot be employed as a substitute for ordinary criminal proceedings.

Relying upon the Supreme Court's decision in Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, the Court noted that one of the questions to be examined while testing the legality of a preventive detention order is whether the ordinary law of the land was sufficient to deal with the situation.

The Court also referred to Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, observing that preventive detention laws must be strictly construed and a person's liberty cannot be jeopardised unless the case falls squarely within the governing law.

Examining the allegations against the petitioner, the Court noted that although the alleged association with terrorist handlers and the provision of logistical assistance were serious allegations, the grounds of detention lacked the necessary particulars.

It pointed out that there was no clear indication of the specific dates on which the alleged communications took place, the nature or substance of the information exchanged, or the particular acts through which logistical assistance was allegedly rendered.

The Court observed,

“General assertions, however grave in tenor, cannot be permitted to take the place of specific and intelligible grounds capable of being meaningfully answered.”

The Court further held that if the investigating agency possessed material indicating that the petitioner had used electronic communications to coordinate terrorist activities, transmitted information concerning security-force movements or provided assistance to members of a terrorist organisation, such material could have been examined and acted upon under the applicable criminal law, including the Unlawful Activities (Prevention) Act, 1967, subject to the ingredients of the relevant offences being satisfied.

“The mere assertion that the detenue used an encrypted application or a VPN, or remained in contact with persons alleged to be associated with terrorist organisations, cannot, without further particulars and relevant supporting material, furnish an adequate basis for curtailing personal liberty through preventive detention.”, the court opined.

It emphasised that the availability of preventive detention did not absolve the authorities of their obligation to distinguish between investigating and prosecuting an alleged offence and establishing the necessity of preventing future prejudicial conduct.

The Court observed that the grounds did not explain why the alleged activities, despite being capable of investigation under ordinary criminal law, necessitated the extraordinary measure of preventive detention.

“Preventive detention cannot be sustained merely by invoking the security of the State in general terms, without demonstrating a rational connection between the material relied upon and the necessity for the preventive measure adopted.”

The Court also took note of the fact that the grounds of detention substantially reproduced the allegations contained in the police dossier.

Referring to its earlier decision in Noor-ud-Din Shah v. State of J&K & Ors., reported as 1989 SLJ 1, the Court reiterated that the detaining authority is required to independently evaluate the material placed before it and cannot discharge its statutory responsibility by mechanically adopting the narrative supplied by the police.

It found that the substantial reproduction of the dossier, when considered alongside the absence of adequate particulars concerning the alleged communications and activities, demonstrated that the requisite independent application of mind had not been adequately established.

The Court, however, made it clear that it did not minimise the seriousness of allegations involving terrorist organisations or activities prejudicial to the security of the State. It stressed that a balance had to be maintained between the security of the State and the preservation of personal liberty, with both pursued within the limits of law.

Holding that the detention order suffered from material legal infirmities, the High Court allowed the petition and quashed Order passed by the District Magistrate, Pulwama, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978.

The respondents were directed to release the detenue forthwith, provided his custody was not required in connection with any other case or pursuant to any other lawful order.