Preventive Detention Under PITNDPS Act Cannot Be Invoked Without Explaining Why S.129 BNSS Proceedings Are Insufficient: J&K&L High Court

Justice Rajesh Sekhri observed that although preventive detention and security proceedings under Section 129 BNSS can legally coexist, the detaining authority is under an obligation to independently apply its mind and explain why the existing preventive mechanism has failed or is likely to fail. Absence of such satisfaction renders the detention vulnerable to judicial scrutiny.

The Court observed,

"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."

The observation came while allowing a habeas corpus petition filed by Mohd. Kabir challenging his detention under the PIT-NDPS Act. The petitioner, a resident of Rajouri, was detained pursuant to Detention Order issued by the Divisional Commissioner, Jammu under Section 3 of the PIT-NDPS Act. The detention was founded upon a dossier submitted by the Senior Superintendent of Police, Rajouri alleging that the petitioner was involved in repeated drug trafficking activities and posed a threat to public order and public health.

The dossier referred to two criminal cases registered against the petitioner under various provisions of the NDPS Act, besides several Daily Diary Reports (DDRs) and preventive proceedings initiated under Section 129 BNSS.

The record revealed that shortly before the preventive detention order was issued, proceedings under Section 129 BNSS had already been initiated against the petitioner before the Executive Magistrate, Koteranka. Pursuant thereto, he had been remanded to judicial custody and was later enlarged on bail. Merely sixteen days thereafter, the impugned detention order came to be passed on 16 June 2025.

Before the High Court, the petitioner contended that he had been mechanically branded as a drug peddler despite facing trial in the criminal cases and that the detaining authority had failed to consider the pendency of preventive proceedings under Section 129 BNSS. He further argued that there existed no compelling circumstances warranting invocation of preventive detention.

The respondents defended the detention by asserting that ordinary criminal law had failed to deter the petitioner and that he continued to indulge in illicit trafficking of narcotic substances despite facing criminal proceedings.

Court's Observation:

Examining the detention record, Justice Sekhri found that neither the sponsoring authority nor the detaining authority had recorded any reason explaining why the preventive proceedings already initiated under Section 129 BNSS were inadequate to curb the petitioner's alleged activities.

The Court undertook an elaborate discussion on the nature and purpose of Section 129 BNSS. It observed that the provision constitutes a preventive regulatory mechanism within the criminal justice framework designed to secure good behaviour from habitual offenders and prevent recurring criminal conduct. The provision empowers an Executive Magistrate to require execution of bonds for good behaviour and contains sufficient safeguards to address threats posed by repeat offenders.

Justice Sekhri clarified that preventive detention under special statutes such as the PIT-NDPS Act stands on a different footing and can coexist with proceedings under Section 129 BNSS. However, the existence of such parallel powers does not permit their mechanical invocation.

The Court held that where preventive proceedings are already in motion, the detaining authority must disclose what transpired in those proceedings, whether the proposed detenue had been required to execute bonds, whether such bonds had been breached, and why those proceedings were considered inadequate to maintain public order.

The Bench noted that the grounds of detention merely made a passing reference to the proceedings under Section 129 BNSS but remained silent regarding their status, effectiveness or outcome. There was nothing on record to indicate whether the petitioner had violated any bond or whether the Executive Magistrate's measures had proved ineffective.

According to the Court, such omission reflected absence of independent application of mind.

Justice Sekhri observed that preventive detention cannot be employed as a convenient substitute for ordinary legal processes and that liberty cannot be curtailed merely on executive assumptions. The Court remarked,

"... 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."

The Court further emphasised that while maintenance of public order is undoubtedly within the executive domain, the exercise of preventive detention powers must remain consistent with constitutional guarantees under Article 21. Personal liberty cannot be curtailed on vague or dogmatic assertions unsupported by objective material.

Another factor that weighed with the Court was the detaining authority's apparent misunderstanding of the object of the PIT-NDPS Act. The Court noted that the statute is preventive and not punitive in nature. The detention order, however, appeared to proceed on the premise that preventive detention was being used as a punitive response to alleged criminal conduct, thereby betraying non-application of mind.

Holding that the detention order suffered from lack of independent application of mind and failure to disclose compelling reasons for bypassing the preventive framework already available under Section 129 BNSS, the High Court quashed the detention order.

Case Title: Mohd. Kabir v. Union Territory of J&K & Ors.

Citation: 2026 LiveLaw (JKL)

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