Preventive Detention During Ongoing Proceedings U/S 129 BNSS Must Meet Strict Legal Standards To Be Lawful: J&K&L High Court

The Court emphasised that the existence of parallel preventive proceedings does not dilute the requirement of independent application of mind by the detaining authority.

The Court was hearing a habeas corpus petition challenging a detention order passed under preventive detention laws based on alleged involvement in narcotic drug-related activities, despite the detenue already being subjected to proceedings under Section 129 BNSS shortly before the detention.

A Bench comprising Justice Rajesh Sekhri observed that “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.”

The impugned detention order was passed based on a dossier submitted by the Senior Superintendent of Police, alleging that the detenue was involved in repeated trafficking of narcotic drugs and posed a threat to public order. The record reflected that multiple FIRs were registered against the detenue and that preventive proceedings under Section 129 BNSS had also been initiated shortly before the detention order.

It was noted that the detenue had been remanded to judicial custody in the BNSS proceedings and was subsequently enlarged on bail shortly before the detention order was passed. The petitioner challenged the detention on the ground that no compelling circumstances justified the invocation of preventive detention when ordinary legal mechanisms were already in operation.

The High Court examined the statutory scheme governing preventive detention and preventive security proceedings, observing that Section 129 BNSS is a regulatory mechanism within the criminal justice system designed to prevent recurring criminal conduct by requiring individuals to furnish bonds for good behaviour. It noted that such proceedings are subject to judicial scrutiny and are intended to ensure community safety through structured legal safeguards.

Contrasting this with preventive detention under the Public Safety Act, the Court held that such detention is an extraordinary executive measure, distinct from ordinary criminal proceedings. While recognising that both measures can co-exist, the Court emphasised that preventive detention cannot be invoked mechanically or as a substitute for ordinary legal remedies.

The Court held that “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”.

It found that in the present case, neither the recommending authority nor the detaining authority had recorded any such reasons or demonstrated independent application of mind. The Court further noted that the detenue had been enlarged on bail in the BNSS proceedings just days before the detention order, yet the grounds of detention were silent on the effectiveness or outcome of such proceedings, including whether any bond had been executed or violated. This omission, according to the Court, reflected a lack of proper consideration of relevant material.

Further, while stating that “nobody can take an exception to the settled position of law that security of the state and maintenance of public peace and tranquillity is the exclusive domain of the administration”, the Court, however, cautioned that “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”, while further adding that “personal liberty of a citizen cannot be curtailed on mere dogmatic assertions of the executive”.

The Court also underscored that “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 an emergency-based justification which ordinary laws cannot address”, while underscoring that “it can't be ipse dixit of the administration”.

The High Court concluded that the detention order was vitiated due to the absence of compelling reasons and a lack of independent application of mind, particularly in light of the ongoing proceedings under Section 129 BNSS.

Accordingly, the detention order was quashed, and the petitioner was directed to be released forthwith from custody.

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

Citation: 2026 LiveLaw (JKL)

Appearances

For Petitioner: Advocate Rahul Raina

For Respondents: Senior AAG Monika Kohli

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