Preventive detention cannot become routine executive tool: HC

13/05/2026

JAMMU, May 12: The High Court of Jammu & Kashmir and Ladakh has quashed three preventive detention orders, observing that such powers cannot be exercised mechanically or as a routine executive measure when ordinary criminal law is already in operation.
Justice Mohd Yousuf Wani, while deciding separate habeas corpus petitions, said preventive detention must be invoked with "great care and caution" as it directly affects the fundamental right to personal liberty guaranteed under Article 21 of the Constitution.
The court observed that arrests in general and preventive deten-tions in particular are exceptions to the constitutional guarantee of liberty and cannot be justified without strict adherence to constitutional and statutory safeguards.
The bench held that before passing a detention order, the detaining authority must demonstrate proper application of mind, genuine subjective satisfaction, necessity of detention, proper communication of grounds and an effective opportunity to the detenue to make a representation under Article 22(5) of the Constitution.
In one of the cases, the court quashed detention order No. PITNDPS 47 of 2025 dated July 22, 2025 issued against Madasar alias Jugnu of Udhampur under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act.
The petition, filed through the detenue's father Latif, argued that the detenue had already been granted bail in the criminal cases relied upon by the authorities and there was no allegation of violation of bail conditions.
The court found lack of application of mind, absence of a live link between the grounds and the detention order, and violation of procedural safeguards. It directed the authorities to release the detenue from preventive custody if not required in any other case.
In another matter, the court set aside detention order No. PITNDPS 20 of 2025 dated April 16, 2025 issued against Rajan Singh alias Rahul Jamwal of Channi Rama, Jammu.
The court observed that the detenue had already secured bail in the FIRs relied upon by the authorities and the detaining authority had failed to explain how ordinary criminal law had become ineffective in dealing with the alleged activities.
It also noted that no commercial quantity of narcotic drugs or psychotropic substances had allegedly been recovered from the detenue and held that delay had snapped the required live link between the alleged incidents and the detention order.
The court held that procedural safeguards under Article 22(5) of the Constitution and Section 3(3) of the PITNDPS Act had been compromised and consequently quashed the detention order.
In the third case relating to Mohd Ayaz of Lohai Malhar in Kathua district, the court examined detention under the Public Safety Act.
The detention order No. PSA/151 dated March 18, 2025, issued by the District Magistrate, Kathua, was challenged on the ground that one of the FIRs relied upon had already ended in acquittal while the detenue had been granted bail in the remaining cases.
The court observed that the FIRs cited by the authorities did not disclose activities prejudicial to the security of the state and further noted that there was no live link between the alleged acts of 2021 and the detention order passed after more than four years.
Reiterating settled legal principles, the court said preventive detention is preventive and not punitive in nature and cannot be used merely to keep a person behind bars when ordinary criminal law is available and sufficient to deal with the situation.
The court emphasised that liberty cannot be curtailed on the basis of stale allegations, unexplained delay, vague accusations or mechanical reproduction of police dossiers without strict compliance with constitutional safeguards.

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