Srinagar, July 4, KDC: The High Court of Jammu and Kashmir and Ladakh has quashed the preventive detention of a Kathua resident under the Public Safety Act (PSA), holding that the law cannot be invoked unless there is an emergency-based justification that cannot be addressed under the ordinary criminal law.
The court said the detaining authority must demonstrate “compelling reason” and independently apply its mind to explain why proceedings under the ordinary law were insufficient to prevent activities prejudicial to public order.
A single bench of Justice Rajesh Sekhri set aside the detention order passed by the District Magistrate, Kathua, on July 22, 2025, against Harish Kumar alias Shally. The court held that the detention order was “mechanical in nature”, contained “arbitrary reasoning” and ignored material facts on record.
The case arose after the Senior Superintendent of Police, Kathua, submitted a dossier describing Kumar as a “hardcore criminal” and a history-sheeter, citing multiple FIRs, including cases under attempt to murder and the Arms Act, besides preventive proceedings initiated against him under the Bharatiya Nagarik Suraksha Sanhita (BNSS). Acting on the dossier, the District Magistrate ordered his detention under the PSA on the ground that action under substantive criminal law had failed to deter him.
Examining the record, the High Court noted that preventive proceedings had already been initiated against the petitioner under Chapter IX of the BNSS, which empowers Executive Magistrates to require habitual offenders to execute bonds for good behaviour.
The court observed that while preventive detention under the PSA and security proceedings under the BNSS can legally co-exist, the detaining authority is required to independently justify why the ordinary legal framework was inadequate.
The court found that the grounds of detention were silent on whether the petitioner had been served a notice by the Executive Magistrate, required to execute a bond for good behaviour, or had violated any interim bond conditions.
It observed that detention under the BNSS ordinarily follows non-compliance with a final bond after completion of the prescribed inquiry. “Preventive detention under PSA cannot be invoked unless there is emergency based justification which ordinary law of the land cannot address,” the court held.
Justice Rakesh Sekhri also referred to the Supreme Court’s decision in Ameena Begum v. State of Telangana, reiterating that constitutional courts must examine whether the detaining authority acted independently, whether its satisfaction was based on relevant material, and whether there existed a live and proximate link between the alleged conduct and the need for preventive detention.
Holding that the detaining authority had neither demonstrated any “compelling reason” to invoke the PSA nor reflected an independent application of mind on the inadequacy of the BNSS proceedings, the High Court allowed the habeas corpus petition and directed that the petitioner be released forthwith, provided he was not required in any other case. (KDC)
