Preventive detention can’t be used to circumvent bail order: HC

Excelsior Correspondent

JAMMU, Sept 1: The High Court of Jammu & Kashmir and Ladakh has quashed the detention of Pardeep Ambedkari of Kathua under the Public Safety Act (PSA), holding that preventive detention cannot be used as a convenient device to bypass ordinary legal remedies or neutralise the effect of a bail order.

Justice Rajesh Sekhri, while allowing HCP No. 169/2025, set aside detention order No. PSA/176 dated December 8, 2025, passed by the District Magistrate, Kathua, and directed the authorities to immediately release the petitioner from detention, provided he was not required in any other offence.

The petitioner had been detained under Section 8 of the Jammu and Kashmir Public Safety Act following a dossier submitted by the SSP Kathua. The dossier referred to four FIRs and two DDR entries and alleged that Ambedkari had been indulging in inflammatory and provocative speeches and circulating social media content capable of disturbing public order and communal harmony.

The High Court, however, found serious legal infirmities in the detention process. It noted that the SSP Kathua had recommended the petitioner’s detention on October 30, 2025, whereas the detention order was passed only on December 8, 2025, resulting in an unexplained delay of 38 days.

The Court observed that preventive detention is intended to meet an immediate and continuing threat to public order and is not punitive in nature. It held that an unreasonable and unexplained delay can snap the essential “live and proximate link” between the past conduct relied upon and the necessity to preventively detain a person.

Justice Sekhri observed that there was no explanation “worth the name” for the delay and held that it cast serious doubt on the genuineness of the subjective satisfaction recorded by the detaining authority.

Appearing for the petitioner, Senior Advocate K.S. Johal, assisted by Advocate Supreet Singh Johal, argued that besides the unexplained delay, the authorities had suppressed a crucial subsequent development - the grant of anticipatory bail to the petitioner.

Government Advocate Suneel Malhotra, appearing for the Union Territory, defended the detention and contended that mere delay in passing a detention order would not by itself render the detention invalid.

The High Court noted that in the last criminal case relied upon by the authorities, FIR No. 486/2025, Ambedkari had been granted anticipatory bail by the High Court on December 4, 2025, four days before the PSA order was passed. Yet, the detention order was completely silent about the bail granted to him.

The Court held that withholding material documents such as bail applications, bail orders or orders rejecting bail prevents the detaining authority from applying its mind fairly and also affects the detenue’s constitutional right to make an effective representation.

It further observed that preventive detention cannot be used as a convenient shortcut to bypass ordinary legal procedures, including opposing the grant of bail or seeking cancellation of an existing bail order.

The Court also found that neither the petitioner’s pre-arrest bail order nor the relevant record regarding opening of his history sheet had been placed before the detaining authority, thereby preventing a fair consideration of all material facts.

In a significant observation, Justice Sekhri held that the timing of the PSA order, coming just four days after grant of anticipatory bail, suggested a “colourable exercise of power” designed to circumvent the effect and consequence of the bail order.

Holding that suppression of the bail order and the unexplained 38-day delay rendered the detention legally unsustainable, the High Court quashed the PSA order and directed the petitioner’s immediate release, subject to his not being required in any other offence.