‘Using encrypted app no ground for detention’: J&K High Court quashes Public Safety Act order

The Jammu & Kashmir and Ladakh High Court set aside Seh’s preventive detention under the Public Safety Act. The court did not decide that the allegations were harmless. Instead, it found that the detention grounds did not provide enough concrete material to justify this extraordinary restriction on liberty.

Seh’s dossier alleged contact with Pakistan-based Jaish-e-Mohammad handlers through Zangi and a VPN. It also accused him of helping terrorists as an Over Ground Worker. Justice Wasim Sadiq Nargal noted that the grounds gave no clear dates, participants, or substance of the alleged communications.

The court said serious allegations must be supported by cogent material. Authorities could investigate, collect electronic evidence, and prosecute under the Unlawful Activities (Prevention) Act, 1987, or other laws. It also criticised the District Magistrate for substantially reproducing the police dossier instead of independently applying judgment.

Under the Public Safety Act, preventive detention allows authorities to restrain someone to prevent activities considered prejudicial to State security or other legally specified interests. The High Court stressed that it is an extraordinary invasion of personal liberty. It is designed to prevent future harmful conduct, not punish acts allegedly committed in the past.

That differs from the ordinary criminal process. Authorities investigate alleged offences, collect evidence, and may prosecute a person under applicable laws. A person can then face trial, with guilt determined through that process. Preventive detention does not itself establish guilt or replace that process.

The court applied this distinction to Seh’s case. It said evidence of communications, assistance, or coordination could have been examined under criminal law. The judgment therefore treated preventive detention as requiring strict safeguards, clear grounds, and careful independent decision-making by the detaining authority.

Ajaz Ahmad Seh was detained on July 28, 2025. The High Court’s order was issued on October 30, 2025. That makes the detention period about three months, or roughly 94 days, assuming the dates are counted directly.

The timing matters because preventive detention restricts liberty without waiting for an ordinary criminal trial. The court therefore examined whether the detention grounds contained enough specific material to justify continuing that exceptional measure. It found that they did not adequately describe the alleged communications or activities.

The court ordered the authorities to release Seh if he was not required in any other case. The ruling did not erase the allegations or prevent investigation. It required the authorities to use lawful investigative and prosecutorial routes if they possessed evidence supporting criminal action.

The court focused on the gap between suspicion and proof. Using Zangi through a secured VPN may describe a communication method, but it does not by itself show that terrorist activity was coordinated. Likewise, contact with people alleged to be linked to terrorist organisations does not explain the communication’s content, purpose, or effect.

In Seh’s case, the detention grounds did not identify the dates of communications, the substance of information exchanged, or clear details of the alleged activities. The court said these missing particulars prevented the allegations from becoming an adequate basis for preventive detention. Serious claims still require cogent supporting material.

The ruling did not say such evidence could never justify action. If investigators had material showing coordination, transmission of security-force information, or assistance to terrorists, they could examine it under criminal law. The court preserved investigation while rejecting unsupported preventive detention.

The court identified a basic evidentiary weakness in the detention grounds. They did not clearly state the specific dates of the alleged communications. They also failed to explain the nature and substance of the information supposedly exchanged.

The allegations described contact with Pakistan-based Jaish-e-Mohammad handlers and people allegedly associated with terrorist organisations. They also accused Seh of supporting terrorists and motivating youth. But the grounds did not provide enough concrete particulars showing how those contacts produced the alleged assistance or coordination.

That missing detail mattered because preventive detention cannot rest on broad assertions alone. The court said investigators could have collected electronic and other evidence if it existed. Such material could then support action under the Unlawful Activities (Prevention) Act, 1987, or other applicable penal statutes, rather than relying on an inadequately detailed detention order.

The High Court did not prevent authorities from examining the alleged conduct. It said investigators could pursue the claims through the ordinary criminal process. That means gathering evidence, assessing whether it supports an offence, and bringing prosecution under the law.

The court gave concrete examples of potentially relevant material. Evidence might show that Seh coordinated terrorist activities electronically, transmitted information about security-force movements, or provided assistance to members of a terrorist organisation. Depending on the investigation, authorities could invoke the Unlawful Activities (Prevention) Act, 1987, or other applicable penal statutes.

This approach separates investigation from preventive detention. It protects the ability to act against genuine criminal conduct while requiring stronger grounds before restricting liberty preventively. The court said the authorities were not precluded from collecting electronic and other evidence and initiating prosecution in accordance with law.

A District Magistrate must independently decide whether preventive detention is legally justified. That responsibility cannot be discharged by simply adopting the police narrative. Independent review matters because preventive detention is an extraordinary restriction on personal liberty and must follow constitutional and statutory safeguards.

In Seh’s case, Justice Wasim Sadiq Nargal compared the police dossier with the detention grounds. He found substantial reproduction of the sponsoring agency’s allegations. The court said this raised a legitimate concern that the District Magistrate had not independently applied his mind to the material.

The ruling signals that official formality is not enough. The detaining authority must examine the allegations, supporting particulars, and legal basis before issuing an order. The article also records other recent criticism of detention decisions, including the court’s description of one order as issued recklessly and mechanically.

The immediate consequence was that Seh’s Public Safety Act detention order no longer stood. Justice Wasim Sadiq Nargal directed the authorities to release him if he was not required in any other case. The order therefore removed the preventive-detention basis for holding him.

This did not amount to a finding that every allegation against Seh was false. The court said serious allegations could warrant appropriate legal action when supported by cogent material. It also said authorities could investigate, gather electronic and other evidence, and initiate prosecution under applicable laws.

The practical effect was to return the matter to lawful investigative channels rather than allow an inadequately supported preventive detention to continue. The ruling also criticised the District Magistrate’s apparent reliance on the police dossier. Any other detention or criminal case would have to rest on its own lawful basis.