Div Comms authorised to issue detention orders under PITNDPS Act: J&K High Court

29 November 2024

By: Jahangir Sofi

Srinagar: In a landmark judgment, the High Court of Jammu & Kashmir and Ladakh has affirmed the authority of Divisional Commissioners in Jammu and Kashmir to issue detention orders under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS) Act, 1988, despite the Jammu and Kashmir Reorganisation Act, 2019, which restructured the region into a Union Territory.

According to the news agency—Kashmir News Observer (KNO), the verdict, delivered by Justice Wasim Sadiq Nargal, dismissed a petition challenging the detention of an individual under the PITNDPS Act, ruling that the provisions of the Reorganisation Act and the Removal of Difficulties Order of 2019 do not affect the continuity of the pre-existing powers of Divisional Commissioners to issue such orders.

The petitioner, a resident of Anantnag, had been detained by the Divisional Commissioner of Kashmir on July 31, 2023, for his alleged involvement in large-scale drug trafficking. The petitioner had argued that the PITNDPS Act had been repealed in Jammu and Kashmir following its reorganisation as a Union Territory and sought the quashing of the detention order, as well as Rs 10 lakh in damages for alleged illegal confinement.

However, the court rejected the petitioner’s argument, referencing the Jammu and Kashmir Reorganisation (Removal of Difficulties) Order of 2019. The court clarified that actions taken under existing laws, including the PITNDPS Act, are valid and continue to be in force unless explicitly overridden by central laws. The relevant provisions of the Reorganisation Act, the court stated, ensure that the authorities responsible for preventive detention remain the same as they were prior to the enactment of the Reorganization Act, unless superseded by central legislation.

The court also referred to a 1988 notification, SRO 247, which had specifically empowered the Divisional Commissioners of Jammu and Srinagar to issue detention orders under the PITNDPS Act. The respondents argued that the authority to detain under this Act had not been revoked and was still valid under the current Union Territory administration.

Justice Nargal also addressed whether Union Territories could be considered within the definition of the “appropriate government” under the PITNDPS Act. The court concluded that, under Section 3(58) of the General Clauses Act, 1897, Union Territories are included within the definition of “State,” thus empowering the Jammu and Kashmir administration to exercise its authority under the PITNDPS Act.

The court also dismissed the petitioner’s claim that the preventive detention lacked procedural validity due to the absence of an Advisory Board. Citing Government Order No. Home/PB-V/1450 of 2020, the court said that preventive detention is not a punitive measure for past actions but a preventive tool against future crimes.

The court upheld the preventive detention order, saying that the petitioner’s continued involvement in criminal activities posed a significant threat to public safety, national security, and societal welfare. Despite being released on bail, the petitioner’s actions had demonstrated a persistent engagement in unlawful activities, justifying the detention order, it stated.

For these reasons, the court found no merit in the petition and dismissed it. —(KNO)