Powers Of Divisional Commissioners To Detain Under PITNDPS Remain Intact Even In Post-Reorganization Phase: J&K High Court Clarifies

Citing clause 14 of Jammu and Kashmir Reorganization (Removal of Difficulties) Order 2019 a bench of Justice Wasim Sadiq Nargal has observed,

“Anything done or any action taken including any appointment or delegation made , notification , instruction or direction issued form , byelaw or Scheme framed, certificate obtained, permit or license granted or registration effected or agreement executed under any law shall be deemed to have been done or taken under the corresponding provisions of the Central laws… unless and until superseded by anything done or any action taken under the Central laws now extended.”

Commenting on the effect of the above clause when read in conjunction with clause 17 the court opined that the competent authority to detain a person in terms of the relevant provisions of the NDPS Act continues to be same as it was prior to commencement of J&K Reorganization Act, 2019, unless superseded.

These observations came in a plea of one Dilawar Javid Bhat, a resident Anantnag who was detained by the Divisional Commissioner, Kashmir, on July 31, 2023, under PITNDPS for his alleged involvement in large-scale drug trafficking.

The petitioner, through senior counsel S.T. Hussain, contended that the detention order was illegal as it relied on a repealed State Act, rendering the Advisory Board's opinion invalid. The petitioner sought the quashing of the order and damages of ₹10 lakh for illegal detention.

The respondents asserted that the Divisional Commissioner was authorized under SRO 247 (1988) and the Jammu and Kashmir Reorganization (Removal of Difficulties) Order, 2019, which preserved the authority of local bodies unless superseded by Central laws.

Adjudicating upon the matter Justice Nargal addressed several key questions. On the issues as to whether the "appropriate government" under Section 2(a) of the Central Act include Union Territories the Court clarified that under Section 3(58) of the General Clauses Act, 1897, Union Territories are included within the definition of "State," thus making the UT administration competent under the PITNDPS Act.

“.. a combined reading of the provisions mentioned above, i.e. Section 2(a) of the PITNDPS Act, 1988, and Section 3(58) of the General Clauses Act, 1897 dispels any doubts regarding the exclusion of the Government of the Union Territory from the definition of "appropriate government" as defined under Section 2(a) of the 1988 Act. Thus it can safely be concluded that the appropriate Government includes Union Territory as well”, the court remarked.

Addressing a question as to whether the Central PITNDPS Act 1988 was applicable to J&K post-reorganization the court said that since the PITNDPS Act was extended to J&K through SO 3912 (E) dated October 30, 2019 hence was applicable at the time of the detention order.

The court reiterated that all Central laws, including the PITNDPS Act, now apply to the Union Territory, rendering the detention order lawful.

Commenting on the contention of the petitioner alleging procedural invalidity due to the absence of a valid Advisory Board the court pointed Government Order No. Home/PB-V/1450 of 2020, which reconstituted the Advisory Board.

Underscoring that preventive detention is a precautionary measure, not a punitive one, meant to prevent future crimes based on past conduct Justice Nargal cited landmark rulings, including Haradhan Saha v. State of West Bengal (1975) and Union of India v. Paul Manickam (2003), emphasizing that preventive detention is justified when regular legal processes prove inadequate in curbing recurring criminal behavior.

The Court observed that despite being granted bail in two previous FIRs, the petitioner continued engaging in drug trafficking, posing a significant threat to public health, safety, and national security.

“The detenue since then, has been perpetually indulging in drug trafficking which is a serious threat to the health, welfare and peace among the people of the area and further endangers the national economy and social stability. In these circumstances it appears that normal law of land was not sufficient to restraint the detenue from indulging in illegal trade”,the court stated.

Given this persistent criminal activity, the Court upheld the detention order as necessary for maintaining societal stability and public welfare and hence dismissed the plea.

Case Title: Dilawar Javid Bhat Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 317

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