Several important questions answered
Excelsior Correspondent
JAMMU, Nov 26: High Court of Jammu & Kashmir and Ladakh has clarified that both the Divisional Commissioners of the Union Territory are competent enough to issue detention orders under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPSA) as they have been expressly authorized for the purpose vide SRO 247 dated July 27, 1988.
Moreover, as per the provisions of PITNDPS Act, 1988 and Section 3(58) of the General Clauses Act, 1897 besides in the light of the law laid down by the Division Bench, the definition of “appropriate Government” includes Union Territory as well.
This significant judgment has been delivered by Justice Wasim Sadiq Nargal while dealing with a petition which raised questions like whether Divisional Commissioner Kashmir was empowered to issue orders under the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and whether the “appropriate Government” as defined under Section 2(a) of the Central Act, encompass the Union Territory as well etc.
The counsel for the petitioner submitted that the order of detention has been passed by the Divisional Commissioner Kashmir by placing reliance upon PITNDPS Act, 1988, which has since been repealed by the Jammu and Kashmir Reorganization Act, 2019.
He further submitted that the issuing authority has exercised its power in terms of the Act that stands repealed; therefore, the same is bad in the eyes of law and in terms of the Central PITNDPS Act, it is the officer of the rank of Secretary to Government or the Joint Secretary specially empowered in this behalf who is competent to issue a detention order and the Divisional Commissioner, in the instant case, is not as such competent to issue the impugned order.
After hearing both the sides, High Court said, “by way of SRO 247 of 1988 issued on July 27, 1988, both the Divisional Commissioners have been specifically authorized for the purposes outlined in Sub-Section 1 of Section 3 of the PITNDPS Act as such petitioner’s argument that the Divisional Commissioner of Kashmir is not empowered under the PITNDPS Act, 1988 is not tenable”.
“The Ordinance No. 1 of 1988 notified in terms of SRO 247 of 1988, that confers powers, under Sub-Section 1 of Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance, upon the Divisional Commissioner Kashmir and Jammu, continues to have the same force as it had before the commencement of the J&K Reorganization Act, 2019, because there is absolutely no material before the court to come to the conclusion that an action has been taken under the Central laws pursuant to the J&K Reorganization Act, 2019 that amounts to supersession of the earlier arrangement. Moreover, there is no document on record that would show that subsequently a new authority has been appointed in this behalf”.
About whether the “appropriate Government” as defined under Section 2(a) of the Central Act encompass the Union Territory as well, High Court said, “a combined reading of the provisions mentioned in Section 2(a) of the PITNDPS Act, 1988 and Section 3(58) of the General Clauses Act, 1897, and also in the light of the law laid down by the Division Bench of this court, 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 analysis of the facts including the petitioner’s past conduct and history of involvement in unlawful activities, it becomes clear that the actions of the petitioner pose a continued threat to public safety, national security and the rule of law. Therefore, in light of these factors, and also considering the continued observation and monitoring of the detenu after being released on bail have revealed his ongoing involvement in criminal activities. This persistent participation in unlawful actions justifies the preventive detention”, High Court said.
Accordingly, High Court dismissed the petition.
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