DILAWAR JAVID BHAT Vs. UT OF J&K

JUDGEMENT

(1.) The petitioner, in the instant petition, has called in question the impugned order of detention bearing No.DIVCOM-'K'/138/2023 dtd. 31/7/2023 issued by the Divisional Commissioner Kashmir (the Detaining Authority) under the provisions of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 for short ('the PITNDPS Act') by virtue of which the detenue has been placed under detention with a view to prevent him from committing any of the acts within the meaning of PITNDPS Act.

(2.) The Learned counsel for the petitioner at the very outset submits 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has been passed by the Divisional Commissioner Kashmir by placing reliance upon PITNDPS Act, 1988, which has since been repealed by the Jammu and Kashmir Reorganization Act, 2019 as it falls under serial 110 of fifth (V) Schedule of the repealed acts in the Union Territory of Jammu and Kashmir. He also submits that the order accordingly gets vitiated because it has been passed under an act which has since been repealed and accordingly, he seeks quashment of the same. Learned counsel has further drawn the attention of the Court to Article 22 of the Constitution of India with particular reference to Clause 4 and 5 of the Constitution of India. Clause 4 and 5 of Article 22 of the Constitution is reproduced as under:

(3.) It is further submitted by the learned counsel that the detention of the detenue gets vitiated by an illegality born out of the fact that the opinion of the Advisory Board is non-est in the eyes of law, as the Advisory Board is not the one constituted under Central PITNDPS Act 1988, but under the repealed J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, meaning thereby, it is not the Advisory Board constituted under the Central Act, but under the repealed State Act of the then State of Jammu and Kashmir, under which the Advisory Board purportedly has given its opinion to confirm the detention of the detenue.