JUDGEMENT

18.03.2024 1. Heard learned counsel for the parties.

2. Perused the writ record produced with annexures therewith and also perused the detention record produced by the respondents.

3. The petitioner is 20 years of age and has approached this Court through is wife with the present writ petition for a writ of habeas corpus under article 226 of the Constitution of India as the petitioner has lost his personal liberty by virtue of a preventive detention order No. DIVCOM- “ K ” /32/2023 dated 12.04.2023 passed by the respondent No.2-Divisional Commissioner, Kashmir in exercise of power under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, (in short PITNDPS Act ),1988.

4. The petitioner has been subjected to detainement in the Central Jail Kotebhalwal, Jammu and the period of detention is one year.

5. The case for subjecting the petitioner to preventive detention came to be presented before the respondent No.2-Divisional Commissioner, Kashmir by the respondent No. 3 Senior Superintendent of Police (SSP), Ganderbal in the form of a dossier No. Legal/PSA-17-B/23/10867-72 dated 18.03.2023.

6. The dossier so submitted by the respondent No.3-Senior Superintendent of Police, Ganderbal referred the petitioner being indulgent in criminal activities, drug peddling and himself a drug addict instigating the young persons of his area to become drug peddlers and drug addicts, and, therefore, constituting a threat for the youth of District Ganderbal.

7. In so portraying the petitioner, the respondent No. 3-Senior Superintendent of Police (SSP), Ganderbal referred the registration of FIR No. 11 of 2021 under section 8/20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 of the Police Station Ganderbal, FIR No. 43 of 2022 u/s 8/20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 of P/S Ganderbal in which the petitioner had come to be booked and by that reference was set up exhibiting the potential of the petitioner to be a matter of concern attracting the provisions of PITNDPS Act 1988.

8. Acting upon the said dossier, the respondent No. 2- Divisional Commissioner, Kashmir came to formulate grounds of detention by citing the said two FIR’s as being the basis for curtailing the personal liberty of the petitioner. In relation to the said two FIRs’, the petitioner is alleged to be found in possession of contraband (charas).

9. FIR No. 11 of 2021 is dated 30.01.2021 whereas FIR No. 43 of 2022 is dated 26.02.2022.

10. The order of detention so passed by the respondent No.2- Divisional Commissioner, Kashmir came to be confirmed by the Government after obtaining the opinion of the Advisory Board acting under the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

11. It is pertinent to mention here that the Advisory Board’s opinion purportedly under Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 is misconceived as the said Act came to suffer repeal upon coming into operation of the Jammu and Kashmir Reorganization Act 2019, and it is now the Central Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 which came to be in operation in the UT of J&K, vide notification No. S.O. 3912(E) of 2019 dated 30.10.2019 and, as such, there is an inherent legal lacunae attending the opinion dated 23.05.2023 so obtained from the Advisory Board under the non existing J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and that lacunae cannot be read to be an error of sight, slip of pen or typographical mistake, given the fact that the matter involves personal liberty of a person.

12. The preventive detention order so passed by the respondent No.2-Divisional Commissioner Kashmir, pursuant to the said Ad