Advisory Board Under PITNDPS Act Cannot Decide On Detenue's Representation, Decision Must Be Taken By Govt: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court slammed the Advisory Board constituted under the PIT NDPS Act for “illegally arrogating unto itself a power that the law has never vested in it”, as it quashed a preventive detention order for violating the constitutional rights of the detenue.

A bench of Justice Javed Iqbal Wani, while delivering the judgment, held that the Advisory Board had no legal authority to decide on a detenue's representation, a responsibility solely vested in the Government and detaining authority under Article 22(5) of the Constitution.

“The Advisory Board has illegally arrogated upon itself a power that the law has never vested unto it, i.e., the power to consider and decide a representation made by a detenue,” the Court observed.

The petitioner had submitted a representation against the detention order dated 21.12.2024. The record revealed that both Respondent 1 (Government) and Respondent 2 (Detaining Authority) received the representation, but neither addressed nor considered it. Instead, the Advisory Board rejected the representation, an act the Court declared “without power in law”.

“The function of the Advisory Board is purely advisory… It is for the Government to apply its own mind and take a decision,” the Court clarified.

Terming the conduct of the authorities a violation of the detenue's fundamental rights, the Court said:

“Respondents 1 and 2 have shunned their statutory and constitutional obligation to consider the said representation.”

Citing the settled legal position, the Court reaffirmed that a detenue's right to have their representation considered by the government is a fundamental right, and any deviation from this vitiates the entire detention process.

Accordingly, the Court allowed the petition and quashed the detention order, directing the immediate release of the petitioner unless required in another case.

APPEARANCE:

Case-Title: Nek Ram @ Satnam Vs UT OF J&K & Ors , 2025

Jagpaul Singh, Advocate for petitioner

Monika Kohli, Sr. AAG with Ms. Priyanka Bhat, Advocate for Respondent

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