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2009 DIGILAW 439 (JK)

Nazir Ahmad Shah v. State

2009-09-01

MANSOOR AHMAD MIR

body2009
1. One Sh. Ghulain Mohi-ud-Din Shah, father of Nazir Amad Shah, resident of Choker Pattan, Baramulla has questioned the detention Order No.DET/PS A/09/599 dated 17.1.2009 passed by the District Magistrate, Baramulla, respondent No.2 herein, whereby Nazir Ahmad Shah came to be detained in terms of the Jammu & Kashmir Public Safety Act, 1978 (for short Act) for a period of 24 months, on the grounds taken in the petition. 2. Respondents have filed the counter and resisted the same on the grounds taken in the reply/counter. 3. Heard. Perused the record. It appears that the detenue came to be arrested on 19.3.2007 in FIR No.58/2007 under Section 7/25 Arms Act registered at Police Station Pattan. It also appears that he was involved in FIR No.262/2006 under Sections 302, 212 RPC and 7/25 Arms Act registered at Police Station Pattan. 4. It is contended that the detenue came to be admitted to bail by the court of competent jurisdiction/Principal Sessions Judge, Baramulla on 20.12.2008 and 28.11.2008 respectively in both the said cases, but he was not released, instead he was sent to CIK and thereafter came to be detained in terms of the impugned order. The petitioner has made a specific averment in para-4 of the petition to that effect and the respondents also have not denied the same, thereby the same has remained unrebutted. 5. The grounds of detention are on the record. It is no where mentioned in it that the detenue was admitted to bail and thereafter was released and has indulged in any activity (ies) thereafter, which are prejudicial to the security of the State. The grounds of detention as well as the Dossier are silent to the said effect. Neither it is alleged by the respondents nor it is disclosed by the record that the detenue after his arrest on 19.3.2007 was still indulging in any such activities which are prejudicial to the interest of the State. It is suggestive of the fact that District Magistrate, Baramulla-respondent No.2 has passed the order without application of mind. 6. It is also not spelled out why the detenue again came to be detained, when he was in custody right from 19.3.2007 as per the record as well as the pleadings of the parties. 7. It is suggestive of the fact that District Magistrate, Baramulla-respondent No.2 has passed the order without application of mind. 6. It is also not spelled out why the detenue again came to be detained, when he was in custody right from 19.3.2007 as per the record as well as the pleadings of the parties. 7. The detaining authority-District Magistrate has the power and competence to detain a person for a period of 12 days, but it has issued the detention order for a period of 24 months, which is beyond its competence and power. 8. It appears that the detention order came to be passed on the basis of the report of Sr. Superintendent of Police, District Baramulla and the dossier and other connected documents. It is no where mentioned in the impugned order that the grounds of detention came to be prepared. In order to pass the detention order, the existence of grounds of detention is a pre-requisite. Without preparation of the same if any order is passed, the same is without jurisdiction, competence and power and is illegal. 9. It is also not coming from the record whether any notice was given to the detenue for making a representation to the District Magistrate or to the Government not to speak of specifying the authority of the Government. 10. It is also not forthcoming from the record whether the dossier and other material were supplied to the detenue in order to enable him to make a representation not to speak of issuance of notice in terms of the mandate of the Act. 11. Keeping in view the discussion made hereinabove, it appears that the respondents have observed all the mandates in breach. 12. Viewed thus, this habeas corpus petition is allowed, the impugned order is quashed and the detenue is directed to be released forthwith, provided he is not involved or required in any other case. 13. Registry is directed to hand over the record to the learned Government Advocate against proper receipt. Disposed of.