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2011 DIGILAW 251 (JK)

Sarafraz Ahmed v. State of J&K & Anr.

2011-05-12

MANSOOR AHMAD MIR

body2011
1. Challenge in this Habeas Corpus Petition is to the detention order dated 06.09.2010 passed by District Magistrate, Udhampur-respondent No. 1 in terms of provisions of the Public Safety Act, 1978 (for short PSA), whereby Sarafraz Ahmed-detenue came to be detained on the grounds taken in the petition (for short impugned order). 2. Respondents 1 and 2 have filed their counter. It appears that entire exercise made by the District magistrate, Udhampur-respondent No. 1 is without jurisdiction for the following reasons. 3. District Magistrate, Udhampur is empowered to exercise powers within its territorial jurisdiction, i.e., territorial limits of District, Udhampur. The impugned order appears to have been passed on the grounds which is subject matter of District Magistrate Reasi. It is apt to reproduce Para (F) out of the Counter filed by respondent No. 2 herein. "That the office of the answering respondent vide its communication No. PA/Dossier/10/4984-87 dated 03.09.2010, requested the District Magistrate, Udhampur to issue a detention warrant under Public Safety Act 1978, in respect of petitioner to prevent him from indulging in activities which were considered highly prejudicial and detrimental to the maintenance of the tranquility law & public order in the area of District Reasi. This request was accompanied with dossier duly prepared by answering respondent along with 01 FIR." 4. Thus the entire exercise made by the District Magistrate, Udhampur is without jurisdiction. Even otherwise, District Magistrate, Udhampur-respondent No. 1 has observed all the safeguards provided by the Act read with Constitutional mandate in breach, for the following reasons: 1. District Magistrate can detain a person in terms of the provisions/Act for a period of 12 days only, he has no power/jurisdiction to pass the order of detention for a period of one year. 2. While making the detention order, detaining authority has to formulate the grounds of detention and thereafter can pass the order of detention. It appears that without preparing the grounds of detention, impugned order came to be passed. 3. Notice in terms of Provisions/ Act has not been served upon the detenue, enabling him to make effective representation before the District Magistrate or the Government. 4. It appears that the copies of grounds of detention, dossier and other material relied upon by them were not supplied to detenue, enabling him to make effective representation. 5. 3. Notice in terms of Provisions/ Act has not been served upon the detenue, enabling him to make effective representation before the District Magistrate or the Government. 4. It appears that the copies of grounds of detention, dossier and other material relied upon by them were not supplied to detenue, enabling him to make effective representation. 5. If at all detenue had committed breach of peace, the Executive Magistrate/District Magistrate could have drawn proceedings in terms of Section 107 read with Section 117 of the provisions of the Code of Criminal Procedure Svt. 1989 (1933 AD). 5. Having glance of the discussion made here-in-above, I am of the considered view that the Habeas Corpus Petition deserves to be allowed. Ordered accordingly. The detention order bearing no. DMU/JC/10/PSA/39 dated 06.09.2010 is hereby quashed and detenue is directed to be released from custody, provided he is not required in any other case. 6. Habeas Corpus Petition is, accordingly, disposed off.