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2011 DIGILAW 84 (JK)

Ehtisham Khan v. State of J&K & Ors.

2011-03-01

MANSOOR AHMAD MIR

body2011
1. Challenge in this petition is to the detention order No. 96/DMB/PSA/10 dated 13.04.2010 passed by respondent No. 2, District Magistrate, Baramulla. Respondents have filed reply. Perused the record. 2. All the safeguards provided under the provisions of the Public Safety Act have been observed in breach for the following reasons: Before passing the detention, it is mandatory that the District Magistrate has to formulate grounds of detention, which has not been done. It appears that grounds of detention have been prepared by Sr. Superintendent of Police, Baramulla, which is crystal clear from the impugned order. It is apt to reproduce first two lines of the impugned detention order herein: "Whereas on the basis of grounds of detention placed before me by the Sr. Superintendent of Police Baramulla vide No;-CS/Det/2010-923 dated 09.04.2010." 3. District Magistrate has not informed the detenue that he has a right of representation before him and also a right of representation before the Government. 4. There is nothing on the file suggesting the fact mat cogent and compelling reasons have been given in the detention order and grounds of detention that detenue was to be detained despite of the fact that he was in custody in FIR No. 56/2010 under Section 6/13 Drugs Control Ordinance 2006 (1949 A.D). The im­pugned order suffers from non-application of mind. 5. District Magistrate has no power, competence and jurisdiction to detain a person for a period more than 12 days. In the instant case, the District Magistrate has detained the detenue for a period of one year which is beyond his competence and power. 6. There is nothing on the file suggesting the fact that grounds of detention, dossier and other material relied upon was furnished to the detenue in the language known to him. The matter would have been clinched if there would have been affidavit of the serving officer on the file explaining that how, when and in which language the contents of warrant, grounds of detention and other material were read over to the detenue. 7. In the given circumstance, the petition is allowed. The detention order is, hereby, quashed with the command to the State to release the detenue forthwith provided he is not required in any other case. 8. Registry is directed to return the record of the case to Mr. J. A. Kawoosa, AAG.