Mehnaz Sakib Vs.

Bangladesh, 1999, 28 CLC (HCD) Wednesday, 15 June 2011 08:02 E-mail Print

Supreme Court

High Court Division

(Special Original Jurisdiction)

Present:

Md. Fazlul Haque J

Md. Abdul Matin J

Mehnaz SakibPetitioner

Vs.

Bangladesh..Respondents

Judgment

May 30, 1999.

Cases Referred To-

Abdul Latif Mirza Vs. Government of Bangladesh and others, 31 DLR (AD) 1; Md. Anwar Hossain Vs. Government of Bangladesh, 30 DLR 423; Government of East Pakistan Vs. Mrs. Rowshan Bijaya Shaukat Ali Khan, 18 DLR (SC) 214; Faisal Mahbub Vs. Bangladesh, 44 DLR 168; Saydur Rahman Khalifa Vs. Secretary, Ministry of Home Affairs and others, 1986 BLD 272.

Lawyers Involved:

Mahbubur Rahman with Ms. Farah Mahbub AdvocatesFor the Petitioner.

KM Saifuddin, Deputy Attorney-General For the Respondents.

Writ Petition No.1389 of 1999. Judgment

Md. Abdul Matin J.- This Rule Nisi was issued calling upon the Respondents to show cause as to why the detenu should not be brought before this Court so that it may satisfy itself that she is not being held in custody without any lawful authority or in an unlawful manner and why she should not be directed to be released forthwith.

2. Facts leading to the issuance of this Rule are as follows:

The detenu Mrs. Zubaida Rashid is the wife of Col (Retd) Khanker Abdur Rashid a retired Army Officer and ex-member of Parliament who has been convicted in Dhanmondi PS Case No.10(10)96.

The detenu has been residing at House No.7, Road No.55, Gulshan, Dhaka with her elder daughter who is the petitioner in this case. The detenu was discharged from the Dhanmondi PS Case No.10(10)96 by the order of the High Court Division and since after the discharge she has been passing her days in critical ailing condition and could not go abroad for proper treatment

on medical advice as her passport was impugned in the year 1996. She could not get it back despite order of the Court till today and has been deprived of proper treatment.

3. Even after the discharge from the Dhanmondi PS Case No.10(10)96 she was always put under strict surveillance of and by the personnel of intelligence organisation such as SB and NSI and also police (plain cloth) who are making permanent camp in front of the gate of the detenus residence which has high protection wall all around the residence.

4. The police without prior information or notice suddenly arrested the detenu on 21-04-99 under section 54 of the Code of Criminal Procedure and kept her in Ramna Police Station. In the later part of the day she was straightway taken to the Dhaka Central Jail under detention for a period of 30(thirty) days without giving her any Division and without giving her written order of detention or grounds of the arrest or detention.

5. The petitioner went to Dhaka Central Jail on the following day to meet the detenu and collect the copy of the order of detention. But neither she was allowed to see the detenu nor she was allowed to collect the copy of the order of detention or any relevant paper of her detention. Thereafter the petitioner moved this Court with a newspaper clipping confirming the detention of the detenu under the provisions of Special Powers Act for a period of 30 days and obtained the present Rule.

6. The respondents have entered appearance and filed contending, inter alia that the detenu is involved in politics, she is also involved in activities which are subversive of the State and its discipline and law and order, she is creating imbalance in the social harmony through supply of arms to the miscreants, and assisting and harboring anti-State elements. She was arrested for guiding miscreants to create artificial water and electricity crisis in the country to subvert social harmony. The further case of the respondents is that the District Magistrate ordered the detention through Miscellaneous Case No.377 of 1999 under section 3(2) of the Special Powers Act and the said order of detention was extended for further period of 3 months vide Memo No.1318-Sha:Ma:(Nira/3) dated 11-5-1999. The respondents denied all the allegations of the petitioner made in the writ petition.

7. The petitioner has filed a supplementary affidavit stating the circumstances under which the detenu was arrested and was not served with the initial order of detention on the grounds of detention. The respondents on the other hand filed a supplementary affidavit-in-opposition

annexing the initial order of detention and the grounds of detention which are Annexure-X and XIII to the supplementary affidavit-in-opposition. The respondents also annexed a GD Entry dated 31-3-1999 which is Annexure X(2) to the supplementary affidavit-in-opposition.

8. Heard Mr. Mahbubur Rahman with Ms. Farah Mahbub the learned Advocates appearing for the petitioner and Mr. KM Saifuddin, the learned Deputy Attorney-General appearing for the respondents, perused the application, supplementary affidavit-in-opposition filed by the respondents.

9. The learned Advocate appearing for the petitioner has drawn our attention to initial order of detention dated 21-4-1999 and submits that the same has not been served upon the detenu which is apparent from the face of Annexure X. The learned Advocate further submits that Annexure X was not issued by the District Magistrate, Dhaka inasmuch as this Annexure has been issued by one Md. Shahjahan Ali Mollah who has styled himself as a District Magistrate, Dhaka although, according to the learned Advocate for the petitioner there is no such person who is serving as District Magistrate, Dhaka and as such the Annexure X i.e. the initial order of detention was not issued by the person authorised under the law. Referring to Annexure X( 1) of the supplementary affidavit-in-opposition learned Advocate for the petitioner submits that this Annexure X(1) containing the grounds of detention was also not served upon the detenu, and it is manifest from the notes at the bottom of the Annexure X(1) which purported to say that the same was offered to the detenu and having not been accepted, the contents of this Annexure X(1) was read out to her. Thus the contention of the learned Advocate for the petitioner is that there was no service of grounds upon the detenu, so as to enable the detenu to exercise her right of making effective representation to the authority against the detention. The learned Advocate further submits that the grounds set up in Annexure X(1) are vague and indefinite disclosing no time, place and manner of the alleged prejudicial activities of the detenu. There is mere mentioning of two general diaries in the grounds which cannot be grounds of detention under sub-section 2 of section 3 of the Special Powers Act. The learned Advocate submits that the initial order of detention was issued for prejudicial act within the meaning of section 2(f)(v) i.e. for maintenance of law and order whereas the grounds of detention has set up the grounds within the meaning of section 2(f)(iii) i.e. for public safety and maintenance of public order and thus there is no nexus between the initial order of detention and the grounds of detention. The learned Advocate submits that there is no objective satisfaction of the authority for detaining the detenu under section 3 sub-section 2 of the Special Powers Act nor the Government had any material justifying approval and extension of the initial order of detention and as such both the initial order of detention and the subsequent extension thereof by memo No.1318Sha:Ma:(Nira/3) dated 11-5-1999 issued by (/) , , are without any lawful authority and are of no legal effect and

the detenu is being held in custody without any lawful authority and is of no legal effect and she should be released forthwith. The learned Advocate for the petitioner lastly submits that the detenu was not produced before any Magistrate within 24 hours of her arrest under section 54 of the Code of Criminal Procedure and as such there has been gross violation of the fundamental right of the detenu guaranteed under Articles 33 of our Constitution. Besides, the detention of the detenu is malafide and made for collateral purposes.

10. The learned Deputy Attorney-General appearing for the respondents has taken us through the affidavit-in-opposition. Referring to the Annexure X(2) and the grounds of detention. Annexure X(1) of the supplementary affidavit-in-opposition, the learned Deputy AttorneyGeneral submits that materials were before the authority and the authority was duly satisfied that the detenu should be detained for the interest of the State and law and order and no illegality has been committed in detaining the detenu in the manner as has been done.

11. In Annexure X(1) i.e. grounds of detention, ground No.1 runs as follows:

, , , , () , - , , , , , , , , , , , , , , -- ,

 -- , -- , , , , , - , , , - -

On reading the grounds, we find that there is mere mentioning of two general diaries i.e. diary No.1324 dated 21-4-1999 and General Diary No.1294 dated 20-4-1999 and all other grounds are vague, indefinite and without mentioning of any specific date, time and manner of the activities alleged.

12. It is further found that in Annexure-X which is the initial order of detention dated 21-4- 1999 it was alleged () Whereas Annexure-X(1) i.e. in the grounds of detention it has been stated ()

13. Thus it appears that there is no nexus between the initial order of detention and the grounds of the detention which are vague, indefinite and the detenu could not make any effective representation to the authority as provided under section 8 of the Special Powers Act and thus she has not been dealt with in accordance with law and she has been denied due process of law.

14. The learned Advocate for the petitioner has referred the case of Abdul Latif Mirza Vs. Government of Bangladesh and others reported in 31 DLR (AD) 1, the case of Md. Anwar Hossain Vs. Government of Bangladesh, Ministry of Home Affairs and 4 others reported in 30 DLR 423, the case of Government of East Pakistan Vs. Rowshan Bijaya Shaukat All Khan reported in 18

DLR (SC) 214, the case of Faisal Mahbub Vs. Bangladesh reported in 44 DLR 168 and the case of Sayedur Rahman Khalifa Vs. Secretary Ministry of Home Affairs and others reported in 1986 BLD 272.

15. The principles laid down in these cases substantially apply in this case and we are of the opinion that both the initial order of detention and the subsequent approval and extension thereof by the respondents are without lawful authority and of no legal effect.

16. On perusal of the records it appears that the detenu was not brought before any Magistrate within 24 hours from the time of arrest under section 54 of the Code of Criminal Procedure.

17. Sub-Article (2) of Article 33 of own Constitution runs as follows:

Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

Since the detenu was arrested admittedly under section 54 of the Code of Criminal Procedure it was incumbent upon the police to produce her before a Magistrate within 24 hours but having not done so, we are of the view that the right guaranteed to the detenu under sub-article (2) of Article 33 of our Constitution has been flagrantly violated.

18. Learned Deputy Attorney-General has drawn our attention to certain papers from the file showing that the detenu was forwarded to the Court of Chief Metropolitan Magistrate, Dhaka but from these papers we find nothing that the detenu was actually produced before any Magistrate.

19. From the initial order of detention Annexure X and Annexure X(1), the grounds of detention we are not satisfied that those were served upon the detenu. Be that as it may, since the order of detention and approval and extension thereof have already been held to have been made without lawful authority, even if there was service such service is of no consequence. In the facts and circumstances, other grounds need not be gone into.

20. In the premises as aforesaid it is held that detenu Mrs. Zobaida Rashid wife of Col (Retd) Khandker Abdur Rashid of House No.7, Road No.55 PS Gulshan, Dhaka is being detained without lawful authority and in an unlawful manner and the initial order of detention dated 21-4-1999 and approval and extension thereof vide Memo No.1318 dated 11-5-1999 have been made and issued without lawful authority and are of no legal effect.

In the result, this Rule is made absolute without any order as to cost. The respondents are hereby directed to release the detenu Mrs. Jobaida Rashid now detained in Dhaka Central Jail, Dhaka forthwith if she is not wanted in connection with any other case.

Ed. This Case is also Reported in: 52 DLR (2000) 526