Faisal Mahbub Vs.

Bangladesh, 1992, 21 CLC (HCD) Tuesday, 10 April 2012 08:37 E-mail Print

Supreme Court

High Court Division

(Special Original Jurisdiction)

Present:

Abdul Jalil J

Abdul Hasib J

Faisal Mahbub ..............Petitioner

Vs.

Bangladesh, represented by the Secretary, Ministry of Home Affairs, Secretariat Buildings, Dhaka and others...................Respondents

Judgment

January 15, 1992.

Result:

The rule is made absolute.

Lawyers Involved:

Abdul Malek, Advocate -for the petitioner,

AY Salehuzzaman, Deputy AttorneyGeneral - for the respondents.

Writ Petition No. 2631 of 1991. Judgment

Abdul Jalil J.- This Rule was issued on an application filed by one Faisal Mahbub, son of the detenu Mahbubur Rahman, calling upon the respondents namely Bangladesh, represented by the Secretary, Ministry of Home Affairs, the Inspector General of Prisons, Bangladesh and thee Superintendent of Dhaka Central Jail, Dhaka to show cause why the detenu Mahbubur Rahman should not be brought before this Court so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.

2. The Secretary, Ministry of Home Affairs was directed to file, by making affidavit, attested copies of reports, if any, from its agencies regarding prejudicial activities of the detenu on the basis of which the detaining authority furnished the grounds of detention on the detenu under section 8 of the Special Powers Act, 1974 and also produce the file containing the original reports before this Court at the time of hearing.

3. The case of the petitioner is that the detenu was put in detention in pursuance of an order bearing No. 6993 Sha: Ma (Nira3) dated 5.11.91 passed by the Government under section 3(1) (a) of the Speed Powers Act detaining the detenu for 120 days from 5.11.91 (Annexure A to the petition). The grounds of detention were furnished on 19.11.91 within the statutory period. The

detenu though acted as a Minister in the erstwhile Jatiya Party Government under former President HM Ershad, he ceased to be Minister since June, 1990 and he had no association with the Government or Jatiya Party ever since, he remained completely aloof from politics. After the fall of Ershad Government the detenu maintained silence and did not participate in any kind of political activity put he has been detained for collateral, purposes under colourable exercise of power. The grounds supplied to the detenu am not proper grounds of detention.

4. The respondents filed an affidavitin--opposition controverting the material allegations made in the petition and contending that in spite of his dismissal from the Cabinet the detenu tried his best to get a portfolio in the cabinet of Jatiya Party Government and he extended his political activities keeping connection with the Jatiya Party. After the fall of Ershad Government the detenu acted in a manner prejudicial to public safety and maintenance of public order from a secret place by hiding himself and as such his detention was necessary on the grounds served on him under section 8 of the Special Powers Act. Those grounds are covered by section 3 (f) of the said Act. The detenu having been acted in a prejudicial manner which endangered the public safety and public order as obtained from the secret report of the police of the Special Branch, his detention was necessary in public interest.

5. The petitioner has filed an affidavitinreply to the said affidavitinopposition denying the material allegations made therein and reiterating his stand made in the writ petition.

6. The petitioner filed the grounds of detention supplied to the detenu with a supplementary affidavit as Annexure B thereto.

7. The respondents also filed two supplementary affidavits. With one of the supplementary affidavits sworn on 15.12.91 they filed a copy of the report prepared by an Assistant Police Super. City Special Branch, Dhaka dated 16.11.91 as Annexure 2 of the said supplementary affidavit. They also filed the grounds of detention (Annexure 1 to the said supplementary affidavit) signed by the senior Assistant Secretary (Security).

8. Mr. Abdul Malek, learned Advocate appearing for the petitioner, has taken us through the initial order of detention and the grounds of detention and submits that the grounds are not genuine and specific and there is no material in support of the grounds of detention which are all mala fide and no detention can be sustained on the basis of those grounds.

9. Mr. AY Salehuzzaman the learned Deputy AttorneyGeneral appearing for the respondents. In -the other hand, submits that the grounds supplied to the detenu are proper grounds of detention. In as much as, the specific allegation has been made, giving dates and particulars of some occurrences deteriorating the law and order situation in the country at the initiative of the detenu who caused those occurrences keeping himself behind the back and the detaining authority being satisfied passed the impugned order of detention with a view to prevent the detenu from acting in a manner prejudicial to public safety and law and order which is fully covered by section 3(1) (a) of the Special Powers Act and the prejudicial acts as defined in section 2(f) o the said Act.

In the initial order of detention (Annexure A to the petition) the purpose of detention was shown to be .

10. In the grounds of detention it is stated that the detenu is an influential politician and is in politics since long time and was a member of different political parties and thereafter. When Mr. RM Ershad formed the Jatiya Party, the detenu became its Secretary General and performed various responsible works of that party and became Minister on different occasions. After the fall of Ershad, the detenu was hiding to save himself from the wrath of public. Keeping himself in hiding he tried to oust the present Govemment by deteriorating the law and order situation through student's organisation and labour front and kept himself engaged in creating disorder and being encouraged by him some armed hooligans created terror in Dhaka University on 27.10.91 as a result three persons were killed and many of the students were injured. The detenu instigated some members of Jatiya Mahila Party in, the name of and financed the unruly movement and instigated them and by his direct instigation those women organised on 7.7.91 and attacked the residence of the AttorneyGeneral and there was apprehension of loss of life and that some sections of women organised on. 2.11.91 in front of the Dhaka Central Jail and in the court premises where the trial of ExPresident Ershad was being conducted and thereby a serious law and order situation was created. On 21.10.91 two organisations, namely, organised at his instance jointly brought out a procession under the banner of and tried to enter into the High Court premises creating law and order situation. The detenu had connection with . , and had secret connection with leaders of those organisations and all those organisations on 28.10.91 observed programme of and declared 48 hours road blockade programme on 25th and 26th November 1991. It has also been stated that an active

politician like the detenu would be a threat to public safety and law and order, if remains outside.

11. The grounds served on the detenu comprised of some specific activities of the detenu which if backed by materials might be prejudicial to public safety and public interest. From a reading of the grounds it appears that most of the allegations relate to political activities. The learned Deputy AttorneyGeneral has drawn our attention to a report of the Assistant Police Super. City Special Branch (Annexure 2 of the supplementary affidavit filed by the respondents) which according to him is an important material in support of the grounds supplied to the detenu. From the report it appears that it is a mere narration of some facts by a police officer without any reference to any source from where those facts were collected and it is a reproduction of the grounds supplied to the detenu.

12. We have already mentioned that the order of detention was passed under section 3(1) (a) of the Special Powers Act under which the Government if satisfied with respect to any person that with a view to preventing him from doing any prejudicial act it is necessary to do so make an order directing that such person be detained. So the satisfaction of the Government should precede the order of detention which means that all materials are to be placed before the Government for forming an opinion and if the Government is satisfied that the detention is necessary, the order may be passed.

13. In the instant case the order of detention was passed on 5.11.91 and this Rule was issued on 10.11.91 and the said report of the Assistant Police Super. City Special Branch appears to have been prepared on 16.11.91. So, obviously, the satisfaction of the detaining authority was not based on this report it cannot be treated as a material in support of the grounds of detention. No material in support of the said report nor of the grounds of detention supplied to the detenu on which the satisfaction of the detaining authority is based has been produced.

14. Under Article 31 of the Constitution every citizen has an inalienable right to enjoy the protection of the law and to be treated in accordance with law, and only in accordance with law, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. In the instant case the detenu has been detained under a law namely, the Special Powers Act, 1974. But mere insertion of the law or a section of law in the order of detention is not enough. The provisions of the law must be strictly followed. Under Article 102 (2) (b) of the Constitution the High Court Division is to be satisfied that the detenu is not being held in custody without lawful authority. Hence, this Court

is to see whether the grounds supplied to the detenu under section 8 of the said Act on which the satisfaction of the detaining authority is based are supported by materials.

15. In the instant case the respondents having failed to produce any material in support of the alleged grounds of detention we hold that the detenu is being held in custody without lawful authority.

16. In the result, the Rule is made absolute.

17. It is declared that the detenu Mahbubur Rahman has been kept in detention without any lawful authority.

18. The respondents are directed to set be detenu Mahbubur Rahman, son of late Amin Ullah of Village Daulatpur, Upazila Chatkhil District Noakhali, at present 9/K U N Road, Baridhara Model Town. PS Gulshan, Dhaka, now detained in Mymensingh district Jail, at liberty at once, if not wanted in connection with any other case.

Let this order be communicated to the Jailer, Mymensingh District Jail, Mymensingh for compliance through special messenger at the costs and risk of the petitioner, as prayed for.

Ed.

This Case is also Reported in: 44 DLR (HCD) (1992) 168.