S.30 read with Rule 5 of the Emergency Powers Rules, 1975-Various stages of the functioning of the Government functionaries have been expostulated. In the exercise of its power the Government has delegated the authority of passing the order of detention to various functionaries of the Government. In the present case the delegated authority is the District Magistrate or the Additional District Magistrate. Syeda Rezia Begum Vs. Government of Bangladesh (1988) 40 DLR 210.
Emergency Powers Rules-Order of detention passed under the Special Powers Act revoked and without releasing the detonu a fresh order of detention was passed under the Emergency Powers Rules-The order of detention under the Special Powers Act was passed for colourable purpose and cannot be sustained and the 2nd order of detention under the Emergency Powers Rule cannot be sustained. Ranadhir Das Vs. Ministry of Home (1976) 28 DLR 50.
Rules 2(a) and 5(1).
Detention order passed-When invalid. Rule 2(e) of the Emergency Powers Rules de- fines prejudicial acts wherein there are included 16 different species of activities which come within a generic expression "prejudicial act" but rule 5(1) includes only some of the activities which could be a ground for passing detention order. In the present case excepting making a casual and careless reference to the numbers of two clauses nothing has been mentioned in the detention order which could at all be said to be an order passed under rule 5(1) of the Emergency Powers Rules. No ground having been mentioned except repeating the numbers of two clauses, the order of detention must be struck down as invalid as the very manner of articulation shows a total lack of application of the mind of the detaining authorities. Amaresh Chandra Chakraborty Vs. Bangladesh (1979) 31 DLR(AD) 240.
Rule 2(a) read with rule 30-Satisfaction of the detaining authority while ordering detention of a person, when challenged Authority's ground for its satisfaction is justiciable in a court of law. Sri Kripa Shindu Hazra Vs. State (1978) 30 DLR 103.
Rule 2(e)-Prejudicial'-From the order of detention it appears that the Additional District Magistrate passed the order merely at the instance of the police report because excepting the police report no other materials was placed before him. If the grounds as mentioned in the impugned order are considered vis-a-vis the police reports and the instance of prejudicial activities as enumerated in the affidavit in opposition, it becomes clear that the order of detention cannot be said to have been passed in conformity with the law.
Mere recovery of some prejudicial printed mate- rials from his house does not bring the case within the scope of rule 5(1)(a) of the Emergency Powers Rule, 1975. Saleha Begum Vs. Govt. of Bangladesh (1977) 29 DLR 59.
Rule 2(e)
Grounds of detention are stated disjunctively dis- closing thereby want of due application of mind and this renders the detention unauthorised. Akram Hossain Mondal Vs. Bangladesh (1979) 31 DLR 127.
Rule 2(e)-Prejudicial act.
The power of detention in clause (viii) was given for maintenance of supplies and services essential to the life of the community. It will be at once noticed though enabling power was given for protecting economic life of Bangladesh in section 2 but the power of detention was not given in clause (viii) for such reason e.g. for prejudicing the economic and financial interest of the state. Anwara Begum Vs Govt of Bangladesh (1978) 30 DLR 131
-Rule 2(e)(xi)- All activities which hinder or prejudice the maintenance of supplies or services essential to the life of the community will be within the mischief of preventive detention. Mrs. Anwara Begum Vs. Govt. of Bangladesh (1978) 30 DLR 131.
Rules 2(e) and 5(1)(a).
Dissented from the views taken in the case reported in (1977) 29 DLR 5 also in the case reported at page 59 of the same volume.
It is unfortunate that in two decisions of this Court, namely, in 29 DLR 5 it was observed: "It is clear that the Govt. is not empowered to make an order of detention for all kinds or variants of prejudicial acts described in rule 2(e) of the Emergency Powers Rules, 1975". Same view was noted in the case of Salcha Be- gum Vs. Government of Bangladesh, in 29 DLR at page 59 wherein it was observed:
"that by itself, in the absence of any specific ac tivity ascribed to the detenu, is not sufficient to bring the case within the scope of prejudicial act as enumerated in rule 2(e) and as such he cannot be de- scribed as the miscreant endangering public security far less injuring the interest of People's Republic of Bangladesh".
These observations are based on an erroneous conception and it is unfortunate that the attention of the learned Judges was not drawn to clause (viii) of section 2(e) of the Emergency Powers Act which empowers the Government for apprehension and detention by application of rule 5(1)(a).
When the Government passes an order of detention the law does not empower to take resort to rule 2(e). It is rule 5(1)(a) only and this misconception, it seems, is persisting amongst the executive because in this case also we find that the executive detaining authority has invoked rule 2(e)/5(1)(a) of the Emergency Powers Rules, 1975. As has been noted it would not vitiate the order of detention because detaining authority has also mentioned rule 5(1)(e). Kripa Shindu Hazra Vs. The State (1978) 30 DLR 103.
-The Defence of India Rules, 1940 and the De- fence of Pakistan Ordinance and Rules 1965 and the Emergency Powers Rules, 1975 are drafted on identical terms and language and the striking similarity both in language and expression can be found in all these three enactments namely, rule 26 (D.I.Rules) corresponding to rule 32 (D.P. Rules) and both of them correspond to rule 5(a) of the Emergency Powers Rules. Rule 129 (D.I. Rules) correspond to rule 204 (D.P. Rules) and both correspond to Rule 30 of the Emergency Powers Rules. Kripa Shindu Hazra Vs. The State (1978) 30 DLR 103.
Rule 2(e)(xi)
Maintenance of supplies and services essential to the life of the community-explained when two modes are available either by prosecution or detention, the executive will decide which to adopt. Fac- tors which should weigh in case of deciding detention as the proper course. Anwara Begum Vs. Govt. of Bangladesh (1978) 30 DLR 131.
Rule 5
When a legal order of detention may be passed. The detaining authority might have felt though there was no sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such nature as to justify the order of detention. There would be no legal bar to the making of detention or- der in such a case. Mrs. Anwara Begum Vs. Govt. of Bangladesh (1978) 30 DLR 131.
Various stages of the functioning of the government functionaries have been expostulated. In the exercise of its power the order of detention to various functionaries of the government. In the present case the delegated authority is the District Magistrate or the Additional District Magistrate. Syeda Reza Begum Vs. Government of Bangladesh (1988) 40 DLR 210.
Two modes available to proceed against a per- son with a view to detention.
When two modes are available to the executive, recourse can be had for any one of them but not for both of them. In other words, the executive can detain a person when it sees that sufficient evidence would not be collected or witness could not be pro- cured because of the powerful influence of the detenu. Mrs. Anwara Begum Vs. Govt. of Bangladesh (1978) 30 DLR 131.
Rule 5(1) Detention order if valid-Detaining authority's responsibility in passing an order of detention-Satisfaction of the detaining authority subject to court's interference. The purpose of the Constitution is to confer on the High Court the power to satisfy itself that a per- son detained in custody is under an order which is lawful and that the authority making the order had before it materials to satisfy itself on the necessity of making such order.
Most of the Fundamental Rights are now sus- pended and the Emergency Powers Rules, 1975, as it stood, made no provision for service of the grounds of detention on the detenu. The position is that a man can be deprived of his liberty under the Rules simply on the making of an order by the authority and the only protection, albeit a precarious one, that can be given is that unless there is strict compliance with the essential provisions of the Rules, the detention order cannot be sustained. The essence of principle is to protect a person's personal liberty. It is true that the Courts are prevented from going behind the order of detention except in the manner stated above, if there be any doubt as to whether the Rules have been substantially complied with, the doubt must be resolved in favour of the detenu.
In Abdul Latif Mirza's case it has been held that though the order of the detaining authority is to a great extent subjective, still there must be materials before such authority to come to its subjective satisfaction and the order of the detaining authority must be based on some materials which will satisfy a reasonable person that a conclusion could be drawn on such materials.
An order which is going to deprive a man of a most cherished human right, that of personal liberty, cannot be allowed to be dealt with in a casual or careless manner and if it is so done, the Court will be justified in interfering with such order, which be- trays the lack of application of mind of detaining authority. Krishna Gopal Vs. Govt. of Bangladesh. (1979) 31 DLR(AD) 145.
"Economic, financial, and political interest" and "maintenance of law and order" are not the same thing as "acting in a manner prejudicial.....of the community" in r. 5(1). Anwara Ahmed Vs. Govt. of Bangladesh (1978) 30 DLR 200.
Rule 5(a)(1)
Fresh detention order under rule 5(a)(i) of the Emergency Powers Rules, 1975 cannot be treated as a valid one, because the detention order was served upon the detenu without allowing him to go out of the jail gate. Md. Anwar Hossain Vs. Govt. of Bangladesh (1978) 30 DLR 423.
Incidents which had been enumerated in the affidavit in opposition clearly show that the detenu not only created law and order situation in the locality but also public order. In this view of the matter the impugned order under 5(1)(a) was a valid order in accordance with law. Antecedents and past activities can be taken into consideration before passing any order of detention, Miss Rowshan Ara Ahmed Vs. Secy. Min. of Home Affairs (1979) 31 DLR 93.
-Mandatory provisions within the time-limit prescribed by law to serve grounds of detention upon the detenu when not complied with-Detention is illegal.
Held: When the law, providing preventive detention has made specific provision that the grounds of detention should be furnished within a time-limit prescribed, then it should be done within the said time limit. It is a right of the detenu and an obligation upon the detaining authority who must scrupulously follow it. This is a mandatory requirement of law and non-compliance with the same would definitely invalidate the detention and the question of prejudice does not arise. Mrs. Farida Rahman (Saki) Vs. Govt. of Bangladesh (1981) 33 DLR 130.
-Requirement providing preventive detention must be followed-personal lib- erty of a citizen must be safeguarded. Preventive detention which makes an inroad on the personal liberty of a citizen as within safeguards inherent in a formal trial before a judicial tribunal, must be zealously kept within the bounds, it is also a settled principle that requirement providing preventive detention must be strictly followed and scrupulously complied with.
Failure of the detaining authority in complying with the mandatory requirement of law viz. in fail. ing to furnish the grounds of detention at the time when the order of detention under rule 5(1)(a) was made, has vitiated the detention of the detenu.
The first order of detention under rule 5(1)(a) be ing found illegal, subsequent orders extending the said detention are also void and illegal. Mrs. Farida Rahman (Saki) Vs. Govt. of Bangladesh (1981) 33 DLR 130.
-Grounds of financial, economic and political interest are not included in rule 5(1)(a) but are outside. the detention law. Anwara Ahmed Vs. Govt of Ban- gladesh (1978) 30 DLR 200.
-Grounds of preventive detention--Subject to the scrutiny by the Higher Courts. Anwara Ahmed Vs. Govt of Bangladesh (1978) 30 DLR 200.
-Interference with the course of justice or con- tempt of court can hardly be a ground for preventive detention. Anwara Ahmed Vs. Govt. of Bangladesh (1978) 30 DLR 200.
-First order of detention was made under the Special Powers Act-But instead of referring the case of the detenu to the Advisory Board as required u/s 10, the authority revoked the order as passed un- der S.P. Act and then passed a fresh order of deten- tion under rule 5(1)(a) of the Emergency Powers Rules, 1975-No evidence having been shown for detention under rule 5(1)(a), detention order held ille- gal, A.K.M. Shamsuddin Vs. Govt. of Bangladesh (1976) 28 DLR 117.
Rule 5: Clauses (a) to (g). Powers exercisable under the clauses.
Rule 5 of the Emergency Powers Rules contem- plated certain action by the person with respect to whom the authority is satisfied that with a view to preventing him from acting in a manner prejudicial to the security, public safety or interest of Bangla- desh, Bangladesh's relation with any foreign power, maintenance of public order, maintenance of peaceful condition in any part of Bangladesh or the mainte- nance of supplies and the services essential to the life of the community and in that case the Govern- ment may make the order under clause (a) directing that such person be detained or the Government can pass any other order as enumerated in clauses (b) to (of rule 5 of the Emergency Powers Rules.
While clause (b) contemplates the removal of the person from Bangladesh, clauses (c) to (g) postu- late certain directions such as (c), he shall not re- main within any specified area, in (d), requiring him to reside or to remain in such places, (e) requiring him to notify his movement, (f) imposing upon him such restriction in respect of his association or communication with others, (g) regulating his con- duct in regard to any specified matter. Shamsun Na- har Begum Vs. Bangladesh (1978) 30 DLR 33.
-Power exercisable under clauses (c) to (g) is only with respect to a person who is not confined in prison but is at large.
Orders contemplated in clauses (c) to (g), of ne- cessity has to be passed with respect to a person who is at large i.e. who is not in prison. Shamsun Nahar Begum Vs. Bangladesh (1978) 30 DLR 33.
-Court declared the detention order being ille- gal, the detenu must be released from jail- Authority brought the detenu upto the jail gate but before he could proceed further, he was served with a fresh order of detention under the Emergency Powers Act and taken back. Held, this is no compliance with court's order. Shamsun Nahar Begum Vs. Bangladesh (1978) 30 DLR 33.
-Rule 18-Detention of detenu which started on the 29th November, 1974, and continued under rule 5(1) of the Emergency Powers Rules is bad in law. A person cannot be kept under detention merely on some vague allegations for an indefinite period and in the absence of any specific case against him Abdus Sattar Vs. Govt. of Bangladesh (1977) 29 DLR 187
Rule 30-Vagueness in an order of detention may not be fatal but if this court finds it difficult to satisfy itself, because of vagueness of the order as to the lawful authority of the order, then such order ought not be allowed to continue. Md. Faruque Reza Vs. Govt of Bangladesh (1977) 29 DLR 4
-Temporary detention is permissible under Rule 30 and the detaining authority must consider the circumstances of the case to be reasonable and necessary enough to pass an order of temporary de- tention. Syeda Rezia Begum Vs. Govt. of Bangla- desh (1988) 40 DLR 2101
Onus is on the detaining authority to show validity of detention-Preventive detention must be supported by sufficient materials Satisfaction of the detaining authority must be based on concrete materials. Nurunnahar Begum Vs. Govt. of Bangla- desh (1977) 29 DLR 372.
Detention order need not be a speaking order. A detention order need not be a speaking order under the Emergency Powers Act and Rules but since we have held that section 106 of the Evidence Act will come into play the onus at once shifts on the Gov- ernment to show that it had materials before it be- fore passing the order detention. It is now well settled that the detaining authority must state the materials in the affidavit Kripa Shindu Hazra Vs. The State (1978) 30 DLR 103.
