Mehnaz Sakib vs. Bangladesh

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Mehnaz Sakib Vs. Bangladesh, 1999, 28CLC (HCD)

Wednesday, 15June 2011 08:02

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Supreme Court

High Court Division

(Special Original Jurisdiction)

Present:

Md. Fazlul Haque J

Md. Abdul Matin J

Mehnaz SakibPetitioner

Vs.

Bangladesh..Respondents

Judgment

May30, 1999.


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Cases Referred To-

Abdul Latif Mirza Vs. Government of Bangladesh and others,31DLR (AD) 1; Md. Anwar Hossain

Vs. Government of Bangladesh,30DLR 423; Government of East Pakistan Vs. Mrs. Rowshan

Bijaya Shaukat Ali Khan, 18DLR (SC) 214; Faisal Mahbub Vs. Bangladesh, 44DLR 168; Saydur

Rahman Khalifa Vs. Secretary, Ministry of Home Affairs and others, 1986BLD 272.

Lawyers Involved:

Mahbubur Rahman with Ms. Farah Mahbub AdvocatesFor the Petitioner.

KM Saifuddin, Deputy Attorney-GeneralFor the Respondents.

Writ Petition No.1389of 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 isnot 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)96by 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


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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)96she 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 21-04-99under

section 54of 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

of30(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 of30days 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.377of 1999under section3(2) of the Special Powers

Act and the said order of detention was extended for further period of3months 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


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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

dated31-3-1999which 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 21-4-1999and 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 hasbeen 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 2of section3of 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. Thelearned Advocate submits that there is no objective satisfaction of the authority for detaining

the detenu under section3sub-section 2of 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.1318-

Sha:Ma:(Nira/3) dated 11-5-1999issued by (/) ,, are without any lawful authority and are of no legal effect and


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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 24hours of her arrest under section

54of the Code of Criminal Procedure and as such there has been gross violation of the

fundamental right of the detenu guaranteed under Articles33of 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 Attorney-

General 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.1runs as follows:

, , , , () ,

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

, , , --,


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--, --, , , ,

, -, , , --

On reading the grounds, we find that there is mere mentioning of two general diaries i.e. diary

No.1324dated 21-4-1999and General Diary No.1294dated 20-4-1999and 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-Xwhich is the initial order of detention dated 21-4-1999

it was alleged ()

Whereas Annexure-X(1) i.e. in the grounds ofdetention 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 8of 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 in31DLR (AD) 1, the case of Md. Anwar Hossain

Vs. Government of Bangladesh, Ministry of Home Affairs and 4others reported in30DLR 423,

the case of Government of East Pakistan Vs. Rowshan Bijaya Shaukat All Khan reported in 18


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DLR (SC) 214, the case of Faisal Mahbub Vs. Bangladesh reported in 44DLR 168and the case of

Sayedur Rahman Khalifa Vs. Secretary Ministry of Home Affairs and others reported in 1986BLD

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 24hours from the time of arrest under section 54of the Code of Criminal Procedure.

17. Sub-Article (2) of Article33of 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 54of the Code of Criminal Procedure it

was incumbent upon the police to produce her before a Magistrate within 24hours but having

not done so, we are of the view that the right guaranteed to the detenu under sub-article (2) of

Article33of 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.


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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.55PS 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.1318dated 11-5-1999have 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

Mehnaz Sakib vs. Bangladesh

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