Appellate Division Cases
Nasima Begum …………………………………………..Appellant
The Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Home Affairs, & ors ……………………….Respondents.
A. T. M. Afzal. CJ
Mustafa Kamal. J
Latifur Rahman. J
Muhammad Abdur Rouf. J
Ismailuddin Saker. J
Date of Judgment
20th November 1995
The Special Powers Act, (XIV of 1974) Section 3 (2)
The allegations of fact which strike at the very root of the continued orders of detention having not been refuted by the respondents by filing any affidavit-inopposition in the High Court Division or by filing a concise statement in this Division, must be taken to be uncontroverted and undisputed facts (9)
The burden of proof in lawful justification of the continued detention of the detenu lies on the respondents and if they have failed to rebut on affidavit the material assertions of the appellant then the respondents ought to be taken to have failed to discharge the burden of proof. (9)
To justify the detention of a detenu the detaining authority is obliged to file an affidavit-in-opposition to discharge its burden of proof that the detenu is not being held in custody without lawful authority or in an unlawful manner. .”. (13)
The detenu which for good or for worse is neither possible nor feasible to contradict. Considered with the background thus given the allegations of character will stick, however emphatically the appellant or the detenu may deny it, but shorn of the background the allegations as to character are incapable of any effective rebuttal in any representation against the order of detention. The High Court Division has indeed failed to apply its judicial mind to these aspects of the case and have failed to derive the right conclusion under the circumstances, namely, that the continued detention of the detenu is illegal and unwarranted by law (16)
Joynal Abedin, Advocate instructed by Mvi. Md. Waliidullah, Advocate-on-Record For the appellant .M. Shamsul Alain, Deputy Attorney General, instructed by Md. Sajjadul Huq, Advocate-on~Record For the respondents .
1.Mustafa Kamal. J : This appeal by leave by the writ petitioner is from the judgment and order dated 4-4-95 passed by a Division Bench of the High Court Division in Writ Petition No.478 of 1995 upholding the order of detention of the detenu Abdul Wahab, younger brother of the husband of the writ Petitioner.
2. It was alleged in the writ petition that the detenu is a small businessman aged about 28 years, unattached with any political party. He was arrested by the police on 31-1-95 in connection with Mothijheel P.S. Case No.85 (1) 95 under section 392 of the Penal Code and was forwarded to the Chief Metropolitan Magistrate, Dhaka on 1-2-95 and taken into custody in Dhaka Central Jail. While in custody an order of detention for 30 days was served upon him by the District Magistrate, Dhaka on 4-2-95 under section 3 (2) of the Special Powers Act, 1974. On 9-2-95 the grounds of detention were served on him. On 16-2-95 the government extended the earlier order of detention for further 3 months under section 3 (3) of the said Act. The writ petitioner thereafter obtained the Rule Nisi in February, 1995, but the order of detention was extended thereafter from time to time and was lastly extended for another 6 months with effect from 3-9-95 by an order dated 9-795. 3. The grounds on which the Writ Petition was pressed before the High Court Division are that several criminal cases filed against the detenu and mentioned in the grounds of detention are false and that the detenu had been falsely implicated in the said cases at the instance of interested persons inimical towards him. It was also urged that the respondents did not file any k affidavit-in-opposition in rebuttal of the allegations that the criminal cases filed against the detenu are false and that the grounds of detention given are vague, indefinite, unspecified and lack in material particulars. The writ petitioner’s allegations, therefore, stand uncontroverted, making the detention illegal and unsustainable.
4. The High Court Division accepted the oral contention of the learned AssistantAttorney General appearing for the respondents that the criminal cases were mentioned in the grounds of detention not as reasons for the detention of the detenu but as forming the background of the nature of activities with which the detenu was involved. The High Court Division also found that the pendency of criminal cases is not a bar in making an order of detention nor does in vitiate the grounds of detention. Reliance was placed upon the case of Habiba Mahmud vs. Bangladesh and others, 45 DLR (Ad) 89. The Rule Nisi was discharged on 4-4-95.
5. The writ petitioner filed an application for review of the said judgment dated 4-4-95 in which it was stated that the detenu was falsely implicated in Motijheel P. S. Case No.85 (1) 95 dated 31-1-95 and that in the other three criminal cases mentioned in the grounds of detention the name of the detenu does not appear in the F. I. R. and that in those criminal cases the detenu had obtained bail from the Court of the Chief Metropolitan Magistrate, Dhaka-facts which could not be brought to the notice of the Court at the time of hearing of the Writ Petition. It was urged in the review petition that there was no nexus between the order of detention and the grounds served upon the detenu.
6. Again no affidavit-in-opposition was filed by the respondents refuting the statements of fact alleged in the review petition, but the High Court Division by judgment and order dated 4-6-95 rejected Review Petition No.2 of 1995 on the ground that the matter of granting bail and the matter of detention are weighed on different considerations and no case for review had been made out in the application.
7. Leave was granted to consider the appellant’s submission that the High Court Division erred in law in not considering that the respondents did not file any affidavit-inopposition
in the case and thereby the detaining authority failed to satisfy the Court that the further detention of the detenu was legal and lawful. It was further urged that the grounds served on the detenu were vague and lacked in material particulars for which the detenu could not make any effective representation, a submission to which the High Court Division did not advert at all. Further, the three criminal cases started against the detenu under section
392 of the penal Code having ended in final report his continued detention for preventing
him from committing prejudicial acts is not justified in law.
8. At the time of granting leave the appellant filed an additional paper book in which it was shown that the three criminal cases, referred to in the grounds of detention, ended in final report. No concise statement has been filed by the respondents to deny the truth or otherwise of these assertions which were taken note of while granting leave to the appellant.
9. In such circumstances the first point urged by Mr. Md. Joynal Abedin, learned Counsel for the appellant, is that the allegations of fact which strike at the very root of the continued orders of detention having not been refuted by the respondents by filing any affidavit-in-opposition in the High Court Division or by filing a concise statement in this Division, must be taken to be uncontroverted and undisputed facts. If the criminal background of the detenu sought to be established in the grounds of detention is wiped out, there remains only the pending Motijheel P. S. Case No.85 (1) 95 dated 31-1-95 under section 392 of the Penal Code, which the appellant has consistently alleged to be a false case and which the respondents have failed to deny to be incorrect. Mr. Md. Joynal Abedin relies on the case of Shameen vs. Government of Bangladesh, 47 DLR (AD) 109 and submits that the burden of proof in lawful justification of the continued detention of the detenu lies on the respondents and if they have failed to rebut on affidavit the material
assertions of the appellant then the respondents ought to be taken to have failed to discharge the burden of proof.
10. In the High Court Division all writ petitions filed under Article 102 of the Constitution are disposed of in accordance with the then Rules of the High Court of East Pakistan at Dhaka governing the procedure in applications for Directions, Orders and Writs under article 170 of the Constitution of the then Islamic Republic of Pakistan, contained in Rules of the High Court of Judicature for East Pakistan, Volume I at pp. 253-255, which are still being continued. Part II of the said Rules provide “Applications for the issue of Writs in the nature of Habeas Corpus shall be governed by the Rules relating to applications under section 491 of the Criminal Procedure Code in Chapter XI of the Appellate Side Rules with suitable modifications where necessary”.
11. Rules 38 and 39 of the aforesaid appellate Side Rules of Chapter XI are relevant in this respect. These are quoted as follows: “38 Where the Court is of opinion that a prima facie case for granting the application is made out, a rule nisi my be issued calling upon the person or persons against whom the order is sought to appear on a day to be named therein to show cause why such order should not be made and at the same time to produce or persons alleged to be illegally or improperly detained then and there to be dealt with according to law. 39. On the return day of such rule or on any day to which the
hearing thereof may be adjourned, where no cause is shown, or where cause is shown and disallowed, the Court shall pass and order that the person or persons improperly detained shall be set at liberty or delivered to the person entitled to his or their custody. Where cause is allowed the rule shall be discharged/” (p.157)
12. Rule 39 makes it obligatory on the respondents to show cause and if no cause shown, the Rule is that “The Court shall pass an order that the person or persons improperly detained shall be set at liberty..”.
13. This Rule may be interpreted to mean that to justify the detention of a detenu the detaining authority is obliged to file an affidavit-in-opposition to discharge is burden of proof that the detenu is not being held in custody without lawful authority or in an unlawful manner. But we do not like to lay down an inflexible Rule that in all cases under Article 102 (2) (b) (i) an affidavit-in-opposition is mandatory on the part of the respondents. Thus if it is manifest from the writ petition itself that the cause or manner of detention stands adequately explained and justified on the face of it, the respondents need not file an affidavit-in-opposition and may support the detention orally relying in the petition itself. But if the writ petition contains allegations of fact, which, if unrefuted, supports the writ petitioner’s case of illegality of detention or continued detention, then the order of detention will fail for lack of cause shown. In the case of Shameen vs. Government of Bangladesh, 47 DLR (AD) 109, the respondents failed to deny on affidavit that the ground of detention was served on the detenu on a much later date than the prescribed period. This was a failure striking at the root of the continued detention of the detenu and an inference was drawn against the respondents for their failure in refuting this material allegation of fact.
14. The detenu has been detained in the background of his alleged involvement in several cases under section 392 of the Penal Code and his detention was found to be necessary in the opinion of the detaining authority to prevent him from committing prejudicial acts. All the criminal cases relied upon as a background information about the detenu’s prejudicial activities ended in final report and therefore the background is wiped out from the grounds of detention. By filing an affidavit-in-opposition or concise statement the respondents could still have asserted that the final report was given on a technical ground or on benefit of doubt or for some slender reasons or that the cases are being re-investigated and that the remaining case pending against the detenu is neither false nor concocted. In the absence of any affidavit-in-opposition or concise statement in the facts of the present case we are obliged to draw an inference against the respondents. Consequently we cannot but uphold the contention of Mr. Md. Joynal Abedin that the continued detention of the detenu has on basis.
15. Secondly, Mr. Md. Joyanl Abedin submits that it was the consistent case of the appellant that the grounds of detention are vague, indefinite and lack in material particulars depriving the detenu from making an effective representation. The High Court
Division noted this submission of the appellant but failed to come any definite finding on the same.
16. In the grounds of detention the detenu has been described as a professional hijacker. The People of his area has hatred and grievance against him. He has been hindering the normal life and security of the City of Dhaka by hijacking on point of illegal arms in association with an organised gang for a long period. As an example, Motijheel PS. Case No. 85 (1) 95 under section 392 of the Penal Code and three other criminal cases (which have ended in final report) have been cited and thereafterit was stated that a fierce hijacker like him is a threat to the overall law and order situation in the country and as such his detention under section 3 (1) of the Special Powers Act, 1974 is necessary to prevent him from indulging in activities prejudicial to public safety and public order. If the criminal cases are taken to be just illustrative of the detenu’s background, as the High
Court Division has rightly done, the other statements in the grounds of detention are nothing but general statements as to the character of the detenu which for good or for worse is neither possible nor feasible to contradict. Considered with the background thus given the allegations of character will stick, however emphatically the appellant or the detenu may deny it, but shorn of the background the allegations as to character are incapable of any effective rebuttal in any representation against the order of detention. The High Court Division has indeed failed to apply its judicial mind to these aspects of the case and have failed to derive the right conclusion under the circumstances, namely, that the continued detention of the detenu is illegal and unwarranted by law.
17. The appeal is therefore allowed without any order as to costs.
18. It is declared that the detenu Abdul Wahab @ Hannan, son of late Abdul Ali of 14/2, Narinda Road, P. S. Sutrapur, District Dhaka now detained under the Special Powers Act, 1974 is being held in custody without lawful authority. Let the detenu be set at liberty forthwith if not wanted in any other connection.
Source: III ADC (2006) 611