(XIV OF 1974)
Section—2(f)
Prejudicial Act
Collecting children with intent to smuggle them out of Bangladesh does not come within the purview of “prejudicial act” as defined in section 2(1) of the Special Powers Act, 1974.
M.A. Hashem Vs. Government of Bangladesh and others, 15BLD(HCD)533
Sections—2(f) and 8
Burden of proof in matters of detention
The burden of proof to show that the order of detention is lawful lies on the detaining authority. The detaining authority making return to the rule is to place all relevant facts before the Court. Where the respondents do not file any return, the Court cannot satisfy itself as to the justification of detention.
In the absence of any return by the respondents, the appellant’s contention that the grounds were served on the detenu beyond the statutory period prescribed in section 8 of the Special Powers Act and that the detenu was deprived of his right to make an effective representation before the advisory board remain unchallenged. The Court drew an inference against the respondents and held the order of detention illegal and without lawful authority.
Md Shameem Vs. Government of Bangladesh and others, 15BLD(AD) 138
Ref: 45 DLR (AD) 89; (1975)4 SCC 114; 1989 Cri. L.J. 1270-Cited
Section—2 (f) and 8
When in the grounds of detention it is not stated as to when, where and in what manner the detenu indulged in anti-government and anti-state activities and no particular is given about his activities as a member of an illegal anti- state secret organisation, the grounds so furnished must be held to be absolutely vague, indefinite and unspecified depriving the detenu of his right to make an effective representation to the appropriate authority against his detention as is provided in section 8 of the Special Powers Act.
Dr. Dhiman Chowdhury Vs. The State, represented by the Secretary, Ministry of Home Affairs, Bangladesh and others, 15 BLD (HCD)81
Section—3(2)(3)
Sub-section (3) section 3 provides that no order shall remain in force for more than thirty days after making thereof unless in the meantime it is approved by the Government. Neither in sub-section (2) nor in sub-section (3), there is any provision of passing the order with a condition that the order will come in to force on the date of service of the order upon the detenu. Rather, it has been clearly stated that “no such order shall remain in force for more than thirty days after making thereof.” An order is made on the date it is signed. In the
instant case, the order was signed on 24.6.99. There is no scope of passing any order under sub-section (2) or (3) of section 3 of the Act with a qualification that it will come in the force on the date of service of the order upon the detenu.
Md Mosharaf Hossain@ Mash Vs Govt. of Bangladesh and ors, 20BLD (HCD)412
Section—3(3)
Extension of detention
The liberty of the citizens being a precious possession, it should not be denied, curtailed or otherwise circumscribed by any authority without any legal and reasonable basis. The order of extension of detention must be made with proper application of mind of the detaining authority and it must not be a mechanical routine work by the office staff made much ahead of the date of expiry of detention.
Mrs. Samirannesa Vs. Govt. of Bangladesh and others, 14BLD(HCD)206
Sections—3 and 8
When most of the grounds of detention appear to be vague, indefinite and unspecific, it would be held that the detention order is a colourable exercise of a statutory power. In a case of preventive detention, it is now well- settled that the grounds served on the detenu must be sufficient to enable him to make an effective representation to the appropriate authority against his detention.
When the detenu is a foreign national, the Government instead of detaining him for preventing him from doing prejudicial acts, could better direct him to remove himself from Bangladesh.
Shahidul Alam Vs. Government of Bangladesh and others, 15BLD(HCD)246
Sections—3 and 8
Compliance of the provisions of section 8 of the Special Powers Act, 1974 is mandatory and any detention order made under section 3 of the Special Powers Act without furnishing the grounds of detention is illegal.
Bachhu Miah Vs. The State, 14BLD (HCD)500
Ref: PLD 1957 (Lahore)497—Cited.
Section—3 (1)
The pre- requisite of applying sub-section (1) of section 3 of the Special Powers Act is, first of all, to arrive at a satisfaction by the detaining authority that it is necessary to order detention of the detenu with a view to preventing him from committing a “prejudicial act” as defined in section 3(1) of the Act. There must be a nexus between the grounds mentioned in the order of detention and the grounds of detention supplied to the detenu.
In the instant case, in the ground of detention the purpose of detention was to prevent the detenu from committing an act prejudicial to law and order whereas in the order of detention there was an added purpose of preventing the detenu from committing acts prejudicial to economic and financial interest of the State. From this it follows that the detaining authority itself was not certain
as to what prejudicial act or acts the detenu was likely to commit. This in turn suggests lack of proper application of mind of the detaining authority in arriving at the necessary “satisfaction” within the meaning of section 3 (1) of the Special Powers Act, which is an indispensable prerequisite for curtailing the liberty of a citizen guaranteed by the Constitution. It is the constitutional duty of the High Court Division to satisfy itself that the essential prerequisite regarding “satisfaction” for passing the order of detention has been meticulously and carefully fulfilled and in case of any omission to fulfil the above requirement the order of detention must be held to be without lawful authority.
Mere availability of materials for coming to a reasonable satisfaction by the detaining authority that the activities of the detenu were “pre-judicial acts” as defined in section 2(t) of the Special Powers Act does not make the order ofdetention ipso facto lawful if the detaining authority fails to pass the order of detention and prepare and furnish the grounds of detention after strictly complying with the requirements of the various provisions of the Act.
Dr. Dhiman Chowdhury Vs. The State, represented by the Secretary, Ministry of Home Affairs, Bangladesh and others, 15 BLD (HCD)81
Sections—3(l)(a) and 3(2)(3)
The Government is not vested under section 3(3) of the Special Powers Act with the power of extension of the initial order of detention passed under section 3(2) of the Act by the District Magistrate or the Additional District Magistrate. The Government has, however, independent of the order of the District Magistrate, the power to issue an order of detention under section 3(l)(a) of the Special Powers Act, 1974
In the instant case, the initial order of detention passed by the District Magistrate being for 30 days, any extension of the said period of detention upon approval by the Government is not contemplated under section 3(3) of the Act.
Yeasmin Akhter Vs. Bangladesh and others, 15BLD(HCD)655
Ref: 47DLR(HCD) 12;—Cited.
Section—3(1)(3)
Government could have passed a fresh order of detention under sub-section (1) of section 3 of the Special Powers Act, but that was not done and as such the second order of detention under sub-section (3) of section 3 of the Special Powers Act and consequently subsequent orders the extending the second order of detention passed by the Government are all illegal and without jurisdiction.
Abdus Samad Vs. The State, 18BLD (HCD)165
Ref: 15BLD655; 47 DLR 12—Cited.
Section—3(2)
The Special Powers Act being a special law, its provisions need be construed strictly with reference to the materials or grounds supplied by the Government to justify that the powers were exercised on a rational basis.
The grounds of detention being vague and indefinite and specific criminal cases being pending for trial do not form a rational basis for detention and, as such, the order of detention is not sustainable in law.
Mallick Tarikul Islam Vs. The Secretary, Ministry of Home Affairs and others, 14BLD (HCD)156
Ref: 1 B.S.C.D. 119; 38DLR 93; 28 DLR 259; 27 DLR(SC) 41—Cited
Sections—3(2) and 4
Code of Criminal Procedure, 1898 (V of 1898)
Section—80
Power of the District Magistrate to direct detention of a person and notification of the substance of warrant.
As soon as a person is taken in custody by a public authority and the fact of such detention is brought to the notice of the High Court Division, a constitutional duty under Article 102 (2) (b) (i) of the Constitution and a legal duty under section 491 Cr.P.C. are cast upon it to examine the legality or propriety of the order of detention. The detenu or any person interested in him at once acquires a right to move the Court to institute an enquiry. Although there is no specific provision in the Special Powers Act, 1974 to serve the order of detention upon the detenu, it is essential that the order of detention must be served upon him for enabling him to know under what order and under what law he was being detained.
Section 4 of the Special Powers Act provides that the order of detention passed under section 3 of the Special Powers Act shall be executed as provided in section 80 of the Code of Criminal Procedure. So, section 4 of the Special Powers Act, 1974 has to be read with section 80 of the Code of Criminal Procedure, 1898 and these 2 sections read together make it abundantly clear that an order of detention passed under section 3 of the Special Powers Act must be served upon the detenu. Non-service of the order of detention upon the detenu renders the
detention order illegal.
M.A. Hashem Vs. Government of Bangladesh and others, 15BLD(HCD)533
Ref: A.I.R. 1944 (Patna) 354—Cited.
Sections—3(2) and 8
Since on the ground of reasonableness of the materials the alleged three secret reports are totally lacking reasonableness, rational basis and any probative value, it is not safe to pass any order of detention relying upon such materials.
Bilkis Akhter Hossain Vs Bangladesh and others, 17BLD(HCD)395
Section—7
Section 7 of Act relates to the procedure of punishment of an absconder and does not in any way empower the detaining authority to detain a person by an order made more than thirty days prior to the service of the order upon that person.
Md Mosharaf Hossain @ Mash Vs Govt. of Bangladesh and ors, 20BLD (HCD)412
Section—8
It is now well-settled that the materials and grounds of detention upon which the detaining authority bases its satisfaction are subject to judicial scrutiny. If the High Court Division finds that materials and grounds of detention are unreasonable and without any rational basis and probative value, it can strike down the detention on such ground alone.
Bilkis Akhter Hossain Vs Bangladesh and others, 17BLD(HCD)395
Section—8(2)
The General Clauses Act ( X of 1897)
Section—9
The Communication to the detenu of the grounds of detention within 15 days as required by section 8(2) of the Special Powers Act has to be calculated from the date of detention but in view of section 9 of the General Clauses Act the date of detention is to be excluded while computing the period of 15 days.
Mrs. Samirannesa Vs. Govt. of Bangladesh and others, 14BLD(HCD)206
Section—10
Section 10 of the Act requires that the case of a detenu shall have to be placed before the Advisory Board for its consideration within 120 days of the order of detention, failing which the detention becomes illegal.
Samirannesa Vs.Govt. of Bangladesh and others, 14BLD(HCD)206
Ref: 42 DLR 272; 40 DLR 193, 207 and 353—Cited
Section—25A
Penalty for counter feiting currency notes, Govt. stamps etc.
Mere possession of counterfeit currency notes is by itself no offence as contemplated under section 25A of the Special Powers Act. In order to succeed in the case, the prosecution is required to prove that the accused used the counterfeit currency notes as genuine ones knowing or having reason to believe them to be counterfeit.
Md. Abdus Salam alias Abdus Salam and another Vs. The State, 15BLD(HCD)477
Section—25B
To establish a charge of smuggling under section 25B of the Special Powers Act it must be proved that the goods in question were brought into Bangladesh in violation of any prohibition or restriction imposed by or under any law or by evading customs duties and / or other taxes. In the instant case, there being no special mark in the cattle-heads to brand them as Indian and similar cattle-heads being available in the local market and the cattle-heads having been seized in Bangladesh at a distance of 5 miles of from the International border, the appellants cannot be held liable for smuggling.
The sale of seized-bullocks only one day after these were seized, even before the investigation of the case started, and without the permission of the Court, is uncalled for and disapproved. The unusual hurry in which the bullocks were sold in auction at a nominal price is to the detriment of the Government revenue and is also pre-judicial to the defence.
Kabil Miah and others Vs. The State, 14 BLD(HCD)432
Ref: 40 DLR (HCD) 348—Cited
Section—25B
To sustain a conviction under section 25B of the Special Powers Act, it has to be fully established that the seized goods are contraband goods and illegally brought into Bangladesh without payment of customs duties and other taxes.
Md. Mokhlesur Rahman and another Vs. The State, 14BLD(HCD)126
Ref: 40 DLR 348—Cited
Section—25B
To substantiate a charge of smuggling the prosecution must prove that the seized articles were recovered from the possession of the accused and those were contraband goods. In the instant case there being nothing on record to show that the seized articles are contraband goods the impugned order of conviction for smuggling cannot be sustained.
Tomezuddin Biswas alias Kalu and another Vs The State, 17BLD(HCD)174
Section—25B
Penalty for smuggling
To saddle an accused with the liability of possessing contraband goods, the prosecution must prove the exclusive possession or domain of the accused over the goods in question. When circumstances suggest that others may also have possession of and access to the contraband goods, the conviction of the accused appellant is not legally sustainable. Moreover, the prosecution failed to produce the alleged contraband goods before the Court without any plausible explanation rendering the prosecution case doubtful.
Taher alias Md. Taher Vs The State, 18BLD (HCD)691
Section—25B(1)(2)
Penalty for smuggling and possession of smuggled goods
When the accused is not apprehended while smuggling goods from India to Bangladesh and he is not apprehended with the smuggled goods in the border areas, he cannot be held liable for smuggling punishable under section 25B(l) of the Special Powers Act. If, however, smuggled goods are actually recovered from his possession, which he held for the purpose of sale, well inside Bangladesh territory, he is liable to be hauled up for the offence punishable under section 25B(2) of the Special Powers Act, providing a maximum sentence of 7 years imprisonment.
Gopal Chandra Chakraborty Vs. The State, 15BLD(HCD)224
Section—27(1)
Although section 27(1) of the Act empowers a Special Tribunal to take cognizance of an offence tribale under the Act without the accused being committed to it for trial, the Magistrate has still then jurisdiction to discharge an accused in an appropriate case. This power of the Magistrate is subject to the discretion exercisable by the Special Tribunal.
Since no allegation was made against the petitioner in the F.I.R. and no evidence could be collected against him during investigation and the police recommended for his discharge, the learned Magistrate was within his competence to discharge the accused petitioner despite the fact that the case was triable exclusively by the Special Tribunal.
Narayan Chandra Das Vs. The State. 16BLD(HCD)421
Section—27(4)
Where the evidence of the witnesses was recorded in full together with their full cross- examination, whether it could not be taken to mean that the summary procedure of trial was actually adopted?
Where the evidence of the witnesses was recorded in full together with their full cross examination, it could not be taken to mean that the summary procedure of trial was actually adopted.
Humayun Kabir Vs. The State, 13BLD(HCD)406
Ref: 45C.W.N. 139—Cited
Section—27(6)
Code of Criminal Procedure, 1898 (V of 1898)
Section—537
Non-compliance of the mandatory provision of law, that is, non-publication of notice under section 27(6) of the Special Powers Act directing the accused-appellant to answer the charge is illegal and without jurisdiction and the same is not curable under section 537 of the Code of Criminal Procedure.
Md. Samiul Haider alias Kuiba Vs The State, 18BLD(HCD)515
Sections—28 and 29
Section 28 of the Special Powers Act prescribes the power of the Special Tribunals while section 29 of the said Act provides that the provisions of the Code of Criminal Procedure, so far they are not inconsistent with the provisions of the Special Powers Act, shall apply to the proceedings of the Special Tribunals and the Special Tribunals shall have all the powers of the Court of Sessions exercising original jurisdiction.
S.A. Hasnat Khan and others Vs. The State, 15BLD(HCD)440
Section—30
When an application for bail in a case involving offences under the Special Powers Act is filed before the Sessions Judge before the submission of charge-sheet, the learned Judge decides the bail matter as the Sessions Judge and not as the Special Tribunal in as much as cognizance is yet to be taken under the Special Powers Act. No appeal against the rejection of the prayer for bail in such a case lies to the High Court Division under Section 30 of the Special Powers Act.
Md. Abul Kalam Vs.The State, 15BLD (HCD)167
Section—30
There is no certainty when the appeal will be disposed of and the trial shall commence. Since all the co-accuseds are on bail and since it is uncertain when the aforesaid appeal will be disposed of and then the trial shall commence the High Court Division in the special circumstances of the case allowed bail to the appellant.
Liton Vs The State, 17BLD(HCD)370
Section—30
Penal Code, 1860(XLV of 1860)
Section—342
The Special Tribunal had only jurisdiction to try cases as enumerated in the schedule of Special Powers Act and not beyond that. An offence under section 342 of the Penal Code is not included in the schedule of the Act and cannot be basis of conviction as the same is a non schedule offence. Hence the High Court Division acted wrongly and without jurisdiction in convicting the appellants under section 342 of the Penal Code when the same is not triable by the Special Tribunal at all. The alteration of conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible.
Abdur Rahman and others Vs The State, 19BLD(AD)4
Section—30
Code of Criminal Procedure, 1898 (V of 1898)
Section—339C
There is an unnecessary delay in holding the trial and there is no certainty when the witnesses will turn up and when the trial can concluded. In such a position of uncertainty regarding the conclusion of the trial, the High Court Division granted bail to the accused-appellant.
Anowar Hossain @ Mohasin @ Anar Vs The State, 20BLD(HCD) 103
Section—32
Long delay in holding trial provides a good ground for bail
The appellant has been in custody since 3.5.1992 but no charge has yet been framed against the accused. The prosecution could not show any cogent reason for not holding the trial as yet although charge-sheet was submitted on 5.11.1993 against the appellant and 8 others, without any fault on the part of the appellant. Other accused persons have been granted bail by the Special Tribunal. This protracted delay in holding the trial provides a good ground for granting bail to the appellant.
Nurul Amin alias Bada Vs. The State, 16BLD(AD)200
Section—32
Bail
Whether in a pending appeal, bail can be granted to appellants in view of contradictions in prosecution evidence on material point?
There are contradictions in the prosecution witnesses on material points In view of this
matter, the Court is inclined to enlarge the appellants on bail pending
disposal of the appeal.
Akbor All alias Md. Akbor All and others Vs. The State, 13BLD(HCD)585.