D.C. Bhattacharya and Abdur Rahman Chowdhury, JJ.: Equiv Alent Citation: 27 DLR (1975) 122

LEX/BDHC/0015/1974
Equivalent Citation: 27 DLR (1975) 122
IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)
Petition No. 407 of 1974
Decided On: 17.09.1974
Appellants: Mrs. Aruna Sen
Vs.
Respondent: Govt. of the People's Republic of Bangladesh through the
Secretary, Ministry of Home Affairs, Dacca, The Director, Rakhi Bahini, Sher-
e-Bangla Nagar, Dacca and The Deputy Commissioner, Dacca and Ors.
Hon'ble Judges:
D.C. Bhattacharya and Abdur Rahman Chowdhury, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Moudud Ahmed, Jamiruddin Sircar, Advocates
For Respondents/Defendant: K.Z. Alam, Deputy Attorney-General
JUDGMENT
D.C. Bhattacharya, J.
1. In this petition the validity of the arrest and detention of one Chanchal Sen, who
happens to be the son of the petitioner, has been challenged. According to the case
made out in the petition, in the morning of the 30th March, 1974, the said Chanchal
was attacked by a group of young-men who tried to kidnap him while he was passing
along Sat Masjid Road. Some of the Student and teachers of the Graphic Art College
which is close to the place of occurrence having intervened the said group did not
succeed in their attempt and left the place. But shortly thereafter some members of
the Rakkhi Bahini appeared on the scene and took away the said Chanchal Sen. The
petitioner having failed to trace the whereabouts of her son after making all enquiries
from the local police and also from the authority of the Dacca Central Jail issued a
statement in the Newspapers on the first April, 1974. On the 2nd April, the
petitioner's lawyers served a notice upon the respondents 1, 2 and 3 asking for
information as to the charges against him, the place of his custody and the authority
under which he was being held. On the 3rd April a friend of the petitioner having
rung up the Director of the Rakkhi Bahini was informed by the said officer that
Chanchal was still in custody and there was nothing to worry about it. On the 5th
April, the petitioner's lawyers received a letter from the Deputy Director
(Administration), Jatiya Rakkhi Bahini stating that Chanchal Sen had been handed
over to the Special Branch Police on the 30th March, 1974. Thereafter the petitioner
having learnt on the 6th April, 1974 that her son had been in custody at
Mohammadpur police-station, saw him there and found him in miserable condition.
He complained of physical tortures also. Thereafter on the 8th April the petition under
Article 102 of the Constitution was moved in this Court on which the present Rule
was issued. An affidavit-in-opposition has been sworn by a Section Officer of the
Ministry of Home Affairs on the 17th of May, 1974 in which it has been stated that
11-04-2021 (Page 1 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

Chanchal Was arrested in the evening of the 30th March, 1974 from Mohammadpur
and was handed over to Mohammadpur Police Station soon thereafter, that he was
produced before the Sub-Divisional Magistrate (Sadar), Dacca on the 31st March,
1974, who remanded him to police custody for seven days and that he was initially
arrested under section 54 of the Code of Criminal Procedure, but has subsequently
been detained under section 3(1)(a) of the Special Powers Act, 1974 on the basis of
the order by the Government dated the 9th April; 1974. It has been further asserted
that the detenu is an active worker of a secret subversive organization and was
carrying on the activities of the said organization regaining underground; that he and
the said organization are involved in committing murders, armed robberies, etc. with
unauthorized arms and that in February, 1974 the Rakkhi Bahini recovered a huge
quantity of arms and amunitions from his house and nearby places and also certain
prejudicial documents, booklets and leaflets from his house in course of the search.
It has been further alleged in the said affidavit that the detenu is also wanted as an
accused in Bhederganj P.S. Case No. 8 dated 15-7-72 under section 364, 307 and 34
of Bangladesh Penal Code and also Bhederganj P.S. Case No. 1 dated 9-1-74 under
section 302 of the Bangladesh Penal Code.
2 . An affidavit-in-reply has been filed contesting the statements made in the
affidavit-in-opposition. It has been asserted in the said affidavit that the order of
detention under the Special Powers Act is an afterthought and an abuse of the
executive authority and that the allegation as to the recovery of arms and
ammunitions as well as certain prejudicial papers from the, house of the detenu and
also the allegation relating to the commission of murders, armed robberies etc. are
false. The statements as to two Bhederganj P.S. cases also have been denied.
3 . This matter came up for hearing on the 17th June, 1974, but no materials were
placed before this Court by the respondents for determining whether there was
reasonable basis for the satisfaction of the detaining authority as required under the
law. No copy of the grounds of detention was produced in Court nor it was averred in
the affidavit filed on behalf of the respondents that such grounds were served upon
the detenu within the time as directed in the Constitution. It being pointed out that it
was the duty of the detaining authority to satisfy the Court that all constitutional
requirements had been complied with and that there were no materials from which a
reasonable man may be satisfied as to the necessity of the impugned detention, the
learned Deputy Attorney General prayed for time for filing a supplementary affidavit
containing the required particulars and the said prayer was granted.
4 . A supplementary affidavit-in-opposition has been sworn by another Section
Officer, to which a copy of the grounds learning the date of 9-4-74, a copy of the
order sheet of the Court of S.D.O. (S) Dacca and also a copy of a document said to-
be a police message dated 16-4-74 showing that a charge-sheet had been filed in one
of the two police cases against the detenu as an accused and that the detenu was
wanted in the other case also, have been annexed.
5. A supplementary affidavit-in-reply has been sworn by the petitioner contesting the
validity of the arrest of the detenu under section 54 of the Code of Criminal Procedure
and remand under section 167 of the Code of Criminal Procedure and denying the
connection of the detenu with the Bhederganj P.S. Cases. It has been further asserted
that the allegation contained in the grounds of detention are false, concocted and
baseless.
6 . While hearing this matter, it has struck us that there has not been adequate

appreciation on behalf of the respondents as to the duty and responsibilities in regard
to the return to be made to a Rule, issued by the Court under Article 102(2)(b) of the
Constitution. The English principle as expressed by Lord Atkin in his dissenting
speech in Diversidge Vs. Anderson that every imprisonment without trial and
conviction is prima facie unlawful and the onus is upon the detaining authority to
justify the detention by establishing the legality of its action according to the
principles of English law has been adopted in the legal system of this Subcontinent,
as has been rightly observed by Hamoodur Rahman, J., (as he then was) in the
Government of West Pakistan and another Vs. Begum Agha Abdul Karim Shorish
Kashmiri 21 D.L.R. (S.C.) 1-P.L.D. 1969 (S.C.) 14. The Constitution having
highlighted the rule of law and the fundamental human rights and freedom in the
preamble of the Constitution, and personal liberty being the subject of more than one
fundamental being the subject of more than one fundamental rights as guaranteed
under)the Constitution, a heavy onus is cast by the Constitution itself upon the
authority, seeking to take away the said liberty on the avowed basis of legal sanction,
to justify such action strictly according to law and the Constitution. In such a case
where detention of a citizen has been challenged as violative of his fundamental right
as guaranteed under the Constitution, the foremost duty of the detaining authority is
to establish that the constitutional requirements as provided in clauses (4) and (5) of
Article 33 of the Constitution have been strictly complied with and that there are
materials as the basis of the satisfaction of a reasonable man as to the necessity of
the detention for the purpose of preventing the detenu from committing a prejudicial
act. The onus is completely on the authority who has deprived a citizen of his
personal liberty by detaining him in custody for satisfying the court that the detenu is
being held not only with the lawful authority, but also in lawful- manner,
7 . In the present case the authority concerned having claimed to detain the detenu
under section 3 of the Special Powers Act, it is to be shows that the action is justified
according to the said provision which is to the following effect
3 (1) The Government may; if satisfied with respect to any person that with a
view to preventing him from doing any prejudicial act it is necessary so to
do, make the order-
(a) directing that such person be detained...
****
8. Having regard to the constitutional jurisdiction exercisable by this Court, it is now
well-established that the satisfaction of the Government as has been referred to in
the aforesaid provision is amenable to objective test and is justiciable. The learned
Deputy Attorney General has tried to submit that the satisfaction of a person being a
subjective concept and no mention of reasonableness being made in the statute itself,
it does not appear to be the legislative intent that the satisfaction of the detaining
authority should be the subject of judicial review and has referred to a decision from
the Indian Jurisdiction in the case of Pushkar Mukharjee Vs. The State of West
Bengal, A.I.R. 1970 (S.C.) 852 in support of his contention.
The competition for judicial recognition between these two contending concepts us to
subjective and objective tests for proving satisfaction of the authority concerned has
got a chequered history.
9 . In Shearer Vs. Shields, 1914 A.C. 808, the House of Lords had to construe a
provision, in the Glasgow Police Act authorising constables to arrest if they had

'reasonable grounds of suspicion' and the House held that the burden vested upon the
constable concerned to show that the suspicion was reasonable.. In Liversidge, Vs.
Anderson, 1942 A.C. 206, the House of Lords had to construe a provision of a
Regulation made under the Emergency Power (Defence) Act, 1939, authorising
detention of a person if the Secretary of State had 'reasonable cause to believe that
he comes within the category mentioned in the regulation and the majority of the
House, with the exception of Lord Atkin, held that the subjective satisfaction of the
Secretary of State was enough.
10. The earliest case in the Indian subcontinent which had to consider the, Liversidge
case is the case of Keshab Talpade Vs. Emperor, A.I.R. 1943 F.C.l where the Federal
Court of India was called upon to consider the legality of the detention of the
appellant under the Defense of India Rules made under the Defense of Indian Act,
1939, which were similar to the Regulation and the Emergency Powers (Defense) Act,
1939 under which the said Regulation was made on an application under section 491
of the Code of Criminal Procedure. There were two rules in Defense of India Rules
viz. Rule 26 and Rule 129, under which, an order of detention or arrest could he
made. Under Rule 26, the Central Government or Provincial Government could make
an order of detention of a person if it 'was satisfied' that with a view to prevent him
from acting in any manner prejudicial to the defense of India Act, it was necessary so
to do. Under Rule 129, a police officer could arrest a person whom he reasonably
suspected of having acted or acting or being about to act in a particular manner.
Chief Justice Goayer, who delivered the judgment of the Court, though posed the
question whether the satisfaction of the detaining authority as referred to in the rule-
making power contained in section 2 of the Defense of India Act should be subjective
or objective did not answer it was Rule 26 under which the impugned order of
detention was made was itself struck down on the ground that it did not provide for
reasonable satisfaction notwithstanding the fact that section 2(2) under which the
said rule was made itself provided for reasonable satisfaction.
11. The decision of Keshav Talpade was however overrulled in the case of Emperor
Vs. Shib Nath Banerjee, AIR 1945 (PC) 156 where Lord Thankerton L.C. held that the
Rule making power being conferred both under subsection (1) and (2) of section 2 of
the Defense of India Act, one being general and the other particular, and the
limitation of reasonable satisfaction being not incorporated in the general powers
under sub-section (1) of section 2, Rule 26 could be regarded to be validly framed
under sub-section (1), rather than under sub-section (2), The detention of all the
detenue dealt in that case being under Rule 26 of Defense of India Rules, which
provided for more satisfaction of the Provincial Government one of the questions
raised was whether there had been necessary satisfaction of the appropriate authority
in respect of the order of detention and the Judicial Committee was of the opinion
that in view of section, 16(2) of the Defense of India Act which provided for
presumption as to authenticity, the orders of detention in each of those cases must
be taken ex facie regular and proper and that there was a heavy burden on the
respondents to displace the said presumption. The impugned orders showed that they
were by orders of the Governor, but signed by the Additional Secretary or Additional
Deputy Secretary to the Government of Bengal. The affidavits on behalf of the
respondents were sworn by Mr. Porter Additional Home Secretary to the Government
of Bengal who signed the order in most cases and these affidavits showed that in
certain cases, he passed merely a routine order in accordance with the
recommendation of the police and in certain other cases applied his mind to the facts
of the case before signing the order. According to the Judicial Committee, routine
orders which showed that there was no application of the mind for the formation of

the opinion of the signing officer were declared to be invalid, but the orders which
were averred by the signing officer to have been made after consideration of the
relevant materials or in respect of which there was no contrary evidence, were held to
be valid.
12. The case of Liversidge Vs. Anderson was distinguished in the case of Emperor
Vs. Vimlabai Deshpand, ( : MANU/PR/0009/1946 : A.I.R. 1946 P.C. 123) on the
ground that the authority was a high officer of the State and there was obvious
inconvenience and danger to the public in case of disclosure of confidential
information. In Vimlabai Deshpande's case a distinction, was made between rule 26
and rule 129. AS has been pointed out above, under rule 26 an order of detention
could be made if the Government was satisfied as to the necessity of making such an
order and under rule 129(1) any police officer might arrest any person whom be
reasonably suspected of having acted in a manner prejudicial to the public safety or
the efficient prosecution of the war. According to the Privy Council in the case of an
arrest under rule 129(1) the burden lay upon the police officer to satisfy the court
that his suspicion was reasonable.
13. The Judicial Committee of the Privy Council had to consider the true meaning of
the expression "reasonable grounds to believe" in an appeal from Ceylon in the case
Nakhuda Ali Vs. M. F. De S. Jayaratne, (1951) A.C. 66 and the Judicial Committee
differed from the majority view in Liversidge Vs. Anderson, in regard to the
construction of such an expression and Lord Badcliffe in delivering the judgment of
the Privy Council made the following observation:
Their Lordships do not adopt a similar construction of the words in reg. 62
which are now before them. Indeed, it would be a very unfortunate thing if
the decision of Liversidge case came to be regarded as laying down any
general rule as to the construction of such phrases when they appear in
statutory enactments. It is an authority for the proposition that the words "if
A, B. has reasonable cause to believe" are capable of meaning "if A. B.
honestly thinks that he has reasonable cause to believe" and that in the
context and attendant circumstances of Defense Regulation 18B they did in
fact mean just that. But the elaborate consideration which the majority of the
House gave to the context and circumstances before adopting that
construction itself shows that there is no general principle that such wore are
to be so understood; and the dissenting speech of Lord Atkin at least serves
as a reminder of the many occasions when they have been treated as
meaning "if there is in fact reasonable cause for A.B. so to believe". After all,
words such as these are commonly found when a legislature or law-making
authority confers powers on a minister or official. However read, they must
be intended to serve in some sense as a condition limiting the exercise of an
otherwise arbitrary power. But if the question whether the condition has been
satisfied is to be conclusively decided by the man who wields the power, the
value of the intended restraint is in effect nothing. No doubt he must not
exercise the power in bad faith; but the field in which this kind of question
arises is such that the reservation for the case of bad faith is hardly more
than a formality. Their Lordships therefore treat the words in reg. 62, "where
the Controller has reasonable grounds to believe that any dealer is unfit to be
allowed to continue as a dealer" as imposing a- condition that there must in
fact exist such reasonable grounds, known to the Controller before he can
validly exercise the power of cancellation.

14. The Judicial Committee however took the view in the said case relying upon the
view of Lord Atkin, L.J. in Rex Vs. Electricity Commission (1924) 1 K.B. 171 and Lord
Hewart, C.J. in Rex Vs. Legislative Committee of the Church Assembly (1928) 1 K.B.
411, that to enable a superior Court in intervene by a writ of certiorari it was not
enough that a body of persons should be charged with a legal authority to determine
questions affecting the rights of the people, but there must be superadded to that
characteristic the further characteristic that the body had also the duty to act
judicially.
1 5 . Whatever departure was made in the Nakkuda Ali's case from the theory of
subjective satisfaction as formulated in Liversidge Vs. Anderson, was nullified to a
certain extent by the further formulation of an additional condition that the statute in
question must require the relevant body to act judicially.
In the case of Messrs Faridson Ltd. and another Vs. Government of Pakistan and
others, 13 DLR (SC) 233-PLD 1961 (SC) 537 S.A. Rahman, J. (as he then was)
noticed, in course of his separate judgment, that in Nakkuda Ali's case and the earlier
case of Franklin Vs. Minister of Town and Country Planning (1948) A.C. 87 decided
by the House of Lords, the judicial pendulun swung to the other extreme and that
they ran counter to a long line of decisions in the English Courts extending back for
more than a century, in which the requirement of an impartial fact-finding and good
faith had been insisted upon the administrative bodies in regard to their
administrative decisions affecting individual's rights and liberties.
16. The House of Lords was confronted with the question as to correctness of the
decision in Nakkuda Ali's case in Hidge Vs. Baldwin and others (1964) A.C. 40. After
quoting the oft quoted passage from the judgment of Lord Atkin, L.J. in Rex Vs.
Electricity Commissioners and also the observation of Lord Hewart C.J. in Rex Vs.
Legislative Committee of Church Assembly, Lord Reid (with whom all the Law Lords
excepting Lord Evershed agreed) observed that the matter had been complicated by
what he believed to be a misunderstanding of the said passage of Lord Atkin and that
a gloss had been put on the same by Lord Hewart C.J. The opinion of Lord Reid in
this regard was expressed in his speech in the followings manner :
I have quoted the whole of this passage by cause it is typical of what has
been said on several subsequent cases. Lord Hewart meant that it is never
enough that a body simply has duty to determine what the rights of an
individual should be, but that there must always be something more to
impose on it a duty to act judicially before it can be found to observe the
principles of natural justice, then that appears to me impossible to reconcile
with the earlier authorities. I could not reconcile it with what Lord Denman
C.J. said in Reg. Vs. Smith, 5 Q.B. 615, or what Lord Campbeel, C.J. said in
Ex parte Ramshay, 18 Q.B. 173, or what Lord Hatharlev D.C. said in Osgood
Vs. Nelson, L.R. 5 H.L. 636, or that was decided in Cooper Vs. Wandsworth
Board of Works, 14 C.B.N.S. 180 or Hopkins Vs. Smethwick Local Board, 24
Q.B.D. 712, or what Lord Parmoor said in De Verteuil V. Knaggs, (1918) A.C.
557, or what Kelly C.B. said with the subsequent approval of Lord
Macnaughten, in Wood V. Woad, L.R. 9 Ex. 190, or what Jessel M.R. said in
Fisher V. Keane, 11 Ch. D. 353, or what Lord Birkenhead L.C. Said in
Weinberger V. Inglis, (1919) A.C; 606, and that is only a selection of the
earlier authorities. And, as I shall try to show, it cannot be what Atkin L.J.
'meant. In Rex V. Electricity Commissioners, Ex parte London Electricity Joint
Committee Co., the Commissioners had a statutory duty to make schemes

with regard to electricity districts and to hold local inquiries before making
them. They made a draft scheme which in effect allocated duties too one
body which the Act required should be allocated to a different kind of body.
This was held to be ultra vires, and the question was whether prohibition
would lie. It was argued that the proceedings of the Commissioners were
purely executive and controllable by Parliament alone. Bankes L.J. said : "On
principle and on authority it is in my opinion open to this court to hold, and I
consider that it should hold, that powers so far reaching, affecting as they do
individuals as well as property, are powers to be exercised judicially, and not
ministerially or merely, to use the language of Palles C.B., as proceedings
towards legislation" So he inferred the judicial element from the nature of
the power. And I think that Atkin L.J. did the same. Immediately after the
passage which I said has been misunderstood, he cited a variety of cases and
in most of them I can see nothing "superadded" (to use Lord hew-art's word)
to the duty itself.
17. An analysis of these cases will show that the dictum of subjective satisfaction as
laid down in the majority decision in Liversidge V. Anderson has been whittled down
to a large extent by confining its application to exceptional condition prevailing
during war time. The later cases have sought to invest an administrative action with
an attribute which renders such action amenable to judicial scrutiny not so much,
upon the language used in authorizing such action as upon the nature of the authority
created thereby. If the authority purports to interfere with the rights or liberties of the
citizens such authority has he concomitant duty of discharging its function judicially.
That is to say, it shall give opportunity to the affected person of being heard and also
it shall have to arrive at its decision after consideration of the relevant materials.
Some limitation may of course be imposed in respect of affording this opportunity of
being heard by a positive provision in the statute, but having regard to the nature of
the power weilded by the authority in the exercise of which individual rights and
liberties may be affected, the satisfaction which is enjoined by the statute as a
condition precedent to the exercise of such power must necessarily be judicially
arrived at and as such, be objective in its content.
18. The Supreme Court of Pakistan had to examine this question of subjective or
objective satisfaction, in construing the provisions of Public Safety Ordinance, 1958
authorizing a police officer to "arrest any person whom he reasonably suspects of
having done or doing or about to do a prejudicial act" in the light of the dictum of
Liversidge V. Anderson in the case of Government of East Pakistan V. Mrs. Roushan
Bejoya Shankat Ali Khan, 18 DLR (SC) 214. Section41 (1) of the East Pakistan Public
Safety Ordinance was analogous to rule 129 of the Defense of India Rules which was
examined by the Judicial Committee of the Privy Council in the case of Emperor V.
Vimlabai Deshpande, AIR. 1946'PC 123 and S. A. Rahman, J (as he then was) in
delivering the judgment of the majority in Shaukat Ali's case followed the said
decision of the Judicial Committee and observed as follows :
The words that fell to be construed in Liversidge V. Anderson were
"reasonably satisfied" and they were held to signify, only the personal
satisfaction of the Home Secretary. It may be added that the construction in
question was adopted in connection with a war-time measure. We are here
dealing with peace time legislation and though questions of security of the
State or public order may involve at times, considerations of a confidential
character and of the greatest urgency, yet it; would be difficult to uphold a
construction which jeopardizes the precious right of personal liberty of a

citizen, during peace time, on the mere ipse dixit of a police offices. I am
therefore in agreement with the High Court in holding that in the present
case it lay on the arresting officer to justify the arrest by revealing
reasonable grounds such as could satisfy the judicial conscience.
19. The Supreme Court of Pakistan had to examine several orders of detention made
under rule 32 of the Defense of Pakistan Rules, 1965 which empowered the Central
Government to make an order of detention if it was 'satisfied with respect to certain
matters (and it was analogous to rule 26 of the Defense of India Rules, 1939) in the
case of Gholam Jilani Vs. Government of West Pakistan, 19 DLR (SC) 403. There, was
no mention of "reasonable" in regard to satisfaction required under the said rule.
Cornelius, C.J. who delivered the judgment of the Bench shed new light on the
construction of relevant provisions of detention laws by relating the administrative
actions as to preventive detention to the constitutional powers of the superior courts:
In pre-independence India such matters came under the jurisdiction, of the Court as
exercisable under section 491 of the, Code of Criminal Procedure, as writ jurisdictions
which are now exercised by such courts in the Indian subcontinent were not available
to them. Although in England these matters came within the jurisdiction of
prerogative writs, the constitutional jurisdiction which was conferred upon the
superior courts in Pakistan under 1962 Constitution as incorporated in Article 98 of
the Constitution was of wider scope. This is how Chief Justice Cornelius, interpreted
rule 32 of the Defense of Pakistan Rules :
Under the Constitution of Pakistan a wholly different state of affairs prevails.
Power is expressly given by Article 98 to the Superior Courts to probe into
the exercise of public power by executive authorities, how high soever, to
determine whether they have acted with lawful-Authority. The judicial power
is reduced to a nullity if laws art so worded interpreted that the executive,
authorities may make what statutory rules they please thereunder, and may
use this freedom to make themselves the final judges of their won
"satisfaction" for imposing restraints on the enjoyment of the fundamental
rights of citizens. Article 2 of the Constitution could be deprived of all its
content through this process, and the courts would cease to be guardians of
the nations liberties. It is therefore impossible to construe the relevant
provisions in the defense of Pakistan. Ordinance in the manner adopted by
the Judicial Committee in the case of Shibnath Banerjee for interpreting the
somewhat similar provisions in the Defense of India Act and Rules. Clause
(x) of sub-section (2) of section 3 must be construed as providing the
specific guidelines which control any rules as to apprehension and detention
that are to be made under the power given by sub-section (1) of section 3
On that view, it is clear that "Satisfaction" of the detaining authority acting
under rule 32 must be a state of mind, which has been induced by the
existence of Reasonable grounds for such satisfaction. The power of an
authority acting under rule 32 is therefore no more immune to judicial review
than is the power of a police officer acting under rule 204. With reference to
rule 129 of the Defense of India Rules (corresponding to our rule 204) the
Judicial Committee felt no hesitation in finding that there was an onus upon a
police officer to satisfy the Court that he had reasonable ground's for his
suspicion. Suspicion would include belief or knowledge, whether inferential
or actual. On the same reasoning, it must follow that options by other and
perhaps higher authorities, under rule 32, like all other actions relatable to
the power delineated in clause (x) aforesaid, are equally susceptible of
judicial review, subject, or course to the right of the State to claim privilege

in respect of secret information, and the Court's power to hold proceeding in
camera.
20. It should, however, be noticed that the Chief Justice Cornelius drew support to a
certain extent for his view as to the court's power of judicial review of Government
actions regarding preventive detention, from the mention of the word 'reasonable' in
clause (x) of sub-section (2) of section 3 of the Defence of Pakistan Ordinance, 1965,
although the Judicial Committee of the Privy Council in Shibnath Banerjee's case
held, in over-ruling the decision of the Federal Court of India in Kesbav Talpada's
case, that rule 26 of Defense of India Rules (which was analogous to rule 29 of the
Defense of Pakistan Rules) could very well be regarded as framed under sub-section
(1) of section 2 of Defense of India Act, 1939 (analogous to section 3 (1) of Defense
of Pakistan Ordinance, 1965) which bad no reference to reasonable grounds.
21. To obviate the effect of the judgment in Gholam Jilani's case, the Defense of
Pakistan Ordinance, 1965 was amended by the President of Pakistan by Ordinance No.
II of 1968 on the 4th March, 1968 by substituting new clauses in sec. 3 (2) of the
Ordinance, the effect of which was that it was no longer necessary for the authority
concerned to be "satisfied" as to the necessity of detention but it would be sufficient
if he was "of the opinion" that it was necessary to do, so. Furthermore, an
explanation was added to the effect that "for the avoidance of doubt it is hereby
declared that the sufficiency of the grounds on which such opinion as aforesaid is
based shall be determined by the authority forming such opinion"
22. The question as to the effect of this amendment was raised in the next case
decided by the Supreme Court of Pakistan, viz., Mir Abdul Baqi Baluch Vs.
Government of Pakistan, 20 DLR (SC) 249= PLD 1968 (SC)313. But no decision was
given on this question as the orders of the detention under rule 32 of the Defense of
Pakistan Rules impugned in the said case were; made long before the enacting of the
said amendment, but the nature and scope of judicial review of such orders was
however, further elucidated in the said case, as will be found in the following
observation of Hamoodur Rahman, J. (as he then was) who delivered the judgment of
the Bench :
However, as I have said earlier, my reading of the majority decision in
Ghulam Jilani's case, to which lama party, it that it alters the law laid down
in Liversidge's case only to the extent that it is no longer regarded as
sufficient for the executive authority, merely to produce its order, saying that
it is satisfied; It must also place before a court the material upon which it so
claims to have been satisfied so that the Court can, in discharge of its duty
under Article 98(2)(b)(i) be in turn satisfied that the detenu is not being held
without lawful authority or in an unlawful manner. The wording of clause (b)
(i) of Article 98(2) shows that not only the jurisdiction but also the manner
of the exercise of that jurisdiction is subject to judicial review. If this
function is to be discharged in a judicial manner then it is necessary that the
court should have before it the materials upon which the authorities have
purported to act. If any such material is of a nature for which privilege can
be claimed, then that too would be a matter for the Court to decide as to
whether the document concerned is really so privileged. In exercising this
power the High Court does not sit as an appellate authority nor does it
substitute its own Opinion for the opinion of the authority concerned.
23. It will also be useful to quote the following observation of the learned Judge in

another part of the judgment :
Under a Constitutional system which provides for a judicial review of
executive action, it is, in my opinion a fallacy to think that such a judicial
review must be in the nature of an appeal against the decision of the
executive authority. It is not the purpose of a judicial authority reviewing
executive actions to sit on appeal over the executive of to substitute the
discretion of the Court for that of the administrative agency. What the court
is concerned with is to see that the executive or administrative authority had
before it sufficient materials upon which a reasonable person could have
come to the conclusion that the requirements of law were satisfied. It is not
uncommon that even high executive authorities act upon the basis of
information supplied to, them by their subordinates. In the circumstances, it
cannot be said that it would, be unreasonable for the court, in the proper
exercise of its constitutional duty, to insist upon a disclosure of the materials
upon which the authority bad acted so that it should satisfy itself that the
authority had not acted in an "unlawful manner.
24. The constitutional power enjoyed by a High Court under Article 98 of the Pakistan
Constitution of 1962 was further, more throughly examined, in the case of
Government of West Pakistan Vs. Begum Agha Adbul Karim Sherish Kashmiri, 21 DLR
(SC) 1. and it was noticed therein that Article 98 (which is the same as Article, 102 of
our Constitution) was different from Article 170 of the Pakistan Constitution of 1956
or Article 226 of the Indian Constitution, Hamoodur Rahman, J. (as he then was) in
delivering the judgment of the Court in this case also observed as follows :
In my view the words "in an unlawful manner" in sub-clause (b) of Article 98
(2) have been used deliberately to give meaning and content to the solemn
declaration under Article 2 of the Constitution itself that it is the inalienable
right of every citizen to be treated in accordance with law and only in
accordance With law. To my mind, therefore, in determining as to how and in
what circumstances a detention would be detention in an unlawful manner
one would invitably have first to see whether the action is in accordance with
law, if not, then it is action in an unlawful manner. Law is here not confined
to statute law alone but is used in its generic sense as connoting all that is
treated as law in this country including even the judicial principles laid down
from time to time by the Superior Courts. It means according to the accepted
forms of legal process and postulate a strict performance of all the functions
and duties laid down by law. It may well be, as has been suggested in some
quarters, that in this sense it is as comprehensive as the American "due
process" clause in a new grab. It is in this sense that an action which is
malafide or colorable is not regarded as action in accordance with law
Similarly, action taken upon extraneous or irrelevant considerations is also
not action in accordance with law. Action taken upon no ground at all or
without proper application of the mind of the detaining authority would also
not qualify as action in accordance with law and would, therefore, have to be
struck down as being action taken in an unlawful manner, It would seem,
therefore, that by these words at any rate, so far as the deprivation of the
liberty of a citizen was concerned, the Constitution makers intended that this
most cheristed right should not be taken away in an arbitrary manner and
hence by sub-clause (b) of clause (2) of Article 98 they advisedly left it to
the High Courts to review the actions of the detaining authority, untramelled
by the formalities or technicalities of either sectional of the Criminal

Procedure Code or the old prerogative writ, of habeas corpus, not only with
regard to the- vires of the law or the officer concerned but also enjoined
upon them to satisfy themselves that the detection is not in any manner
contrary to law. The Scope of the enquiry is, therefore, not in any way
fettered by procedure of a writ of habeas corpus Acts. The Court must,
neverthless, in deciding this question necessarily have regard to the language
of the statute under which the power is exercised, the purpose for which the;
detention is sought to be made and the circumstances in which it came to be
ordered The content of the power vested by the Constitution in the High
Court cannot be limited or taken away by a sub-Constitutional legislation but
the reference to the statute and the other factors mentioned above is rather
for determining its true nature, scope and legality.
25. With regard to the amendment introduced by Ordinance No. II of 1968 it was
held in the said judgment to be an exercise in futility and the view of the said court
has been, further expressed in the following observation:
The splitting up of the provision has in no way affected the reasons given by
this court in Ghulam Jialni's case. If it is an incident of the power of judicial
review granted to this Court by Article 98 of the Constitution. Then the
question as to whether there are grounds upon which a, reasonable person
would have formed the same opinion is certainly within the ambit of the
power of judicial review, no matter what the language used in the sub-
Constitutional legislation.
26. We shall have to refer to one observation of Mr. Justice Hamoodur Rahman (as
he then was) made in the case of Baqui Baluch, before we part with the discussion of
this series of decisions of the Supreme Court of Pakistan which made an important
contribution to the evolution of the precedent law and in which the constitutional
powers of the Pakistan High Court s in regard to the judicial review had been so
clearly expounded.
27. In repelling: an argument made at the bar relying upon the decision in Faridson's
case as to the necessity of service of a show cause notice before an order of
detention had been made, the learned Judge made the following observations :
Another point that remains to be dealt with is as to whether a show cause
notice ought to have been given to the appellant before making the
Impugned order. For this purpose reliance is placed upon the decision of this
Court in the case of Messrs. Faridsons Limited Vs. The Government of
Pakistan. But it has to be pointed out that the principles laid down in that
case are not attracted in the case of a preventive detention for, such orders
are made purely on considerations of policy or expedience. There can be no
question of the detaining authority being Under any obligation to act
judicially or even quasi-judicially. It is only where there is a duty to decide
judicially of quasi-judicially that the principles of natural justice referred to
in: Faridsons case are attracted.
2 8 . With great respect, we may say that the law laid down in English judicial
decisions of unquestioned-authority, to which reference has already been made, is
that in all cases in which a person is invested with the legal authority to take decision
affecting individual rights or liberties of the citizen, he is required to act judicially
and observe the principles of natural justice. It does not seem to be in consonance

with justice or equity nor does there appear to be any valid reason for departing from
the said rule in case of a person who is completely deprived of his liberty altogether,
unless there is a positive provisions to the said effect in the statute providing for
such preventive detention. If on an interpretation of the statutory provision it is found
that prior serving of show cause notice is not contemplated, in that case there cannot
be any instance on a show cause notice, but even then, the obligation of the
detaining authority to act judicially informing its opinion in favor of deprivation of the
liberty of a citizen, cannot be deemed to have been done away with.
29. Homoodur Rahman, J. himself has accepted this position to be correct in the
subsequent case of Begum Shorish Kashmiri when he was analysing the nature and
extent of the power and duty of the detaining authority acting under the Defence of
Pakistan Ordinance and the Rules framed thereunder in the following words:
In this connection I would also like to point out that it is a misconception to
think that either under the Defense of Pakistan Ordinance or the Rules framed
thereunder any arbitrary, unguided, uncontrolled or naked power has been
given to any authority. My approach to these provisions is that they only
confer a power which is coupled with a duty. The power can only be
exercised after the duty has been discharged in accordance with the
guidelines provided in the statute and the rules. Thus under clause (x) of
sub-section (2) of section 3 of the Ordinance and rule 32 of the Rules, the
duty cast upon the authority empowered to detain is to apply its mind to the
particular matters mentioned therein, namely, as to whether the action of the
person sought to be detained was in any manner prejudicial to Pakistan's
relations with foreign powers or to the security, the public safety or interest,
the defense of Pakistan or any part thereof, the maintenance of supplies and
services essential to the life of the community, the maintenance of peaceful
conditions, in any part of Pakistan or the efficient conduct of military
operations for the prosecution of war and then to form an opinion as to the
necessity of the detention. Until such opinion is formed by the honest
application of the mind of the detaining authority the jurisdiction to j make
the order of detention cannot arise.
30. It should be noticed that this view as to the extent of the power of the detaining
authority has been expressed after the word "reasonable" has been deleted from the
relevant provision of the Defense of Pakistan Ordinance and the Rules framed
thereunder.
It has been contended by the learned Deputy Attorney-General that the provisions of
the Special Powers Act have been so worded as to clearly indicate that the subjective
satisfaction of the appropriate Government functionary is sufficient for taken action
under the said Act, and relying upon a decision of the Supreme Court of India in the
case, of Pushkar Mukharjee Vs. The State of West Bengal, AIR 1970 (SC) 852, he has
submitted that the rule of objective test as laid down by the. Supreme: Court of
Pakistan for judicial review of the satisfaction of the detaining authority may be
reviewed.
3 1 . In Pushkar Mukharjee's case the Supreme Court of India was examining the
question of the validity of certain orders of detention made by the Government of
West Bengal under Preventive Detention Act, 1950, the provisions of which are
similar to those of Bangladesh Special Powers Act, 1974, so far as the provisions
relating to the preventive detention are concerned, Under section 3(1) of the Indian

Act, the Central Government or the State Government may, if satisfied with respect to
any persons that with a view to preventing him from acting in any manner prejudicial
to certain matters, it is necessary so to do, make an order directing that such persons
be detained. With regard, to the question of satisfaction as referred to in the
aforesaid provision, the Supreme Court of India expressed itself in the following
manner
It is well-settled that the satisfaction of the detaining authority to which
section 3 (1) (a) refers is a subjective satisfaction, and so is not justiciable.
Therefore, it would not be open to the detenu to ask the court to consider the
question as to whether the said satisfaction of the detaining authority can be
justified by the application of objective tests. It would not be open, for
instance, to the detenu to contend that the grounds supplied to him do not
necessarily or reasonably lead to the conclusion that if he is not detained he
would indulge in prejudicial activities. The reasonableness of the satisfaction
of the detaining authority cannot be questioned in a court of law; the
adequacy of the material on which the said satisfaction purports to rest also
cannot be examined in a court of law. That is the effect of the true legal
position in regard to the satisfaction contemplated by section 3(1)(a) of the
Act-See the decision of this court in the State of Bombay V. Atmaram
Shridhar Vaidya, AIR 1951 (SC) 157.
32. It is necessary to critically examine this view of the Indian Supreme Court, in
order to see if there is any wide divergence between this view and that of the
Pakistan Supreme Court which is being followed in this Court. It is, of course, to be
remembered that the Contention as to the subjective test was urged before the
Supreme Court of Pakistan in the case of Begum Shorish Kashmiri, on the basis of
certain Indian decisions and Hamoodur Rahman, J. (as he then was) repelled the;
said contention by pointing out that the constitutional provisions as to judicial
review; as incorporated in Article 98 of the Pakistan Constitution of 1962 which is
exactly the same as Article 102 of the Bangladesh Constitution gave much wider
power to the High Court than the corresponding provision of the Indian Constitution
or the Pakistan Constitution of 1956. It is according to the Supreme Court of Pakistan
certainly an important element of difference having a bearing upon the constitutional
powers of a High Court operating under the Pakistan Constitution, 1962. It should
not, however, be overlooked that notwithstanding the adopting of the rule as to
subjective satisfaction by the Supreme Court of India the powers of Judicial review
exercised by the Supreme Court in India are sufficiently wide, particularly in a case
where the question of mala fide is raised.
33. For a correct appraisal of this question it is necessary to refer to the decision of
the Supreme Court of. India in the case of the State of Bombay Vs. Atmaram Shridhar
Vaidya, AIR 1951 (SC) 157, on which reliance was placed in Pushkar Mukharjee's
case, Chief Justice Kania who delivered the leading judgment in the case, interpreted
the provisions of the Preventive Detention Act as to the satisfaction of the detaining
authority in the following terms:
The wording of the section thus clearly shows that it is the satisfaction of the
Central Government or the State Government on the point which alone is
necessary to be established. It is significant that while the objects intended
to be defeated are mentioned, the different methods, acts or omission by
which that can be done are not mentioned, as it is not humanly possible to
give such an exhaustive list. The satisfaction Of the Government; however,

must be based on some grounds. There can be no satisfaction if there are no
grounds for the same. There may be a divergence of opinion as to whether
certain grounds are sufficient to bring about the satisfaction required by the
section. One person may think one way, another the other way. If, therefore,
the grounds on which it is stated that the Central Government, or the State
Government was satisfied are such as a rational human being can consider
connected in some manner with the objects which were to be prevented from
being attained, the question of satisfaction except on the ground of mala
fides cannot be challenged in a Court.
34. It will be noticed that while laying down the rule as to subjective satisfaction of
the detaining authority on the question of sufficiency of the grounds it has also been
made clear that, the relevancy of the grounds is certainly justiciable and an objective
standard of rational human being for connecting the grounds with the objects which
were to be prevented from being attained was laid down. This was the unanimous,
view of the Court consisting of six learned Judges including the Chief Justice.
35. On the question of vagueness and in definiteness of grounds Chief Justice Kama
expounding the majority view also laid down that the grounds of detention which the
detaining authority was under a constitutional obligation to communicate to the
detenu at the earliest opportunity in order to enable him to make a representation
must not be vague and indefinite and observed that the question whether such
ground could give rise to the satisfaction required for making the order was outside
the scope of the enquiry on the Court, but the question whether the vagueness, and
indefinite nature, of the statement furnished to the detained persons was such as to
give him the earliest opportunity to make a representation to the authority was a
matter within the jurisdiction of the Court's enquiry and subject to the Court's,
decision.
36. B. K. Mukharjee, J., as he then was, restated this rule in the case of Shibban Lal
Saxena Vs. The State of Uttar Pradesh, AIR 1954 (SC) 179 in the following words:
It has been repeatedly held by this Court that the power to issue a detention
order under section 3 of the Preventive Detention Act depends entirely upon
the satisfaction of the appropriate authority specified in that section. The
sufficiency of the grounds upon which such satisfaction purports to be based
provided they have a rational probative value and are not extraneous to the
scope or purpose of the legislative provision cannot be challenged in a court
of law except on the grounds of mala fide.
37. It will be found that the rule as to subjective satisfaction was made subject to
some important qualifications, viz., firstly the grounds should have rational probative
value, secondly they should not fee extraneous to the scope or purpose of the
legislative provision and thirdly in case of the plea of mala fide, the grounds would
be subjected to further judicial security for finding out whether there had been a
colorable exercise of the power.
3 8 . In the case, referred to above another important point considered by the
Supreme Court of India was the question whether a detention could be considered to
be legal, if one of the two grounds on which the said detention was based was found
to be irrelevant, or non-existent. A similar question arose-in the case of Keshav
Talpade Vs. King Emperor, : MANU/PR/0001/1942 : AIR 1943 P.C. 1, referred to
above in another connection and in the said case Gowyer, C.J. expressed the view, of

the Federal. Court of India in this regard in the following words at page 8 of the
report :
If a detaining authority give four reasons for detaining a man, without
distinguishing between them, and any two or three of the reasons are held to
be bad, it can never be certain, to what extent the bad reasons operated on
the mind of the authority or whether the detention order would have been
made at all if one or two good reasons had been before him.
39. In Shibban Lai Saxena's case, subsequent to the making the order of detention,
the Government' itself appears to have stated that one of the two grounds on which
the original order of detention was made was unsubstantial or non-existent, but it
was insisted that the remaining ground was sufficient to sustain the order of
detention. Mukharjee, J. expressed the view of the Court endorsing the above quoted
principle recognized by the Federal Court of India in Keshav Talpade's case which,
according to him, was sound and applicable to the facts of the case, in the following
words :
To say that the other ground, which still remains is quite sufficient to sustain
the order would be to substitute an objective judicial test for the subjective
decision of the executive authority which is against the legislative policy
underlying the statute, in such cases we think the position would be the
same as if one of these grounds was irrelevant for the purpose of the Act or
was wholly illusory and this would vitiate the detention order as a whole.
40. This principle was further explained in the case of Dwarkadas Bhatia Vs. State of
Jammu and Kashmir, AIR 1957 (SC) 164 in the following manner at page 168 of the
report:
Where power is vested in a statutory authority to deprive the liberty of a
subject on its subjective satisfaction with reference to specified matter, if
that satisfaction is stated to be based on a number of grounds or for variety
of reasons, all taken together, and if some out of them are found to be non-
existent or irrelevant the very exercise of that power is.
bad......................... because the matter being one for subjective
satisfaction, it must be properly based on all the reasons on which it purports
to be based. If some out of them are found to be non-existent or irrelevant
the Court cannot predicate what the subjective satisfaction of the said
authority would have been on the exclusion of those grounds or reasons. To
uphold the validity of such an order inspite of the invalidity of some of the
reasons or grounds would be to substitute the objective standards of the
Court for the subjective satisfaction of the statutory authority.
A qualification was however added to the above quoted extract to the following
effect:
...................................the Court must be satisfied that the vague and
irrelevant grounds are such as, if excluded, might reasonably have affected
the subjective satisfaction of the appropriate authority. It is not merely
because some, grounds or reason of a comparatively unessential nature is
defective that such an order based on subjective satisfaction can be held to
be invalid. The Court while anxious to safeguard the personal liberty of the
individual will not lightly interfere with such orders.

41. It should however be noticed that there is a difference between a case in which,
some or one of the grounds are irrelevant or non-existent and a case in which some
or one of the grounds are vague or indefinite. In one case the order of detention
itself is rendered bad because of absence of proof of the necessary satisfaction of the
detaining authority, which is the foundation of the impugned order. But in the other
case, the furnishing of one or more vague grounds dots not affect the validity of the
order of detention itself, if such grounds though vague or indefinite, are not
irrelevant, but such grounds being vague or indefinite deprive the detenu of his
constitutional right of making representation at the earliest opportunity and thus
make continuation of detention illegal. When in the passage from the judgment in
Dwarkadas Bhatia's case as quoted above, the word, "vague" was used together with
the word "irrelevant", the word "vague" appears to have been used in the sense of
"non-existent" and not in its ordinary connotation.
42. The first case in which the Supreme Court of India had to consider the question
of vagueness of one of the several grounds and its effect upon the detention of the
detenu as the case of Dr Ram Krishna Bharadwaj Vs. The State of Delhi and others,
AIR 1953 (SC) 318. In the said case, one of the grounds on which the detenu was
charged with organizing the movement by enrolling volunteers among the refugees in
his capacity as the President of the Refugee Association in a certain area in Delhi was
adjudged to be vague, as no period of time was particularized. The other question
with arose in the said case is whether the detention of the detenu is rendered illegal
because of the fact that one of the several grounds is too vague to enable the detenu
to make a representation in respect of the said ground, and Patanjali Shastri, C.J. in
delivering the judgment of the Court laid down the law and explained the principle
underlying the same in the following words:
Preventive detention is a serious invasion of personal liberty and such
meagre safeguards as the constitution has provided against improper
exercise of the power must be jealously watched and enforced by the Court.
In this case the petitioner has the right, under Article 22(5) as interpreted by
this Court by a majority, to be furnished with particulars of the grounds of
his detention "sufficient to enable him to make a representation which on
being considered may give relief to him. We are of opinion that this
constitutional requirement must be satisfied with respect to each of the
grounds communicated to the person detained, subject of course to a claim
of privilege under clause (6) of Article 22. That not having been done with
regard to the ground mentioned in sub-para (e) of para 2 of the statement of
grounds, the petitioner's detention cannot be held to be in accordance with
the procedure established by law within the meaning of Article 21.
4 3 . In the case of Rameshwar Shaw Vs. The District Magistrate, Bardwan and
another, AIR 1964 (SC) 334, the Supreme Court of India, had to consider the affect
of both kinds of bad grounds, viz., irrelevant or non-existent grounds and Vague or
indefinite grounds and Gajendragadkar, J (as he then, was) after reference to law as
to subjective satisfaction as enunciated in the case of the State of Bombay Vs.
Atmaram Shridhan, AIR 1951 (SC) 157, stated the rule as to both kinds of bad
grounds in the following manner :
There is also no doubt that if any of the grounds furnished to the detenu are
found to be irrelevant while considering the application of the clauses (1) to
(iii) of section 3 (1) (a) and in that sense are foreign to the Act, the
satisfaction of the detaining authority on which the order of detention is

based is open to challenge and the detention order is liable to the quashed.
Similarly, if some of the grounds supplied to the detenu are so vague that
they would virtually deprive the detenu of his statutory light of making a
representation that again may introduce a serious infirmity in the order of his
detention. If, however, the grounds on which the order of detention proceeds
are relevant and germane to the matters which fall to be considered under
section 3 (1)(a), it would not be open to the detenu to challenge the order of
detention by arguing that the satisfaction of the detaining authority is not
reasonably based on any of the said grounds.
44. The learned Judge went on to point out that in a case where the question of mala
fide is raised, the court is to apply an objective test to determine the state of
satisfaction of the detaining authority and made the following observation to explain
the principle involved in it:
It is however necessary to emphasize in this connection that though the
satisfaction of the detaining authority contemplated by section S (1) (a) is
the subjective satisfaction of the said authority, the cases may arise when the
detenu challenge the validity of his detention on the ground of mala fides
and in support of the said plea urge that along with other facts which show
mala fides, the court may also consider his grievance that the grounds served
on him cannot possibly or rationally support the conclusion drawn against
him by the detaining authority. It is only in this incidental manner and in
support of the plea of mala fides that this question can become
justiciable.............
45. In the case of Rameshar Lal Patwari Vs. The State of Bihar, AIR 1968(SC) 1303,
the Supreme Court of India appears to have examined the materials relating, to the
grounds of detention and found that, one of the grounds was false and two of the
grounds were vague, that another ground was "a case of jumping to a conclusion
which is being lamely justified, when it is questioned with written record" and that as
to the remaining one, there was no reply on behalf of the detaining authority to the
denial given by the detenu to the allegations contained in the said ground and held
that the detention had been vitiated by both kinds of defective grounds. In this cases
the materials on record were subjected to judicial scrutiny for determining whether
there was any factual basis of the grounds communicated to the detenu,
independently of the question of mala fide, notwithstanding a contrary opinion
expressed in some of the earlier cases.
4 6 . Hidayatullah, J, as he then was, who delivered the judgment of the court,
explained the view of the court of pages 1305 to 1306 of the report in the following
words:
The formation of the opinion about detention rests with the Government or
the officer authorized. Their satisfaction is all that the law speaks of and the
courts are not constituted an appellate authority. Thus the sufficiency of the
grounds cannot be agitated before the court. However, the detention of a
person without a trial, merely on the subjective satisfaction of an authority
however, high, is a serious matter. It must require the closest scrutiny of the
material on which the decision is formed, of leaving no room for errors or at
least avoidable errors. The very reason that the courts do not consider the
reasonableness of the opinion formed or the sufficiency of the material on
which it is based, indicates the need for the greatest circumspection on the

part of those who wield this power over others. Since the detenu is not
placed before a Magistrate and has only a right of being supplied the grounds
of detention with a view to his making representation to the Advisory Board,
the grounds must not be vague or indefinite and must afford a real
opportunity to make a representation against the detention. Similarly, if a
vital ground is shown to be nonexisting so that it could not have and ought
not to have played a part in the material for consideration, the court may
attach some importance to this fact.
47. In the case of Motilal Jain Vs. The State of Bihar, AIR 1968 (SC) 1309 one of the
grounds was found to be vague, as well as irrelevant and another ground was also
found to be non-existent and the judgment of the Court was to the following effect :
The defects noticed in the two grounds mentioned above are sufficient to
vitiate the order of detention impugned in these proceedings as it is not
possible to hold that those grounds could not have influenced the decision of
the detaining authority. Individual liberty is a cherished right one of the most
valuable fundamental rights guaranteed by our Constitution to the citizens of
this country. If that right is invaded excepting strictly in accordance with law
the aggrieved party is entitled to appeal to the judicial power of the State for
relief. We are not unaware of the fact that the interest of the society is no
less important than that of the individual. Our Constitution has made
provision for safeguarding the interests of the society. Its provisions
harmonies the liberty of the individual with social interests. The authorities
have to act solely on the basis of those provisions. They cannot deal with the
liberty of the individual in a causal manner, as has been done in this case.
Such an approach does not advance the true social interest. Continued
indifference to individual liberty is bound to erode the structure of our
democratic society. We wish that the High Court had examined the complaint
of the appellant more closely.
48. A similar view was expressed in re Shushanta Goswami, AIR 1969 (SC) 1004. We
may also refer in this connection to the view of the Supreme Court of India as
expressed in Pushkar Mukharjee's case on which reliance was placed by the learned
Deputy Attorney-General on the question of subjective satisfaction of the detaining
authority. It has been pointed out in the said case that neither the reasonableness of
the satisfaction of the detaining authority nor the adequacy of the material on which,
the said satisfaction purports to rest can be questioned or examined in a court of law,
but it has, at the same time, been emphasized that the question whether an order of
detention has been vitiated by an irrelevant ground or the detention has been
rendered illegal for communicating vague grounds fails for determination by the
court. It has also been observed in this decision that in case of a plea of mala fide,
the question whether the grounds served on the detenu can rationally support the
conclusion drawn against him becomes justiciable, although in an incidental manner.
49. Another point of some importance which has been decided in this case is that
mere commission of certain specific offences does not bring the offender within the
purview of the Preventive Detention Act unless it can be said that they are likely to
affect public order. A mere disturbance of law and order leading to disorder is not
necessarily sufficient for taking action under the said law, but a disturbance which
will affect public order comes within the scope of this Act This principle was further
elaborated in Arun Ghose Vs. The State of West Bengal, AIR 1970 (SC) 1228.

50. On an analysis of the decisions of the Indian Supreme Court to which reference
has been made above it is clear that the tests laid down by the said court for
determining whether there had been the necessary satisfaction of the appropriate
authority are not purely subjective and such a question is not, in all cases, beyond
the pale of judicial determination. According to the said view the question whether
the grounds of detention have any relation to the object relevant under the law of
preventive detention is a matter of judicial scrutiny. Whether the grounds are vague
or indefinite and are not sufficient for this purpose of enabling the detained person,
to make an effective representation is also a matter which is to be objectively
determined. We should not, of course, lose sight of the fact that there is a subjective
element also in the rule laid down by the Supreme Court of Pakistan and it may be
noted that it has been emphasized in Baqul Baluch's case that it is not the purpose of
a judicial authority reviewing executive actions to sit on appeal over the executive or
to substitute the discretion of the court for that of the administrative agency and it
has been pointed out also in Begum Shorish Kashmiri's case that the Court is not
concerned with either adequacy or sufficiency of the grounds upon which the action
is taken. On the other hand, it has been conceded also in the Indian cases that when
the question of Bona fide of the executive action is raised, the Court shall have to
apply necessarily the objective test for determining whether the impugned action was
merely a colorable exercise of power or a fraud Upon the statute. Nevertheless, when
the Supreme Court of Pakistan, has stressed in the clearest language that for the
appropriate discharge of its judicial function the superior court must have before it
the materials upon which the executive authority has purported to act and that the
said materials should be such as could have been the basis on which a reasonable
man would have formed the opinion that the person detained had brought himself
within the mischief of the statute, it is undoubtedly a distinct advance the from
hitherto accepted limited jurisdiction of judicial review in respect of the masters
relating to preventive detention.
51. The view of a Full Bench of the Dacca High Court in the case of Mahbub Assam
Vs. The Government of East Pakistan, PLD 1959 Dae. 774 on the question whether
the satisfaction of the detaining authority is subjective or objective deserves special
mention. In that case the detention of Mr. Abul Mansur Ahmed, an Advocate and
some time a Minister in the Central Cabinet of the Government of Pakistan, under the
East Pakistan Public Safety Ordinance, 1958 was challenged. The Division Bench
which heard the case referred it to a Full Bench for a decision on the question
whether in a case where one or more of several grounds, but not all, are beyond the
scope or ambit of the Act or Ordinance conferring power to detain, the detention was
illegal. Amin Ahmed, C.J., in delivering the judgment of the Full Bench, consisting of
himself, Ispahani, Akbar, Hamoodur Rahman and Khan, JJ., generally dealt with the
powers of the court in respect of an order made for preventive detention and made
the following observation at page 809 of the report:
The process of examining the grounds by the court for the purpose of
determining whether they are indefinite or irrelevant, or relevant or sufficient
to enable the detenu to make a representation, or whether the Government
has acted bonafide or not, or whether it is beyond the, ambit of the Act
involves, in my opinion, not only the subjective satisfaction of the detaining
authority but also the objective satisfaction of the court according to the facts
and circumstances of each case though this may be at different stages. The
distinction between facts from which conclusions are drawn and facts which
are called grounds is sometimes a thin one. Similarly, the demarcation
between a subjective standard and objective standard is also sometimes a

thin one.......................Although the court cannot, as it is judicially held,
consider the sufficiency of the grounds on which satisfaction is based and the
vagueness of the grounds is not justiciable at the initial stage when the order
is made and so the order cannot be said to be invalid ab initio, the same
vagueness of the ground is nevertheless justiciable at a later stage, so that, if
vagueness renders the making of; the presentation difficult, the continuance
of the detention at once becomes illegal. In other words, the implied
requirement that the grounds must be such as will enable the detenu to make
a 'representation indicates the quality of the grounds on which the detention
order is based and involves an objective test, i.e., whether in the opinion of
the court, and not in that of the detaining authority such grounds have the
quality or attribute for making the representation of the detenu and it is not
left to the subjective opinion of the authority which makes the order of
detention.
The Full Bench gave an affirmative answer to the question referred to it,
stating that in a case where one or more but not all, of several grounds of
detention are beyond the scope and ambit of the law authorizing preventive
detention, the detention will be illegal unless the said ground or grounds are
of insignificant or unessential nature.
52. The upshot of all these discussions is that under the well settled principle of law
endorsed by a long line of judicial Authorities, any person charged with the authority
of taking decisions affecting the rights and liberties of the citizens of the State has
the corresponding duty of acting judicially and the superior courts having supervisory
jurisdiction over such person have the power to see whether the said person has
conformed to the judicial norms applicable to the case. Apart from the aforesaid
general principle, the constitutional obligation imposed upon the High Court Division
under Article 102(2)(b) of the Constitution, following the interpretation given by the
Supreme Court of Pakistan regarding Article 98 of the Pakistan Constitution of 1962,
is clearly to make an objective assessment of the materials on which the necessary
satisfaction of the detaining authority had been based and to be satisfied that an
average prudent man could reasonably be so satisfied. It should however, be noticed
that the court is not concerned with the adequacy or sufficiency of the grounds nor it
is to substitute its own discretion in place of the discretion of the executive authority
Apart from the question of mala fide, it is enough if it can be shown that the grounds
are relevant, that there is material basis for such grounds and that they are not vague
or indefinite so as to deprive the detained person of his constitutional right of making
an effective representation at the earliest opportunity. If, however, some of the
grounds are relevant, but some other grounds are irrelevant or non-existence the
satisfaction of the detaining, authority in that particular case may be said to have
been caused by both valid and invalid grounds and such satisfaction cannot be held
to be sufficient compliance with the requirement of law. Similarly on the question
relating to furnishing grounds, if some of the grounds are vague and indefinite, but
some, other grounds are not so, the constitutional requirement as provided in Article
32 and Article 33(5) of the Constitution cannot be said to have been complied with.
53. There is one other question which is relevant to the present subject, but has not
been raised and argued at the bar. It is whether he law as contemplated in Article 32
should be a valid law within the meaning of Article 36 read with Article 26 of the
Constitution. Article 36 guarantees freedom of movement to every citizen subject to
reasonable restriction imposed by law and Article 26 provides that the State shall not
make any law inconsistent with any provision relating to fundamental right as

incorporated in Part III of the Constitution and any law so made shall to the extent of
such inconsistency be void.
54. The leading case in the Indian Jurisdiction on this question is the case of A. K.
Gopalan Vs. The State of Madras, AIR 1950 (SC) 27 in which the-majority view of the
Supreme Court of India was expressed in favor of the proposition that the only thing
that is to be looked into for determining the validity of the law providing for
preventive detention is the competency of the legislature making the said law and
there cannot be any judicial review of such a law on the ground of reasonableness or
otherwise. The reason assigned for the said proposition was; that Article 19 of the
Indian Constitution, which guarantees freedom of movement subject to reasonable
restriction imposed by law, and Article 21 providing that no person shall be deprived
of life and liberty say according to the procedure established by law dealt with two
different and separate subjects. According to the said view, deprivation of personal
liberty is not the same thing as restriction of free movement, and it is the total loss of
personal liberty, which is said to be protected under Article 21 as distinguished from
restriction or partial control of the right to move freely which is sought to be dealt
with in Article 19(1)(b) read with clause (5) of that Article. Fazl Ali, J:, however in
his dissenting view observed that there was no antithesis between the words
'deprivation' and 'restriction' and the restrain on the right to move could assume a
variety of forms, ranging from total to various kinds of partial deprivation of freedom
of movements, Kaikaus, J., of the Pakistan Supreme Court expressed himself in the
case of Government of East Pakistan Vs. Mrs. Roushan Bijoya Shaukat Ali Khan, 18
DLR (SC) 214 more or less in line with the majority view in Gopalan's case when he
said that fundamental right No. 2 of Pakistan Constitution of 1962 should be regarded
as exhaustive of the conditions required for preventive detention and the right of
freedom of movement envisaged a person who was hot already in preventive
detention.
55. It is interesting to notice that in Indian Constitution, Article 21 is analogous to
Article 31 which in clause (i) provides that no person should be deprived of his
property save by authority of law and in the subsequent clauses provisions have been
made for a compulsory acquisition of property for public purpose. It is now well-
settled, so far as the Indian Supreme Court is concerned, that the law providing for
acquisition of property as referred to in Article 31(1) must also be subject to the
fundamental right guaranteed under Article 19. Subba Rao, J., as he then was, who
delivered the majority judgment of the court in the case of Kochuni Vs. The States of
Madras and Kerala, AIR 1960 (SC) 1080 in which it has been held that the law
depriving a person of his property will be invalid if it infringes Article 19(1)(f), unless
such deprivation can be construed as reasonable restriction on the persons
fundamental right, has made the following observation with regard to the dictum in
Gopalan's case respecting the law of preventive detention :
On the basis of the said theories, this court with Fad Ali, J. dissenting,
rejected the plea that a law under Article 21 shall not infringe Article 19(1).
Had the question been res integra, some of us would have been inclined to
agree with the dissenting view expressed, by Fazl Ali, J but we are bound by
this judgment.
56. After referring to the reasons in Gopalan's case as to Articles 21 and 22 forming
one self-contained, Code which has also been repeated by Subba Rao, J. in Kochuni's
case mentioned above, Mr, D. Basu, the noted Indian Commentator has observed in
his commentary on the Constitution of India, Volume II (1965 Edition) at page 84

that there is nothing in the Constitution to suggest anything like that and has made
the following comment :
There is thus ample material for a reconsideration of the Gopalan stand as
regards the applicability of Article 19(I) to a law depriving a person of his
liberty under Article 21 if ever the Supreme Court is minded to re-open the
question instead of acceding to it as res integra.
5 7 . There is certain difference between the language used in Article 32 of the
Bangladesh Constitution and that in Article 21 of the Indian Constitution, In place of
the expression "according to procedure established by law" of the Indian
Constitution, the expression" in accordance with law has been used.
However, although the question is of considerable constitutional importance, but
since it has not been argued at the bar, we refrain from considering this question at
depth and expressing our opinion in this regard.
5 8 . So, we see three fold questions are involved in the challenge made in this
petition, as to the validity of the impugned order of detention purported to be made
under section 3(1) of the Special Powers Act. The first question is whether the
grounds of detention as communicated to the detenu are relevant to the objects as
provided in the Special Powers Act. The second question is whether the said grounds
or any one of them are so vague and indefinite in their terms that it can be said that
the detenu has been deprived, of his constitutional right of making a prepresentation
at the earliest opportunity as provided in Article 33. The third question is whether
there is any material basis for all of the said grounds.
59. For a correct appraisal of these questions, it is necessary to objectively analyse
the said grounds of detention which have been communicated as the basis of the
impugned order, and for the said purpose we set out the said grounds, contained in
Annexure 2 to the supplementary affidavit of the respondents, below:
(a) That you participated in the illegal activities of a secret organization in
the district of Faridpur, the object of which is to overthrow this Govt. by
creating law and order situation.
(b) That you carried on with the prejudicial activities of the said secret
organization remaining underground since liberation of Bangladesh.
(c) That you collected huge number of unauthorized arms and ammunition
with intent to use them illegally and during search by J.R.B. of your house
and its surroundings in February, 1974, they recovered a large number of
those arms and ammunition. Besides, several prejudicial documents of the
said secret Organization were also recovered from your house.
(d) That you committed several dacoities and murders in Faridpur district in
furtherance of the prejudicial activities of the said secret organization and
created fear and alarm in the minds, of the people .
60. The impugned order of detention has been made for the purpose of preventing
the detenu from doing an act prejudicial to public safety, security of the State and
public order. Upon an examination of the grounds it is found that all these grounds
have been so worded as to relate them to prejudicial or illegal activities of a secret
association, the purpose of which is to overthrow the Government by creating a law

and order situation. If these grounds are viewed in the context of this objective it
cannot be said that any of the grounds is irrelevant to the purposes mentioned in the
Special Powers Act. Next comes the question of vagueness and indefiniteness of the
aforesaid grounds. The constitutional obligation which has been enjoined upon the
detaining authority has been incorporated in clause (5) of Article 33 of the
Constitution which is as follows :
33 (5). When any person is detained in pursuance of an order made under
any law providing for preventive detention the authority making the order
shall, as soon as may be, communicate to such person the grounds on which
the order has been made, and shall afford him the earliest opportunity of
making a representation against the order.
61. Section 8 of the Special Powers Act, 1974 has been enacted in pursuance of the
said constitutional provision. Grounds No. 1 and 2 are on their face extremely vague
and indefinite, and so is ground No. 4. Before we analyse the said grounds, it will be
useful if we notice some of the judicial precedents of the Dacca High Court and
Pakistan Supreme Court in this connection. The earliest case before the Dacca High
Court after the Pakistan Constitution of 1965 had come into force, in which the
question as to vague ness and indefiniteness of the grounds was considered by the
said court was the case of sardar Fazlul Karim and others Vs. Government of East
Pakistan, 8 DIR (Dac.) 700. The ground Served upon the detenu in the said case and
considered by the Court was to the following effect:
That you have been and are associated with the illegal activities of a secret
association in the district of Mymensingh, the object of which is to indulge in
prejudicial acts and to overthrow the Government i.e., Government of East
Pakistan) by violent means and that during the year 1947 (after partition),
1948 and 1955 (till your arrest and when you were not in jail) you were
concerned in prejudicial acts in the district of Mymen singh, particularly in
the months of September, 1947, March, 1948 and October, 1955, you with
the help of some anti-state elements indulged in prejudicial acts and
propaganda amongst students, peasants and labourers and incited them
against the Government of East Pakistan with the ulterior object of disrupting
the stability or integrity of East Pakistan and to overthrow the Government.
Furnishing of any more facts and particulars than those given above would
be against public interest.
According to the Division Bench which decided the said case, the said grounds were
not vague and indefinite, and were in sufficient compliance with the requirements of
law.
62. The next case in which the Dacca High Court had to consider the question of
Vagueness of the grounds communicated to a detenu under the East Pakistan Public
Safety Ordinance is the case of Mahbub Anam Vs. The Government of East Pakstan,
P.L.D. 1959 Dacca 774. The grounds were almost in the same terms as in Sardar
Fazlul Karim's case, and the Division Bench which originally considered the matter,
having taken note of the fact that on the next day the service of the grounds on him
in jail, the detenu made a detained representation to the Government but did make
no complaint of any sort or kind about the insufficiency of any particulars therein,
was of the view that the provisions of section 19 of the Ordinance were complied
with. But Akbar, J, as he then was, in delivering the judgment of the Division Bench,
however, made the following observation:

We find that the government, while giving grounds in such cases, is using
the same form of recital. This form does not disclose anything irregular. It
may, however, be urged with some force that the form is in such general
terms that it supplies no real information whatsoever, and all that the detenu
can do is to give a total denial. I think that such a form-I do not know who is
responsible for it-defeats the object of the section. The detaining authority
will be well advised to discard this form. In this case we have felt that the
grounds could have been ampler and fuller without any detriment to public
interest.
It is pertinent to notice that the Pakistan Constitution of 1965 had in the meantime
been abrogated, and the question of vagueness was not considered in the said case
with reference to any constitutional provisions.
63. The Dacca High Court in the case of Mrs. Rowshan Bijoya Shaukat Ali Khan Vs.
Government of East Pakistan, (1965) : LEX/HWPK/0027/1964 : 17 DLR 1=PLD 1956
Dacca 241 Era which the detention of Mr. Shaukat Ali Khan under East Pakistan Public
Safety Ordinance, 1958 was challenged, had to examine the sufficiency of the
grounds which were almost of the same nature as in Sardar Fazlul Karim's case, but
took, a contrary 'view in holding that the said grounds Were not adequate and
sufficient to enable the detenu to make a representation against the order of
detention. The grounds served on Mr. Shaukat Ali Khan were to the following effect:
That you have been and are associated with the illegal activities of a secret
association in the districts of Dacca, Mymensingh, Bogra and Jessore and
that during the years 1957, 1958, 1959, 1961, 1962, 1963 and 1964 (till
your arrest and when you were not in jail) you were concerned in prejudicial
activities in the district of Dacca, Mymensingh, Bogra, Jessore and
particularly in the months of July, August and October; 1957; February,
April,) May, June, August, September, 1958: February, June, July, November,
1959; April and July, 1961, May, June. August and November, 1962; April,
July, August, October and November, 1963; February, March, May, June and
September, 1964 (till your arrest and when you were not in jail you carried
on prejudicial acts and propaganda against, the Government among the
people including the students and peasant with the ulterior object of
disrupting the stability or integrity of the Province of East Pakistan and
exciting" disaffection towards the Govt. established by law.
Furnishing of any more facts and particulars than those given above would
be against public interest.
64. When the case of Shaukat Ali Khan was brought before the Supreme Court of
Pakistan in an appeal from the judgment of [Dacca High Court, S.A. Rahman, J., as
he (then was, in delivering the leading judgment of the majority view in the said
case, namely, Govt. of East Pakistan Vs. Rowshan Bijoya Shaukat Ali Khan, 18 DLR
(SC) 214 referred to the grounds in the cases of Sardar Fazlul Karim Vs. Government
of East Pakistan and Mahbub Anam Vs. Government of East Pakistan and made the
following observation :
It is curious that in those two cases, the grounds furnished to the detenus
were almost in the same terms as the grounds furnished to the detenu in the
present case, except for some changes of months or years. The coincidence
strongly suggests the existence of a strongly typed form of the order in

accordance with a set formula which might be divorced from reality.
6 5 . The learned Judge in laying down the majority view of the Supreme Court
definitely held that the grounds specified in the said case could not be accepted as
sufficient compliance with the provisions of sub-para (5) of para 2 of the
Fundamental Rights of the Pakistan Constitution of 1962 which was in the same terms
as Article 33(5) of the Bangladesh Constitution. In elucidation of his view, it was
pointed out in the said case that the nature of prejudicial activities in which the
detenu was said to have been indulged were not at all particularized nor were the
illegal activities or even the objects of the said secret association with the detenu was
said to have been associated specified.
66. Cornelius C.J., however, in his dissenting view, found the said grounds to be
sufficient for the purpose of the constitutional requirement and observed that to
require the Provincial Government to make out a complete case with the facts and
figures of prejudicial acts performed in the past upon which the apprehension is
based, would be to misconceive the whole nature of the law of preventive detention.
67. Kaikaus, J., who delivered a separate judgment agreeing with the majority view
but making out a point that the law of preventive detention was not subject to any
provision relating to the fundamental right other than the one relating to preventive
detention to which reference has already been made, expressed himself strongly one
the question of vague and indefinite grounds in the following manner :
While it is true that the proceedings against detenu are not as formal as they
are against an accused in a criminal court, I do not see any reason why the
detenu should not be supplied with all such details of the allegations against
him as are necessary for enabling him to defend himself. According to the
Criminal Procedure Code the attention of the accused has to be drawn to all
the circumstances appearing in the evidence against him. If do some material
circumstance his attention is not drawn, that circumstance is ordinarily not
allowed to be used against him. I do not see why the same principle should
not be kept in mind in proceedings under the Safety Act and why the detenu
should not be informed of all the evidence and the circumstances on which
the charge against him is based. It may be that some circumstances are such
that it is not proper in the public interest to disclose them. There is a
provision in law with respect to it and the Government is empowered to
refuse the disclosure of such facts, but with respect to facts to the disclosure
of which there is no objection, there should be as full a statement of the
evidence and circumstances and the particular acts of the detenu on which
the inference against the detenu is based as is reasonably possible under the
circumstances. The Government surely does not in any way suffer if it gives a
complete statement of facts to the detenu and the cause of justice is
advanced by a full disclosure. I want to stress this point because I think
there is not a full realization by the authorities concerned of the heeds of
justice in cases of preventive detention. No detenu should suffer because of
the vagueness of grounds or because of the fact that the evidence against
him is not brought to his notice. It is to be observed that the consequences
of an order of detention are not less serious than the consequences of a
conviction on a criminal charge. In fact many a time when the law does not
provide for a maximum period of detention they are more serious. If a
person committed a "prejudicial Act" he would be sentenced to a term of
imprisonment which may in some cases be small. But if he did not commit

the prejudicial act" he may be kept in custody indefinitely on the ground that
if he is set at liberty he may commit it. The grounds communicated in the
present case do not constitute in my opinion a sufficient compliance with the
law.
68. We have quoted the view of Kaikaus, J, in this regard in extenso with which we
find ourselves in respectful agreement, because in it some of the question raised by
Cornelius, C. J. in his dissenting judgment, on which reliance was placed to a certain
extent at the bar by the earned Deputy Attorney General were sought to have been
answered. When a person is completely deprived of his liberty without a trial for an
indefinite period, is to be seen that the requirement of law providing for such
preventive detention are scrupulously observed.
69. Grounds No. 1 and 2 in the instant case are similar to the grounds found by the
majority of the Supreme-Court of Pakistan in the case of Shaukat Ali Khan to be
vague and indefinite and not according to law, the only difference being that
whatever particular or details there had been in the previous cases, have been
completely eliminated from the grounds served in the present case. The said grounds
No. 1 and 2 are nothing more than a bare statement that the detenu participated in
the illegal activities of a secret organization the purpose of which is to overthrow the
Government of Bangladesh by creating a law and order situation and has carried on
the prejudicial activities of the said organization by remaining underground since
liberation.
7 0 . None of the illegal activities of a secret organization in which the detenu is
alleged to have participated have been particularized, nor the prejudicial activities
which he is alleged to have carried on have been specified. No details whatsoever
have been given as to the nature or functioning of the secret association with which
the detenu is said to have been associated.
71. Ground No. 3 cannot be said to be wholly vague or indefinite, but we have failed
to understand why the particulars or details of the prejudicial documents alleged to
have been recovered from the house of the detenu as alleged in the said ground,
have not been furnished in the grounds in order to enable the petitioner to make
representation in respect thereof It was all the more necessary as the alleged
prejudicial documents would have thrown light upon the character of activities of the
secret organization to which reference has been made in all the four grounds and
they would have enabled the detenu to make representation with regard to his
alleged association with the said secret organization. Ground No. 4 is again extremely
vague and has been framed in indefinite terms without any particulars whatsoever as
regards several decoities and murders alleged to have been committed by the detenu
in furtherance of the prejudicial activities of the aforesaid, secret organization. I No
details as to the time and the place of the said dacoities or murders have been
disclosed nor any indication has been given as to the kind or nature of the prejudicial
activities of the secret organization in furtherance of which the said dacoities and
murders are alleged to have been committed.
72. On a careful consideration of the aforesaid grounds, we have no manner of doubt
that the said grounds excepting part of ground No. 3 relating to recovery of
unauthorized arms and ammunition are extremely vague and not sufficient for the
purpose of enabling the detenu to make an effective representation at the earliest
opportunity within the meaning of Article 33(5) of the Constitution. We are therefore,
of the view that three out of the four grounds furnished to the detenu being vague

and indefinite, the impugned detention is illegal, and the detenu is entitled to be set
free on this account.
7 3 . The next point for consideration in this connection is whether there is any
material basis for these grounds on the basis of which the impugned order of
detention was made, so as to satisfy any reasonable man as to the necessity of
detaining the detenu for the purpose of preventing him from committing a prejudicial
act. We have already pointed out that it has appeared to us that there had been lack
of a proper appreciation on the part of the respondents of their duty of producing
materials before the court for an objective assessment of the said materials for the
purpose of finding whether there had been any basis for the alleged satisfaction of
the detaining authority and in consequence, no tangible and credible materials have
been placed before this court for the aforesaid purpose.
7 4 . As regards the grounds No. 1 and 2 apart from the question that they are
extremely vague and indefinite, there has been no attempt on the part of the
respondents to place before this court any material purporting to connect the detenu
with any secret organization. As we have-already observed the only ground which
cannot be described as vague and indefinite is ground No. 3 in which it is has been
alleged that the detenu collected a huge number of unauthorized arms and
ammunitions at his house which were recovered by the Jatiya Rakkhi Bahini during a
search by them of the said house and its surroundings in February, 1974. Several
prejudicial documents also were alleged to have been recovered at that time. These
allegations have been repeated along with the statement that the detenu was an
active worker of a secret subversive organization and was carrying on the activities of
the organization remaining underground, in paragraph 11 of the affidavit-in-
opposition filed on behalf of the respondents and sworn by one Section Officer of the
Ministry of Home Affairs, who has stated in paragraph 14 of the said affidavit-in-
opposition that the said statement are true to his information derived from official
records. No official record has been placed before this court or disclosed in the
affidavit-in-opposition or in the supplementary affidavit. The learned Deputy
Attorney-General on a question being put by the court, stated that there are certain
papers in the official file which was with him and the court could inspect them if they
liked. We are sorry to say that it is, in our opinion, the most unsatisfactory manner of
conducting a case of this nature. The question of inspection of certain relevant
documents in an official file arises only when they are of confidential character and
cannot be disclosed in public interest. All other kinds of matters which were used for
the purpose of formation of the necessary opinion of the detaining authority must be
placed before the court as a part of the record of the case so as to enable this court
to discharge its constitutional responsibility. However, as we felt that the relevant
record might not have been disclosed on account of some misunderstanding on the
part of the person representing the State, we have looked into the said file but could
find only a report of a Deputy Director of the Rakkhi Bahini, Dacca in which it had
been stated that certain arms and ammunition were recovered by a team of Rakkhi
Bahini in February, 1974 from the village Rambhadrapur within P.S. Bhederganj and
the said arms and ammunition have been deposited at the Ramna P.S. at Dacca on 7-
3-74 by the Rakkhi Bahini. No seizure list has been produced in the court nor any
affidavit has been sworn by any person who was present at the time of the search of
the house and the recovery of the arms and ammunitions. The house from which the
said arms and ammunition are alleged to have been recovered is said to belong to the
father of the detenu, and the petitioner, the mother of the detenu, is said to have
been living at the house at the time when the alleged recovery of the arms had been
made. No definite date of the said recovery has been stated anywhere. It has been

stated in paragraph 10 of the petition that the petitioner, along with two, other girls
named Rina Sinha and Hanufa Begum were arrested by Rakkhi Bahini in the early
hours of the 5th February, 1974 at their village Rambhadrapur and were kept in the
custody of the Rakshi Bahini illegally for a Jong time. They were subsequently
brought to Dacca and remanded to Dacca Central Jail. Petition No. 289 of 1974 for a
writ in the nature of habeas corpus being moved, a rule was issued by this court, and
the respondents were directed to produce the detained, persons viz., the present
petitioner Miss Rina Sinha and Miss Hanufa Begum in Court. On the date fixed the
detained persons were produced in court, and it was disclosed at the time of the
hearing, by the learned Attorney-General that there had been an order of detention so
far as the present petitioner was concerned, and so far as Miss Rina Sinha and Miss
Hanufa Begum were concerned they were detained under section 54 of the Code of
Criminal Procedure. This court, thereupon, granted bail to the said girls, detained
under section 54 of the Code of Criminal Procedure, pending the hearing of the
petition which was fixed on the 27th March, but before the hearing of the petition,
the order of detention was revoked and the case against the other two detenus also
was discharged. We have referred to this history for the purpose of showing that no
specific case was instituted against the petitioner or any body else for the alleged
recovery of arms and ammunitions from the house at Rambhadrapur at which the
petitioner and others were allegedly arrested. On a query put by us, the learned
Deputy Attorney-General has informed us that no case has been started against any
body for the alleged finding of arms, and ammunitions. Another circumstance, which
casts a shadow upon the credibility of the story of recovery of arms and ammunition
by the Rakkhi Bahini is that under Article 8A(2) of the Rakkhi Bahini Order, 1972
(president's Order No. 21 of 1972), any person arrested or anything seized shall have
to be forwarded forthwith to the Officer-in-charge of the nearest police-station for
necessary action. According to the said report of the Rakkhi Bahini official, the arms
and ammunition alleged to be seized at Rambhadrapur were not deposited at
Bhederganj police-station within the district of Faridpur, but at Ramna P.S. within the
district of Dacca and that too after more than a month. None of the prejudicial
documents, booklets, or leaflets as stated in the ground and in paragraph 11 of the
affidavit-in-opposition have been produced before the Court. In the circumstances, it
is very difficult to give any credence to the case sought to be made out on behalf Of
the respondents connecting the alleged seizure of arms and ammunition or of
prejudicial documents with the detenu.
75. A certain document stated to be a police message has been made Annexure 3 to
the supplementary affidavit-in-opposition for the purpose of substantiating the
allegations made in ground No. 4 that the detenu has committed several dacoities
and murders in the district of Faridpur. It appears from the said document that there
are two specific criminal cases against the detenu, one being P.S. case No. 8 dated
15-7-72 under section 364/307/34 of the Penal Code and the other being P.S. Case
No. 1 dated 9-1-74 under section 302 of the Penal Code. In the former, case, a
charge sheet has been filed and in the other case his complicity is alleged to have
been revealed in course of the investigation. In this matter also, the necessary
documents were not made part of the affidavit, but it was left to the court to find out
the relevant documents from the official file kept with the learned Deputy Attorney
General. However on an examination of these papers, we find that the incident out of
which P.S. Case No. 8 arose took place during the struggle for liberation and in the
F.I.R. which was filed long after the liberation of the country the name of the detenu
did not find any place, but after the investigation his name has been included in the
charge sheet along with the name of his father Santi Ranjan Sen. In the second case
also, the name of the detenu was not mentioned in the F.I.R. but subsequently during

investigation his name has been disclosed by a certain witness before whom he is
alleged to have admitted the commission of the offence; These materials provide
some evidence for an inference as to the detenu's complicity in certain specific
offences but that is not sufficient for imputing to him acts prejudicial to public safety
or public order or security of the State. No materials have been placed before this
court to show that there were any dacoities in which the detenu was implicated or
that any of the said offences had to do anything with the prejudicial activity of a
secret organization. We may mention that it has not been contended before us that
there are certain materials which cannot be disclosed in public interest. Having
considered the facts and circumstances of the case from all its aspects we are of the
opinion that there is no material before this court on the basis of which a reasonable
man may be satisfied as to the connection of the detenu with the illegal activities of a
secret organization and as to the necessary of detaining him for the purpose of
preventing: him from acting prejudicially to the security of the State, public safety or
public order. We, therefore, hold that the order of detention purported to be made
under section 3(1) of the Special Powers Act, 1974 in the instant case is illegal, and
that the detenu is being held without lawful authority and in unlawful manner and as
such we quash the order of detention. This order however is subject to any lawful
order under the Code of Criminal Procedure remanding the detenu in custody in
connection with the specific criminal cases being P.S. Case No. 8 dated 15-7-72 and
P.S. Case No. 1 dated 9-1-74 in which the said detenu is said to be an accused.
The result, therefore, is that this Rule is made absolute in the above terms without
any order as to costs.
Certificate prayed for under Article 103 of the Constitution is granted as this case
involves substantial question, as to the interpretation of the Constitution.
Abdur Rahman Chowdhurv, J.
I agree.
© Manupatra Information Solutions Pvt. Ltd.

D.C. Bhattacharya and Abdur Rahman Chowdhury, JJ.: Equiv Alent Citation: 27 DLR (1975) 122

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

D.C. Bhattacharya and Abdur Rahman Chowdhury, JJ.: Equiv Alent Citation: 27 DLR (1975) 122

Uploaded by

Copyright:

Available Formats

LEX/BDHC/0015/1974

Equivalent Citation: 27 DLR (1975) 122

IN THE SUPREME COURT OF BANGLADESH

11-04-2021 (Page 1 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 2 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 3 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 4 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 5 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 6 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 7 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 8 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 9 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 10 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 11 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 12 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 13 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 14 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 15 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 16 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 17 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 18 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 19 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 20 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 21 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 22 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 23 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 24 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 25 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 26 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 27 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

11-04-2021 (Page 28 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

© Manupatra Information Solutions Pvt. Ltd.

11-04-2021 (Page 29 of 29) www.manupatra.com Bangladesh University of Professionals (BUP)

You might also like