HABIBA MAHMUD VS BANGLADESH 45 DLR AD 1993

 

Analysis of the Fact;

The Appellant’s husband was arrested in pursuance of an order of detention under section 3 (1) (a) of the Special Power Act, 1974. In the grounds of the detention it is stated that the detenue had been engaged in various anti social activities which created resentment and hatred against him in the minds of the public. For his oppressive and terrorist activities the detenue was suspended from the post of Chairman of the concerned Upazila. If a turbulent man like him is kept outside it would be a threat to general law and order in the country. There is a rider on the grounds that the disclosure of any other fact other than those disclosed in the grounds considered to be against the public interest.

Argument from the appellant:

It was argued that

 The detention order was liable to set aside because the operative portions of the grounds are vague, there are no particulars, no details and nothing specific about the detenue’s prejudicial activities or maintaining of a private army immediately before his arrest called for the order of detention.

 The appellant was relied on the case Anwara Begum vs State 30 DLR 131for a proposition of law that where there are two modes of proceeding namely by way of criminal prosecution or preventive detention. It is for the executive to decide which course to follow but the law does not authorize to follow both simultaneously.

 The confidential report of the Government and other materials relating to the detention of the detenue ought to have been reflected in the judgment so that the detenue may also know on what materials the court was satisfied and there be anything on the part of the detenue to controvert he could have filed an affidavit in opposition in that regard.

Argument from the Respondent:

It was argued that there was no bar in law to pass an order of detention where the detenue is proceeded against in a criminal proceeding and there is also no mechanical test for determine the proximity of the detenue’s past prejudicial activities to the date of order of detention.

Issue:

Whether the facts stated in the grounds and the affidavits disclose sufficient materials upon a reasonable person can justify the detention order reasonably?

Decision:

The appeal was allowed. The judgment of High Court Division was set aside and it was held that the detenue had been detained without lawful authority.

Reasoning behind the decision:

The above decision was taken on the ground that all the material portions of ground and affidavit were vague and indefinite. There was no material in support of the said grounds justifying the impugned order of detention. The court could not test the objective satisfaction of the grounds. The detenu can not make a proper representation as per provision of article 35(5) of our constitution and section 8 of the Special Power Act,1974.

Principle:

In case of preventive detention the grounds of detention which materially justifies the reason of detention must be disclosed so that the detenue can make an effective representation against that order and the court can scrutinize all the materials disclosed on the grounds.

Importance of this case:

This is a land mark case which signifies the necessity of disclosing grounds after any suspicious person is arrested under the preventive detention. In this case it was reitered that though the detaining authority had got a constitutional protection not to disclose the grounds of detention it was the constitutional court alone could look into the materials pertaining to the detentions per the provision under article 102. In this case an important observation was made that in making an order of detention the detaining authority was required not only to comply with the statutory requirement but to comply with the guidelines given in the judicial pronouncements of the highest court otherwise it will be a wastage of time and resources for High Court Division and cause an erosion in the minds of the law abiding people.