NASRIN KADER SIDDIQUI VS BANGLADESH 44 DLR AD 1992 16

 

Analysis of the Fact:

In this case Abdul Kadir Siddique, the husband of the petitioner was arrested on 17^th January,1991. When he asked for the reason of his arrest the police officer vaguely hinted at some order of conviction not known to the detenue. The detenue then wanted to see the warrant of arrest. When the police officer failed to show any warrant the detenue refused to accompany him. Then the impugned order of detention was shown to the detenue where it was alleged that it was necessary to arrest the detenue for public safety and public order.

Argument from the petitioner:

It was argued that 

•      The detenue was not in Bangladesh for quite a long time and on his return to Bangladesh he did not do any work that can be called prejudicial to the interest to the public safety and public order. No ground of detention was served on the detenue till the filling of the writ petition. The impugned order was violative of fundamental rights guaranteed under Articles 27,28,31,32 and 33 of our Constitution. 

•      The detention having continued the writ petition had not become in fructuous. Though the detenue was alleged to have been convicted no judgment and order of neither conviction of the detenue nor the warrant of the Court which passed the sentence was produced in court to show that there was any valid basis for the detention of the detenue.

•      The petitioner was not aware of any Martial Law Case against the detenue or of any conviction in any such case. Though the father of the detenue was informed about an entry in the General Register by the officer in charge in Tangail but they did not know  on what basis the entry was made in the General Register and there was no valid document in support of the entry.

•      The Fifth Amendment could only validate a past and closed transaction and not a case like the instant one where the sentence is yet to be executed.

•      In order to justify the custody of the appellant the respondents had to produce the judgment of the Martial Law Court so that the High Court Division could satisfy itself as to the jurisdiction of that court to record the conviction. 

Argument from the Respondent:

It was argued that 

o   The order of detention under the Special Powers Act,1974 had already been withdrawn the writ petition had become in fructuous and that the detenue was then  in custody  as a convict serving a sentence of seven years rigorous imprisonment upon conviction by the Special Martial Law Court. 

o   The issuance of the warrant by the Additional District Magistrate was a mere irregularity that could neither knock down the conviction nor invalidate the custody and that irregularity had not in any manner prejudiced the convict who was to undergo his sentence in any case.

Issue:

1.      Whether the detenue is being held in an unlawful manner or without lawful authority as contemplated under Article 102(1)(b)(i) of the Constitution?

2.      Whether the officer issuing the custody warrant is lawfully vested with the power to issue that power?

Decision:

The detenue was being held in the custody without any lawful authority and the order of the Additional District Magistrate, Tangail was wholly illegal and without jurisdiction as he had no lawful authority to pass the order of warrant of commitment in custody.

 

Reasoning behind the decision:

The above decision was taken on the following ground:

A warrant of commitment issued by an Additional Magistrate did not make the sentence as if it was passed by the sessions Judge of that area in which the person under sentence was found. After the withdrawal of the Martial Law if the sentence of the detenue was to be continued it could only be executed by the authority and in the manner prescribed by the saving clauses and by no other authority and in no other manner whatsoever. According to that manner the warrant of commitment must, therefore, be issued by the session judge so as to make the sentence as if it were passed by them.

Principle:

Any order of conviction issued by an unauthorized authority attracts the judicial review under Habeous Corpus as per the article 102(2)(b)(i) of the Constitution.

Importance of this case:

In this case the judicial scrutiny over the preventive detention was explained. Where a prisoner is in custody on the basis of an order of conviction the court has the power to check whether the detenu has been placed in the custody by the order of a competent authority according to law. Where the warrant of commitment is issued by the court which passed the said sentence the said warrant will be ordinarily treated as a sufficient return in a proceeding of the nature of Habeous corpus. The constitution makers also has conferred the power of review upon the High Court Division the actions of the detaining authority.