SAJEDA PARVEN VS BANGLADESH 40 DLR AD 1988

 
 Analysis of Fact:

On 14.03.1986 an FIR was lodged and a criminal prosecution case was started against the detenue under the section 8 of Foreign Exchange Regulation, 1947 and section 16 and 156(8) (89) of the Customs Act and section 25(b) of the Special Power Act. In the FIR there was no mention of the detenue or showing of his involvement in the criminality of the action. On 26.03.1986 the detenue was nominated as a candidate for parliament election for the Jatiyo Party. But the detenue declined the nomination of the Jatiyo Party and contested the election as an independent candidate. On 27.03.1986 Syed Altaf Hossain, brother of the detenue allegedly made a confessional statement involving the detenue in the commission of the crime but subsequently the statement was retracted. The election was held on 7^th May, 1986 and the detenue was elected as a member of parliament. It was alleged in the petition that the detenue was taken into pressure by various Governmental bodies to vote on the seventh Amendment of the Constitution. Charge sheet was submitted on 3.12.1986 and the detenue was shown as a absconding accused. On 23.06.1987 the detenue was surrendered before the court returning from London. His bail was granted at about 3.30 P.M on 27.6.1987. On that evening at about 5 P.M the detenue was served with the impugned order of detention dated 27.6.1987 under section 3(1)(a) of the Special Power Act,1974.

Issue:

Whether after the revocation of the original order of detention a fresh order can be served continuing the previous detention or not?

Argument from the Petitioner:

It was argued that

v  The order of detention was served to frustrate the order of bail and unseating the detenue from the parliament.

v  From March 1986 to November 1986 the Government had no apprehension that the detenue would be indulging in smuggling activities. All the events done by the detaining authority showed that it was a colorable exercise of power and Malafide on the part of the Respondents.

Argument from the Respondent:

It was argued that

v  The prosecution and preventive detention can proceed simultaneously.

v  As the matter was not decided on merit it should be sent for rehearing so that reasonableness of the order of detention might be re examined by the High Court Division.

v  If the earlier detention was illegal that will not affect the validity of the later order of preventive detention because the later order was an independent order. Decision;

The order of preventive detention was declared illegal and without lawful authority.

Reasoning behind the decision:

The above decision was taken on the following grounds:

v  The order of preventive detention was called within seven months or a long period which clearly indicated that the order of preventive detention was passed for collateral purposes which had no sanction in law.

v  High Court Division proceeded on a misapprehension of the nature of application under Article 102(b)(i) of our Constitution. Where the petitioner had challenged the detention

as illegal, the detention was continued by successive order and the detaining authority failed to show subsequent order was legal, the rule did not become in fructuous.

v  The Respondent did not show sufficient material behind the order of detention. The only material was the confessional statement of the detenu’s younger brother and that was extorted causing physical and mental harm to him.

Principle:

The following principles came out from the above case:

•      A court cannot dispose a matter on a single point when the parties join issues on more than one question.

•      An illegal order of detention cannot be continued by a subsequent order of detention whether it may be valid or not.

•      An order of preventive detention cannot be passed for collateral purposes because that has no sanction in law.

•      An order of detention must be based on some materials which will satisfy a reasonable man.

Importance of the case:

This case provides a significant judicial review upon the background and consequences of the preventive detention order under the special power act, 1974.After the judgment given by the Appellate Division on this case it has become very much crystal clear that Preventive Detention cannot be legal without showing sufficient and necessary materials before the court which will prevent its abuse of power by the executive authority. By this case it came out that preventive detention cannot be used against any person for any indefinite purpose under the Special Power Act,1974. This case also warns the executive authority not to promulgate the order of preventive detention again and again to fulfill the executive’s illegal motive.