1969 P (PLP)

SALAHUDDIN AHMED, J.‑

This Rule nisi is directed against an order of the Deputy Commissioner of Khulna detaining one Anil Kumar Swarnakar. The petitioner before us is uncle of the detenu and he has stated that the detenu is a very substantial person and a philanthropist having donated large sums of money to various Charitable and educational funds. On 7‑10‑65 he was taken by the police to Satkhira Police Station, Khulna and on 8.10‑65 he was brought to the office of the District Special Branch, Khulna where he was informed that he was arrested under the Defence of Pakistan Rules. He was then . sent to Khulna Jail, and was subsequently interrogated by the police of the Special Branch as well as by the Military. It is stated that on 23‑12‑66 he was shown a letter dated 6‑12‑66 addressed by the Section Officer, Home (Special) Department Government of East Pakistan, Dacca to the Deputy Commissioner, Khulna. It is claimed that it was only on 11‑1‑67 that he was served with an order of detention dated 8‑10‑

65. The order has been annexed to the petition as Annexure `B'. The relevant portion of the impugned order states that with a view to preventing the said detenu "from acting in any manner prejudicial to the security, the public safety, the maintenance of public order and maintenance of peaceful condition in Khulna District" it is necessary to detain the detenu "under Rule 32(1) (b) of the Defence of Pakistan Rules, 1965 until further order from the Government. The petitioner has stated that the detenu never indulged in any sort of activity which was prejudicial to the matters mentioned in the impugned order of detention. It has been stated further that the detenu firmly believed that there were no materials before the detaining authority upon the basis of which the impugned order could have been passed. On behalf of the opposite‑parties an affidavit‑in‑opposition sworn by Mr. M. Ismail, Section Officer, Home (Special) Department, Government of East Pakistan dated 11‑12‑67 has been put in. It has been categorically stated in this affidavit that "the detaining authority on a careful consideration of pre judicial materials available against the detenu and being fully satisfied passed the detention order with full application of mind and that the reasons of detention and the provisions of law under which the detenu was arrested and detained were communicated to the detenu on 8‑10‑65 verbally". It is, however, admitted that the detenu was supplied with a copy of the impugned order of detention on 11‑1‑

67. In paragraph 12 of the affidavit the matters which led to the detention have been mentioned briefly. It is stated that on 8‑9‑65 at the dead of night the detenu along with 12/13 other anti‑State Hindus met together at a secret meeting in the house of the detenu where they expressed jubilations over Indian aggression of Pakistan. The detenu was the principal speaker at the meeting and, it is said, that he had said that Khulna would soon be conquered by India. It has been stated further that on 9‑9‑65 the detenu gave out that a dwarf Pakistan had thrown challenge to giant India and should meet its doom at any moment. In July 1965 the detenu along with his men assaulted Mr. Abdul Mannan Akon, Executive Officer of Debisahor Agricultural and Fish Farming Co‑operative Society Limited and kept him confined in his quarters for holding a "Milad Mehiful". Over this occurrence Mr. Abdul Mannan filed a criminal case in the Court of the Sub‑Divisional Officer, Satkhira and the case was still sub judice. Lastly it has been stated that in course of his interrogation by military intelligence the detenu confessed that he used to smuggle fish to India and that he also smuggled Pakistani currency. In his affidavit‑in‑reply the petitioner has denied the allegations made against the detenu in paragraph 12 of the affidavit‑in‑opposition and has added that the detenu is a citizen of Pakistan and he made his contributions to the Defence of Pakistan during the War between India and Pakistan and donated Rs. 2,000 to the War Fund. It has been stated further that the detenu had no licence for export and import and consequently he never exported any fish to India or never smuggled fish and Pakistani currency to that country. It may be stated at the outset that in the impugned order of detention dated 8‑10‑65 obviously through inadvertence instead of Rule 32 of the Defence of Pakistan Rules, section 32 of the Defence of Pakistan Ordinance has been mentioned. Mr. Gholam Hafez while arguing that the detaining authority had not properly applied his mind while passing the order of detention cited this inadvertence as an instance in support of his argument, In view, however, of this obvious inadvertence we do not think there is any substance in such criticism. Mr. Gholam Hafez has next contended on the basis of the fact that after the impugned order of detention had been passed the detenu was removed outside the Jurisdiction of the Deputy Commissioner of Khulna to Jessore Jail that the impugned order passed by the Deputy Commissioner of Khulna lost its operative force. We are unable to accept this contention. It seems that Mr. Gholam Hafez suffers from a misconception about the decision of a Special Bench of this Court dated 29th February 1968 in Criminal Miscellaneous Case No. 229 of 1967. The impugned order having been passed at a time when the detenu was within the Jurisdiction of the Deputy Commis sioner of Khulna the mere fact that subsequently the detenu was removed from the Jurisdiction of the Deputy Commissioner of Khulna did not in any way affect the validity or force of the impugned order. At present, we are told the detenu is lodged in Khulna Jail. Referring to the concluding portion of the impugned order, namely, "Until further order from the Government" and to Annexure `A' to the petition which is a communication on the subject "Review of the cases of smugglers detained under D. P. R." by the Section Officer Government of East Pakistan, Home (Special) Department, Dacca to the Deputy Commissioner, Khulna dated 6‑12‑66 stating therein that the cases of the detenus of Khulna District including that of detenu Anil Kumar Swarnakar were reviewed and it was decided that they should continue in detention, Mr. Gholam Hafez has contended that a fresh order of detention was necessary to keep the detenu under detention. We are unable to agree with Mr. Gholam Hafez. The impugned order Annexure `B' is a self‑contained order under which the detenu has been detained indefinitely, and no fresh or further order is necessary to continue the detention. Annexure `A' is not an order of the Government whereby the detenu has been detained ; it is merely an intimation that the Government having reviewed the cases of the detenus of Khulna Jail including that of the detenu has decided that they should continue to remain in detention. Again on the basis of Annexure `A' to the petition and of the statement in paragraph 12(c) of the affidavit‑in‑opposition, which stated that the detenu on interrogation by military intelligence had stated that he had smuggled fish and Pakistani currency to India, Mr. Gholam Hafez has contended that "smuggling" does not fall within the purview of Rule 32 of the Defence of Pakistan Rules and consequently the detenu cannot be detained thereunder on the allegation that he had smuggled fish and Pakistani currency to India. Mr. Gholam Hafez has also contended that in any event there is no mention of smuggling in the impugned order of detention. Our answer to these contentions is, in the first place, that it is not solely on the basis of the act of the detenu as a smuggler that he has been detained. Broadly speaking three instances have been mentioned in paragraph 12 of the affidavit‑in‑opposition and the case of smuggling is the third and last instance. The first instance speaks about the participation of the detenu in secret meetings and his overtacts of disloyalty to which we shall presently advert to in details. Besides we fail to understand why the smuggling of fish and Pakistani currency in the facts and circumstances of the case could not be regarded as a prejudicial act within the meaning of Defence of Pakistan Rules so as to attract the operation of Rule 32 of the Defence of Pakistan Rules. The relevant portion of Rule 32 is as follows: "With a view to preventing him from acting in a manner prejudicial to the security, the public safety or interest or the Defence of Pakistan, the maintenance of public order, Pakistan's relations with any other power, the maintenance of peaceful conditions in any part of Pakistan the main tenance of essential supplies and services or the efficient conduct of military operations or prosecution of War." This Rule read with Rule 41 (6) has defined "Prejudicial Act". Among other things "prejudicial act" has been defined to mean any act which is intended or is likely‑ "(a) to prejudice Pakistan's relation with any their power or the maintenance of peaceful conditions in any area included in Pakistan ; (c) to under any member of the Armed Forces or any public servant incapable of efficiently performing his duties is as such, or to induce any member of such Forces or any public servant, to fail in the performance of his duties as such ; (h) to cause fear or alarm to the public or to any section of the public ; (i) to impede, delay or restrict the means of transport or locomotion any work necessary for the efficient conduct of military operations or prosecution of the war, the production, handling or transport of any munitions of war or the supply or distribution of any essential commodity ; (n) to influence the conduct or attitude of the public or of any section of the public in a manner likely to be pre judicial to the defence of Pakistan or to the efficient of military operations or prosecution of war ; (s) otherwise to prejudice the efficient conduct of military operations or prosecution of war of the security; the public safety or interest or the defence of Pakistan ;" Act of smuggling indicates that the persons engaged in it has opened a line of communication with the enemy across the border of Pakistan and this in itself is a matter of grave danger to the security, and to the public safety of the country and both these matters have been mentioned in the impugned order. Mr. Gholam Hafez has cited before us in support of his contention a decision of this Court in the case of Alhaj Ald. Ahdur Rahman v. Government of East Pakistan (19 DLR748). In our opinion the decision is not applicable to the facts of the present case, Mr. Gholam Hafez's main contention, however, has been that there are no materials before the detaining authority Justifying the passing of the impugned order of detention. The matters that were before the authority have been briefly mentioned in paragraph 12 of the affidavit‑in‑opposition. In support of the averments, and there the learned Advocate appearing on behalf of the State has placed before us the entire records of the case. We have carefully perused those records and have also read out in Court relevant portions in detail. In our opinion the records have fully born out the allegations in respect of matters stated in paragraph 12(a) of the affidavit‑in opposition. It is evident from the records that the authorities acted with care and caution before passing the order of detention. The entire thing originated upon several complaints made to the authority against the prejudicial activities of the detenu who is a resident of the border area in the district of Khulna. On receipt of these complaints the authorities conducted detailed investigations in course of which persons sending in the complaints were examined and their statements were recorded on 6‑10‑

65. Among the persons examined there was a chairman of the Union Council. On a reference to these statements it is evident that the participation of the detenu in the meeting held at his residence on 8‑9‑65 has been amply supported. The statements further disclose the dubious character of the detenu's associates one of whom had been arrested earlier on suspicion that he was an Indian spy. The prejudicial acts of the detenu have also received support from the statements of witnesses and they have received corroboration by the written statement of the Chairman. Besides such activities of the detenu the statements of the witnesses reveal that the detenu is a very powerful and influential person in Debsahor in the District of Khulna and that he had under his command a body of lathials and desparate persons with whose help the detenu had kept terrorised the people of the locality and had shown utter disregard to law and order. Having regard to these facts and circumstances it cannot be said that the impugned order of detention had no reasonable basis. In arriving at this conclusion we have of course not taken into consideration the allegation of assault upon Mr. Abdul Mannan Akon as contained in paragraph 12 (b) of the affidavit‑in‑opposition inasmuch as the matter is subjudice and any observation about the matter may cause prejudice to the parties. We have also not taken into consideration the alleged confession of the detenu before the military intelligence as contained in paragraph 12 (c) of the affidavit‑in‑opposition because on reference to the records we have found that the interrogation was made several days after the impugned order of detention had been passed. On reference to the records, however, we find a statement of one of the witnesses examined in course of investigations against the detenu that the detenu was engaged in smuggling fish to India. Having regard to the activities of the detenu referred to above th: act of smuggling too, assumes ominous significance for it clearly indicates that the detenu had kept a line of communication open for his activities across the border of Pakistan. We accordingly find ample hnstification for the impugned order of detention. Mr. Gholam Hafez has also contended that among the three grounds that have been stated for the detention of the detenu if any one fails the validity of the entire order should be taken as affected. We do not agree with this contention. For the reasons stated above we discharge the Rule. AHSANUDDIN CHOUDHURY, J.‑I agree. Rule discharged.