P L D 1965 Dacca 277 (PLP)

(f) requiring him to conduct himself in such manner, abstain from such acts, or take such order with any property in his possession or under his control, as may be specified in the order; (g) imposing upon him such restrictions as may be specified in the order in respect of his employment or business; (h) prohibiting or restricting the possession or use by him of any such article or articles as may be specified in the order: Provided that no order shall be made under clause (a) of this subsection in respect of any person who is or is deemed to be a citizen of Pakistan under the law for the time being in force. (2) An order made under subsection (1) may require the person in respect of whom it is made to enter into a bond, with or without sureties, for the due performance of, or as an alternative the enforcement of, such restrictions or conditions made in the order as may be specified in the order. (3) If any person is in any area or place in contravention of an order made under subsection (1), or fails to leave any area or place in accordance with the requirements of such an order, then without prejudice to the provisions of sub section (5) of this section, he may be removed from such area or place by any police officer or by any person authorised by the Central Government in this behalf. So long as there is in force in respect of any person an order under clause (b) of subsection (1) directing that he be detained, he shall be liable to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment of offences and breaches of discipline, as the Central Government may from time to time specify. (5) If the Central or Provincial Government has reason to believe that a person in respect of whom an order as aforesaid has been made directing that he be detained, has absconded or is concealing himself so that such order cannot be executed, that Government may‑ (a) make a report in writing to a Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 87, 88 and 89 of the Code shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the official Gazette direct the said person to appear before such officer, at such place and within such period, as may be specified in the order; and if the said person fails to comply with such direction he shall, unless he proves that it was not possible for him to comply therewith and that he had within the period specified in the order informed the Officer of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. (6) If any person contravenes any order made under this section, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, and if such person has entered into a bond in pursuance of the provisions of subsection (2), his bond shall be forfeited. (7) An order made under this section shall remain in force for such period as may be specified in the order or, if no period is specified, until revoked by the authority making the order: Provided that a revocation shall not prevent the making under this section of a fresh order to the same effect as the order revoked." Section 41 of the East Bengal Public Safety Ordinance runs as follows:‑ (1) Any police officer not below the rank of Sub‑Inspector or any other officer of Government empowered in this behalf by general or special order of the Provincial Government, may arrest without warrant any person whom he reasonably suspects of having done, or of doing or of being about to do, a prejudicial act. (2) any officer who makes an arrest in pursuance of sub section (1) shall forthwith report the fact of such arrest to the Provincial Government, and, pending the receipt of the orders of the Provincial Government, may by order in writing commit any person so arrested to such custody as the Provincial Government may by general or special order specify: Provided‑ (i) that no person shall be detained in custody under this subsection for a period exceeding thirty days without the order of the Provincial Government; and (ii) that no person shall be detained in custody under this subsection for a period exceeding two months. (3) On receipt of any report made under the provisions of sub. section (2), the Provincial Government may, in addition to making such order subject to clause (ii) of the proviso to subsection (2), as may appear to be necessary for the temporary custody of any person arrested under this section, make, in exercise of any power conferred upon it by any law for the time being in force, such final order as to his detention, release, residence or any other matter concerning him as may appear to the Provincial Government in the circumstances of the case to be reasonable or necessary." An analysis of section 41 clearly reveals that the arrest of a person and his detention in the first instance for thirty days is purely on suspicion. Clause (ii) of the proviso to subsection (2) provides that no person under this section can be detained in custody for a period exceeding two months. Clause (i) lays down that such a person cannot be kept in custody beyond thirty days without the order of the Provincial Government. It, therefore, follows that after arrest a person can be kept in custody for 30 days without any reference to the Provincial Government but if his custody is thought necessary beyond that period the order of the Provincial Government is to be obtained but the Pro vincial Government also cannot keep him in custody for a period of two months including the period for which the person is kept in custody under subsection (l). Subsection (3) of this section provides that on receipt of any report made under the provisions of subsection (2), the Provincial Government may, in addition to making such order, subject to clause (ii) of the proviso to subsection (2), as may appear to be necessary for the temporary custody of any person arrested under this section, make in exercise of any power conferred upon it by any law for the time being in force, such final order as to his detention, release, residence or any other matter concerning him as may appear to the Provincial Government in the circumstances of the case to be reasonable or necessary. After examining the provisions of the section we do not see how it can be said that an order passed by the Provincial Government under this section can be favour ably compared with an order passed by the Central Government under section 3 of the Security of Pakistan Act, 1952. If it however, a reference is made to section 17 of this Ordinance it wit ill be found that this section corresponds to section 3 of the Security of Pakistan Act, 1952. Section 17 of the East Bengal Ordinance) No. XXI of 1951 (East Bengal Public Safety Ordinance, 1951) is in the following terms:‑ "17. (1) The Provincial Government if satisfied with respect to any particular person that with a view to preventing him from doing any prejudicial act it is necessary so to do, may make an order‑ (a) directing that he be detained; (b) directing that, except in so far as he may be permitted by the provisions of the order or by such authority or person as may be specified therein, he shall not be in any such area or place in East Bengal as may be specified in the order; (c) requiring him to reside or remain in such place or within such area in East Bengal as may be specified in the order and if he is not already there to proceed toy‑that, place or area within such time as may be specified in the Order; (d) requiring him to notify his movements or to report himself or both to notify his movements and report himself in such manner, at such times and to such authority or person its may be specified in the order; (e) imposing upon him such restrictions as may be specified in the order in respect of his employment, business or movements, in respect of his association or communication with other persons, and in respect of his activities in relation to the dissemination of news or propagation of opinions; (f) prohibiting or restricting the possession or use by him of any such article or articles as may be specified in the order; (g) otherwise regulating his conduct in any such particular manner as may be specified in the order. (2) An order made under subsection (1) may require the person in respect of whom it is made to enter into a bond with or without sureties, for the due performance of, or as an alternative to the endorsement of, such restrictions or conditions made in the order as may be specified in the order. (3) If any person is in any area or place in contravention of an order made under the provision of this section, or fails to leave any area or place in accordance with the requirements of such an order, then, without prejudice to the provisions of subsection (5), he many be removed from such area or place by any police officer or by any person acting on behalf of the Provincial Government. (4) If the Provincial Government has reason to believe that a person in respect of whom such an order as aforesaid has been made directing that he be detained, has absconded or is concealing himself so that the order cannot be executed it may‑ (a) make a report in writing of the fact to a Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions at of sections 87, 88 and 89 of the Code of Criminal Procedure, 1898, shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by notified order direct the said person to appear before such officer, at such place, and within such period as may be specified in the order; and if the said person fails of comply with such direction he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer of the reason which rendered compliance, therewith impossible and of his whereabouts, be deemed to have contravened the order within the meaning of subsection (5). (5) If any person contravenes any order under this section, lie shall be punishable with imprisonment for a term which may extend to three years, or with fine or with pursuance of the provisions of subsection (2), his bond shall be forfeited and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting Court why such penalty should not be paid." It is, clear that when an order is passed under section 17 by the Provincial Government after being satisfied that a particular person should be detained with a view to prevent him from doing any prejudicial act within the meaning of the Ordinance, an order similar to one under section 3 of the Security of Pakistan Act is passed. We are, therefore, of the view that an order of detention) in custody passed by the Provincial Government under section 411 of the East Bengal Public Safety Ordinance does not come within) the mischief of Article 5 (1) (b) of the Elective Bodies (Disqualification) Order, 1959. In this view of the matter the notices' issued to the petitioner and the orders passed against him by the Additional Deputy Commissioner and the Sub‑Divisional Officer (Controlling Authority) have been issued and passed without any lawful authority. We have in this case heard the learned Advocate‑General at length and after a close scrutiny of the) provisions of law wit); which we are concerned, we have been) unable to accept his contention that since the Provincial Government under subsection (3) of section 41 can pass a final order of detention, any order passed under section 41 is also an order similar to one passed under section 3 of the Security of Pakistan Act. We are of the opinion that the final order of detention contemplated by this subsection of section 41 is an order passed either under section 17 of the Ordinance or any other law empowering the Provincial Government to detain a person. A final order of detention contemplated bit this subsection no doubt comes within the mischief of Article 5(1) (b) of President's Order No. 13 of 1959. An order passed under clause (1) of the proviso to section 41 cannot be compared with such an order. The result, therefore, is that this Rule is made absolute. The notices issued to the petitioner and the orders passed against him by the respondents are declared to have been issued and passed without any lawful authority. In view of the facts of this case, however, we direct the parties to bear their own costs. A. M. SAYEM, J.‑--I agree. K. B. A. Rule made absolute.