P L D 1969 Dacca 369 (PLP)

BAQUER, J.‑Both the cases were placed together for judg ment today under the impression that both the detenus were still being held in detention. When the Court was about to deliver judgment, Mr. Abdul Hoque, the learned counsel for the petitioners in both the cases informed the Court that the detenu involved in Criminal Miscellaneous Case No. 122 of 1967 that is, Md. Sharif Hossain has since been released and for that reason that Rule has become infructuous and that the Rule should stand discharged as a matter of course. We order accordingly. Thus we are left only with Criminal Miscellaneous Case No. 121 of 1967 relating to detenu Mr. Abdul Hye. The order impugned in the case of this detenu Mr. Abdul Hye runs as under: ‑ "Government of East Pakistan. (Annexure "A") Office of the Deputy Commissioner, Jessore. No. 630‑CS. Dated 3‑4‑1967. Whereas Mr. Abdul Hye son of late Abdul Khair of Kharki, P. S. Kotwali, District Jessore is reported to have acted and likely to act in a manner prejudicial to the public safety and maintenance of public order, the maintenance of peaceful condi tions in the country, the maintenance of essential supplies and services; And whereas I, A. K. M. Kamaluddin Choudhury, C. S. P., the Deputy Commissioner of Jessore District, am satisfied that with a view to preventing the said Mr. Abdul Hye from acting in any manner prejudicial to the public safety and the main tenance of public order, the maintenance of peaceful conditions in the country and the maintenance of essential supplies and service, it is necessary to make the following order: ‑ Therefore, in exercise of the powers conferred by clause (b) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, 1965, delegated to me by the Government of East Pakistan Notification No. 115‑Poll (11), dated 13‑9‑65, I, A. K. M. Kamaluddin Choudhury, C. S. P., Deputy Commissioner, Jessore District do hereby direct:‑ (a) that the said Mr. Abdul Hye shall be detained for a period of until further order from the date of service of this order,, (b) that subject to the provisions of clause (a) of this paragraph the said person shall be detained in the Jessore Central Jail. Passed and made over to his relative. (Sd.) (Illegible). Seal of the Deputy (Sd.) (Illegible) 4‑4‑

67. Commissioner. Deputy Commissioner, Jessore District 3‑4‑1967. Passed and made over to Prisoner. (Sd.) (Illegible) Deputy Inspector‑General of Prisons, Khulna Division, Central Jail, Jessore. 1‑6‑1967." The grounds urged by the learned Counsel for the petitioner are Grounds Nos. 2, 3 and 7 of the petitioner which are as under: ‑ "Ground No. 2.‑For that the impugned order of detention (Annexure "A") having provided detention of the detenu from the date of service of the order and the order not having been served upon the detenu till 1‑6‑67, the arrest and detention of the detenu are illegal, mala fide and void. Ground No. 3.‑For that the detention is illegal, mala fide and void and passed for collateral purpose inasmuch as the detenu was under detention during the subsistence of the discharge order passed by the trial Court and when it was found that no conviction could be obtained in the Criminal case on the basis of evidence on record. Ground No. 7.‑For that the alleged satisfaction of the detaining authority under Rule 32 (1) (b) of the Defence of Pakistan Rules is not based on any pre‑existing materials on record." It has been stated to his petition that the detenu was the Professor and Vice‑Principal of the Michael Madhusudan College, Jessore at the time of his arrest on the 4th of April 1967. He joined the said College as Principal on 10‑12‑1956 and conti nued to be the Principal till 2‑1‑1965. Thereafter, it is alleged, one Mr. Fazlur Rehman at the instance of the then Deputy Commissioner who was Mr. Fazlur Rahman's pupil, replaced the detenu as Principal. It has been claimed by the detenu that during his regime as Principal the College showed remarkable success in every sphere but it is there and grudge of one Ahmad Ali Sardar a contractor and present M. N. A. that has brought the detenu to the present pass. It is alleged that this Ahmad Ali Sardar who is a Muslim Leaguer was once defeated in the election to the Provincial Legis lative Assembly by Mosharaf Hossain Khan a nephew of the detenu and that he was also defeated again in the election to the electoral college by a cousin of the detenu in 1964. The petition goes on to state that on 26‑11‑1966 at about 10‑30 a. m. a meeting of the staff Council of the college was going on in the Professors Common Room convened by the Principal when suddenly at about 11 o'clock Mr. A. A. S. Rahman, Magistrate, First Class entered into the College compound along with the Circle Inspector of Police and an armed police party without seeking the permission of the Principal and started rebuking the students for the incident of 24th on which date on the declaration of the result of the College Union a section of the students of the College brought out a victory procession and paraded the streets of Jessore in course of which brickbats and crackers were thrown at the house of Ahmad Ali Sardar and as a result of which a criminal case was started and some of the students were arrested. It is alleged also that soon after the opposite‑party No. 3 Mr. M. A. Hossain, P. S. P. along with Additional Deputy Commissioner and S. D. O. and a large contingent of police party armed with lathis and teargas entered into the college compound and started tear gassing and lathi‑charging the students and arrested on the spot 35 students of the College and later at 3 p. m., an F. I. R. was lodged by the said Mr. Rahman and a criminal case being C. R. Case No. ‑1920 of 1966 was started. On 27‑11‑1966 a meeting of the College Teachers Council was held under the President-ship of the detenu as Principal and the meeting unanimously passed a resolution condemning police atrocities in the College and loss of College property and demanded a judicial enquiry into the incident. Police charge‑sheeted 49 persons and in the aforesaid C. R. Case No. 1920 of 1966 the name of the detenu was also included although it is said that the detenu did his utmost to quell down the students. Mr. M. Ahmed, Magistrate, however, by his order dated 18‑2‑1967 discharged him observing that the detenu along with other Professors tried to quell the situation rather than instigating the students. Against the said order of discharge a revisional application was preferred to the learned Sessions Judge by the State and it is alleged that before the application was heard the detenu was taken into custody on 4‑4‑1967 by the police under the Defence of Pakistan Rules. The petition further goes on to narrate how the present Principal came to be appointed which is not so much necessary for the disposal of the present Rule. Grievance has also been made that the detenu who was not accustomed to hard living is being treated as an ordinary prisoner with a daily allowance of Rs. 1.50 paisa only. It has been stated that there are no materials justifying the application of Rule 32 of the Defence of Pakistan Rules and that his arrest and detention is mala fide and for collateral purpose. The affidavit‑in‑opposition filed by the Deputy Commissioner has denied the allegation of mala fide and collateral purpose and in paragraph 30 thereof a volume of materials have been indicated, in support of the detention order which has been impugned. It has further been stated in the affidavit‑in‑opposition that the assertion in the petition that no order of detention was shown to the detenu at the time of his arrest was without foundation. There is, however, no straight denial of the fact that the order was not served till 1‑6‑1967. This point about service will engage our attention later. Our concern presently is mainly the examination of the materials disclosed in the affidavit in‑opposition. Once those materials are found to be reasonably sufficient for the purpose, the allegations of mala fide and colourable exercise of the power under the Rules will not improve the detenu's case. The materials as disclosed in paragraph 30 aforesaid were that the detenu was associated with politics ever since 1952 and he had affiliations with the Communist party which had extra‑territorial connections. The learned Advocate‑General placed some of those materials before us and we feel satisfied on the point. It has not been denied either that the detenu was arrested twice in course of the year 1953 under the East Pakistan Public Safety Ordinance and was released on 22‑2‑1955 with restrictions on his movement which of course was later on lifted. Admittedly be was appointed the Principal of the M. M. College on 9‑12‑1956 but materials such as those placed before us show that even thereafter he had been attending political meetings particularly that of the Awami League on several occasions. The claim as made in the petition that he is an educationist out and out without any political proclivities has been negatived by the records showing his heavy political engagements. It appears that on 2‑4‑1967, the students came together and called an emergent meeting to take some prescribed steps against the college authorities and with that end in view they met the detenu at his residence in the same night when the detenu asked the students present there as to whether they would remain firm in taking the action suggested by him. The students having replied in the affirmative, the detenu suggested the following actions: (1) To arrange for immediate strike in all the colleges of the district which should continue till the removal of the Principal is achieved. (2) To assault the N. S. F. Workers and their supporters who are Dalals of the Government and also of Ahmad Ali Sardar, (P. M. L.) (M. N. A.) and the Principal whenever any opportunity comes. (3) To continue insulting the Principal whenever he is available. If necessary, the students in groups should raid his residence surprisingly. These activities which though not strictly anti‑State, taken together with the clear anti‑State activities as disclosed at the outset, lead us to hold that the detenu was taking active part in anti‑rules. The materials as produced, in our opinion, could form a reasonable basis for the satisfaction of the detaining authority. We, therefore, find no justification for interference with the impugned order on the merits. Now the question is that of service of the order. The relevant part of Rule 189 of the Defence of Pakistan Rules is as under. "(I) Save as otherwise expressly provided in these rules, every authority, officer, or person who makes an order in writing in pursuance of any of these rules shall, in the case of an order of a general nature or affecting a class of persons, publish, notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adopted for informing persons whom the order concerns in the case of an order affecting an individual corporation or firm serve or cause the order to be served in the manner provided for the service of a summons in rule 2 of Order XXIX or rule 3 of Order XXX, as the case may be, in the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908), and in the case of an order affecting an individual person (not being a corpora tion or firm), serve or cause the order to be served on that person‑ (i) personally, by delivering or tendering to him the order, or (ii) by post, or (iii) where the person cannot be found, by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain. (2) Where any of these rules empowers an authority, officer or person to take action by notified order, the provisions of sub‑rule (1) shall not apply in relation to such order. (3) If in the course of any judicial proceedings, a question arises whether a person duly informed of an order made in pursuance of these rules, compliance with sub‑rule (1) or, fn a case to which sub‑rule (2) applies, the notification of the order, shall be conclusive proof that he had information of the order ; but a failure to comply with sub‑rule (1) 1 (i) Shall not preclude proof by other means that he was so informed ; and (ii) shall not affect the validity of the order." Non‑observance of the rule as to service will not, as it appears from the above, render the order itself invalid although we highly deprecate the irregular service in the present case. The order as it will appear is dated 3‑4‑1967 while the service was not done till 1‑6‑1967. Once it has been endorsed as "passed and made over to his relative" and again it has been endorsed as "passed and made over to prisoner". It is not desirable to trifle with the service of such serious orders in the fashion done in this case although no time within which the service has to be effected has been set out in the above rule; the service should be effected immediately so as to enable the detenu to know the reasons for his detention and to take appropriate steps for his release. Grievance has also been made in paragraph 30 of the petition that the detenu is being treated as an ordinary prisoner, with a daily allowance of Rs. 1.50 paisa only. Mr. Abdul Hoque, the learned counsel has submitted that having regard to the social and economic status of the detenu as well as the standard of living he was accustomed to, this allowance is too low to keep his body and soul together in sound condition. The ratio of Rs. 1.50 paisa a day for a man of his position seems to us too inadequate particularly in these days of high prices and we feel that it is desirable to raise this daily allowance to a higher one. There is also a grievance made on the scope that the detenu has been subject to various diseases as a result of which he was removed to the Jail Hospital where he is not being given proper medical treatment and good food to restore his normal health. The prayer in those circumstances is for transfer of the detenu to a good civil hospital elsewhere than Jessore. We are not prepared to order the transfer immediately. We desire that the appropriate authorities will take particular care of this detenu when he is lying in the Jail Hospital at Jessore. In these circumstances, the Rule in this case is discharged. The Rule in Criminal Miscellaneous Case No. 122 of 1967 also stands discharged for the reasons already stated. ABDUL MOUDUD, J.‑I agree. A. E. Rule discharged.