P L D 1966 Supreme Court 286 (PLP)

CORNELIUS, C. J.--‑I have had the advantage of reading the judgment proposed to be delivered by my learned brother, S. A. Rahman, J. It is a matter of great regret that on so important a case as the present, I should find myself in disagreement with his views, which I always hold in great respect. The facts and much of the law have been stated with fullness in the judgment of my learned brother so that I need not repeat them here. The statute in question is the East Pakistan Public Safety Ordinance, 1958, and' two provisions in sections 17 and 41 are relevant to the present case. Under section 17, an order like that which was made against Mr. Shaukat Ali Khan on the 26th September 1964, by the Provincial Government; namely, an order of detention, may be made if the Government is satisfied that it is necessary to make such an order against a particular person "with a view to preventing him from doing any ‑ prejudicial act". It is to be noted that it is not sufficient that the Provincial Government should be satisfied that such a person has done one or more prejudicial acts. The action must be taken in the reasonable belief that it is necessary to detain him in order to prevent the doing of the prejudicial act. How much material is necessary for coming to such a conclusion depends on the circumstances of each case. In the present case, the Provincial Government simultaneously with the making of the order served upon Mr. Shaukat Ali Khan the grounds for the order, which briefly are that he joined in the illegal activities of a secret association in four different districts and during seven years prior to his arrest, excluding the year 1960, he was concerned in prejudicial activities in those districts, the months being particularly specified, and by way of specifying these prejudicial activities, it was said that he had carried on . "prejudicial acts and propaganda against the Government among the people including the students and peasants with the ulterior object of disrupting the stability or integrity of the Province of East Pakistan and exciting disaffection towards the Government established by law." It was said that these activities were such as to threaten the maintenance of public order and public safety in the Province. These allegations, if credible, could be held, in reason, to be sufficient basis for the belief, that to prevent continuation of repetition of such behaviour it was necessary that he should be detained "Prejudicial acts" are defined in the Ordinance under 17 different headings of which the following are relevant, viz., acts calculated "(a) to endanger communal harmony, public safety or the maintenance of public order; (c) to bring into hatred or contempt or to excite disaffection towards the Government established by law; (e) to disrupt the stability or integrity of the Province; Something will be said later as to the sufficiency of the information given to Mr. Shaukat Ali Khan, regarding the grounds of his arrest, in relation to the Constitutional requirement of Fundamental Right 2 that to a person detained under a law "providing for preventive detention" there shall be furnished as soon as may be "the grounds on which the order has been made" and he shall be afforded the "earliest opportunity of making a representation against the order". There is no doubt whatsoever that no delay was allowed to supervene in this case in furnishing of the grounds. In fact the entire case is distinguished by a most impressive degree of promptness in the taking of action by the Provincial Government. For, it was only on the 20th September 196.4, six days before the making of the order of detention, that Mr. Shaukat Ali Khan was arrested by a Police Officer acting under section 41 of the Ordinance. Section 41 lays down that such an arrest may be made only by Police Officers of the rank of Sub‑Inspector or above or by any other officer specially empowered. It may be made without warrant, but it is necessary that the person making the arrest should reasonably suspect the person he arrests "of having done, or of doing, or of being about to do, a prejudicial act". A point of distinction appears here from section

17. The words used in section 41 indicate that the judgment of the person making the arrest is not to be exercised for the purpose of something apprehended from the person arrested in. the indefinite future, on the lines of section

17. Under section 41, either something is reasonably suspected to have been done or seen to be actually being done, or that it is about to be done, that is, in the immediate future and on the spot. It is not enough, for instance, that a person acting under section 41, should be aware that for seven years past, the person in question is known to have been committing prejudicial acts in various places, if the person arresting is not able to show that he acted in relation to a suspicion of some definite act done, it would seem in the fairly proximate past, or that it was being done before his eyes or that he saw indications that the person was just about to do a prejudicial act. Under section 41, .the decision is based on appreciation of a concrete fact, not on speculation as to any future possibility or probability, or on any judgment of potentiality. The further provisions of section 41 are the following. Upon making the arrest, the officer doing so must forthwith report the fact to the Provincial Government, and a further provision in the section indicates fairly clearly that mere reporting of the arrest is not what is enjoined, but a statement must also be made as to the basis of the arrest, for by subsection (3), the Provincial Government is empowered on receipt of the report to make an order for temporary custody of the person arrested, and is also enabled thereafter to make "a final order as to his detention, release, residence or any other matter" as may appear to the Provincial Government to be "reasonable or necessary". Moreover, a time limit is fixed for the period of detention in custody, firstly, that under the authority of the person making the arrest and secondly, for the period of detention under the section as a whole. The custody in which the person making the arrest detains the prisoner is legal only for a period of 30 days, without the order of the Provincial Government, which may of course, during this period, itself make an order regarding the temporary custody of the prisoner. Further, a final order relating to detention, release, residence or other necessary matter must be made within two months if the person is in custody throughout that period. Since prejudicial acts are also punishable as offences, among the "other matters" referred to there might be included an order for prosecution under section 7(3) for doing a prejudicial act without lawful excuse. In the present case, it is clear that the arrest was reported to the Government without unnecessary delay, for within six days the "final order" under section 17 was actually made by the Provincial Government. On that fact alone, it is possible to base a conclusion that there is not here any case of mala fide use of the power of detention provided by section

41. The passage of the case through the High Court was marked by equal promptness. The first petition, in the nature of habeas corpus was filed on the 22nd September 1964, to which the State made reply on the 24th September. A similar petition, in respect of the order under section 17 was filed on the 28th September, to which reply was made on the 30th September. Arguments were heard on that day and the following day, and judgment, allowing both petitions was pronounced immediately there after. If the question were put whether section 41 was in the same category of laws providing for preventive detention, as section 17, the answer I would give is that while it does provide for preventive detention, it relates to a category of such detention, which may be described as "preliminary precautionary preventive detention" with a view to the making of enquiries as to whether "a final order" of detention to prevent the doing of prejudicial acts should be made, under section 17, or some other action should be taken which may, in the case most favourable to the prisoner, be an order of release. `Reasonable suspicion' of the person having earlier committed, or having been seen to be com mitting, or to be about to commit, a `prejudicial act' being reported, W the Provincial Government is to consider whether this, and other information obtained by necessary enquiry, is a basis for believing that the person should be detained, in order to prevent him from committing such an act or acts. The power under section 41 is comparable to the power possessed by Police Officers under section 54 of the Criminal 'Procedure Code to arrest without warrant, any person against whom a reasonable suspicion exists of his having been concerned in a cognizable offence. Under the Criminal Procedure Code, the arrested person must be taken before a Magistrate within 24 hours, vide sections 60 and 61 so that the "reasonable suspicion" entertained by the Police Officer comes immediately under the judicial review of a Magistrate, who, and possibly other judicial authorities superior to him, may, in the result, after further enquiry and trial, impose punishment, by imprisonment or otherwise in accordance with law, or in the alternative may release him. It is now a requirement of the Constitution, by Fundamental Right No. 2 that a person who is arrested should be informed of the ground of his arrest, that he should be allowed to obtain legal advice and aid, and that he should be produced before a Magistrate within' 24 hours. The same Fundamental Right provides that this condition shall not apply where the arrest is made under a law providing for x preventive detention, and in the view that I take of section 41 of the Ordinance, namely, that it is indeed a law providing for preventive detention, although of a preliminary precautionary type, I am clear that the requisite of production before a Magistrate does not apply in such a case. The further and better considered action, in relation to restraint by preventive detention, as distinguished from imprisonment under the Criminal Procedure Code, is within the power of the Provincial Government exclusively. At this point it is perhaps of importance to note that, under the present Constitution, the Provincial Government is in fact the Governor of the Province, vide Article 80, acting either directly or through officers subordinate to him. No question is raised in the present case of the order under section 17 having been made by any authority exercising a degree of responsibility such as is not commensurate with the action to be taken, namely, deprivation of the liberty of a subject which is guaranteed under the Constitution. But to continue with the comparison between an arrest without warrant under the Criminal Procedure Code, and an arrest under section 41 of the Ordinance, I think it admits of no doubt that the larger responsibility in relation to the making of a substantive order of detention is cast squarely upon the Provincial Government, and therefore, it is to the Provincial Government that an immediate report is required by section 41 to be made by the officer making the arrest, just as in the case under the Criminal Procedure Code, the responsibility for ordering the imprisonment of the person in a substantive sense being placed directly upon the judicial officers, it is to a Magistrate that a Police Officer must immediately report the arrest without warrant of a person suspected of having committed a cognizable offence. Therefore, I am clear in my opinion that the arrest of Mr. Shaukat Ali Khan under section 41 of the Ordinance was not subject to the Constitutional requirement of report to the nearest Magistrate within 24 hours. It was to be reported to the Provincial Government and as has been seen, that was done, and the Provincial Government acted with commendable promptness in issuing a final order of detention in a matter of six days, and at the same time furnishing to the detenu the grounds for his detention. As to these grounds, I am of the opinion, without Considering for the moment that no precise dates were given, nor were any particular speeches or meetings specified and that even the secret association mentioned was not named, that enough was said to furnish the belief that the action was taken with the object of preventing the commission of one or more prejudicial acts and not in relation to any act already committed or about to be committed. That as has been seen is the precise requirement of section

17. It may be of advantage here to make a reference to rules 26 and 129 of the Defence of India Rules upon which the two sections of the Ordinance in question, namely 17 and 41 are very clearly y based. Rule 26 enabled the Government to make orders of; detention, in relation to certain persons, to achieve certain purposes, and rule 129 in almost the*same terms as section 41, enabled Police Officers to make arrests without warrant which were to be reported to the Provincial Government, and there too it was provided that the Provincial Government would upon the report, and no doubt after due consideration, make "a final order" of detention or release etc. An interpretation of rule 129 was given by a Full Bench of the Lahore High Court in the case reported as In re: Subrahmadyen (1) A I R 1943 Lah. 329, by Harries, C. J., in the following words:- "That rule (i.e., 129) to my mind, was provided to enable police officers or other officers of Government to detain dangerous men immediately and to held them in detention until the Provincial Government or the Central Government issued orders of detention under rule 26, Defence of India Rules." The same could be said with little change of language regarding the relationship of section 41 to section 17 in the Ordinance here, in question. The question of the validity of an arrest under section 41 can be raised before a Court in respect of a number of matters. If there was no immediate report to the Provincial Government, or there was unreasonable delay in making the report, whereas the section requires that it should be made forthwith, the arrest itself might be attacked as being vitiated for failure to carry out steps essential to the whole purpose of the section. But here, a report was made and it was undoubtedly made with great speed. The section permits an interval of 30 days of custody under the authority of the officer making the arrest, and that might be regarded as being based on an estimate of the time which, under the prevailing conditions, would be the maximum time that might, be necessary for obtaining an order from the Provincial Government as to the temporary custody of the detenu. It is somewhat larger than the period fixed by rule 129, which was, 15 days, but in different times and under different circumstances, the law‑making authority in East Pakistan may well have considered that 15 days was too short for all the necessary correspondence and examination that might be involved. Of the reasonableness of this period of 30 days, it is not possible for the Courts to judge. However, if under the authority of the officer e making the arrest the person were to be detained in custody for more than 30 days, there would be an immediate case for release, though this delay might or might not affect the validity of the original order of arrest. But with reference to the arrest itself directly, the only ground on which a Court might quash it appears to me to be absence of reasonable suspicion of the person arrested having done or being seen to do or being about to do a prejudicial act. The High Court of East Pakistan has found that there was no ground for such a reasonable suspicion and in so doing, it has apparently relied upon the grounds furnished for the order under section 17, which, as has been seen belong essentially in a different class of grounds from those necessary for an arrest under section

41. However in its affidavit‑in‑opposition, the Provincial Government had made a statement that on the 16th September 1964, that is, four days before the arrest of Mr. Shaukat Ali Khan, a Police case had been started against Mr. Shaukat Ali Khan and others, under section 7(3) of the Ordinance, for doing a prejudicial act "in connection with, the weekly paper Janata". Section 7(1) prohibits the doing without lawful excuse, of "any prejudicial act" or the making, printing or publishing etc. of documents containing prejudicial reports, or the similar making, printing, publishing etc., of confidential information. A "prejudicial report" is defined in the Ordinance as any report etc., whether true or false of which the publication is in itself a prejudicial act or is an incitement to the commission of a prejudicial act. Basing on the fact that the prosecution under section 7 was in connection with a newspaper, one may assume that the case was one either of printing or publishing a prejudicial report, or of publishing confidential information. It is somewhat regrettable that the Provincial Government should have failed to produce further details of the nature of the publication upon which the case under section 7 of the Ordinance was registered. In the affidavit‑in‑opposition to the writ of habeas corpus brought in relation to the order of detention under section 17, it was said that the "copies of the Janata dated 16‑9‑64 were declared as "prejudical". There seems no doubt that if the High Court had thought fit, it would have been able without difficulty to gain further information on the point of the nature of the publication on which the case under section 7 was based, and in that case resolution of the matter may have been saved from the region of speculation. What the High Court has said in this regard is that the State did not provide any material to enable the Court to determine the reasonableness of the suspicion entertained by the arresting officer. To some extent, this method of approach to the case was justified by the fact that the affidavits‑in‑opposition were altogether too formally worded, being largely confined to statements of admission or denial. But since the High Court had taken up the question that "reasonable suspicion" in relation to the arrest by the Police Officer was a justiciable matter and since the affidavit‑in‑opposition was not drafted to meet such an eventuality, it would have been most appropriate, if the High Court had used its powers to obtain fuller information regarding the Janata case. For the arrest having been made in Dacca and the Janata case having been started in Dacca four days earlier there might have been room for the belief that the arresting officer relying on the fact of the prosecution, had a reasonable suspicion that Mr. Shaukat Ali Khan had been concerned in the doing of prejudicial act, basing upon the fact of the Janata case having been brought under section 7 of the Ordinance, and that the sanction, in so far as related to newspaper publications, did cover matter included within the definition of a prejudicial act. I am of the view that, upon the basis of the Janata case, it should be allowed in favour of the officer making the arrest that he had a reasonable suspicion that Mr. Shaukat Ali Khan had been concerned shortly before his arrest in the doing of a prejudicial act. On the view which I have taken regarding the arrest under section 41 being in the nature of a preliminary precautionary detention preceding the making of a final order of detention, the question whether the detention under section 17 was to be deemed an order of preventive detention wholly distinct from the order of arrest under section 41, does not appear to arise. The precedent cases, where, an order of detention having expired, there followed a period during which the detenu was free of any such order before an order was made extending the previous period of detention, are therefore not relevant to the decision of this case. I may note here that my view is different from that which was adopted by the Law Officers of the State in their attempt to uphold in Court the validity of the two orders made in this case. The State had taken the stand that each order was to be regarded as a separate order for preventive detention and from this standpoint, certain difficulties arose which have furnished the basis of considerable argument before the High Court, and in the judgment of the High Court, but as I, see the purpose of section 41 in relation to that of section 17, action under the former section would probably precede action under section 17 in the majority of cases. It is not always that a person who qualifies for detention under section 17 is one whose activities are fully known to the Provincial Government. In an age when conspiracies against the State and attempts at subversion are a common feature in a great many countries, disclosure is often traced to an accidental discovery by a Police Officer that a certain individual has been behaving in a suspicious manner. If that suspicion were not followed, up, events might take a really serious turn before administrative action to prevent a grave danger could be taken, and therefore, it is in the public interest that the authorities charged with the maintenance of the public security should be empowered to take immediate action by way of arrest of such a person. The condition of such action under section 41 is the formation of reasonable suspicion as to one or more of three matters of a concrete nature, which are specified, and the necessary judgment may thus be appropriately entrusted to individual officers of appropriate status, with experience in such matters, e.g., in dealing with criminals. Once such a reasonable suspicion is established it is entirely reasonable in the public interest that the authorities should be allowed time to make further enquiry with the aid of information received from the prisoner, or from other sources, and to ascertain whether the ground for suspicion in fact existed, and whether it could reasonably be inferred that the potentiality it indicates, if it exists, is such as to require a final order of detention. And the law‑making authority has placed limits on the time which may be taken up for this purpose, to the way that the Criminal Procedure Code limits the period for which an arrested person may be remanded to Police custody for enquiries, prior to the commence ment of a prosecution. As to the extent of these limits, the Courts are not qualified to judge in point of reasonableness. The possibility cannot be overlooked that the enquiries may be extensive, where the person arrested may belong to a large group or organization, and in that view, a maximum period of two months in custody under section 41 cannot be regarded as too long. Where due compliance is made with the machinery provisions, the whole of the period of detention under section 41 is governed, from the judicial point of view, by only one order of detention. In this case the officer making the arrest and the Provincial Government have both acted with great speed, and no question arises that they have used the power under section 41 mala fide. I must not be understood to say that a case may not arise to which the power of arrest under section 41 may be found to have been abused, that is to say to have been employed merely for the purpose of keeping the arrested person out of circulation, if that common place expression might be used, for a period of two months, in the belief that the law gives full liberty to do so. All laws, however circumspectly they may be worded, are capable of being abused. In all circumstances, the restrictions on liberty must be reasonable and the authorities under section 41 must be prepared to satisfy the Court that the length of the detention was reasonable in relation to the facts of the case, but here, the length of detention under section 41 was extremely brief and the case is in my view entirely unsuitable for embarking on an examination of the question, whether section 41 as a whole should be struck down, by reason of giving insufficiently guided powers to the authorities to impose a period of detention extending to 30 days or two months, as the case may be, upon a subject, who might on certain contingencies, be amenable to the ordinary criminal law. In our jurisdiction, all matters of law, howsoever important they might be, even such a matter as the striking down of a law, must be dealt with in relation to the facts of a particular case, and if facts show that the law has been used bona fide, and not colourably for mere oppression, no occasion whatsoever should arise in my opinion for carrying the research behind the facts of the case into the academic field of examination of the validity of the law, as a whole, on general considerations. The habeas corpus petition in respect of the order under section 17 has been allowed on the basis that that order was a continuation of a previous illegal order, and secondly, that it was vitiated by the fact of the grounds of detention furnished to the detenu being so vague as to be insufficient to enable the detenu to make a representation against the detention as provided by the Constitution. With respect to the view of the learned Judges, I am unable to find, as they have done, that the allegations and the grounds are "indeed vague and they give no clear indication the to the charges made against Mr. Shaukat Ali Khan to enable him to make a representation which the Constitution guarantees". It was brought to our notice that a Division Bench of the Dacca High Court in an earlier case of somewhat similar kind that of Fazal Karim(1) (1956) 8 D L R 700 had before it grounds somewhat similar to those in the present case. A single district, namely, Mymen singh was mentioned, and it was said that in the years 1947, 1948 and 1949, in specified months, the detenu had "indulged in prejudicial acts and propaganda among the students, peasants and laborers and incited them against the Government of East Pakistan with the ulterior motive of disrupting the integrity of East Pakistan and to overthrow the Government". The Division Bench considered a number of cases from the Indian jurisdiction bearing upon the questions whether inadequacy of grounds could have the effect of invalidating the order of detention, and came to the conclusion that the question did not arise as the grounds did contain sufficient data to enable the detenu to make an effective representation. The learned Judges differentiated between grounds and facts, and noted that the law did not require that "all the material facts in the possession of the Government should be embodied in the grounds to be served." They observed that it was sufficient that the grounds should be such as were in the opinion of the authority making the order, adequate to enable the detenu, if he so wished, to make a representation against the order. They went on to say that each such case would depend upon its particular facts, and "no hard or fast rules or any standard can be laid down as to the sufficiency of the grounds to be served on a detenu''. The learned Judges of the Bench in this case have not referred to this earlier decision of the Dacca High Court, but have preferred to be guided by a number of decisions from the Indian jurisdiction. In my opinion, the decision of the Dacca High Court in the case of Fazal Karim is one which ought to be approved. It is not every detail in the possession of the Government in respect of a detenu that must be cited in the grounds furnished. In the present case, such details, covering as they must do four districts and seven years of activities, besides alleged participation in the activities of a secret association, would necessarily be very voluminous. I cannot conceive that the intention of the Constitution is that the grounds to be furnished C under Fundamental Right No. 2 (5) should be sec out with the particularity and exactness of a charge in a criminal trial. The districts and the dates being mentioned and the nature of the activities being specified, the detenu if he professed total ignorance would be at liberty to present his first representation in the form of a request for further details from the Government. There is moreover provision in the Constitution for such a case to be placed before an Advisory Board and the Ordinance itself provides that throughout the period of detention the matter should go before the Advisory Board after every three months, so that there are repeated opportunities for consideration of the allegations and for the detenu to meet them. The real issue is whether the mode of expression of the grounds, which are to follow upon the making of an order of detention, can by inadequacy invalidate the detention itself. There may be a case in which no grounds are furnished, and there the question may undoubtedly be raised that for deliberate non‑compliance with a Constitutional requirement, the action of the Government becomes void ab initio. But here the Constitutional requirement has been fulfilled, and a considerable volume of details has been furnished in the grounds, giving a sufficient indication as to the times and the places and also as to the nature of the past prejudicial activities upon which the apprehension of the Provincial Government is founded that if the person in question were left at large, he would be likely to perform further prejudicial acts. After the presentation of grounds, the case becomes one of admission or denial or of asking for further particulars, and I cannot see anything in the Ordinance which bars such processes being gone through during the period of detention, if need be under the authority and supervision of the Advisory Board. But to require that in the very first instance the Provincial Government should make out a complete case with facts and figures of prejudicial acts performed in the past, upon which their apprehension is based, would be to misconceive the whole nature of the law of preventive detention. The matter of representation lies between the detenu and the Government and by way of a safeguard, there is a provision of an Advisory Board before which all necessary information is to be placed, and if not in earlier communications with the Government, at least before the Advisory Board, the detenu would certainly be in a position to seek detailed disclosure regarding the activities imputed to him. I decline to believe that all the allegations set out in the grounds in this case of activities of several different kinds in four districts, during seven years are merely colourable. If I had received the impression that they were fictitious, I would not hesitate to subject them to judicial review, in order to ensure that the restrictions applied to the liberty of a subject were within the contemplation of the law, and were consistent with the requirements of reason or that there had not been a fraud on the statute. I support, with respect, the view expressed by the Division Bench of the Dacca High Court in the case of Fazlul Karim namely, that grounds stated in the form used in that case, which has been followed in material respects in the present case, are grounds in compliance with the requirements of the Constitution. I have already expressed the opinion that there is no question of the order under section 17 being in continuation of the order under section

41. Words to that effect were employed in the order of detention under section 17, but in my opinion, they F operate only to fix the commencement of the detention from the F date of the arrest, namely, the 20th September 1964, in this case. The commencing date is required to be fixed with exactness, for determining further periods, under the relevant provision. As to the argument that the order of detention under section 17 being one of indefinite duration is therefore void, I need only say that such an order is competent under the statute, which does not provide, as earlier statutes of the British period did, that each order of detention should be for a limited term but should be capable of extension. Here, the safeguard is that the case is laid before the Advisory Board once every three months, and the‑ opinion of that Board, which includes a Judge of the High Court, as to the existence of sufficient cause for detention is ‑made, by the Constitution, a condition of the continuation the detention. For these reasons, I think that these appeals should be allowed, but it having been made a condition of their admission that the detenu would not be returned to custody by virtue of the H order under section 17, whatever the result of the appeals, this conclusion would be without effect upon his right to remain a liberty, despite the existence of that order. S. A. RAHMAN, J.‑This order relates to two appeals, Nos. 10‑D and 11‑D of 1964, which have been brought by special leave, by the Government of East Pakistan to challenge the orders passed by the High Court at Dacca on two petitions moved by the respondent, Mrs. Rowshan Bijaya Shaukat Ali Khan. The petitions succeeded in the High Court and Shaukat Ali Khan, the husband of the respondent was directed to be released from detention which he was undergoing as the result of an order passed by the appellant under the East Pakistan Public Safety Ordinance, 1958 (hereinafter referred to as the Ordinance). Special leave was granted to consider the constitutional questions raised subject to the conditions that all the costs of the respondent will be borne by the appellant Government and that the A question of restoring the detention under the impugned order would be excluded altogether, whatever the result of the appeal. The respondent moved her first petition in the High Court on 22‑9‑64 which was registered as Miscellaneous Case No. 96 of 1964. It was recited in that petition that Mr. Shaukat Ali Khan who is a Barrister‑at‑Law, was arrested without a warrant on the 20th of September 1964, at about 7 p.m., at the Tejgaon Airport, by Mr. Khalil‑ur‑Rahman, Inspector of Police, Special Branch, Dacca, purporting to act under section 41 of the Ordinance. The petitioner alleged that her husband had arrived at the Tejgoan Airport from Karachi after attending a meeting of the Combined Opposition of five political parties who had selected Miss Fatima Jinnah as the candidate of the Combined Opposition, for the office of the President of Pakistan, during the impending elections. Shaukat Ali Khan was said to have been detained in the Dacca Central Jail, soon after his arrest. The arrest and detention were impugned as illegal, mala fide and ultra vires the Constitution of Pakistan. In particular, it was asserted that section 41 of the Ordinance was repugnant to paragraphs 1, 2, 5, 7, 8 and 9 of the Constitution. No grounds of the detention in custody had been served on the respondent's husband by the Police Officer and he was not produced before a Magistrate within 24 hours of his arrest. The apprehension was expressed by the petitioner that the authorities might manufacture grounds for converting the illegal custody of her husband, into one of preventive detention under section 17 of the Ordinance. A rule was issued by the High Court on this petition on 22‑9‑64 and the case was fixed for hearing on 28‑9‑

64. On‑the 26th of September 1964, an order was passed by the appellant under section 17 of the Ordinance, purporting to continue the detention; to which the respondent's husband had been subjected under section

41. A second petition was, therefore, filed, assailing the validity of the order under section 17 of the Ordinance, inter alia on the grounds that the impugned order being one in continuation of the illegal order, itself suffered from the same illegality and that the grounds for the detention served by the Provincial Government on the detenu, were vague and indefinite and therefore not in conformity with the relevant constitutional provisions. A second rule was therefore issued on this petition and Miscellaneous Case No. 98 of 1964 was registered on its basis. In answer to the first petition, an affidavit was filed in the High Court, by Mr. A. K. M. Siraj‑ul‑Haq, Special Superintendent of Police, who claimed to be conversant with the facts and circumstances of the case. The allegations in the petition were controverted by this affidavit and it was claimed that the 'arrest and detention were perfectly legal under the Ordinance. It was denied that there was any legal obligation on the authorities concerned to have produced the person detained, before a Magistrate, within 24 hours of his arrest under section 41 of the Ordinance. The suspicion of the petitioner that there may be a scheme to convert the detention in custody ordered under section 41, to one under section 17 of the Ordinance, after manufacturing grounds of detention against the husband of the respondent was specifically repudiated as unjustified. Although it was averred that there were good grounds for the arrest and detention, no particulars of facts on which the opinion was grounded were given. The affidavit in opposition to the second petition was sworn by Mr. M. S. Haq who described himself as a Section Officer in the Home (Special) Department, Government of East Pakistan, Dacca. It was denied therein that the respondent's husband was arrested and detained under section 41 of the Ordinance, for the purpose of facilitating investigation of a case registered at Kotwali Police Station, in connection with a raid on the premises of the Weekly "Janata", conducted on 16‑9‑64, as was alleged by the respondent. With that paper the respondent's husband was connected in a supervisory capacity. The allegation of mala fides was stoutly contested and the other grounds of the petition were also traversed. It was maintained that the order under section 17 of the Ordinance was an independent order and that the provisions of sections 41, 17 and 19 of the Ordinance were intra vires the Constitution. The suggestion of the petitioner that there had been no pre‑existing materials on record, in the possession of the authorities, on the 20th of September 1964, before the arrest of the detenu, was repelled as false. It was also averred that the grounds of detention supplied to the detenu fulfilled the requirements of the law. By a supplementary affidavit, it was clarified by Mr. M. S. Haq, that according to subsequent information received, an, intermediate custody warrant had been issued against the detenu, by the S. D. O., Dacca, on the 24th of September 1964, in respect of the "Janata" case, registered on 16‑9‑64 under section 7(3) of the Ordinance and that the detenu was shown as released on bail in that case, on the 26th September 1964, but detained in Jail as a security prisoner. Before proceeding to examine the legal issues raised in this case, it seems necessary to set out the detention order and the grounds which were; served on the detenu. The order and the grounds of detention are reproduced below:‑ ORDER No. 1372 H. S. dated Dacca, the 26th September 1964. Whereas the person known as Mr. Shaukat Ali Khan alias Nanku Miyan, Bar‑at‑Law son of Late Arfan Khan of Lashati, P. S. Nagarpur, District Mymensingh and of 3/8 Liaquat Avenue (formerly Johnson Road, Dacca) is detained in the Dacca Central Jail under the provision of section 41 of the East Pakistan Public Safety Ordinance, 1958 (East Pakistan Ordinance No. LXXVIII of 1958). And whereas having considered the materials against the said person the Governor is satisfied that, with a view to preventing the said person from acting in any manner prejudicial to the public safety and the maintenance of public order, it is necessary to make the following order for the purpose of continuing his detention: Now, therefore, in exercise of the powers conferred by clause (a), subsection (1) of section 17 of the said Ordinance, the Governor is pleased to direct (a) that the said person shall, subject to the provisions of section 19‑A of the said Ordinance be detained until further orders; (b) that subject to the provisions of clause (a) of this paragraph the said person shall until further orders continue to be detained in the Dacca Central Jail; and (c) that ,during such detention the said person shall be subject to the conditions laid down in the East Pakistan State Prisoners Rules, 1956. By order of the Governor (Sd.) (Illegible) Section Officer to the Government of East Pakistan. In pursuance of section 19 of the East Pakistan Public Safety Ordinance 1958 (East Pakistan Ordinance No. LXXVIII of 1958) you Mr. Shaukat Ali alias Nanku Miyan, Bar‑at‑Law son of late Irfan Khan of lawati, P. S. Nagarpur, District Mymensingh and of 3/8 Liaquat Avenue (formerly Johnson Road, Dacca) at present detained in the Dacca Central Jail, under Order No. 1372‑H. S. dated the 26th September 1964, made under clause (a) of subsection (1) of section 17 of the said Ordinance, are hereby informed that your detention has been considered necessary on the following grounds:‑ "(1) That you have been and are associated with the illegal activities of a secret association in the districts of Dacca, Mymensingh, Bogra and Jessore and that during the. years 1957, 1958, 1959, 1961, 1962, 1963 and 1964 (till your arrest and when you were not in jail) you were concerned in prejudicial activities in the districts of Dacca, Mymensingh, Bogra, Jessore and that particularly in the months of July, August and October 1957; February, April, May, June, August, September, 1958; February; June, July, November, 1959; April and July 1961, May, June, August and November 1962; April, July, August, October and November 1963; February, March, May, June and September 1964; (till your arrest and when you were not in Jail) you carried on prejudicial acts and propaganda against the Government among the people including the students and peasants with the ulterior object of disrupting the stability or integrity of the Province of East Pakistan and exciting disaffection towards the Government established by Law. Furnishing of any more facts and particulars than those given above would be against public interest. (2) That all your activities mentioned above threaten and are likely to endanger the maintenance of public order and public safety in this Province. (3) You are further informed that you have a right to make a representation in writing to this Government against the order of detention made against you, and should you wish to do so, you should send the representation to the undersigned through the D. O. G. of Prisons, Dacca Central Jail, where you are at present detained. By order of the Governor Section Officer, Government of East Pakistan Home (Special) Department Dacca." The High Court found that if section 41 was to be regarded as a law providing for preventive detention, it was ultra vires para. 2 (5) of the Fundamental Rights guaranteed by the Constitution, in so far as it did not provide for communication of grounds of deten tion to the detenu. It was also held to be repugnant to para. 5 of the 'Fundamental Rights as its provisions amounted to unreasonable restriction on the right of freedom of movement of a citizen throughout Pakistan. If, however, in the alternative, it was not law relating to preventive detention, it was hit by Sub‑paras. 1 and 2 of para. 2 of the Fundamental Rights, in the opinion of the High Court. The order of detention in custody passed under section 41 was further held to be bad as no material was placed before the Court to make out that the arresting officer had entertained a reasonable suspicion about the alleged prejudicial activities of the detenu. The order of detention passed by the Provincial Government under section 17 of the Ordinance was declared to be invalid on the two‑fold basis that it merely extended an order of illegal custody passed under section 41 and that the grounds furnished to the detenu to enable him to make a representa tion were too vague and indefinite to satisfy the requirements of sub‑para. 5 of para. 2 of the Fundamental Rights. No firm opinion was, however, expressed on the allegations of mala fides raised on behalf of the detenu. As 4 result of these findings the detenu was ordered to be released forthwith. The Ordinance seems to be a comprehensive legislation dealing with several matters relating to public safety, the maintenance of public order, the suppression of prejudicial acts endangering communal harmony or the safety or stability of the Province and the maintenance of supplies and services essential to the life of the community. A "prejudicial act" has been defined comprehensively in the Ordinance to include a wide range of activities. Beside acts endangering communal harmony, public safety or public order, assistance in the illegal possession or acquisition of arms, explo sives, corresive substances, interference with recruitment to a police force, the spreading of hatred, contempt or disaffection against the Government established by law, interference with means of trans port or locomotion, incitement of strikes, hoarding and smuggling etc., fall within the purview of the definition. Several offences are created by the Ordinance, triable, on the complaint of a public servant and punishable with varying sentences of imprisonment, in respect of the commission of a prejudicial act or the contravention of any provision of or an order passed under the Ordinance. Subsection (1) of section 17, of Chapter III of the Ordinance empowers 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, to 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 b 'n any such area or place in East Pakistan as may be specific m the order; (c) requiring him to reside or remain in such place or within such area in East Pakistan as may be specified in the order and if he is not already there to proceed to 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 as 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 move ments, 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 r 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. Subsection (2) of this section enacts that an order made under sub section (1) may require the person in respect of whom it is made, to enter into a bond, with or without sureties, for the due perform ance of or as an alternative to the enforcement of, such restrictions or conditions made in the order as may be specified in the order. Then follow other provisions to cover cases of persons absconding or concealing themselves to avoid execution of the order, the places where they may be detained and other consequential matters. Section 19 requires that where an order of detention has been made under clause (a) of subsection (1) of section 17, the authority making the order shall communicate to such person, the grounds of his detention, at the time he is detained or as soon thereafter as is practicable. Sections 19‑A, 19‑B, 19‑C and 19‑D make provision for reference of the question of sufficiency of the cause for detention to an Advisory Board consisting of a Judge of the High Court, to be nominated by the Chief Justice and another senior officer in the service of Pakistan, to be nominated by the Governor, if the detention is ordered for a period longer than three months,. within three months of the first date of detention. The person affected may be permitted or required by the Board to attend in person before it, but he will not be permitted to produce any witnesses before the Board. On receipt of a report from the Board, the Provincial Government may confirm the order of detention and continue the detention of the person in question for such period as it thinks fit. A proviso adds that the Provincial Government and the Board shall review all such orders once in every three months from the date of such orders, unless revoked earlier and the Provincial Government is under an obligation to inform the person affected by the order, of the result of such review. If the Board finds that there is no sufficient cause for the detention of a person, the ProvIncial Government must rescind the order of detention and release the person in question forthwith. The last Chapter of the Ordinance is Chapter VIII which is headed as "SUPPLEMENTARY AND PROCEDURAL". This contains section 41 which reads as, follows:‑ "41. (1) Any police officer not below the rank of Sub‑Inspec tor 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 pre judicial 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 Govern ment may, by general or special order, specify: Provided :‑ (i) that no person shall be detained in custody under this sub section 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 sub section for a period exceeding two months. (3) 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) the proviso to sub section (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, resi dence or any other matter concerning him as may appear to the Provincial Government in the circumstances of the case to be reasonable or necessary." Article 2 of the Constitution of Pakistan solemnly declares that to enjoy the protection of law and to be treated in accordance with law, and 'only in accordance with law, is the inalienable right of every citizen, wherever he may be, 'and f every other person for the time being within Pakistan. Inter alia, it particularizes that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Part II, Chapter 1, of the Constitution, incorporates the Fundamental Rights. Article 6 of this Chapter lays down the paramount rule that any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. The State is further precluded from making any law which takes away or abridges the rights so conferred and any law made in contravention of this clause to the extent of such contravention, would be void. Clause (3) of this Article contains savings in respect of law relating to members of the Defence Services or forces charged with the maintenance of public order and the laws specified in the Fourth Schedule to the Constitution. The Funda mental Rights then follow, enumerated in several paragraphs. Paragraph 1 relates to security of person and provides that no, person shall be deprived of life or liberty save in accordance with law. Paragraph 2 is headed "Safeguards as to arrest and deten tion" and may be reproduced in extenso. It runs as follows:‑ "

2. Safeguards as to arrest and detention.‑(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty‑four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody, beyond the said period without the authority of a Magistrate. (3) Nothing in sub‑paragraphs (1) and (2) shall apply to any person:‑ (a) who for the time being is an enemy alien ; or (b) who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorize the detention of a person for a period exceeding three months unless the appropriate Advisory Board has reported before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention. Explanation.‑In this sub‑paragraph, "the appropriate Advisory Board" means,‑ (i) in the case of a person detained under a Central Law, a Board consisting of a Judge of the Supreme Court, who shall be nominated by the Chief Justice of that Court, and a senior officer in the service of Pakistan, who shall be nominated by the President ; and (ii) in the case of a person detained under a Provincial Law, a Board consisting of a Judge of the High Court of the province concerned, who shall be nominated by the Chief Justice of that Court, and a senior officer in the service of Pakistan, who shall be nominated by the Governor of that Province. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order; Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose." Paragraph 5 concerns freedom of movement and is couched in the following terms :‑ "Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Pakistan and to reside and settle in any part thereof." The validity of arrest and order of detention under section 41 of the Ordinance was assailed by the first petition in the High Court, on behalf of the detenu. This section only authorizes a Police Officer of the requisite rank to arrest a person whom he reasonably suspects of having done or of doing or of being about to do a prejudicial act. Whether the suspicion was reasonable E or not, is, in my opinion, a justiciable question. The arresting officer therefore had to satisfy the Court that he entertained his suspicion against the detenu on reasonable grounds. The provisions of section 41 of the Ordinance appear to have been based on similar provisions occurring in the Defence of India Rules, which were framed as an emergency measure, during war‑time, by the then Government of India, in 1939. Rule 129 of these Rules empowered a police officer, to arrest without warrant, a person whom he reasonably suspected of having acted etc., in a manner prejudicial to the public safety or to the efficient prosecution of the war. The officer making the arrest was required to make a report forthwith to the Pro vincial Government and pending the receipt of orders of that Government to commit the person arrested to such custody, as may have been specified by general or special orders by the Provincial Government. This detention in custody, was not to exceed 15 days without the orders of the Provincial Gov ernment and even with such order, it was not to go beyond two months. On receipt of the report of the arresting officer, the Provincial Government was empowered to pass final orders as to the effected person's detention, release, residence or any other matter concerning him, as may be considered reasonable or necessary, under any law for the time being in force. Rule 26 empowered the Central Government or the Provincial Govern ment, if it was satisfied with respect to any particular person, with a view to preventing him from acting in any manner prejudicial to the Defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or the Indian States, the maintenance of peaceful conditions in tribal areas, or the efficient prosecution of the war, that it was necessary so to do, to make an order that he may be detained. It will thus be seen that there is a close parallel between the provisions of sections 17 and 41 of the Ordinance) and rules 26 and 129 of the Defence of India Rules. The true construction of the words "reasonably suspects" occurring in rule 129 of the Defence of India Rules, fell to be considered by the Privy Council in Emperor v. Vimalabai Deshpande (1‑) A I R 1946 P C

123. It was held by their Lordships that the burden rested upon the arresting officer to show that his suspicion was reasonable. Reference in the course of that judgment was made to Liversidge v. Anderson (2) 1942 A C 206 and that case was distinguished on the ground that the authority empowered to arrest under the Defence of the Realm Act, was a high officer of the State, namely, the Home Secretary and not a mere police officer and the House of Lords, while deciding that case "was impressed with the obvious inconvenience and danger to the public, which might ensue if the Home Secretary was bound to disclose confidential informa tion on which he had acted." The words that fell to be construed in Liversidge v. Anderson were "reasonably satisfied" and they were held to signify only the personal satisfaction of the Home Secretary. It may be added that the construction in question was adopted in connection with a war‑time measure. We are here dealing with peace‑time legislation and though questions of security of the State or public order may involve at times, considerations of a confidential character and of the greatest urgency, yet it would be difficult to uphold a construction which jeopardizes the precious right of personal liberty of a citizen, during peace‑time, on the mere ipse dixit of a police officer. I am therefore in agreement with the High Court in holding that in the present case it lay on the arresting officer to justify the arrest by revealing reasonable grounds such as could satisfy the c judicial conscience. The learned Advocate‑General of East Pakistan who argued the case on behalf of the appellant, could urge no cogent argument against the acceptance of this view. From what has been stated above, it is plain that no attempt was made by the arresting officer or by his superior officer who filed an affidavit-in‑opposition to the first petition of the respondent, to give any reason for the arrest beyond merely reiterating that the arrest was justified under the law. No grounds were specified as to why the suspicion had been entertained by the Inspector against the detenu. The arrest therefore was bad from the very inception and this has an important bearing on what follows. The learned Judges of the High Court were apparently of the opinion that section 41 of the Ordinance was ultra vires sub para. (5) of para. 2 of the Fundamental Rights in so far as it did not incorporate its provisions. The soundness of this view has been contested before us on behalf of the appellant. With respect, it seems to me that the learned Judges were in error in thinking that this constitutional provision was an organic law which laid down principles of legislation to be followed, or qualifications to be fulfilled, by a statute before its validity could be established. On the contrary, the sub‑para. in question clearly, F itself enacts positive law, effecting preventive detention, which must be read as supplementing the provisions of any statute of a sub‑constitutional kind, existing in the same field. That a Constitution may contain such laws, was pointed out by this Court in Abdul Aziz v. The Province of West Pakistan (1) P L D 1958 S C (Pak.) 499 . It is the appellant's case that section 41 of the Ordinance constitutes a law relating to preventive detention. If that be so, sub‑para. (5) of Fundamental Right 2, undoubtedly made it incumbent on the authority concerned to communicate to the person affected, the grounds on which the order had been made for his detention, as soon as may be. . The affidavits filed on behalf of the Provincial Government show that the authorities were in possession of the relevant facts even before the arrest. No grounds of the arrest however were served on the detenu from the 20th till the 25th of September 1964. It was only on the 26th September when the order of his detention was passed by the Provincial Government, that he was served with a notice specifying the grounds of his detention. In the circumstances of this case, it cannot be said, therefore, that any grounds for the initial detention, had been given. The subsequent grounds sent by the Government related to the detention order passed by itself. The determination of grounds had to precede the order of deten tion and ex hypothesi no such determination had taken place before the Government had applied its mind to the report of the Inspector. This would also be sufficient to invalidate the first arrest and detention in custody, in the circumstances of this case. Mr. Mahmud Ali on behalf of the respondent strongly contested the assertion that section 41 of the Ordinance must be described as a law relating to preventive detention. In a general sense it may be perhaps so regarded. It was indeed suggested that this section was ancillary to section 17 of the Ordinance in so far as it provided an interval of time, during which the Provincial Government could make up its mind, whether it should pass an order of detention under section 17 or not. The language of section 41 may accord with that suggestion but it does not necessarily follow that section 41 should be deemed to be a law itself providing for preventive detention. The section, in terms, contemplates a distinction between its provisions and any law for the time being in force, under which a final order as to his detention, release, residence, etc., could be passed. It is significant that section 41 does not use the words "preventive detention" or "detention" simpliciter, in connection with the powers of a police officer, but that it talks of "detention in custody" only, which is apparently to be of a tentative character. It is no$ the police officer who can pass an order of detention under section 17. "Detention" is only to follow, if at all, on the conclusion of deliberations by the Government under some other law enabling it in this behalf. It is as if someone in authority said to a person, "I am not in a position to decide immediately whether you are a bad man. Let me have. a month or two to decide one way or the other. In the meantime, you, shall not move out of a magic circle I have chalked out for you". May the person not turn round and say, "Leave me alone till you have decided"? The Government may eventually come to the conclusion that there is no substance in the report made by the police officer and no justification exists for a detention order. Unless a competent authority has first reached the conclusion that grounds for detention in fact exist, how carp it be postulated that the custody to which the person concerned is subjected, amounts to preventive detention of the kind contemplated by the Constitution? The period of detention in custody under section 41 seems to be akin to a period of incubation, at the end of which it may be discovered that far from a chicken being hatched, even the egg is non‑existent. This interim custody may be followed only by a prosecution for an alleged prejudicial act of which the person concerned may be accused and the position would then be akin to mere pre‑trial custody. Consequently, there appears to be some force in the contention raised by Mr. Mahmud Ali, on behalf of the respondent, that section 41 is not a law providing for preventive detention within the meaning of that phrase occurring in sub‑para. (5) of para. 2 of the Fundamental. Rights. If that contention is upheld, action taken under it must, in the alternative be judged in the light of sub‑paras. (1) and (2) of para. 2 of the Fundamental Rights. These sub‑paragraphs an obligation on the authority making the arrest or detaining a person in custody, to produce him before the nearest Magistrate within a period of 24 hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Court and to inform him about the grounds of arrest, as soon as may be. These grounds have to be communicated to the person concerned within the period mentioned in sub‑para. (2), as otherwise the arrested person would not be able to make a representation in his defence, when he appears before the Magistrate. In the present case, neither the detenu was produced by the arresting inspector before a Magistrate nor was he informed by him of the grounds of his arrest. The action taken, therefore, on this alternative view, transgressed the clear provisions of sub‑paras.(1) and (2) of para. 2 of the Fundamental Rights and could not be upheld as legal. So, from whichever point of view the matter is looked at, the initial arrest and detention in custody are found to have been vitiated by illegality. Mr. Muksumul Hakim, the learned Advocate‑General for East Pakistan, relied on certain decisions from the Indian Jurisdiction for the proposition that in cases of preventive detention, the right of free movement throughout Pakistan subject only to reasonable restrictions, cannot be invoked. Their relevancy to the point at issue appears to be doubtful, if it be held that section 41 is not a law relating to preventive detention, in the context of our fundamental rights. It seems to be a law providing for a kind of ad interim custody which may or may not be followed by a detention order or even by a prosecution for an alleged offence. The arrest may be made not only to prevent the perpetration of a prejudicial act but also the Police Officer may arrest under this section, a person who has already committed such an act, according to a reasonable suspicion. A person so detained lives in a mixed state of hope and fear as to his future. He is, so to speak, in a kind of. legal purgatory, which can neither be considered as an integral part of the paradise complete freedom the corrective penitentiary of detention. Placing as it does, a curb on the liberty of a citizen to move about freely, without there being a guarantee of his being produced before a Magistrate or even being told of the reasons for arrest, for a period which may extend to 2 months, it would seem at first sight to involve a transgression of the provisions of para. 5 of the Fundamental Rights. By way of contrast, it may be mentioned that under the Defence of India, Rules, a war‑time measure, the authority of an arresting officer to detain a person in custody, could not exceed 15 days whereas under the impugned section 41, a police officer could retain a person in custody for a whole month under his own power, without incurring any penalty. It may also be noted that no fundamental rights existed during the time that the Defence of India Rules prevailed in India, as it then was. Of course, an individual cannot enjoy absolute liberty in an organized society. But the framers of the Constitution evidently tried to strike an equitable balance between the rights of the individual and the interests of collective security and formulated certain legal norms for the limitations imposable on personal liberty. The sub‑constitutional laws must be confined within the sphere of those legal norms, when they seek to circumscribe individual freedoms. A custody of the character envisaged by section 41 of the Ordinance, if this section is considered in isolation from the provisions of the Code of Criminal Procedure or those of sub‑paragraph (5) of paragraph (2) of the fundamental light can not scribed as falling within any reasonable restrictions on the right of free movement guaranteed by para. 5 of the Fundamental Rights. But on the view I have taken of the effect of sub‑paragraph (5) of paragraph 2 of the Fundamental Rights that constitutional provision must be deemed to be a part of the law contained in section 41 and if they are read together, it would be difficult to maintain that unreasonable restrictions on the right of free movement of a citizen had been placed by this measure within the meaning of paragraph 5 of the Fundamental Rights. If, however, the officer concerned fails to follow the provisions of sub‑para. (5) of para. 2 of the Fundamental Rights, his action may be challenged as illegal but the law would not be invalidated. I now come to the consideration of the question whether the order of detention passed by the Provincial Government itself suffered from any infirmity or not. The order has been invalidated by the High Court for two reasons. Firstly, it has been held tat the grounds furnished to the detenu were not adequate sufficient to enable him to make a representation against the order and secondly that the detention order itself was illegal a it purported to extend a previous illegal order of detention he learned Advocate‑General for the Province of East Pakistan contended before us that the order passed by the Provincial Government under section 17 was an independent order and the wads used in the order itself, indicating that the Governments purpose was to continue the previous detention, were merely a loose expression which should be disregarded. Preventive detention, however, makes an inroad on the persona liberty of a citizen without the safeguards inherent in a formal trial before judicial tribunal and as has been observed above it must be jealously kept within the bounds fixed for it by the Constitution and the relevant law. That there is a substantial distinction between a fresh order of detention and one extending a previous illegal order of detention, was brought out clearly in a judgment f the Federal Court, in the case of Arbab Muhammad Hashem Khan on behalf of Arbab Abdul Ghafoor Khan and another t v. The Crow (1) P L) 1954 F C. On the face of it the order of detention purports meely to extend the previous detention which has been found to be illegal and consequently the subsequent order of detention must also be held to be vitiated. The detaining authority must be held bound by its own expressly avowed purpose in passing the order. The question of sufficiency of the grounds furnished to the detenu may be examined. Our attention has been invited in this connection to two judgments of the Dacca High Court reported as fahbub Anam v. The Government of East Pakistan(2) P L D 1959 Dacca 774 and Sardar Fazlul Karim v. Government of East Pakistan(3) (1956) 8 D L R 700 . It is curious hat in those two cases, the grounds furnished to the detenus, was almost in the same terms as the grounds furnished to the detenu in the present case, except for some changes of months or years. The coincidence strongly suggests the existence of a stereotyped form of the order in accordance with a set formula which might be divorced from reality. In Fazlul Karim's case a Division Bench of Ispahani and Murshed, JJ. held that the grounds applied to the detenu were not open to any objection. In the other case of Mahbub Anam it was decided that it was not possible o lay down any hard and fast rule as to what the grounds should contain, in order that the detenu may be able to make a presentation. It was, however, added that in a particular case if the grounds of detention were found to be too vague and indefinite, to enable an effective representation to be made, the detenu would be entitled to be released. In that case, actually, as a subsequent order of detention had been passed, the petition of the detenu was held to be infructuous. With respect, it seems to me that the grounds specified in that instant case, almost identical though they may be with those Lu Fazlul Karim's case, could not be accepted as sufficient compliance with the provisions of sub‑para. (5) of para. 2 of the Fundamental Rights of the Constitution. The nature of the prejudicial activities which the detenu is said to have indulged in, in the districts of Dacca, Mymensingh, Bogra, Jessore during the period of time extending from 1957 to 1964, is not at all particularized nor are the illegal activities or even objectives of the alleged secret association, with which the detenu is said to have been associated during that interval, of time, specified. It is not possible to infer why the activities of that association were illegal from the material furnished in the grounds. As may have been noticed, a "prejudicial act", as defined in the Ordinance, can assume a variety of forms and unless a person is informed as to which of the prejudicial activities out of the so many mentioned in the definition of that term, he is supposed to have been guilty of, it is impossible for the person concerned to offer any comments in his defence. In the end of the first paragraph it is also mentioned that the detenu had carried on propaganda against the Government, among the people, including the students and peasants, with the ulterior object of disrupting the stability or integrity of the Province of East Pakistan and exciting disaffection towards the Government established by law: The contents of the propaganda, literature or speeches if any, indulged in by the detenu, are not indicated, either by reproducing offending passages or even by giving their gist or substance. In a democratic system of Government it is the right of any party not in power to criticise measures adopted by the Government, in order to discredit it in the public eye, so as to oust it from power by constitutional means The ground given apparently contemplates that the ostensible object of the propaganda in question was not the disruption of the stability or integrity of the Province or the exciting of disaffection towards the Government established by law but that this may have been the ulterior object. This makes the ground still further vague and indefinite. It leaves one guessing as to what views the detenu might have disseminated, whether they fell within the purview of legitimate criticism of Government policies or whether they really amounted to an attempt at subversion of the Government established by law, by unconstitutional means. It is true that under sub‑para. (5) of para. 2 of the Fundamental. Rights, the authority making the detention order, may refuse to disclose facts whose disclosure is regarded as against the public interest. But even this reservation implies that other facts to which no such objection applies, must be disclosed. This was the construction which was adopted in a judgment of the High Court‑ of West Pakistan published as Ch. Muhammad Anwar v. Government of West Pakistan (1) P L D 1963 Lah. 109 and it seems to me, rightly. What facts can be revealed will, of course, depend upon the circumstances of each case. But they must, in any event, be such as would enable the person in question to make an effective representation as a total suppression of all material facts would render the constitutional safeguard illusory. The very object of making a provision for the detenu making a representation, in the Constitution, would be defeated if he is to be told that Government has in its possession grounds for his detention none of which it could reveal and he might if he chose, make a representation as best as he can. The detenu being absolutely in the dark about the reason of his incarceration could only stand and stare and say nothing. In the instant case, the detenu seems to have been proceeded against in a criminal Court in respect of a "prejudicial act", said to have been committed in running a weekly paper "Janata", immediately before his detention. If he had been guilty of similar "prejudicial acts", right from 1957, it is surprising that no attempt was made to prosecute him for them, though they possibly constituted grave offences under the Ordinance, punishable with varying terms of imprisonment. Suddenly in 1964, the cumulative effect of his sins, appears to have culminated in his detention. In the circumstances, I have formed the firm opinion that the grounds furnished to the detenu fall far short of the clear implications of sub‑paragraph (5) of para. 2 of the Fundamental Rights. Mr. Maksumul Hakim pressed into service certain observat ions made by the House of Lords in Greene v. Secretary of State for Home Affairs (1) 1942 A C 284 to support his thesis that the grounds furnished in this case were not exceptionable. In that case, the Home Secretary had made an order for the detention of the appellant stating therein that he did so, because he had reasonable cause to believe the appellant to be "a person of hostile associat ions". The authenticity and good faith of the Home Secretary's order were not impugned in that case and the ground mentioned therein was held to constitute a complete answer to an application for a writ of habeas corpus on the part of the detenu. It was observed that no affidavit by the Home Secretary justifying his cause of belief was necessary and relying on the decision in Liversidge v. Anderson, it was held that the question of reasonable ness of the cause was not justiciable. It is enough to say that the case relied on, pertained to a war emergency and the detaining authority was no less a person than the Home Secretary. 1t is significant that no law of preventive detention exists in England for peace‑time exigencies. I am not therefore, prepared to base any conclusion on the observations in Greene's case. The provisions of the Constitution must be given a liberal construction so as to safeguard fully the fundamental rights guaranteed to every citizen There is also some force in the contention raised by Mr, Mahmud Ali on behalf of the respondent that the order of, detention, in order to be legal, has to be for a specific period and' not for an indefinite period as in the present case. The Government ordered detention of Mr. Shaukat Ali Khan "until further orders" in the instant case. The contention may be supported by reference to the language of sub‑para. (4) of para. 2 of the Fundamental Rights, which lays down that no law providing for preventive detention shall authorize the detention of a person for a period exceeding three months, unless the appropriate Advisory Board has reported, before the expiration of the said three months, that there is, in its opinion, sufficient cause for such detention. Evidently, what is contemplated by the Constitution is a detention for a period and the necessity of consultation with an Advisory Board is insisted upon, where the period exceeds three months. If a detention order is to enure "until further orders", it may not be known till the 90th day of detention whether it is likely to exceed three months if Government chooses to postpone the consideration of its extension till that day. Section 19A of the Ordinance uses similar expression as sub‑para. (4) of para. 2 of the Funda mental Rights. The authority making the order had to make a reference to the Board within three months from the first date of the detention of the person concerned. The same inference is supportable from the language employed in section 19D of the Ordinance, which authorized the Government to continue the detention of a person for such period as it thinks fit. The order impugned in the instant case, therefore, is defective on this ground also that it specifies no period of detention but leaves it uncertain. Mr. Mahmud Ali's argument that the Board cannot offer a definite opinion as to the sufficiency of the cause of detention unless a specific period of detention has been mentioned) may not be a very cogent consideration, but the indications in the Ordinance, themselves favour the conclusion that it contemplates a detention order for a specific period. I am unable to accede to the argument advanced on behalf of the respondent that subsection (2) of section 19C of the Ordinance, in so far as it shuts out the production of witnesses by the detenu before the Board, is ultra vires the Constitution. The argument is based on the absence of any fetters on the power of the Board, specified in the constitutional provisions. But no procedure to be followed by the Board having been laid down in the Constitution, I apprehend that the Provincial Government would be at liberty to legislate on that matter and so long as the procedure prescribed, does not make the right of representation to the Board illusory, it must be upheld as a legitimate exercise of legislative power. From its very nature, an order of detention cannot be permitted to be challenged in the manner in which an accusation for a crime can be brought under scrutiny in a criminal trial. The insistence on the rights of the detenu to produce witnesses before the Board would convert the proceed ings before the Board which is not a purely judicial tribunal, into a full‑fledged trial which is obviously not contemplated either by the Constitution or by the Ordinance. The order of the High Court directing release of the detenu was, in my opinion, amply justified, on the facts of the case. I would therefore dismiss the appeal. A prayer has been made on behalf of the appellant to relieve it of the condition imposed on it, at the time of admission of the appeals, to the effect that the appellant will pay the costs of the respondent. No good reason has been furnished why that condition should now be waived. I therefore see no ground to review our previous order in that respect. FAZLE‑AKBAR, J.‑I agree. B. Z. KAIKAUS, J.‑I will first take up the question as to whether section 41 is a provision relating to preventive detention. I see no ground for not interpreting the expression "preventive detention" in its ordinary sense for the established rule of M interpretation is that words should be construed in their ordinary sense unless they have acquired a technical sense and there is nothing to show that this expression has acquired a technical sense. Mr. Mahmud Ali did contend that it had acquired a technical sense, but I asked him to ' give me a definition of "preventive detention" according to that technical sense and he was unable to give me any such definition. Nor did he refer to any statute wherein the expression was used in a technical sense. In its ordinary sense the expression means detention the object of which is to prevent the doing of an act. Whatever the circumstances under which detention is ordered and whatever the act which is sought to be prevented if the detention is not a punishment for what the person concerned has already done, but a means for preventing an act it is preventive detention. It was urged that this is not preventive detention, but a kind of interim detention for the period during which the Provincial Government makes up its mind as to whether an order for preventive detention is to be passed. It is true that detention under section 41 is a detention for a period during which the Provincial Government has to pass orders, but that does not mean that it is not preventive detention for the object of deten tion, even during this period is to prevent the commission of a "prejudicial act". The Government may ultimately find ' an order of further detention unnecessary, but during the time that it is making an enquiry a risk cannot be taken by allowing the person concerned to remain at large. To me it appears that the provision under discussion is a very reasonable one. If a Sub‑Inspector of police finds that a person is going to blow up a bridge and physically stops him from doing so should he then permit that person to remain at large just because he himself is not regarded by the Legislature as the proper authority to pass a final order of detention? The Legislature has granted powers of passing final orders of detention to the Government. Now if it comes to the knowledge of a lower authority that there is an immediate danger from some person of an act of sabotage then should that person be permitted to remain free till the Government passes the order? The order of detention may in that case be wholly useless for the act of sabotage may have been committed before the , order of detention is passed. It was necessary therefore to make a provision in such cases for interim detention pending orders of the Provincial Government. There was some suggestion at the hearing that the police has powers under the ordinary law to prevent , the commission of an act and there was no need of a provision like section

41. This suggestion is based on a misapprehension. The only power granted to the police for arrest ing and detaining a person in order to prevent the commission of an offence is that granted by section 151 of the Criminal Procedure Code. This power may be almost useless for the prevention of an act of sabotage for the person arrested has by virtue of section 61 of the Criminal Procedure Code to be produced within a reasonable time, not in any case exceeding twenty‑four hours, before a Magistrate and the Magistrate is bound, in accordance with section 496, Cr. P. C. to release him on bail. The amount of bail has to be in accordance with the status of the person concerned. It should be clear therefore that ordinary powers of the police are insufficient for keeping in custody persons from whom prejudicial acts are apprehended. One matter has to be clarified here. It was argued at the hearing that the orders of the Provincial Government which subsection (3) of section 41 envisages include an order passed by the Government for the prosecution of the detenu. I am unable to accept this contention. Subsection (3) speaks of "such final order as to his detention, released . . . . . . . . . . . etc. in exercise of any power given by any law for the time being in force". There is no statute under which the Provincial Govern ment can pass an order of prosecution for an offence under the East Pakistan Public Safety Ordinance. Under section 42 of the Ordinance cognizance of contravention of provisions of the Ordinance is to be taken on "receipt in writing of the facts constituting such contravention made by a public servant". The Government is not a public servant and it cannot itself send a statement .of facts under section

42. If it tells any of its subordi nates to send such a statement it does not act under any statute nor is such an order a "final order" for detention, release, etc. The final orders covered by subsection (3) are orders which the Government may pass under section 17 of this Act or under some similar statutory provision. Having held that section 41 contains a provision relating to preventive detention the next question to consider is whether the section or any part of it is void on account of inconsistency with Fundamental Right No. 2, because of its failure to provide for service of grounds of detention on the detenu. The argument on behalf of the Government is that para. (5) of Fundamental Right No. 2 does not invalidate the law relating to preventive detention and only makes a provision for the protection of the detenu. If grounds are not served in accordance with para. 5 the detention would, it was urged, become illegal but the law would not be invalidated. I am of the opinion that section 41 is invalid to the extent to which it contains a necessary implica tion that detention without serving of grounds is valid. A necessary implication is as much law as an express provision. h Section 41 necessarily implies that an order of detention is valid without service of grounds. Before the fundamental rights were incorporated in the Constitution an order without service of grounds was valid. It was valid because it was an implication of section 41 that such an order would be valid. That implica tion is invalidated in the same way as an express provision would be. Suppose section 41 contained the following express provision: "An order of detention under this section will be valid though grounds of detention have not been served on the detenu". When the Fundamental Rights were incorporated into the Constitution this provision would become void. If then the provision was not there in express words, but was there by necessary implication would it not become void? That which is law by necessary implication has no less force than that which is law by express enactment. However my opinion that section 41 is inconsistent within fundamental rights to the extent of the necessary implication is not of any help to the respondent. A Statute which conflict with a fundamental right is void only to the extent of the inconsis tency and if it cannot be said that on account of invalidity of a part the Statute has become unworkable it should stand. Here no question of its becoming unworkable arises. There was an implication which has disappeared. Grounds can be served as directed by the Constitution. So the law remains valid. Only, if grounds of detention are not served, the detention will become invalid. In the present case grounds had not been served at the time of the arrest under section 41 and the detention under that arrest became invalid. The next question I would deal with is the applicability of Fundamental Right No. 5, that is, the right of freedom of movement. It is urged on behalf of the respondent that an order of preventive detention can be held invalid even on the ground that it violates the right of freedom of movement. In accordance with Fundamental Right No. 5 every citizen has the right to move freely throughout Pakistan and to reside and settle in any part thereof subject to any reasonable restrictions in the public interest. It is contended that when a person is detained his right of freedom of movement is interfered with and it must be shown before the detention is held to be valid that it was a reasonable restriction on the right of movement, in the public interest. This argument is attractive because in Fundamental Right No. 2 there is no provision as to the reasonableness of the grounds of detention whereas if Fundamental Right No. 5 also becomes applicable then the grounds would have to be reasonable. But if it be h81d that an order of preventive detention does not become valid merely by satisfying the requirements of Fundamental Right No. 2, the result will be that its validity will have to be determined not only with reference to right No. 5, the right of free movement, but also with reference to all other Fundamental Rights mentioned in the Constitution. A person against whom an order of preventive detention is passed should on this view be entitled to urge that his rights of freedom of assembly, freedom of association, freedom of trade business and profession and freedom to profess religion are also being violated and unless the order of detention fulfills the conditions laid down in all these fundamental rights it should be held to be void. However it will become obvious that it is not possible to give effect to all these fundamental rights in a case of detention. To take only the example of freedom of religion which is Fundamental Right No. 10 the detenu can contend, that by his detention his right to profess, practice and propagate the Muslim religion is being violated. Fundamental Right No. 10 assures to every citizen the right to profess, practise and propagate any religion. The Muslim detenu can say that he wants to say his ordinary prayers in a mosque and his Juma prayers in one of the Jamia mosques of the town, that he wants to go to Mecca for pilgrimage and that for the propagation of his faith he wants to go and deliver public lectures or to carry on other activity which cannot be carried on while he is custody. Fundamental Right No: 10 does not speak of any reasonable restrictions and is an absolute right. If the order of preventive detention: is to be invalid on the ground that it interferes with the right to profess, practice and propagate religion it will not be possible to uphold any order of preventive detention. Fundamental Right No. 10 is in fact very helpful in determining the content and the relative position of the different fundamental rights. This right makes it abundantly clear that what a particular fundamental` right prevents is an attack on the right itself and that it does not envisage a case where on account of the loss of some other right, or on account of the imposition of some disability a right is indirectly affected. I am not saying that a particular statute or a particular order cannot violate more than one fundamental right. There can be a direct attack on more than one fundamental right by a particular statute or provision. It will have to be determined in each case whether more than one right is attacked or whether on account of the loss of a particular fundamental right another is being indirectly affected. To put the same matter in a different way if the conditions for the loss of a particular right are fulfilled that right may be interfered with even though the indirect result is that the person concerned is unable to exercise another right. In view of what is said above the proper interpretation which, can be put on Fundamental Right No. 2 is that if the condi tions mentioned in this right with respect to an order of preventive detention are fulfilled then the order of preventive detention his valid. Fundamental Right No. 2 should be regarded as exhaustive of the conditions required for preventive detention. The right of freedom of movement like the right of freedom of religion envisages a person who is not already in preventive detention. With respect to the argument that if Fundamental Right No. 5 is not applicable the reasonableness of the grounds of detention o will not be ensured it is not necessary to express a final opinion in this judgment, but I will be prepared to give serious consideration to the argument that the reasonableness of grounds is involved in the provision as to communication of grounds. "Ground" means that which can form a basis for an order anti if it cannot form a true basis it can hardly be called a ground. If a person be detained because his great grandfather who died long ago was guilty of breaches of public order it can hardly be urged that this is a ground in law. If it is to be a ground it must be a reasonable ground. This brings me to the question whether the grounds served on the respondent were sufficient compliance with para. 5 of Fundamental Right No.

2. It appears to me that the grounds should be such as afford a reasonable opportunity to the detenu p to meet the allegations against him and in the present case the grounds served do not satisfy this requirement. All that the grounds told the respondent in this case was that he was associated with the illegal activities of a secret association in certain districts during the years 1957, 1958, 1959, 1961, 1962, 1963 and 1964 and that he carried on his prejudicial activities and propaganda against the Government amongst the students and peasants. There is no reference to any particular act at any particular place on which the inferences referred to in the grounds had been based. If the respondent be really innocent his reply to the grounds can only be a bare denial. It is only if he is informed of the particular evidence and the circumstances on which the inferences against him are based that he will be able to put forward a defence. While it is true that the proceedings against a detenu are not as formal as they are against an accused in a criminal Court, I do not see any reason why the detenu should not be supplied with all such details of the allegations against him as are necessary for enabling him to defend himself. According to the Criminal Procedure Code the attention of the accused has to be drawn to all the circumstances appearing in the evidence against him. If to some material circumstance his attention is not drawn that circumstance is ordinarily not allowed to be used against him. I do not see why the same principle should not be kept in mind in proceedings under the Safety Act and why the detenu should not be informed of all the evidence and the circumstances on which the charge against him is based. It may be that some circumstances are such that it is not proper in the public interest to disclose them. There is a provision in law with respect to it and the Government is empowered to refuse the disclosure of such facts, but with respect to facts to the disclosure of which there is no objection, there should be as full a statement of the evidence and circumstance and the particular acts of the detenu on which the inference against the detenu is based as is reasonably possible under the circumstances. The Government surely does not in any way suffer if it gives a complete statement of facts to the detenu and the cause of justice is advanced by a full disclosure. I want to stress this point because I think there is not a full realization by the authorities concerned of the needs of justice in cases of preventive detention. No detenu should suffer because of the vagueness of grounds or because. of the fact that the evidence against him is not brought to his notice. It is to be observed, that the consequences of an order of detention are not less serious than the consequences of a conviction on a criminal, charge. In fact many a time when the law does not provide for a maximum period of detention they are more serious. If a person committed a "prejudicial act" he would be tried and would be sentenced to a term of imprisonment which may in some cases be small. But if it did not commit the "prejudical act", he may be kept in custody indefinitely on the ground that if he is set at liberty he may commit it. The grounds communicated in the present case do not constitute in my opinion a sufficient compliance with the law. Another question for consideration is whether the order of the Provincial Government under section 17 is rendered invalid by the mere fact that it was passed "for the purpose of continuing g his detention" which detention was illegal. To me it appears that there can be no serious objection to the use of the word "continuing". The custody was there whether legal or illegal and obviously it was the intention of the Government that it should continue. As the detenu was already in Government custody the Government could not say he should be arrested and detained. It could only say that he was in custody and that the custody will continue. The Government was taking into consideration the factum of the custody when choosing the word which was to be used: The Government was not bound to decide the question whether the previous custody was legal. Continuation meant continuation of the custody and not of its illegality. Surely the order does not imply that if the previous custody was illegal then the Government intends to continue the illegality and is not prepared to order a legal custody though it has jurisdiction to do so. The worst that can be said against the Government is that the Government assumed the previous custody to be legal. But the fact that the Government assumes a custody which is not legal to be legal does not deprive it of the power of detention which it has on account of the existence of certain facts nor can the order of the Government become illegal for that reason. If the Government believed the previous custody to be legal it could only say that it continued the custody. The substantial question is whether the Government had the power to detain him to custody and it passed an order for such custody. If the power of detention existed and there was an intention to exercise it the exercise does not become illegal by use of an in appropriate word. As a matter of fact the word was not inappropriate even if the custody was not legal because there was only a continuance of custody and not a fresh arrest and detention. In view of what has been stated above I agree that this appeal be dismissed and that the appellant do pay the costs of the appeal as already provided for in the admitting order. HAMOODUR RAHMAN, J.‑I have had the advantage of reading in advance the judgment proposed to be delivered by my learned brother S. A. Rahman, J. in this case. I am in entire agreement with him that the arrest of the respondent's husband without a warrant on the 20th of September 1964, by an Inspector of Police at the Tejgaon Airport in the purported exercise of powers under section 41 of the East Pakistan Public Safety Ordinance was from its very inception bad, as the action taken by the said Police Officer was in clear violation of the provisions of sub paragraphs (1) and (2) of paragraph 2 of the Fundamental Rights. I am also in agreement with him that the grounds served upon the said detainee on the 26th of September 1964, when the arrest was sought to be converted into a preventive detention without trial, in the purported exercise of powers under section 17 of the said Ordinance, were vague and indefinite and were not sufficient to afford to the detenu any reasonable opportunity of making any effective representation against his order of detention, as he was entitled to do under sub‑paragraph (5) of paragraph 2 of the Fundamental Rights. With great respect, however, I find myself unable to subscribe to the view that section 41 of the East Pakistan Public Safety Ordinance, 1958, is not violative of the provisions of sub‑paragraph (5) of paragraph 2 of the Fundamental Rights, in so far as it does not provide for the furnishing of any grounds for the detention as required by the said sub‑paragraph. If as opined by my learned brother himself in another part of his judgment section 41 of the Ordinance is not a provision merely ancillary to the provisions of section 17 thereof and, therefore, not a law providing for the preventive detention then the provisions of sub‑paragraphs (4) and (5) of paragraph 2 of the Fundamental Rights are not attracted and the only question is whether it violates the provisions of sub‑paragraphs (1) and (2) of paragraph 2 of the Fundamental Rights, in so far as it makes it possible for the officer arresting the person concerned to defeat the provisions of sub‑paragraphs (1) and (2) by not informing him of the ground for such arrest, denying him, the right to consult a legal practitioner of his choice and not producing him before the nearest Magistrate within 24 hours of such arrest. Section 41 of the Ordinance provides an entirely different procedure. The arrest is to be reported to the Provincial Government and pending the receipt of the orders of the Provincial Government the officer arresting is empowered to commit any person so arrested to such custody as the Government may by general or special order specify and he may detain him in such custody for 30 days without even any order of the Provincial Government on the report submitted by the arresting officer, and for a period not exceeding two months with the order of the Provincial Government. Thus, if section 41 is not a law providing for preventive detention or some step ancillary to such detention, then it is clearly a law which is inconsistent with the rights conferred by sub‑paragraphs (1) and (2) of paragraph 2 of R the Fundamental Rights. It is a law which, in my opinion, makes provisions inconsistent with those Fundamental Rights and is by reason of Article 6 of Chapter I as substituted by the Constitution (First Amendment) Act, 1963, to the extent of such inconsistency void. My learned brother has also observed in another portion of his judgment that "the framers of the Constitution evidently tried to strike an equitable balance between the rights of the individual and the interests of collective security and formulated certain legal norms for the limitations imposable on personal liberty. The sub‑constitutional laws must be confined within the sphere of those, legal norms, when they seek to circumscribe individual freedoms." (the underlining is mine). If this be so, then do not the provisions of section 41 of the Ordinance, which is a sub- constitutional law, exceed the limits prescribed by the legal norms S set out in sub‑paragraphs (1) and (2) of paragraph 2 of the Fundamental Rights. . On the other hand, if section 41 also provides for preventive detention and makes some provisions ancillary to such preventive detention, then in so far as it does not provide for the furnishing of any grounds for such detention, it would, in my opinion, also be in conflict with sub‑paragraph (5) of paragraph 2 of the Fundamental Rights. It seems to me that when the framers of the Constitution (First Amendment) Act, 1963, by clause (1) of Article 6 provided that "any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall to the extent of such inconsistency be void", they clearly thereby manifested the intention that they did not approve of the laws which were in conflict with the Fundamental Rights given by the said amendment of 1963. It would, therefore, in my humble opinion, be‑ not giving full effect to that intention if we were to hold that even after the Constitution had come into force the laws, which were inconsistent with the Fundamental Rights, should still continue to be treated as good and effectual laws as if the Constitution amendment had trot been made. I regret that I find no reason to modify the view that I have already expressed in the case of Abul A'la Maudoodi and others v. The Government of West Pakistan (1) P L D 1964 S C 673 decided by this Court on the 25th of September 1964, that the power of judicial review, which has been conferred on this Court by the Constitution, extends not only to examining the constitutionality of the action taken under a law but also the constitutionality of the law itself by the incorporation of Article 6 and the addition of clause (3) to Article 133 and paragraph (c) to clause (2) of Article 98 by the Amendment of 1963. By the combined operation of these provisions the High Court has, it; my humble opinion, been charged with a duty of examining the constitutionality of laws wherever a violation of a Fundamental Right is alleged. The citizen has been given not only a fundamental right but also a right to approach the High Court to have that right enforced. In enforcing that right it is a clear duty of the High Court to decide also as to whether the law under which the fundamental right of a subject is sought to be infringed is a law which should prevail notwithstanding the Constitution. The Constitution itself declares such laws inconsistent with the rights conferred by it to be void for, the High Court, therefore, to say that such law is not void to the extent of inconsistency would be a failure to enforce the Constitution itself. I reiterate that "the basic principle underlying a declaration of Fundamental Rights in a Constitution is that it must be capable of being enforced not only against the Executive but also against the Legislature by judicial process." I am, therefore, of the opinion that not only was the action taken in the purported exercise of section 41 of the East Pakistan Ordinance of 1958 had from its inception but that the said section was itself void to the extent that it made provisions inconsistent with sub‑paragraphs (1) and (2) of paragraph 2 of the Fundamental Rights, as declared by Article 6 is substituted by the Constitution (First Amendment) Act, 1963. Subject to the above I agree entirely with the reasonings of my learned brother on all other points and concur in the order that these appeals should be dismissed. In accordance with the view of the majority, we dismiss these appeals with costs. A.H. Appeals dismissed.