1969 P Cr (PLP)

Md. Nurullah for the Opposite Parties. Dates of hearing : 20th, 26th and 27th March 1968. M. R. KHAN, J.‑This application under section 491 of the Criminal Procedure Code has been made by Shahidul Huq to secure the release of Saiful Islam from detention under rule 32 (1) (b) of the Defence of Pakistan Rules. A Rule `nisi' was issued on this application, asking the Government of East Pakistan and other opposite‑parties to show cause why the detenu should not be brought before this Court and dealt with in accordance with law.

2. The detenu is a resident of Serajganj Town in the district of Pabna. He appears to be an educated man in that he obtained his M. A. degree in History from the University of Dacca in the year 1957. He is also a basic democrat and contested for a seat in the National Assembly of Pakistan, but did not succeed. It is alleg ed that he was arrested on 30‑9‑67 from his residence at Serajganj and, on the same day, was served with an order of detention under rule 32 (1)(b) of the Defence of Pakistan Rules. The Deputy Com missioner of Pabna made the order of detention on 29‑9‑67 under the said rule with a view to preventing him from acting in a manner prejudicial to the public safety, the maintenance of the public order and maintenance of peaceful conditions in the country. The detention was for a period of three months from the date of service of the order, and he was directed to be detained in the Pabna Jail. When the period of detention under the said order was about to expire, the same Deputy Commissioner, by his order dated 29‑12‑67 continued his detention for another period of three months from 29‑12‑67 on the self‑same grounds and as also on the ground that his activities were alleged to be prejudicial to the maintenance of essential supplies anti services. His detention was to continue in the Pabna Jail as before. In this state of things, the present application under section 491 of the Criminal Procedure Code was made to secure the release of the detenu mainly on the ground that there were no reasonable grounds for his detention. A number of legal grounds were taken in the application, but these were not pressed on behalf of the petitioner at the time of hearing of the Rule.

3. This case has further history which is not revealed by the records themselves. He had been in detention once before and was released. It was only sometime after his release that he was again detained pursuant to a further detention order, namely, the order dated 29‑9‑67 which is under consideration here, along with the second detention order, dated 26‑12‑

67. These facts are not to be found in the records. But the learned Advocates of both the parties state that this detenu Saiful Islam was previously detained under the Defence of Pakistan Rules on 29‑6‑66, and was released from detention on 12‑2‑

67. Thus it appears that it was more than seven months after his release from the previous detention that he was detained once again.

4. In this case no affidavit was sworn by the Deputy Commissioner under whose successive orders the detenu has been in detention. It appears that a counter‑affidavit on behalf of the opposite‑parties was sworn for the first time on the 18th December 1967 by Mr. M. Ismail, Section Officer, Home (Special) Department. Obviously, this counter‑affidavit was sworn prior to the last detention order, dated 26‑12‑67 in respect of this detenu. This counter‑affidavit goes to state certain activities of the detenu in general terms. However, after the making of the last detention order, the same Section Officer, namely, Mr. M. Ismail solemnly affirmed a supplementary counter‑affidavit on the 21st March 1968, i.e. in course of hearing of this Rule. In this supplementary counter‑affidavit, the alleged activities of the detenu have been detailed date by date. The activities of the detenu as alleged in this supplementary counter‑affidavit are denied by the petitioner in his affidavit‑in‑reply thereto. However, Mr. M. Nurullah, the learned Advocate representing the Government of East Pakistan has produced certain materials, namely, intelligence reports or extracts thereof in support of the alleged activities of the detenu. It appears from the supplementary counter‑affidavit that the activities attributed to the detenu prior to the 12th February 1967 were before the detaining authority under whose order this detenu had been detained once before. It is nowhere stated in any of the counter‑affidavits that the alleged activities of the detenu prior to the said date did not form the basis of the satisfaction of the detaining authority to make an order of detention in respect of him in the past. When all the activities prior to the making of the detention order, dated 29‑9‑67 had certain materials at their back, it may be safely taken that in making the previous order of detention as early as 29‑6‑66, those materials had been taken into consideration by the detaining authority. So, in fairness, those activities for which this detenu had already suffered detention cannot be taken as affording reasonable basis for further detention. In fact in paragraph 14 of the counter‑affidavit affirmed on the l8th December 1967, the grievance made by the opposite‑parties was that the detenu after his release from the previous detention, reverted to his old activities. This gives an indication that, even according to the detaining authority, the alleged activities of the fan, detenu after his release from the previous detention were the reasons for his further detention. Before we come to consider the alleged activities of the detenu after his release from the previous detention, we would like to refer to one of the activities stated in subparagraph (ii) of paragraph 2 of the supplementary counter‑affidavit. In that sub‑paragraph, it was alleged that this detenu took a leading part in organising the Bidi Workers on 27‑6‑66 for making a demonstration before the Governor of the Province during his visit to Serajganj and resorted to violence. It was further stated in that sub‑paragraph that this detenu was arrested on the same date and a specific case, being Case No. 13, dated 27‑6‑66 was started against him and others. We have been informed by. Mr. M. Nurullah that the detenu has been sentenced to rigorous imprisonment for six months in that case, but an appeal against the order of conviction and sentence has been pending. No comments on that incident are called for from us.

6. Coming now to the activities of this detenu said to have been indulged in by him after his release from the previous deten tion, we find from the supplementary counter‑affidavit that the first of his alleged activities is the activity on his part on 24‑3‑

67. It is alleged in the supplementary counter‑affidavit that on the said date this detenu held a meeting at Serajganj in the office of the Mazdur Union with the President, Vice‑President of the Jute Mill Mazdur Union and that he urged upon the employees to go on strike. The material produced, no doubt, goes to attribute such activity to the detenu. But the mere holding of a meeting at Serajganj and, that too, in the office of the Mazdur Union by itself cannot be objectionable. It is not stated what parts were played by this detenu and what speeches were delivered by q him in the said meeting. What, however, was stated in the counter‑affidavit is that the detenu urged the employees to go on strike. When the meeting was a meeting only with the President and Vice‑President of the Jute Mills Mazdur Union, it is difficult to see how in that meeting the detenu could have urged the employees to go on strike; that was not a meeting of the employees. There is no material to show if there was, in fact, a strike; rather the material shows that some one came to Dacca to, obtain consent of the Secretary of their Union for a strike. But there is nothing to show if such consent was obtained and the strike matured. Even otherwise, any persuation to the employees of a mill may at the most prejudice the maintenance of essential supplies and services. But in the first of the two detention orders, namely, the detention order, dated 29‑9‑67, it was not at all stated that the alleged activity of the detenu on 24‑3‑67 was likely to be prejudicial to the maintenance of essential supplies and services. It is rather curious that the expression "the maintenance of essential supplies and services" was mentioned in the preamble of the first detention order, dated 29‑9‑67, but the same was completely omitted in the operation part thereof.

6. In point of time, the next activities of the detenu are his activities on 26‑5‑

67. It is alleged in the counter‑affidavit that on the said date the detenu participated in a meeting of the National Awami Party at Serajganj town wherein a resolution was passed for establishment of social (sic) form of Government for food poisoning at Pabna. We have looked into the connected material and find therefrom that on 26‑5‑67 there was a meeting of the Working Committee of the Pabna District National Awami Party at Serajganj. At that Working Committee meeting, as many as 16 persons including this detenu Saiful Islam attended. According to the material, in the Working Committee meeting, Saiful Islam read out the annual report of the Pabna District National Awami Party. The material further shows that this detenu delivered speeches in that meeting which touched only upon the general policies of the Government and nothing more. As regards the criticism against the Government for food poisoning at Pabna, we have not been able to discern anything from the material to attribute such criticism to this detenu. What the material shows is that after the Working Com mittee meeting was over there was another general session called the second session of the National Awami Party, in which speeches on food problems, unemployment problems of Bidi Labourers including the Bidi Workers, food poisoning in Pabna and high price of essential commodities were delivered by the Pabna National Awami Party Workers. Rut the material does not definitely show that this detenu was also one of the speakers in that second session of the meeting. It might be that being himself a member of the National Awami Party, he was also present. But we do not find what exact speech was delivered by this detenu individually. At any rate mere ciriticism of food poisoning in Pabna was not in itself objectionable. It is not stated in the material how the alleged food poisoning in Pabna took place and why there was criticism about it.

7. The next allegation against the detenu is that on 28‑7‑67 he participated in a secret meeting of the Bidi Sramik Union held at Serajganj wherein he delivered speeches vehemently criticising the Government and its various policies and also the atrocities of the Government on the labourers. Having seen the material as a buttress to this allegation, it seems to us that the allegation is not fully borne out by it. It appears from the material that on 28‑7‑67 there was a closed door meeting of the Bidi Sramik Union held in the Municipal Hall, Serajganj wherein there was discussion about the unemployment problems of the Bidi Workers there. It further appears that this detenu, among others, delivered short speeches in the meeting criticising the present Government and its policies in various ways. The material shows that whatever criticisms were offered were general c criticisms on the general policies of the Government to which no exception can be taken. It is significant that the Municipal Hall which is under the control of the authorities was made available to the holders of the meeting without objection.

8. The last allegation against the detenu is that on 13‑7‑67 he entered into the Serajganj Spinning and Cotton Mills area without permission and excited the workers against the Management and thereby disturbed the peaceful conditions of the Mills. The material produced shows that on 13‑7‑67a number of a" persons including this detenu entered into the Serajganj Spinning and Cotton Mills area without permission, held meeting there and delivered speeches to excite the workers against the Management. The material further shows that in respect of this incident a specific case was started on an information lodged by the Manager of the Mills. A copy of the F. I. R. is annexed to the material. We are told by Mr. Nurullah that the specific case for unlawful assembly and trespass against this detenu and others on account of the incident at the Mills area on 13‑7‑67 has been still under investigation. Then a specific case has been started in relation to this alleged activity of the detenu on a certain date, the same activity should not, in fairness, be taken as a reasonable basis for making an order of detention.

9. The upshot of all these discussions is that the materials produced did not provide reasonable grounds for detaining this detenu Saiful Islam. In the result, we make this Rule absolute and direct that the detenu Saiful Islam be set at liberty forthwith if not wanted in any other connection. A. M. Sayem, J.‑I agree. Rule made absolute.