1969 P Cr (PLP)

Mahmud Ali, Advocate Federal Court instructed by Zahir Abbas, Attorney for Respondent. Date of hearing : 30th November 1954. SHAHABUDDIN, J.‑This is an appeal by special leave from the judgment of the Chief Court of Sind whereby an application filed by the appellant Bhopat Singh under section 491, Criminal Procedure Code, was dismissed. The appellant came into Pakistan from India in 1952, without a permit for which he was convicted and sentenced to one year's rigorous imprisonment. After he was released from jail on 11th March 1953 the District Magistrate of Sukkur ordered that he should not leave that district and on 2nd May 1953, he was arrested and detained under the Sind Public Order and Detention Act, 1952. The grounds for detention were served on the appellant on 7th May 1953. Under section 7 of the above said Act, in every case where a detention order has been made the authority making the order shall within three months of the issue of the order place before the Advisory Board the grounds on which the order has been made and also the representation, if any, made by the person detained. This was not done, and, therefore, the order of detention passed on 2nd May 1953 was cancelled on 8th September 1953. In the meantime the appellant had filed a petition on 9th August 1953 under section 491, Criminal Procedure Code and it was, while this petition was pending, that the first order of detention was cancelled and on the same day a fresh order of detention was passed. In both these orders no period of detention was fixed. The application under section 491, Criminal Procedure Code, was dismissed on 5th October 1953 because the order in respect of which that application was made had been cancelled. The grounds for the second order were communicated to the appellant on 2nd November 1953 which was beyond the time fixed under the Act. In view of this defect the second order of detention was also cancelled and a fresh order was passed on 28th November 1953. In the meantime the appellant had filed the application under section 491, the dismissal of which has given rise to this appeal. This application was filed on 27th October 1953, the main grievance in it being that the grounds of the second order of detention had not been communicated by the date of that application and that the grounds originally given in support of the first order of detention were all false. The learned Judges of the Chief Court, when this application came up for hearing on 13th November 1953, considered that the circumstances required an affidavit from Government explaining, why these orders were passed and an affidavit was accordingly filed which however is not before us; but the gist of it has been given in the judgment of the Chief Court. The explanation was that the first order was cancelled since the case of the detenu had not been placed before the Advisory Board within a period of three months as required under the Act, that the grounds of detention in respect of the second order were sent for service, but were not received back served till 21st November 1953 and that therefore the second order was cancelled and afresh order was made on 28th November 1953, which was subsequent to the second petition under section 491, Criminal Procedure Code. It was also stated that the case of the detenu would be placed before the Advisory Board within time as early as practicable. It is also seen from the judgment of the Chief Court that a counter‑affidavit which again is not before us was filed by the appellant stating that the Government in cancelling its previous orders and passing fresh orders acted with the intention of flouting the judiciary. The learned Judges observed that it was common ground before them that the grounds of detention in all the three cases were the same and that the detenu had at a very early stage an opportunity of making a representation in respect of those grounds. They then proceeded to consider whether under the Act a fresh order of detention could be issued cancelling the previous order and whether it had been established that the action of the Government in issuing those orders was not bona fide. On both these points they found against the appellant and consequently dismissed his application. The learned Advocate for the appellant did not dispute that under the Act in question a fresh order can be passed even though an application under section 491, Criminal Procedure Code, is pending before the Court. The only ground urged before us was that the action of the Government in issuing these orders was mala fide. From the mere fact that these successive orders were issued we were asked to infer that the Government did not act bona fide. It was also pointed out that the grounds were vague. We are unable to accept either of these contentions. The affidavit called for from the Government has explained in our opinion satisfactorily the issue of a second order cancelling the first and also the issue of the third cancelling the second. There Were negligence in respect of the first and second orders but that by itself does nut justify the inference which we are asked to draw namely that the action of the Government was mala fide. With regard to grounds served on the appellant we have been taken through the notice that was given to him in respect of the first order and we find that there were specific allegations made against him ; and in respect of them he had the remedy of making a representation to the Advisory Board. In the circumstances we see no reason for interference by this Court. The appeal is dismissed. Appeal dismissed.