P L D 1965 Dacca 241 (PLP)

A.S. CHOWDHURY, J.‑In these two case:, petitioner Mrs. Rowshan Bijaya Shawkat Ali Khan. prays fur the release of her husband Mr. Shawkat Ali Khan. Both the cases were, heard together and are being disposed of by this judgment. It is stated in the petition presented to this Court on 22‑9‑1964, in Miscellaneous Case No. 96 of 1964 and not denied in the affidavit‑in‑opposition that the detenu was arrested without any warrant on 20‑9‑1964, at about 7 p. m. at Tejgaon Air Port by Mr. Khalilur Rahman, Inspector of Police, Special Branch, Dacca under section 41 of the East Pakistan Public Safety Ordinance, 1958 (East Pakistan Ordinance No. LXXVIII of 1958; hereinafter referred to as "the Ordinance"). He was taken to the office of the Superintendent of Police at Segunbagicha and thereafter committed to the Dacca Central Jail at about 8 p. m. where he is now, it is claimed, illegally detained. It is further stated that the detenu is a Barrister‑at‑law practising in this Court and that he had gone to Karachi to attend a meeting of the combined opposition of five Political Parties, namely, Muslim League (Council), National Awarni Party, Awami League, Nezam‑e‑Islam and Jama'at‑e‑Islami. Ii has been specifically stated in the petition and not denied in the affidavit‑in‑opposition that the detenu has not been served with grounds for his detention under section 41 of the Ordinance. A Rule was issued in this case on 22‑9‑1964, and when the case was going to be taken up for hearing on 28‑9‑1964, the Court was informed by Mr. Mirza Mohammad Golam Hafez, the learned Advocate for the petitioner that the detenu has been served with another order on 26‑9‑1964 under section 17 of the said Ordinance continuing the detention under section 41 of the Ordinance. A petition was filed challenging the validity of the order under section 17 of the Ordinance, on the grounds, inter alia that continuation of an illegal order for detention was illegal and the grounds for detention served on the detenu were vague and indefinite. A rule was issued to show cause why that order should not be declared to have been made without any legal authority, and this case was numbered as Miscellaneous Case No. 98 of 1964. Both the cases, as already stated, have been heard together and Mr. Hafez appearing for the petitioner submits that the arrest under section 41 of the Ordinance is illegal as it violates the constitutional safeguards as to arrest and detention. Mr. Syed A. B. Mahmud Hussain, the learned Senior Government Pleader who is now acting as Advocate‑General, on the other hand, submits that section 41 of the Ordinance is valid and legal. Section 41 of the Ordinance is in the following terms:‑ "(1) Any police officer not below the rank of Sub‑Inspector or any other officer of Government empowered in this behalf by general or special order of the Provincial Government, may arrest without warrant any person whom he reasonably suspects of having done, or of doing, or of being about to do, a prejudicial act." "(2) Any officer who makes an arrest in pursuance of subsection (1) shall forthwith report the fact of such arrest to the Provincial Government, and, pending the receipt of the orders of the Provincial Government, may, by order in writing, commit any person so arrested to such custody as the Provincial Government may, by general or special order, specify: Provided‑ (i) that no person shall be detained in custody under this subsection for a period exceeding thirty days without the order of the Provincial Government; and (ii) that no person shall be detained in custody under this subsection for a period exceeding two months." "(3) On receipt of any report made under the provisions of subsection (2), the Provincial Government may, in addition to making such order, subject to clause (if) of the proviso to subsection (2), as may appear to be necessary for the temporary custody of any person arrested under this section, make, in exercise of any power conferred upon it by any law for the time being in force, such final order as to his detention, release, residence or any other matter concerning him as may appear to the Provincial Government in the circumstances of the case to be reasonable or necessary." Section 41 of the Ordinance, broadly speaking, provides that a Police Officer not below the rank of a Sub‑Inspector of Police, on mere suspicion may arrest any person and take him into custody. Suspicion, however, must have a reasonable basis regard being had to the expression "reasonably suspects". When challenged m a Court of law, the arresting officer shall have to satisfy the Court that there were reasonable grounds for suspicion that the detenu was concerned in the acts contemplated therein. Subsection (2) of section 41 of the Ordinance requires that the officer shall make a report to the Provincial Government and pending the receipt of any direction of the Provincial Government, commit a person so arrested to such custody as the Provincial Government may, by general or special Order, specify. It is, however, provided that a person so detained shall not be kept in custody for a period exceeding 30 days without the order of the Provincial Government and that no person shall be detained for a period exceeding two months, that means, that even if the Provincial Government intends to detain a person under this section the period shall not exceed two months. Subsection (3) lays down the steps that the Provincial Government may take, on receipt of the report of the arresting officer. The person may be put into temporary custody for a period not exceeding two months and the Government may also issue such orders relating to his release or residence as 'nay appear to be reasonable or necessary. On a consideration of all the provisions of section 41 of the Ordinance it is clear that there is no provision at all for serving on a detenu the grounds of the detention and for affording him the opportunity of making a representation against the order of detention. Mr. Hafez claims that section 41 speaks of temporary custody and as such it is not a law providing for preventive detention. It is, therefore, violative of the provisions of paragraphs (1) and (2) of Right 2 of the Fundamental Rights which provides, inter alia, for serving grounds of detention and of producing the arrested person before a Magistrate within 24 hours of detention. Mr. Hafez alternatively argues that even if it is preventive detention, paragraph (5) of Right 2 of the Constitution has been violated. This requires consideration of the rights guaranteed by the Constitution for the security of person and freedom of movement. The Constitution guarantees that every citizen has a right to move freely ; to go wherever he likes and to do whatever he intends subject to the limitation that he must act lawfully. Right 1 solemnly proclaims that:‑ "No person shall be deprived of life or liberty save in accordance with law." It is undoubtedly one of the most cherished objects of life. Paragraph (1) of Right 2 provides that a person arrested shall be informed of the grounds of his detention as soon as may be and that he shall have the further right to consult and be defended by a legal practitioner of his choice. Paragraph (2) of Right 2 lays down, in clear and unambiguous terms, that a person detained shall be produced before a Magistrate within 24 hours of his arrest excluding, however, such time as may be necessary for the journey, and that no such person shall be detained without the authority of a Magistrate. It is, however, provided in paragraph (3), that paragraphs (1) and (2) of Right 2 shall not apply to a person detained under any law providing for preventive detention. Paragraph (4) of Right 2 lays down that no law providing for preventive detention shall authorise the detention of a person for a period exceeding three months unless the Advisory Board reports before expiry of the said period of detention, that there is sufficient cause for such detention. Now, the position in law is that if section 41 of the Ordinance is not a provision of law relating to preventive detention, it is hit by paragraphs (1) and (2) of Right 2, there being no provision in section 41 for serving the grounds or production of the detenu before a Magistrate. It is alternatively urged that section 41 of the Ordinance has violated paragraph (5) of Right 2 which reads as follows: "(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." Mr. Hussain, the learned Senior Government Pleader, however, submits that section 41 of the Ordinance is preventive detention as it authorises the detention of a person on the ground that he is about to do a prejudicial act. In the case of Muktear Ali Khan v. The Province of East Pakistan and others (P L D 1965 Dacca 277) (Petition No. 516 of 1963, disposed of on 20th of August 1964), a Division Bench of this Court observed as follows: "We are, therefore, of the view that an order of detention in custody passed by the Provincial Government under section 41 of the East Bengal Public Safety Ordinance does not come within the mischief of Article 5 (1) (b) of the Elective Bodies (Disqualification) Order, 1959." Article 5 (1) (b) of the Elective Bodies (Disqualification) Order, A 1959, sets out that detention under a law relating to prevention of prejudicial act is a disqualification for membership of an elective body. Mr. Hafez relies on the above observation to say that section 41 of the Ordinance is not a law relating to preventive detention; the requirements of paragraphs (1) and (2) of Right 2 of the Constitution, must, therefore, be complied with. Mr. Hussain, the learned Senior Government Pleader, however, claims that the discussion in the case referred to by Mr. Hafez proceeded on the basis of the Elective Bodies (Disqualification) Order, 1959, and, that case is no authority for the proposition that section 41 of the Ordinance does not provide for preventive detention. It is, however, not contested that if section 41 of the Ordinance is not a law providing for preventive detention, it will be clearly ultra vires of paragraphs (1) and (2) of Right 2; but it is strenuously asserted on behalf of the State that it is a provision of law relating to preventive detention. Assuming that section 41 provides for preventive detention as claimed by Mr. Hussain, there is no escape from the fact that it has to stand the test of the provisions of paragraph (5) of Right 2 of our Constitution. We must say that paragraph (5) of Right 2 quoted above, provides two things and it does so in a very clear and unambiguous language. The first requirement is that the authority making the order shall, as soon as may be, communicate the grounds of deten tion. Section 41 of the Ordinance does not provide for any such communication of the grounds. The learned Senior Government Pleader argues that section 41 (1) of the Ordinance is sufficiently protected by paragraph (4) of Right 2 of the Constitution. His contention is that the embargo placed by paragraph (4) of Right 2 is that the period of detention shall not exceed three months without the report of the Advisory Board as contemplated therein, but the period of detention in section 41 of the Ordinance is only two months. To accept this argument of the learned Senior Government Pleader, is to render the provisions of paragraph (5) of Right 2 of the Constitution, nugatory. It is a clear mandate of the Constitution under paragraph (5) of Right 2, that when a person is detained in pursuance of an order under "any law" providing for preventive detention, the authority shall, as soon as may be, communicate the grounds. Therefore, if there is a law which provides for the preventive detention of a person without fulfilling this requirement of paragraph (5) of Right 2, that law is not in conformity with the Constitution. The other requirement of the Constitution is that the person so detained, shall be afforded the earliest opportunity of making a representation. Making a representation clearly requires that he should be provided with grounds with sufficient clarity in order to enable him to make an effective representation against his detention. Any law that is repugnant to paragraph (5) of Right 2 of the Constitution, cannot be deemed to be in existence in any statute in Pakistan by reason of Article 6 (1) of the Constitution which is in the following terms:‑ "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 clear mandate of the Constitution is, therefore, that a law which is inconsistent with any of the rights guaranteed by. the Constitution, shall be void. In the case of Rao Mahroz Akhtar v. The District Magistrate, Dera Ghazi Khan and The Province of West Pakistan (P L D 1957 Lah. 676), S. A. Rahman, C. J., held as follows "A survey of these authorities lends strong support to the contention raised on behalf of the interned persons that inasmuch as section 5 (1) (b) of the Act, permits an order of internment to be passed against a Pakistan citizen, without communicating the grounds therefor to him or affording himself an opportunity to represent against such an order, it imposes an unreasonable restriction on the freedom of movement possessed by him and, therefore, would offend against the provisions of Article 11 of the Constitution . . . . . We are conscious that some cases of an emergent nature may require an ex parte order to be passed initially, restricting the personal liberty of a citizen, but surely an opportunity to be heard at some stage, ought to be there before he is virtually ostracised from society. After carefully considering the matter, we have reached the conclusion that the contention raised in the petition rests on a solid foundation and section 5 of the Act must be declared to be void in so far as it inflicts unreason able restrictions on the right of free movement guaranteed under Article 11 of the Constitution." Corresponding provision of Article 11 of the Constitution of 1956, is in Right 5 of the present Constitution which reads as follows :‑ "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." Section 41 is, therefore, violative of Right 5 as well. To the same effect is the decision in the case of Khan Ghulam Muhammad Khan Loondkhawar and others v. The State (P L D 1957 Lah. 497). In that case also it was held that the constitutional guarantees contained in clause (5) of Article 7 of the late Constitution were violated as the District Magistrate omitted to communicate the grounds on which the order of detention under section 3 of the North‑West Frontier Province Public Safety Act was based. In the case of Fazal Ahmad Ghazi v. The State (P L D 1957 Kar. 190), a Division Bench consisting‑ of Inamullah and Wahiduddin Ahmad, JJ. held as follows :‑ "The Baluchistan Public Safety Regulation, 1947, did not contain any provision as regards the communication of the grounds of detention to the detenu, and a reference to the Advisory Board. Section 3 of the Baluchistan Public Safety Regulation would, therefore, be inconsistent with Article 7, of the Constitution and therefore void as it stood on 22nd March 1956." Article 7 of the Constitution of 1956, was similar in terms as Right 2 of the present Constitution. In the case of Bazal Ahmad Ayyubi v. The West Pakistan Province, Muhammad Shaffi etc. v. D. C. Gujrat etc., Ghulam Hussain v. The District Tribunal Gujrat, Ghulam Ali v. The District Tribunal Gujrat (P L D 1957 Lah. 388), S. A. Rahman, C. J., and Mr. Kayani, J., declared section 6 (1) (c) of the Control of Goondas Act, 1951, ultra vires Article 7 of the Constitution of 1956, as the impugned provision of law did not fulfil the requirement of Article 7 of the Constitution. His Lordship S. A. Rahman, C. J. observed as follows :‑ "To sum up, therefore, the position that emerges is that sections 6(1) (c), 6 (1) (g) (if it means that the person complained against can be kept out of the proceedings against his will), subsection (2) of section 7 and section 29 of the Act, are void as they are repugnant to constitutional provisions guaranteeing fundamental rights to citizens of Pakistan. The reference in section 8 to a portion of the record being kept secret would also in consequence have to go." In the case of Maulana Abdul Quddos Bihari v. The Chief Commissioner of Karachi (P L D 1956 Kar. 533), Constantine and Muhammad Bachal, JJ., held as follows:‑‑ "It is, therefore, our opinion that in so far as the Security Act omits to provide for the furnishing of grounds to an externee and the affording to him of an opportunity of making representation, this Act imposes an unreasonable restriction and to this extent is inconsistent with Article 11 and to this extent is void under Article 4 of the Constitution." In that case there was no provision for furnishing grounds for an order of externment. Similar provision as in paragraph (5) of Right 2 of the Constitution, is also to be found in Article 22 (5) of the Constitution of India. The two provisions being in similar terms, a reference may be made to the case of Dr. Ram Krishan Bhardwai v. The State of Delhi and others (A I R 1953 S C 318). In that case Patanjali Sastri, C. J., delivering the judgment of the Court observed as follows :‑ "Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under Art. 22 (5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person retained, subject of course to a claim of privilege under clause (6) of Art.

22. That not having been done in regard to the ground mentioned in sub‑para. (e) of para. 2 of the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of Art.

21. The petitioner is, therefore, entitled to be released and we accordingly direct him to be set at liberty forthwith." It has been asserted in the petition that when the detenu was taken into custody under section 41 of the Ordinance, no ground was supplied to him for his detention nor is it denied in the affidavit‑in‑opposition. It is, therefore, clear that the detention in this case was affected without complying with the requirements of the Constitution as laid down in paragraph (5) of Right 2 of the Constitution on the basis of a law which does not conform to the requirements thereof. We have, therefore, reached irresistible ' conclusion that section 41 of the Ordinance is ultra vires of paragraph (5) of Right 2 read with Article 6 (1) of the Constitution of Pakistan. We further hold that section 41 of the Ordinance being ultra vires of the Constitution, the order of detention purported to have been made under that section is illegal and void. Mr. Hafez has alternatively argued that assuming section 41 is not ultra vires of the Constitution, the detention order is illegal as there was no reasonable ground for suspicion that the detenu was engaged in any prejudicial act. It has been firmly asserted in paragraph 16 of the petition in Miscellaneous Case No. 96 of 1964 as follows :‑ "That the petitioner submits that the arresting police had no reasonable suspicion of having done or of doing or of being about to do a prejudicial act by the husband of the petitioner before the arrest of the detenu under section 41 of the said Ordi nance. As such there were no materials or grounds or reason of arresting the detenu under section 41 of the Ordinance and the said section 41 had or has no application to the arrest and detention of the detenu." An affidavit‑in‑opposition has been filed on behalf of the State in the said Miscellaneous Case No. 96 of 1964, by Mr. A. K. M. Serajul Haq, Special Superintendent of Police of the Special Branch, Dacca. In reply to paragraph 16 quoted above, the said deponent has asserted in paragraph 16 of the affidavit‑in -opposition as follows:- "That the statements made in paragraphs 16, 17 and 18 of the petition are incorrect and denied. This deponent asserts that there are materials, grounds and reasons of arresting the detenu under section 41 of the said Ordinance. A Police Officer not below the rank of Sub‑Inspector of Police has powers to arrest a person without warrant under section 41 of the East Pakistan Public Safety Ordinance on reasonable suspicion of his having done or doing or of being about to do a prejudicial act and arrest prior to custody. The arrest and detention is in accordance with law." In the affidavit‑in‑opposition no other material has been supplied in support of the detention under section 41 of the Ordinance. The expression "reasonably suspects" occurring in section 41 of the Ordinance clearly indicates that the suspicion must have a reasonable basis and the officer arresting the person, must satisfy the Court that there were reasonable grounds for such suspicion. But here in this case, the officer who arrested the detenu is Mr. Khalilur Rahman, an Inspector of Police, Special Branch, Dacca. That officer has not come forward to state as to what were the grounds of his suspicion. Another officer, a superior officer though, has affirmed the affidavit‑in‑opposition that there were reasonable grounds for suspicion but he has also thrown no light whatsoever as to the grounds on which the claim for reasonableness is based. There is no corresponding provision in the Central Act relating to preventive detention. Security of Pakistan Act, 1952, presumably because it is not considered that a provision of law similar to section 41 of the Ordinance is necessary for the safety of the country. It is, however, interesting to note here that section 41 of the Ordinance is similar to the provisions of Rule 129 of the Defence of India Rules, the material part of which is in the following terms:- "129 (1) Any police officer, or any other officer of Government empowered in this behalf by general or special order of the Central Government, or of the Provincial Government may arrest without warrant any person whom he reasonably suspects of having acted, of acting, or of being about to act,‑ (a) with intent to assist any State at war with His Majesty, or in a manner prejudicial to the public safety or to the efficient prosecution of war; . . . . . . . . " Rule 129 of the Defence of India Rules came up for consideration before their Lordships of the Privy Council in the case of Emperor v. Vimlabai Deshpande (A I R 1946 P C 123). In that case their Lordships observed as follows:- "On the other hand, under Rule 129, any Police Officer can arrest on mere suspicion, but the suspicion must be reasonable, the exact words being "any person whom he reasonably suspects." As the High Court noticed in their judgment the House of Lords, in (1914) A C 808, had to construe a provision in the Glasgow Police Act authorising constables to arrest if they had reasonable grounds of suspicion, and the House held that the burden rested upon the constable concerned to show that his suspicion was reasonable and his act therefore justified. Their Lordships think that the same result must follow under Rule

129. Reliance was placed by the appellant on (1942) A C 206, but as the High Court again noticed, there are two very material distinctions between that case and the present one. In the first place, the authority empowered to arrest under the Defence of the Realm Act is a high officer of state, namely, the Home Secretary, and not a mere police officer; and in the second place the House of Lords was impressed with the obvious inconvenience and danger to the public which might ensue if the Home Secretary was bound to disclose confidential information on which he had acted. In India this danger is very largely mitigated by the existence of Rule 26, under which the Government can act whenever it is satisfied as to the matters mentioned in the rule. Cases in India under the Defence of India Rules which may involve disclosure of secret and confidential information will arise only in cases laying in the borderland between the police being suspicious, and Government being satisfied, as to a person's subversive activities, and such cases are hardly likely in practice to be either numerous or serious. In their Lordships' opinion, therefore, the High Court was right in holding that the burden lay upon the police officer to satisfy the Court that his suspicions were reasonable, and it is plain that on the evidence had not discharged that burden." It may be mentioned here that provision of Rule 26 is similar to section 17 of the Ordinance. The learned Senior Government Pleader tried to distinguish the case cited above from the present one by submitting that in that case there was no affidavit by the police officer at all giving any grounds for detention. There was only an affidavit by the Chief Secretary and that was not the affidavit of the officer arresting the detenu. In this case, it is, therefore, claimed that although the arresting officer has not affirmed the affidavit, an officer superior to that officer has done so. That may be so, but we are called upon to examine as to what materials have been placed before us. We have quoted in extenso paragraph 16 of the affidavit‑in‑opposition and the said statement leaves us in the same darkness as before. That affidavit‑in‑opposition does no give any iota of information regarding the grounds on which the police officer who arrested the detenu under section 41 of the Ordinance based his suspicion. The decision of the Privy Council (A I R 1946 P C 123) quoted above, was given in an appeal preferred from the decision of the Nagpur High Court in the case of Vimlabai Deshpande w/o Purushottam Yeshwant Deshpande v. Emperor (A I R 1945 Nag. 8) in which a Division Bench consisting of Bose and Sen, JJ., clearly held that the Court must determine the reasonableness of the suspicion and the burden of proof lay on the Crown. Principle laid down in Nagpur case was approved by the Privy Council. In the case before us, the affidavit‑in‑opposition does not give any material to enable the Court to determine the reasonableness or otherwise of the suspicion entertained by the police officer. In the aforesaid Nagpur case, the learned Judges observed as follows:- "But what we have to determine here is what were his suspicions, and were they reasonable, and not what the Provincial Government's suspicions are; moreover, under Rule 129 the Court has to determine whether the suspicions were reasonable and not the Provincial Government. Turning next to the affidavit made by the Chief Secretary, when we examine its terms it becomes more apparent than ever that the police officer making the order did not know what he suspected. As we have said, his order is confined to matter which will be "prejudicial to the efficient prosecution of the war"." Similarly, in the case before us, we find that in paragraph icy of the affidavit‑in‑opposition, it is merely stated that there are materials and grounds for arresting the detenu under section 41 of the Ordinance and it seems that the duty to prove the reasonableness appears to have been discharged by merely quoting the section itself when it says that a police officer is authorised to arrest a person on reasonable suspicion of his having done or doing or of being about to do a prejudicial act. It is not stated as to whether the detenu was' engaged in any prejudicial act or whether he was about to do a prejudicial act or had already done it; we are left to embark on conjectures. In these circumstances, we hold that the State has failed to prove that there were grounds for reasonable suspicion justifying the arrest of the detenu under section 41 of the Ordinance. So this contention of Mr. Hafez has also substance, and the detention under section 41 is illegal on this ground as well. The view expressed above, also finds support in the case of Basheshar Dayal v. Emperor (A I R 1946 Lah. 36). In that case a Division Bench of the Lahore High Court consisting of Din Mohammad and Teja Singh, JJ., held following the case of Vimlabai Deshpande that if no ground for detention is made out by the police, it would be misuse of Rule 129 of the Defence of India Rules. We have already pointed out that section 41 of the Ordinance and Rule 129 of the Defence of India Rules are similar in terms. The question that now arises is whether the detenu is entitled to an order of release; as it appears from the Miscellaneous Case No. 98 of 1964, that he has been served with an order of detention under section 17 of the Ordinance on 26‑9‑1964. Section 17 of the Ordinance authorises the Provincial Government to make an order of detention of a person or to impose on him various restrictions if that Government is `satisfied' that a particular person should be detained with a view to preventing him from doing any prejudicial act within the meaning of the Ordinance. Paragraph 27 of the petition presented to this Court on 28‑9‑1964, is in the following terms:- "That the impugned order of detention dated 26‑9‑64 under section 17 of the said Ordinance is an extension and continuation of the initial illegal detention under section 41 inasmuch as the order of detention under section 17 (1) (a) dated 26‑9‑64 takes effect from the first date of arrest and detention. As the initial detention under section 41 is illegal, and mala fide, its extension is also illegal and mala fide." In the affidavit‑in‑opposition filed on behalf of the State in the said Miscellaneous Case No. 98 of 1964, it is not denied that an order under section 17 of the Ordinance has been made. The order under section 17 of the Ordinance being Order No. 1372 H. S. dated Dacca, the 26th September 1964, detaining the petitioner's husband in the Dacca Central Jail is quoted below in extenso:- "Whereas the person known as Mr. Shawkat Ali Khan alias Nanku Miyan, Bar‑at‑Law son of late Arfan Khan of Iashati, 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 provision 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 and continue to be detained m 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." In the first part of the order, the detenu is described to be a person "detained in the Dacca Central Jail under the provision of section 41 of the East Pakistan Public Safety Ordinance, 1958." Then it is clearly stated in the above order that:- " ..It is necessary to make the following order for the purpose of continuing his detention." The expression, "continuing his detention", refers to the detention that was effected initially under section 41 of the Ordinance. What is sought to be done under this order is continuation of the detention made initially under section

41. It is, therefore, manifestly clear that what is continued is the order already made under section 41 of the Ordinance. Regard being had to the express language, used in the order, we are unable to accept the contention of the learned Senior Government Pleader that the order made on the 26th of September 1964, is a fresh order of detention. The question as to whether an illegal order can be validly continued by another order, came to be considered before our Federal Court in the case of Arbab Muhammad Hashem Khan on behalf of Arbab Abdul Ghafoor Khan and Abdul Wali Khan v. The Crown (P L D 1954 F C 1). In that case his Lordship Shahabuddin, J , observed as follows:- "That there is a material distinction between a fresh order of detention and an order of extension of detention, is common ground, and the very fact that the learned Advocate‑General pressed for the order of 10th December 1952 being regarded as a fresh order emphasises the importance of the distinction, which lies in this, that a fresh order is not affected by the previous detention having been illegal, whereas an order of extension of detention becomes illegal, if the detention, which it extends, was itself illegal. It therefore appears to me that when an order purports to be one of the extension it cannot be regarded as an original order . . . .. " His Lordship Cornelius, J., as he then was, also expressed himself in the following terms:- "In such circumstances, the person under detention would be entitled to his freedom‑ upon the expiry of such period, and if he were held in detention for any period thereafter, without there being in existence at such time, a valid order under subsection (2) authorising his detention, I entertain no doubt that such continued custody would be illegal. It would amount to wrongful confinement, and could in no sense, be regarded as detention falling within the terms of section

3. Further, the terms of the section do not admit of the possibility of an order of detention being made thereunder to take effect retrospectively, i.e., in relation to a period prior to the making of the order. Therefore, where a detenu is held under wrongful confinement, as in the circumstances indicated above, it seems to me that the only mode in which his confinement could be given the quality of legal detention would be by directing his arrest afresh, and following it up with a fresh order under subsection (2)." On the ground that illegal order of detention was continued by another order, the majority of the Court ordered that the petition in respect of Abdul Wali Khan should be allowed and he should be released forthwith. Having regard to the express language in which the order is couched, we hold that the order made under section 17 of the Ordinance purports to continue an F order under section 41 found by us to be illegal. The law laid down by the Federal Court is binding on us and we are also in respectful agreement with the principle laid down by their Lordships Shahabuddin and Cornelius, JJ. We are, therefore, of opinion that the detenu is being held in custody illegally and without any lawful authority. Moreover, it has been rightly, contended by Mr. Hafez that section 17 of the Ordinance, must, having regard to the provisions of section 19‑A of the Ordinance, relate back to the first date of arrest and in this case, on the first date of arrest, the order of detention was under section 41 of the Ordinance and as such illegal. We are unable to agree with the; learned Senior Government Pleader that the order under section 17 of the Ordinance has validated the earlier illegal detention. In the case of Fazal Ahmad Ghazi v. The State referred to above, it was also held by their Lordships following Arbab's case that the order extending a detention under an illegal order is itself illegal. The learned Judges observed as follows:- "Any order, therefore, passed in pursuance of section 3 of the Baluchistan Regulation as it stood on 22nd March 1956, would be an illegal order. The first order detaining the detenu, admittedly, was passed on 4th November 1955, and would. therefore, be an illegal order." The learned Judges proceeded further to observe:- "We, therefore, hold that the order dated 4th of May 1956, being only an extension of an illegal order is illegal inoperative." In the case of Khan Ghulant Muhammad Khan Loondkhawar and others v. The State, referred to above, a Division Bench of the Lahore High Court consisting of Kayani and Changez, JJ., held that if a subsequent order was a continuation of a prior order held illegal, the subsequent order was itself illegal. The impugned orders came under heavy fire from the learned Advocate for the petitioner on the ground of being mala fide. His contention was that in the affidavit‑in‑opposition filed in Miscellaneous Case No. 96 of 1964, it was stated that no order under section 17 of the Ordinance would be made but subsequently such an order has been passed. This, according to Mr. Hafez is an evidence of bad faith and that the grounds served with the order under section 17 of the Ordinance were manufactured later. The statement made in the said affidavit‑in‑opposition armed by the said Mr. Serajul Haq, was in the followings terms:-- "The statement that the petitioner has reason to believe that after manufacturing grounds of detention against her husband during his detention under section 41 of the Ordinance, the respondent No. 1 would convert the detention in custody under section 41 of the said Ordinance into a preventive detention under section 17 (1) (a) of the Ordinance is not correct." Though it was stated specifically that the apprehension of the petitioner that an order under section 17 (1) (a) of the Ordinance would be made subsequently was not correct, such an order has in fact been made. In view of the said statement made in the affidavit‑in‑opposition, it was open to Mr. Hafez to make the comments he did. In considering the question as to whether an order is mala fide, Chagla, C. J., observed as follows in a Full Bench decision of Bombay High Court in the case of Maledath Bharathan Malyali v. The Commissioner of Police (A I R 1950 Bom. 202). "The detaining authority must only consider the objects for which the Act was passed. If in making the order .his mind .is influenced .by any consideration extraneous to the Act, then the order would be bad and cannot be upheld." The learned Chief Justice further observed:‑ "An order is made mala fide when there is malice in law although there may be no malice in fact; and the malice in law is to be inferred when an order is made contrary to the objects and purposes of the Security Act." Although there is force in the argument of Mr. Hafez, it is difficult for us to reach a firm conclusion in this behalf on the materials so far placed before us nor is it necessary for us to do so in this case as we have already held that the order of detention is illegal on other grounds. The learned Senior Government Pleader has invited us to hold that even if valid objection can be raised to the extension of an illegal order, it is merely a technical error and, therefore, there should not be any order of release. We are unable to hold, regard being had to the observations of their Lordships of the Federal Court (P L D 1954 F C 1), that the illegality in this respect was merely a technical error. Had it been so, the petitioner Wali Khan in that case (P L D 1954 F C 1), would not have been ordered to be released by their Lordships of the Federal Court. The order under section 17 of the Ordinance proclaims that it is a continuation of the order under section 41 of the Ordinance. Therefore, in the facts and circumstances of the case, the decision reported in P L D 1954 F C 1, is directly applicable. The last point urged by Mr. Hafez is that the ground supplied to the detenu along with the order under section 17 of the Ordinance is also vague, indefinite, and it does not give him any opportunity to make an effective representation. Requirement of the Constitution is not merely a provision for submission of a representation. It must enable the detenu to make an effective representation on the basis of which the authority concerned may make an order of release and the grounds must be furnished in such a manner that a layman can understand what are the grounds on which he is being detained. We have seen in the cases discussed above that great importance is attached to the constitutional requirement for serving grounds of detention and for omission to make provision for furnishing the grounds, the Courts did not hesitate to strike down provisions of law relating to detention. Insistence on making provision for serving grounds is not for more ceremony but really in the interest of justice so that the person deprived of his liberty may have adequate information about the allegations against him and give explanations for securing his release. Particulars supplied must be of such a nature as would enable him to make a representation as a result of which he may secure his release. The only ground furnished to the detenu in this case is in the following terms:- "

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 month of July, August and October 1957; February, April, May, June, July, November 1959; April, 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 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." This ground says that the detenu has been associated with the activities of secret associations I in the districts of Dacca, Mymensingh, Bogra and Jessore during the years 1957, 1958, 1959, 1961, 1962, 1963 and 1964, excepting the period of his detention in the Dacca Central Jail. These allegations are indeed vague and they give no clear indication as to the charges made against him to enable him to make a representation which the Constitution guarantees him. We hold that the grounds furnished under section 17 of the Ordinance, are vague and indefinite and as such the order of detention made under section 17 is illegal on this ground also. The view expressed above finds support in the case of The State of Bombay v. Atma Ram Shridhar Vaidya (A I R 1951 S C 157). In that case, majority Judges of the Supreme Court of India consisting of Kania, C. J., Fazal Ali, B. K. Mukherjea and Chandrasekhara Aiyar, JJ., speaking through Kania, C. J., observed as follows:‑ "It is, therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that objection." Kania, C. J., further proceeded to observe:-‑ "Without getting information sufficient to make a representa tion against the order of detention it is not possible for the man to make the representation. Indeed, the right will be only illusory but not a real right at all." It has also been held by the Supreme Court of India in the case of Shibban bal Saksena v. State of Uttar Pradesh and others (A I R 1954 S C 179), that the sufficiency of the particulars conveyed to a detenu in accordance with the provisions of Article 22 (5) of the Constitution of India is a justiciable issue and the Court may examine as to whether they are sufficient to enable the detenu to make an effective representation. In the case of Safatulla Khan v. The Chief Secretary to the Government of West Bengal and others (55 C W N 27), Harries, C. J. and Mitter, J., of the High Court of Calcutta held that a Court can order the release of a detained person if the grounds of detention served on that person are not sufficient, exact or precise to enable him to make an effective representation. For the reasons stated above, we make the Rules absolute in both the cases without any order as to costs, and we order that the detenu Mr. Shaukat Ali Khan be released forthwith. ABU MD. ABDULLAH, J.‑

I agree. A. H Rule made absolute.