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Criminal Miscellaneous Case No. 84 of 1968, decided on A 28th June 1968.

Ss. 50 & 55 read with East Pakistan Public Safety, Ordinance (LXXVIII of 1958), S. 7 (3) and Defence of Pakistan Rules, 1965, rr. 32 (1) (b) & 47 (S)-Publication of objectionable leaflet-Absence of reasonable connection between detenu and. such leaflet---No material before detaining authority to arrive at satisfaction about prejudicial activities---Detenu, held; illegally detained in jail.

Ataur Rahman Khan and Aminul Haq for Petitioner.

Abdul Malek for the State.

Date of hearing: 24th and 27th Jute 1968.

-This Rule was issued upon the Deputy Commissioner of Dacca and the Opposite-parties to show cause why the detenu Nurul Islam should not be brought before this Court to be dealt with in accordance with law or set at liberty.

The Rule was issued upon an application made on behalf of the detenu by Mrs. Amena Begum claiming to be a friend of the detenu. The petitioner has stated that the detenu is merely a worker of the East Pakistan Awami League and was not actively participating in political activity. It has been further stated that the detenu has always been a law-abiding citizen and never resorted to any unlawful and ante-state activity. Nevertheless on 3rd September 1966 a police party arrested him under section 7(3) of the East Pakistan Public Safety Ordinance, Rule 47(5) of the Defence of Pakistan Rules and sections 50 and 55 of the Press and Publications Ordinance from his residence in connection with the publication of pamphlet called. (Bir Bangalee Jago) and on the next day he was produced before a Magistrate at Dacca and G. R. Case No. 4677 66/162-67 was started against him and some others. It is alleged that tae Deputy Commissioner of Dacca in the meantime a some wrong information and under the influence of the police issued an order of detention against the detenu under clause (b) (1) of Rule 32 of the Defence of Pakistan Rules, 1965 and the order was served upon the detenu white he was still in the Magistrate's Court. The detenu was consequently taken to Dacca Central Jail that vary day and has been detained there since. The petitioner has further stated that the detenu has been suffering from Tuberculosis and that he was recently discharged from Mohakali T. B. Hospital, Dacca after having been under treat ment there for one year. It is also stated that the detenu is still taking medicine to enable him to recover fully. The petitioner has submitted that the detention of the detenu is mala fide and there is no satisfaction of the detaining authority on the pre-existing materials justifying the detention of the detenu. It has been further stated that on an application under section 491 of the Code of Criminal Procedure read with Article 98 of the Constitution made on behalf of the detenu the matter came up for consideration before a Division Bench of this Court comprising Baquer and Sayem, JJ. and the Bench discharged the Rule by its. judgment and order dated 14-11-66 made in Criminal Miscellaneous Case No. 148 of 1966.

Thereafter the detenu was discharged in the said G. R. Case oft 3-5-1967 the police not having submitted any charge shoot against him. A charge sheet was, however, submitted against the co-accused persons. A certified copy of the order of discharge has been annexed as Annexure 'A' to the petition. In spite of the order of discharge, however, the detenu continued to be detained from time to time on the basis of fresh orders of detention, each of them being valid for a period of three months only and the lost order of detention was dated 17-2-68. We may pause here to mention that this last order of detention upon the basis of which the present Rule was issued having expired in the meantime a fresh order was passed against the detenu on 18-5-68 and this order has been produced before this Court by means of a supplementary affidavit by the petitioner dated the 8th day of June 1968. On behalf of the detenu it has been submitted that the detenu has now been under detention for about one and half years and that the circumstances and the situation of the country under which the detenu was arrested have changed. It has been further submitted that the aforesaid leaflet, "Wake up heroes of Bengal" (Bir Bangalee Jago) had no connection with the detenu.

On behalf of the opposite parties an affidavit-in-opposition, shorn by Mr. M. Ismail, Section Officer, Home (Special) Department, Government of East Pakistan has been put in. In this affidavit it has been denied that the detenu never participated in active politics. On the contrary it has been stated that the detenu has been the President of East Pakistan Bidi Sramik Union since 1965. It has been asserted that the detenu prior to his arrest was acting in a manner prejudicial to the public safety and the maintenance of peaceful conditions in the country and with a view to preventing him from so doing he was detained under clause (b) (1) of Rule 32 of the Defence of Pakistan Rules, .1965. It has been further stated that the detenu participated and held secret as well as public meetings which were prejudicial in nature and details of some of the activities of the detenu which were prejudicial in nature has been given as follows:-

"(i) On. 7-8-66 the detenu attended a meeting and condemned the action of the Government against the New Nation Printing Press and thereby tried to create disaffection and hatred against the Government established by law;

(ii) It was reported on 14-8-65 that the East Pakistan Student's League got financial help from the detenu to organise strike of students and demonstration during the visit of the President of Pakistan on 6-8-66;

(iii) In pursuance of a secret information 3-9-66 about 200 copies of printed leaflets captained "BEER BANGALEE JAGO" were seized from French Traders Printing Press situated at 46, Madan Mohan Basak Road, Dacca that it was reported that' the detenu was the author of those leaflets that those prejudicial leaflets aimed at arousing contempt, hatred and disaffection of the people of East Pakistan against the people :,f West . Pakistan and the Government established by law; that after the recovery of the above leaflets Sutrapur P. S. Case No. 8(9) of 1966 was started under sections 7(3) of the East Pakistan Public Safety Ordinance, 50 and 55 of the Press and Publications Ordinance, 1960 and under Rule 47(5) and 50 (5) of the Defence of Pakistan Rules against the detenu and others."

It has been further stated that the detenu was arrested on 3-9-G6 in connection with the aforesaid Sutrapur P. S. Case No. 8(9) of 1966, which gave rise to the aforesaid G. R Case. It has been denied that the Deputy Commissioner of Dacca on a wrong information and under the influence of the police issued the order of detention against the detenu under the Defence of Pakistan Rules. It is asserted that before passing the relevant detention order the detaining authority had perused the materials available against the detenu and having been fully satisfied that the detention of the detenu was necessary ordered his detention with full application of the mind of the authority. The affidavit also asserts that the detention of the detenu is not mala fide. With regard to the discharge of the detenu in the aforesaid criminal case it has been stated that the detenu was discharged for want of necessary evidence. It has been further stated that from the materials available against the detenu it is clear that the detenu has been "a potential trouble shooter and agitator" and as such his detention was justified and necessary for the public safety - and the maintenance, of public order and the maintenance of peaceful condition in the country.

It may be noted that the petitioner's statement that the detenu is "merely a worker of the East Pakistan Awami League" is not controverted.

The petitioner has also put in an affidavit-in-reply reiterating her statements in the petition. This affidavit, in reply to paragraph 9 of the affidavit in opposition states as follows:-

"That prejudicial activities appended to the paragraph 9 of the affidavit do not bear any substance; that in reply to the sub-paragraph (i) of the paragraph 9 of, the affidavit I say that mere condemning action of the Government would in no way create disaffection and hatred and towards the' Government that in reply to sub-paragraph (ii) of paragraph 9 of the affidavit I say that mere participation and organising demonstration during the visit of the President would in no way be calculated as prejudicial activities; that with regard to the allegations embodied in this sub paragraph (iii) of the paragraph 9 of the petition I say that the detenu had a specific case as to said leaflet and he vas discharged from the said charge by Court's order which had already been annexed with the petition."

Mr. Ataur Rahman Khan appearing on behalf of the petitioner has strenuously contended that having regard to the discharge of the detenu in the aforesaid criminal case there is hardly any justification for holding that the detenu was in any way connected with aforesaid leaflet. "Wake up heroes of Bengal" (Bir Bangalee lago), Mr. Ataur Rahman Khan has also contended with reference to the previous order of this Court dated 14-11-66 that at that time the detenu was still an accused in the aforesaid criminal case and that the Court had made observations against the detenu in regard to his connection with the said leaflet on the basis solely of the leaflet itself. W Ataur Rahman Khan has, therefore, asked us to look into the materials that might have been placed before the detaining authority on the basis of which orders for the detention of the detenu were passed. Along with this Mr. Khan has argued that now that the old order has been replaced by a new order it has become necessary to re-examining the entire matter of detention of the detenu afresh.

The first contention of Mr. Ataur Rehman Khan receives support from Annexure A' to the petition and shows that in the aforesaid criminal case (G. R. Case No. 4677-66/162-67 under section 7(3) of the East Pakistan Public Safety Ordinance, 1958 and section 47 (5) of the Defence of Pakistan Rules and sections 50 and 55 of the Press and Publication Ordnance. no charge sheet (Magistrate) was even submitted against the accused Nurul Islam (the detenu) and he was, therefore, discharged. The order of the Magistrate Annexure 'A' further show, that charge sheet under Rule 55(f) of the Press and Publication Ordinance, 1960 was submitted against four other accused persons. In these circumstances, we think, no reasonable basis exists for any belief or inference that the detenu Nurul Islam was connected with the publication of the said leaflet. It should be remembered here that the first order of detention was passed following the detenu's arrest in connection with the leaflet and the institution of the said criminal case.

As regards the second contention- of Mr. Ataur Rahman Khan at our direction, Mr. Abdul Malek, learned Advocate appearing on behalf of the State, has produced before us the papers that formed the basis of the detention in question. We have carefully examined the papers that were flag marked. They appear to be reports made by the Superintendent of Police, City Division, S. P. Dacca, dated 3-9-66, 26-8-66 and 18-8-66.

Mr. Abdul Malek appearing on behalf of the State has frankly conceded that the State has no papers to produce before us in support of the prejudicial activities of the detenu details of which have been given in paragraphs 9(i) and 9(ii) of the affidavit-in-opposition.

The papers placed before the Court on behalf of the State relate only to the matters that are contained in said paragraph 9 (iii) of the affidavit-in-opposition.

So far as the prejudicial nature of the said leaflet is concerned this Court in its order dated 14-11-66 has already expressed its considered opinion, and has held that the leaflet does contain prejudicial matters. We cannot and do not revise this opinion.

The pertinent question for consideration, however, is whether the detaining authorities had sufficient materials before it to justify an inference and belief that the detenu Nurul Islam was in any way connected with publication or attempted publication of the said leaflet. It may be mentioned here that the said leaflet purports to be: "Published by Nurul Islam on behalf of the Sangram Parishod' ". It was on the basis of this statement alone that the Court in its order dated 14-11-66 had observed as follows:--

"The leaflet it will be noted, appears, to have been published by one Nurul Islam, on behalf of the action Committee, although no reference has been made therein of the Awami league or any Political party. In passing the impugned order, the Deputy Commissioner appears to have accepted and chosen into action the report that it was the detenu Nurul Islam who was also the author of the leaflet. It cannot be denied that in exercising powers of detention the Deputy Commissioner is not bound by the strict rules of evidence and in view of the printed matter rules of evidence, and in view of the printed matter having prima facie named the detenu as the published, no valid objection can possibly be taken to the Deputy Commissioner accepting the report that it was the detenu who was also the author thereof.

It, however, does not appear from the aforesaid order of this Court that the papers which haves been placed before us were placed before the Court. It appears from these papers that the only information that the State had in its possession at the relevant time was that a draft copy of the leaflet styled "Bit Bangalee Jago" (Brave Bangalees Wake up" showed that it would be issued in the name of Nurul Islam, A. L. Office Secretary, 15 Purana Paltan, Dacca."

On behalf of the detenu Nurul Islam it has been categorically stated in the petition that the detenu was merely a worker of East Pakistan Awami League and this statement has not been con troverted in the affidavit-in-opposition filed on behalf of the state. Furthermore nowhere in the affidavit-in-opposition has it been asserted that the detenu Nurul Islam was at any point of time Office Secretary of the Awami League Organisation at 15, Purana Paltar, Dacca. On the contrary it has been asserted there that the detenu has been the President of East Pakistan Bidi Sramik Union since 1965. We are told by Mr. Ataur Rahman Khan appearing on behalf of the petitioner that there were more than one Nurul Islam in the Awami League Organisation at the relevant time. In the absence, therefore, of any description fixing the identity of the particular Nurul Islam under whose name the said leaflet was proposed to be published and in the absence of any averment in the affidavit-in-opposition claiming that detenu Nurul Islam son of late Sekander Gazi of Dhadda, P. S. Hajiganj, District Comilla, was an Office Secretary of the Awami League at 15, Purana Paltan, Dacca it is difficult to hold that there was any reasonable basis for the belief or inference that it was the detenu Nurul Islam who was the publisher or proposed publisher of the said leaflet. This aspect of the question was neither considered by the Bench which passed the order on 14-11-66-nor appears to have been placed before it.

Mr. Abdul Malik has candidly, stated that the said leaflet was the only matter, that formed the basis of the detenu's detention.

In the absence, therefore, of any reasonable connection, between the detenu Nurul Islam and the said leaflet we are o: opinion that the detaining authority had no material before it on the basis of which it would arrive at its satisfaction about the prejudicial activities of the detenu. Our view finds support from the fact that the specific case imputing authorship of the leaflet to the detenu has not only failed but could not materialize into a charge sheet against him even.

The detenu appears to be suffering from. a fell disease like Tuberculosis and has been in detention for about one year and ten months. It was due to his alleged connection with the said leaflet that first led to his arrest and subsequently to his detention.

Having anxiously considered all the facts and circumstances of the case we hold that the detenu has been illegally detained in jail.

We accordingly make the Rule absolute and declare that the order of the Deputy Commissioner. Dacca District dated 18-5-68 detaining the detenu, Mr. Nurul Islam, is without lawful authority and is of no legal effect. . We further direct that he be set at liberty forthwith if not wanted in connection with any other matter.

Rule mode absolute.

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