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Criminal Miscellaneous Application No. 381 of 1955, decided on 28th September 1955.
, S. 3 (7) Fresh order of detention while a previous order was still in force---‑Order, held, not illegal.
The Chief Commissioner of Karachi passed a fresh order of detention on 18th May 1955 while the previous order of detention passed on 17th May 1954 but served on peti tioner on 22nd May 1954 was still in force.
It was contended that the fresh order was not in con formity with subsection (7) of section 3, Security of Pakistan Act, 1952.
Held, it was open to the authority concerned either to specifically revoke the previous order or to do it impliedly by issuing a fresh order of detention.
There was nothing in subsection (7) of section 3 of the Security of Pakistan Act 1952, from which an inference could be drawn that the authority concerned had no power to impliedly revoke the previous order by passing a second order to the same effect.
It was not necessary for the detaining authority to set free the detenu while making the second order revoking the first one.
Zamir Qasim v. Emperor A I R (35) 1948 All. 285 ref.
, S. 6 Sufciency of information as to grounds of detention‑Determined by circumstances of each case‑Test: Whether information adequate for detenu to make an effective representation.
What information should be conveyed to the detenu which would be sufficient to enable him to make a proper representation would depend in each case upon the circum stances of that case and upon the grounds that had satisfied the detaining authority of the necessity for such detention. The test is, whether in any particular case the grounds supplied to the person affected by the order of detention were in fact such as would enable him to make an effective representation against his detention to Government or not.
Syed Sibte Hasan v. The Crown P L D 1954 Lah. 142 ref.
Fakhruddin for Petitioner.
Raymond H. T. for the Crown.
‑This is an application under section 491 Criminal P. C., and rises under the following circumstances.
An order was passed by the Chief Commissioner of Karachi on 18th May 1955 ordering the petitioner to be detained for a period of one year from the date of service of the order. The grounds of detention, as required by section 6 of the Security of Pakistan Act, 1952, were served on the detenu on 14th June 1955. A reference to the Advisory Board in compliance with section 7 of the Security of Pakistan Act, 1952 was made on 17th August 1955. The Advisory Board in due course gave its opinion on 26th August 1955.
Mr. Fakhruddin, the learned Advocate, who has appeared for the petitioner, has raised two‑fold contention before us. He has contended in the first place that the order passed on 18th May 1955 was not in conformity with subsection (7) of section 3 of the Security of Pakistan Act, 1952, inasmuch as the previous order detaining the petitioner passed on 17th May 1954 but served on him on 22nd May 1954 was still in force. In the second place, it was contended by him that the grounds served on the detenu were vague and indefinite, and as such were not in due compliance with the mandatory provisions contained in section 6 of the Security of Pakistan Act, 1952. We would consider both these contentions separately:
So far as the first question, i.e., that the order of 18th May 1955 detaining the petitioner for a period of one year from the date of service of the order, was not in conformity with the provisions of section 3 (7) of the Security of Pakistan Act, 1952, is concerned, we may shortly mention a few facts, which have now been mentioned at the bar, and which do not find place in the present petition before us. We have allowed the learned Advocate for the petitioner, Mr. Fakhruddin, to urge those facts, as they were the matter of record in another petition filed by the present petitioner in this Court which was numbered as Criminal Miscellaneous Application No. 277 of 1955 under section 491 Criminal P. C. The facts are these:
The detenu was arrested on 22nd May 1954 in pursuance of an order passed by the Chief Commissioner on 17th May 1954 under section 3 (1) (b) of the Security of Pakistan Act, 1952. We may here make it fear that, so far as the record of the previous case No. 277 of 1955 is concerned, we are unable to find the date on which the said order of 17th May 1954 was served on the detenu. We are, however, for the purposes of the present petition, accepting the statement at the bar of Mr. Fakhruddin that the order was served on his client on 22nd May 1954. The petitioner preferred a petition under section 491 Criminal P. C. before this Court against the order passed by the Chief Commissioner dated 17th May 1954. This Court allowed the petition on the ground that section 7 of the Security of Pakistan. Act was not complied with, and the detenu was released on 19th May 1955 ( ). The contention of Mr. Fakhruddin is that under section 3 (7) an order passed shall remain in force for the period specified in the order, or until it was revoked by the authority making the order. On the basis of this proposition, his contention is that the previous order of 17th May 1954 had not expired on 18th May 1955 and therefore, the order passed on 18th May 1955 was an illegal order. Subsection 7 of section 3 reads as under :‑
"An order made under this section shall remain in force for such period as may be specified in the order or, if no period is specified, until revoked by the authority making the order:
Provided that a revocation shall not prevent the making under this section of a fresh order to the same effect as the order revoked".
We have given our best consideration to the contention of Mr. Fakhruddin and we find that there is not much force in it. It is clear from subsection (7) of section 3, reproduced above, that the authority concerned has got power to pass a similar order as was passed previous to the order sought to be given effect to. In the present case, under subsection (7) it cannot be seriously contended that the authority concerned had no power to pass an order on 18th May 1955 as it did pass. The point sought to be made out is that the authority concerned could pass such an order only after it had revoked the previous order of 17th May 1954. So far as subsection (7) is concerned it does not specify any particular method by which the authority concerned was required to revoke its previous order. An order can be revoked either explicitly or impliedly. It was open to the authority concerned to have specifically mentioned in the order of 18th May 1955 that it revoked the previous order. On the other hand, if the authority concerned has not so mentioned, there is nothing in subsection (7) of section 3 of the Security of Pakistan Act, 1952, from which an inference can be drawn that the authority concerned had no power to impliedly revoke the previous order by passing a second order to the same effect. In the present case, the latter order of 18th May 1954 (1955 ) should for all purposes, be taken to be in revocation of the order passed on 17th May 1954. In the absence of any specific direction made by the legislature in section 3 (7) of the Security of Pakistan Act, 1952 it was open to the authority concerned either to specifically revoke the previous order or to do it impliedly, as has been done in the present case. There would have been some force in the contention raised by the learned Advocate on behalf of the petitioner had the power of revoca tion not been conferred on the authority concerned under section 3 (7) of the Act. Moreover, Mr. Fakhruddin has failed to suggest any prejudice that may have been. caused to the detenu by such an act of the authority concerned in impliedly revoking the previous order.
It was also urged by Mr. Fakhruddin as a subsidiary point under subsection (7) of section 3 of the Security of Pakistan Act, 1952 that, if a fresh order was passed revoking the previous order, it was necessary for the detaining authority to have released the detenu though for a short while. Reliance has been placed on the case of Zamir Qasim v. Emperor (A I R (35) 1948 All. 285). We have carefully perused subsection (7) of section 3 of the Security of Pakistan Act, 1952, and it is very difficult for us to deduce any such inference whereby the detaining authority while passing a fresh order after revoking the previous one could be said to be liable to set free the detenu for a short while. In fact, the proviso to section 3 (7) would point out that it is not at all necessary for the detaining authority to set free the detenu while making the second order revoking the first one. The power given by the proviso that "a revocation shall not prevent the making under this section of a' fresh order to the same effect as the order revoked", makes it clear that the authority concerned, while making the fresh order, may have it served upon the detenu wherever the detenu may be; if he was in jail, the order could be served in jail.
As regards the second contention raised by Mr. Fakhrud din, that the grounds served upon the detenu were vague and indefinite, we have gone through the grounds carefully, which cover three closely typed pages, and find that the grounds are elaborate. In this connection, reference may be made to the case of Syed Sibte Hasan v. The Crown (P L D 1954 Lah. 142). We would res pectfully adopt the observations made by Rahman, J. in that case :‑
"What information should be conveyed to the detenu which would be sufficient to enable him to make a proper representation would depend in each case upon the circum stances of that case and upon the grounds that had satisfied the detaining authority of the necessity for such detention . . . . The test is, whether in any particular case the grounds supplied to the person affected by the order of detention were in fact such as would enable him to make an effective representation against his detention to Government or not".
In the present case, we are satisfied that the grounds served upon the petitioner were sufficient to enable him to make an effective representation against his detention to Government.
For the reasons given above, we would dismiss the petition.
A. H. Petition dismissed.
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