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Criminal Miscellaneous Application No. 167 of 1955, decided on 10th November 1955.

, S. 3 (7) ‑Earlier order for detention revoked for technical flaw and fresh order passed‑Fresh order prima facie evidence of fact of satisfaction of detaining authority‑Locus poenitentiae.

Where a former order of detention was revoked for a technical flaw and on the same date a fresh order was passed Held, that the fresh order prima facie was evidence of fact of satisfaction of the detaining authority that the person ordered against was about to act in a manner prejudicial to the security of State.

The fact of satisfaction is to be discovered from the relevant order, not from the affidavit filed on behalf of Government.

In cases of fresh detention orders, however, detenus should be afforded a locus paenitentiae.

Sibte Hasan v. Crown P L D 1954 Lah.142 ref.

, S.6 Grounds for detention‑Sufficiency of information for making a representation‑Test.

The test for sufficiency of information communicated to the detenu, bearing on the grounds for his detention is that the information should be such as enables the detenu to make an effective representation against his detention and leaves no doubt as to what the accusation against him was.

Sibte Hasan v. Crown P L D 1954 Lah. 142 followed.

Fakhruddin for Applicant.

Raymond, H. T. for the Crown.

--This is an application under section 491 Criminal P. C.

The facts, shortly put, leading to the present habeas corpus petition are these

An order of detention under the Security of Pakistan Act, 1952 was passed on 1st May 1954 ordering the detention of the petitioner under clause (b) of subsection (1) of section 3 of the Act. The petitioner, however, could not be arrested for a long time. The petitioner was arrested on 1st Septem ber 1954. While the petitioner was under detention; two orders were passed by the Chief Commissioner of Karachi on 2nd March 1955. By one order he revoked his former order of detention of 31st May 1954 under subsection 7 of section 3 of the Security of Pakistan Act, 1952, and by another order of the same date passed under clause (b) of sub section (1) of section 3 of the Security of Pakistan Act, 1952 he ordered the detention of the petitioner for a period of one year in order to prevent him from acting in a manner prejudicial to the maintenance of public order.

It may be noted at the very outset that the order of 2nd March 1955 was passed after the petitioner had moved this Court under section 223‑A of the Government of India Act, 1935 on 31st January 1955. An affidavit by one Mr. Samad, who was at that time Deputy Superintendent of Police, C. I. D., Karachi, was filed showing the reason why the order of .31st May 1954 was revoked and a fresh order detaining the petitioner was passed on 2nd March 1955. The reason stated was that some technical flaw was pointed out by the Public Prosecutor during the pendency of the writ petition, which led to the revoking of the order of 31st May 1954 and passing the present order of 2nd March 1955. The petitioner's petition under section 223‑A of the Government of India Act was amended after the judgment of the Federal Court in Moulvi Tamizuddin Khan's case, and another petition was filed under section 491 Criminal P. C. which is before us for disposal. An application for bail was also made in this Court by Mr. Fakhruddin after Moulvi Tamizuddin Khan's case, and the petitioner was granted bail on 14th April 1955.

Mr. Fakhruddin, the learned counsel for the petitioner has urged only two points before us. In the first place he contended that the satisfaction of the detaining authority was a mere sham satisfaction. In the second place he con tended that the grounds of detention supplied to the detenu were vague and indefinite. We would consider both the grounds separately.

So far as the first contention of the learned counsel for the petitioner is concerned, namely, that the satisfaction of the detaining authority within the meaning of section 3 of the Security of Pakistan Act, 1952 was merely a sham one, the learned counsel relied on paragraphs 9 and 10 of the affidavit filed by Mr. Samad. The contention of Mr. Fakhruddin on the basis of paragraphs 9 and 10 of the affidavit filed by Mr. Samad was that it does not disclose that the detaining authority passed the order on 2nd March 1955 after it was satisfied that the petitioner was acting in any manner pre judicial to the maintenance of the public order. Paragraphs 9 and 10 of the affidavit of Mr. Samad run as under:‑

"9,. That it was only after the petitioner had filed this Writ Petition and the papers of this case were forwarded to the Public Prosecutor that the latter detected this technical flaw in the detention of this petitioner and informed the Authorities about it. It was therefore that the original order of detention dated 31st May 1954 was revoked under the provisions of clause (7) of section 3 of the Security Act and a fresh order of detention made dated 2nd March 1955."

"10. That therefore, having regard to the circumstances that have led to the passing of this fresh order of detention, there can be no doubt that it is a bona fide order made in good faith. But for the conduct of the petitioner in going into hiding since the first order of detention was passed and thereby making it impossible for this order of detention to be served upon him until after the expiry of three months, there would have been no fault or technical flaw in the original order of detention and therefore no necessity for the passing of a fresh order".

On the basis of the above facts disclosed in the two para graphs of the affidavit of Mr. Samad, it was urged, as we have already indicated above, that it does not appear that the detaining authority had applied its mind while passing the order of 2nd March 1955 that it was satisfied that the petitioner was about to act in a manner prejudicial to the maintenance of public order. It was contended by Mr. Fakhruddin that there is no such mention in the affidavit of Mr. Samad. We fail to see any force in this contention. In the first place, the affidavit filed by Mr. Samad was only to disclose the circumstances under which the order of 31st May 1954 was revoked and another order on 2nd March 1955 was passed. The affidavit was filed in order to establish the bona‑fides of the detaining authority in passing the second order when the matter was pending before this Court. In the second place, so far as the question of satisfaction is concerned, the order of 2nd March 1955 itself was to be read, which clearly states that the Chief Commissioner was satisfied in respect of the petitioner that he was about to act in a manner prejudicial to the maintenance of public order. For the requisite satisfaction, it is the order of the Chief Commissioner which has to be read, and not the affidavit of Mr. Samad. A The order of 2nd March 1955 is prima facie evidence of the fact of satisfaction of the Chief Commissioner unless other wise established by the petitioner.

Mr. Fakhruddin, while arguing that the satisfaction of the detaining authority under section 3 of the Security of Pakistan Act 1952 was not a bona‑fide one, urged that the very fact that the petitioner is now on bail and has done nothing prejudicial during the period while he was free, would show that the satisfaction of the authority is not a bona‑fide one. There is no force in this contention. The petitioner had to be at his best behaviour during the period that he was on bail, otherwise the Chief Commissioner would have moved for the cancellation of the bail. Moreover, the detaining authority had passed the order on being satisfied that the petitioner was about to act in a manner prejudicial to the maintenance of public order, on 2nd March 1955 detaining the petitioner for a period of one year. The period has not yet expired. The relevant date of satisfaction of the detaining authority is the date on which the order was passed. It was not necessary for the Chief Commissioner under the law to examine the case from day to day during the pendency of the order to find out whether the requisite satisfaction still held good or not. At the time when the order was passed, the detaining authority was satisfied that, considering the antecedents of the petitioner, the object of the Act would be met if the peti tioner was detained for a period of one year from the date of the order. The very fact that the Chief Commissioner has not withdrawn the order dated 2nd March 1955 would show that he was satisfied that the petitioner would act in a manner prejudicial to the maintenance of public order. If the authority concerned was of a different opinion, it was open to it to have withdrawn the order. There have been cases in which the detaining authority had withdrawn its order of detention during the pendency of the habeas corpus petition in this Court. In this connection, however, we would res pectfully adopt the language of Raliman J. in the case of Sibte Hasan v. Crown (1) :‑

"Government, however, would be well advised in giving serious consideration to the question whether they should afford a locus paenitentiae to the petitioner after some time by releasing him and putting his professions of loyalty to the State to the test of actual experience".

The next contention of Mr. Fakhruddin was that the grounds supplied to the detenu were vague and indefinite inasmuch as they were not sufficient to enable him to make a representation to the authority concerned. We have gone through the grounds carefully and we find that they are not such which would not have enabled the petitioner to make an effective representation against his detention to Government. The information conveyed to the petitioner was such which could not have left him in any doubt as to what the accusation against him was. In this connection, the observations of Rahman J. in the case of Sibte Hasan v. Crown (P L D 1954 Lah. 142) are pertinent. It was observed 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 cir cumstances of that case and upon the ground that has satisfied the detaining authority of the necessity for such detention. It is difficult to lay down any hard and fast rule about it".

Rahman, J. further observed

"The test therefore is whether in any particular case, the grounds supplied to the person affected by the detention order were in fact such which would enable him to make an effective representation against his detention to Govern ment or not".

We are in respectful agreement with the test laid down by Rahman J. Applying the above test to the grounds served on the detenu, we are unable to come to the conclusion that they were such which did not enable the detenu to make an effective representation to Government.

We would, therefore, for the reasons given above, dis miss the petition and cancel the bail bond.

A. H. Petition dismissed.

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