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Before Qadeeruddin Ahmad and H. T. Raymond,

JJ

Criminal Miscellaneous Application No. 530 of 1962, decided on 21st February, 1963.

(a) Security of Pakistan Act (XXXV of 1952), Ss. 3 (7‑A), 6(2) & 6‑A(2) read with Preventive Detention Laws Amendment Act (IV of 1962), S. 5‑

New detention of person already in custody on date of enforcement of Preventive Detention Laws Amendment Act, 1962 (i.e., 24‑7‑62)‑Detention deemed to have commenced from 24‑7‑62‑Information of grounds of new detention to be furnished to detenu within 15 days from 24‑7‑62 and authority of Board to be obtained for detaining him for longer period than two months reckoning from 24‑7‑62.

Communication of grounds within 15 days and detenu not to be detained .for more than 2 months without authority of Board‑Rights of detenu‑Contravention not mere irregularity.

Muhammad Hayat Junejo for Applicant.

Shah Jamil Alam for Respondent.

Dates of hearing: 29th January and 5th February 1963.

QADEERUDDIN AHMED,

J.‑We have heard arguments on 29‑1‑63 and again after giving notice to counsel for the parties on 5‑2‑63.

2. The applicant has complained that he was arrested on the 15th of September 1961, and that his "existing detention in jail is illegal, because the grounds of his detention were not communicated to him within 15 days of the commencement of the detention and because it is without the authority of the Board.

3. The second ground was given up by Mr. Junejo when he was informed that the case of the applicant was placed before the Board, and that the Board has on the 14th of September 1962, authorised the detention of the applicant "for more than two months."

4. The first ground taken by Mr. Junejo needs explanation. The applicant was originally arrested on the 15th of September 1961 and detained by the order of the Commissioner of Karachi. On the 9th of January 1962 the Government of Pakistan issued an order under section 3(1)(b) of the Security of Pakistan Act, 1952 for his detention for nine months from the 14th of January 1962. The grounds for this detention were communicated to him on the same day on which the order was issued. The period of this detention was to expire on the 13th of October 1962. Before its expiry the Preventive Detention Laws Amendment Act, 1962 came into force on the 24th of July 1962, and contained section 5

relating to the existing detenus as follows :‑

"Persons who, on the commencement of this Act, are under detention or personal restraint under the Security of Pakistan Act, 1952 (XXXV of 1952), the Foreigners Act, 1946 (XXXI of 1946), or the Bengal State Prisoners Regulation, 1818 (Bengal Regulation III of 1818), shall be deemed to have been detained or personally restrained, as the case may be, on the date of such commencement, and the period of fifteen days for the purpose of communicating grounds of detention to them and the period of two months for the purpose of detention without the authority of a Board shall run from the date of such commencement."

5. In so far as the Security of Pakistan Act, 1952 is concerned, the above provision has reference to three sub sections. They are section 3(7‑A), section 6(2) and section 6‑A (2). These subsections are as follows :‑‑

Section 3(7‑A)‑

"A person shall not be detained under an order made under clause (b) of subsection (1) for a period longer than two months without the authority of a Board "consisting of a Judge of the Supreme Court who shall be nominated by the Chief Justice of that Court and another senior officer in the service of Pakistan, who shall be nominated by the President."

Section 6(2)‑

"In the case of an order made under clause (b) of sub section (1) of section 3, the authority making the order shall, except where the President, in the interest of the Security of Pakistan, directs otherwise, inform the person detained under that order of the grounds of his detention at the time he is detained or as soon, thereafter as is practicable, but not later than fifteen days from the date of detention."

Section 6‑A(2)‑

"If the Board authorizes the detention of a person under clause (b) of subsection (1) of section 3 for a period longer than two months, the Central Government may detain the person concerned for such period as it may think fit."

Under these subsections of the Security of Pakistan Act, 195 read with section 5 of the Preventive Detention Laws Amend ment Act, 1962, new detention of a person who was already in custody at the time of the enforcement of the Preventive Detention Laws Amendment Act, 1962 is deemed to have commenced from A the 24th of July 1962, and information of the grounds of his detention is to be communicated to him on or within 15 days from this date. Moreover, the authority of the Board is to be obtained for detaining him for a longer period from this date than two months.

6. The fifteen days from the 24th of July 1962, expired on the 8th of August 1962 but no information of the grounds of new detention was given to the applicant. The period of two months for obtaining the authority of the Board was to expire on the 23rd of September 1962. Before the lapse of these two Months, the case of the applicant was placed before the Board and its authority was obtained on the 14th of September 1962. The Board has ordered as follows :‑

"Upon consideration of the records and the materials placed before us and the representation made by him and also after considering his oral submissions, we are of the opinion that his detention is justified and not arbitrary or mala fide. We are further satisfied that there is sufficient cause for his detention for more than two months."

7. This order has authorised the detention of the applicant for more than two months from the 24th of July 1962. At the time of this authorization the order of the Government of Pakistan dated the 9th of January 1962, was operative as explained above.

8. Before the expiry of the latter order but after the authority of the Board was obtained, another order to detain the applicant for one more year was issued on the 26th of September 1962. The operative part of it is as follows :‑

" . . . . . . . the words nine months' shall be substituted by the words one year and nine months'."

Mr. Junejo has argued that the detention of the applicant having commenced from the 24th of July 1962 the State was bound in terms of subsection (2) of the amended section 6 of the Security of Pakistan Act, 1952 to‑

"inform the person detained . . . . . . . of the grounds of his detention at the time he is detained or as soon thereafter as is practicable, but not later than fifteen days from the date of detention."

This requirement having been contravened the detention has become illegal in view of counsel.

9. Mr. Jamil Alam has with his characteristic fairness conceded that new detention had legally commenced from the 24th of July 1962, and that the grounds of detention were strictly legally to be communicated on or within 15 days of that date ; but he contended that they were communicated to the applicant twice, once at the time of the first order dated the 9th of January 1962, and again after the enlargement of the period of detention by the order dated the 26th of September 1962 ; therefore, their communication for a third time would have amounted to a fruit less repetition. He assured us that they have remained unchanged and were considered by the Board after hearing the applicant himself. In these circumstances, according to him, the omission was a mere irregularity and of no consequence because no injustice has resulted from it to the applicant.

10. We do not find the above contention to be very clear in its connotation because it suggests several possible subsidiary arguments. It may mean (i) that the communication of the grounds of detention is a formality, or (ii) that the demand of the applicant for a repetition of an act already twice performed is without any useful purpose ; or (iii) that both of these aspects taken together reduce the illegality to a triviality.

11. Looked at from any angle the concept behind the argument of Mr. Alam appears to be that communication of the grounds of detention does not constitute a right of the detenu and can at least in the present circumstances be considered to be procedural. This idea does not appeal to us at all because the Security of Pakistan Act provides only a few checks on the administration. They cannot be taken to be formalities. The Act does not grant to the detenu the right of being tried in an open Court, of being heard by a tribunal consisting of all impartial members, of being defended by a lawyer, of meeting witnesses face to face, of taking out compulsory process to procure and produce witnesses, of immunity from repeated deten tions on the same grounds and of knowing in advance the total period of his detention. Two of his most valuable rights are to know the grounds of his detention on the day of hiss detention or within 15 days of it so that he may be able to make a representation in writing; and not to be detained for more than two months without the authority of the Board. We consider these two requirements of the law to be the rights of the detenu because they are parts of those claims for individual liberty which in some systems of law are classed as fundamental rights. A contravention of any of these legal requirements is the denial of one of a few and extremely valuable rights of the detenu. It is no It a mere irregularity.

12. Mr. Alum's contention amounts to saying euphemisti cally that in the circumstances of this case the law confers no really valuable right on the applicant or that in this case these legal rights are merely nominal we do not subscribe to this view. Whenever the grounds of detention are furnished to a detenu he can make a written representation against them and can expect that it will be considered on merits or compassionately, because the authorities have the power under section 3(7) of the Security of Pakistan Act, and the General Clauses Act to revoke or cancel an order of detention. A detenu is not debarred from making representations without being informed of the grounds of his detention but section 6(1) of the Security of Pakistan Act connects the information so furnished with his right of representation and imposes an obligation on the officers concerned "to afford him the earliest opportunity of doing so." Moreover, furnishing al detenu with old grounds of his detention is not without value because he may make an effective representation by, for instance, pointing out that they have outlived their purpose.

13. Apart from these valuable opportunities associated with the information of the grounds of detention, a right cannot be denied by prejudging the consequences of its exercise. There can be many claims and complaints, a large number of trials, several representations and even regular appeals well represented by skilful Advocates which would stand self‑condemned before they are preferred, made or instituted if they were prejudged on merits. But to so prejudge them, is itself destructive of the hope of fairplay and, above all illegal. In the words of Mr. Junejo the contention, that conveying information of the grounds of detention for a third time was futile, is tantamount to arguing that a part of section 5 of the Preventive Detention Laws Amend ment Act, 1962 may be treated as redundant.

14. Thus we reject the arguments advanced by counsel for the State and hold in terms of Article 98 (2)(b) of the Constitution that the applicant is detained in an unlawful manner. We, therefore, direct that he be set free at once from the present detention.

K. B. A.

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