An Assignment

on
Case summary related to Bangladesh Constitution

Course Title: Constitutional Law of Bangladesh

Couse Code: LJ 2101

Submitted to,
Tarik Morshed
Assistant Professor Submitted by:
Law Discipline Md. Rayhan Hossain
Khulna University Student ID: 192817
2nd year, 1st term
Law Discipline
Khulna University

Submission date: 30 January ,2021

Dr. Mohiuddin Farooque v. Government of Bangladesh (Radioactive Milk
Case) 48 BLD (HDC) (1996) 438

Lawyers involved:
For Appellant/Petitioner/Plaintiff: Dr. Mohiuddin Farooque (Petitioner himself)
with Mirja Quamrul Hasan, Mirja Hossain Haider, M.A. Hakim, Sadia R. Jahan,
Iqbal Kabir, Bahreen Khan and Syeda Rizwana Hasan, Advocates
For Respondents/Defendant: A. Mannan Bhuiyan with A. Mannan Khan,
Advocates for Respondent No. 3, Hassan Arif with Abdul Mannan and
Borhanuddin, Advocates for Respondent No.
6
Bench: Kazi Ebadul Hoque and Amirul Kabir Chowdhury, JJ.
Date of judgement: 01.07.1996 Facts:
The Petitioner, Secretary of Bangladesh Environmental Lawyers Association, filed
a writ petition in the High Court, which contended that the importation of
adulterated, radioactive skimmed milk into Bangladesh violated the fundamental
right to life. Danish Condensed Milk Bangladesh Ltd. had imported several
consignments of skimmed milk into Bangladesh. The Radiation Testing Laboratory
(RTL) of the Bangladesh Atomic Energy Commission tested the consignments for
radioactivity. Amongst the tested samples, the laboratory found that one of the
consignments exhibited levels of radiation much higher than Government-
mandated levels. The Collector of Customs subsequently ordered the reshipment of
the consignment back to the Netherlands because it was unfit for human
consumption. In response, Danish Condensed Milk Bangladesh Ltd. filed a class
action suit requesting that the order of the Collector of Customs be recalled. This
action was pending at the time this petition was filed in the High Court. Shortly
after the initial testing, however, the Atomic Energy Commission performed more
tests on the consignment. These tests had mixed results regarding the radiation
level. The Atomic Energy Commission ultimately decided the consignment did not
have to be reshipped. The Petitioner argued that the Government should be
compelled to reship the consignment because it had a duty under article 18 of the
Constitution to improve public health. Petitioner further claimed that allowing the
importer to market the contaminated consignment of skimmed milk would violate
the right to life under articles 31 and 32 of the Constitution.
Issues:
Argument of appellant:
Petitioner submitted that as Secretary General of Bangladesh Environmental
Lawyers Association (BELA) he filed the Writ Petition in public interest as
consumption of imported food item containing radiation level above the acceptable
limit and injurious to public health is a threat to the life of the people of the country
including himself who are potential consumers of such goods. Under Article 18(1)
of the Constitution State is bound to take measures to raise the level of nutrition
and improvement of public health and under Article 21(2) persons in the service of
the Republic have a duty to strive to serve the people. But activities of the
Government officers and officers of the Atomic Energy Commission in dealing
with the consignment in question injurious to public health has threatened life of
the people. He therefore contended that under Articles 31 and 32 of the
Constitution right to life is a fundamental right and the actions of those officers in
not compelling importer respondent No. 6 to send back imported milk powder in
question injurious to public health has violated the aforesaid fundamental right to
life and as such the respondents should be directed to take measures for sending
back the said milk powder to the exporter. Argument of respondent:
Learned Advocate for the respondent No. 6 submitted that after retesting in
Chittagong and Savar Laboratories of the respondent Nos. 3 in compliance of the
Order of the learned District Judge radiation level in the entire consignment was
not found above the acceptable limit and as such entire consignment of the
imported powder milk can not be directed to be sent back. He further submitted
that since the suit filed by the exporter is still pending this court in exercise of its
writ jurisdiction should not enter into the determination of question of fact which
should be left to the court below in which the suit is pending.

Judgment:
The Court held that the contaminated imported milk powder presented a danger to
public health in violation of the Government obligation to improve public health
under article 18 and the right to life under articles 31 and 32 of the Constitution.
Reasoning:
The Court first examined whether marketing and sale of the contaminated milk
violated the right to life. The Court held that the right to life included the right to
protection of health and normal longevity of an ordinary human being. If the right
was threatened by the consumption and marketing of contaminated food products,
then the aggrieved party could move the Court to eliminate the threat. The Court
held that the Government duty to improve public health under article 18 of the
Constitution meant it was abound to protect the health and longevity of the people
living in the country as they were guaranteed a right to life. As to whether the
Government was inactive, the Court held that certain directions needed to be given
in this regard. The laws governing were the Imports and Exports (Control) Act
1950, Nuclear Safety and Radiation Control Act 1993(Act XXI) and the Import
Policy Order 1993-95 (the Order). Together, the Order and Act XXI provided that
the Bangladesh Atomic Energy Commission would establish the acceptable level
of radiation in food and drink meant for human and animal consumption.
Moreover, they mandated the collection and testing of milk products for
radioactive material up to a certain level. They also restricted the import of milk
products with a radiation level higher than 95 Bq per kg.
The Court found that these laws demonstrated the Government initiative in
maintaining public health, but they had not been fully implemented and they did
not place a duty on public officials to collect more than one sample from a
particular consignment. The Court expressed its dismay over the hazardous effect
the latter could have on public health, as no two samples would ever have the same
result and thus many food products were likely to have been imported that were
injurious to health. The Court held it was necessary for the authorities to develop a
more comprehensive system for the collection of food samples to test for radiation
levels. In the meantime, the Court directed the Collector of Customs to collect
more than one sample from consignments with multiple containers. The samples
were to be sent to the Director, RTL to be tested; no testing was to be done by the
Atomic Energy Commission, Dhaka until the Director, RTL filed a report in this
regard.

S. M. MASUD HOSSAIN DOLON AND OTHERS VS. GOVERNMENT OF

BANGLADESH AND OTHERS 2017 (1) LNJ 317
Lawyers involved: For the petitioners- Mr. Mohammed Ziaul Hoque, Advocate in
person with Mr. S. M. Masud Hossain Dolon,
Advocate in person, Mr. Anwarul Karim, Advocate in person and Ms. Nusrat
Jahan, Advocate and
For the respondent No. 3. -

Mr. Md. Motaher Hossain (Sazu), DAG with Ms. Purabi Rani Sharma, AAG and
Ms. Purabi Saha, AAG Judge: Moyeenul Islam Chowdhury. J.
Date of judgement: 2017-06-15 Facts:
The case starts with filing of a writ petition on August 9, 2015 by some SC
Advocates. They submitted report of newspaper on the effects of carrying heavy
schoolbags by students and asked for Court’s Rule and direction for formulating
new law in this respect.
Upon such petition, the HCD, issuing a Rule, asked the concerned authorities as to
why the Court should not direct the Government for making a new law on
prohibition of carrying schoolbags which is more than 10 percent of a student’s
weight.

Issues:
Argument:
Firstly, the petitioners contended in the Court that this matter is concerned with
public wrong or public injury and also being conscious fathers of school going
children they have acquired right to seek remedy before the court under Article 102
of Bangladesh Constitution.

Then the petitioners said that most of the pupils of the country are carrying heavy
school bags and as a result they are facing various health hazards like irreversible
health problem. They have to carry bag with heavy books, guides, sports kit and
lunchboxes. Some of them carry 10% of their body weight, some of them carry
15% and even some carry 20% of their bodily weight.

In Bangladesh, the Directorate of Education makes the syllabi for classes. But
different schools or their authorities add extra subjects in the syllabi for their
respective students. Such autocracy of the school authorities is also worsening the
situation badly.

The petitioners submitted some foreign documents in support of their argument. At

first “The Children School Bag Bill,2006” of the Indian Rajya Sabha which
suggests for no bag for the kindergarten children and for the older children it
suggested bags not heavier than 10% of body weight. The petitioners also
submitted a circular of Directorate of Education, Delhi, India that also suggested
for reduction of weight of school bags. Furthermore, the petitioners submitted
some guidelines made by Education Bureau, Hong Kong considering the effects of
overweight school bags.

Learned advocate for the petitioners Mr. Mohammad Ziaul Haque showed two
foreign write-ups in the Court. One is “Burden of the School Bag: Is anybody
listening?” written by an Assistant Professor of India and the other write-up is
“Back Problems Due to Heavy Backpacks in School Children” written jointly by
Research Scholar & an Assistant Professor from India.

Petitioners submitted some other documents or write-ups which were included as

below:
Annexure ‘A’: – It’s a published write-up in the Daily Prothom Alo naming “স্কু লের
ব্যাগটা ব্ড্ড ভারী”.

Annexure ‘B’: – It’s a write-up downloaded from the Internet titled as “The ill-
effects of carrying heavy schoolbags”. Some material portion of this write-up was
quoted in the Court which necessarily included some useful suggestions by one Dr.
Smarajit Chakrabarty from India.

Annexure ‘C’: – It’s also a write-up published in the Daily Prothom Alo captioned
as “ভারী স্কু ে ব্যাগ ব্হন করলে পারলব্ না মহারালের শিশুরা”.

Annexure ‘D’: – It’s a news published in an online newspaper namely,

Banglanews24.com under the heading “শনর্ধাশরে বব্ার্ধ ব্ই শনল়ে শিশুলের স্কু লে যাও়ে ার
আহব্ান” dated 30-07-2015 which contains news of discussion in the National
Parliament of Bangladesh on this issue. One member of the Parliament naming Ms.
Nurjahan Begum expressed her opinion about ill-effects of heavy school bags with
whom the then Minister of Education Mr. Nurul Islam Nahid agreed at that time.

Annexure ‘E’: – It’s a collection of some guidelines for reducing the weight of
school bags for children issued by the Education Bureau of Hong Kong.

Contending all these, the petitioners said “forcing the children to carry heavy
school books is a violation of human rights” and thereby argued that “the
respondents are duty bound to enact a specific law for school bag weight.” If no
criteria for school bag weight is set out, immense health complications of children
cannot be checked or stopped.

On the contrary, the respondents contested by submitting an affidavit-in-opposition

where they claimed that “they are always engaged in protecting the people’s
interest as well as the rights of the children.” Advocate of the respondent No. 3
(Directorate General of Primary Education) showed in the Court that his client
issued a circular on 11-12-2014 prohibiting the use of school bags more than 10%
of body weight in all Government & NonGovernment Primary Schools of
Bangladesh. The learned Deputy Attorney General (DAG) conceded various health
hazards arising out of carrying heavy school bags and also agreed on complying
any directives as the Court may give in this regard
Judgment :

The Court heard the counsels of both petitioners and respondents. It was held that
to cope up with such a serious issue, the authorities concerned had failed to take
any concrete or tangible step. Although the respondent issued a circular but it was
not sufficient as there was no direction as to what would be the punitive measures
in case of non-complying with that circular. The Court found it as a matter of
‘paramount importance’ and termed that circular as ‘sketchy and incomplete’ one
because of its failure of having any effect upon the primary school authorities.

The Court considered the matter of bearing bags of more than 10% of bodily
weight as cruel treatment and as ‘manifest violation of Article 35(5) of
Constitution’ and also as violation of human rights.

The Court also found a lacuna of specific law in this respect. Therefore, making the
Rule absolute, the Court directed to enact a specific law prohibiting use of school
bags more than 10% of bodily weight within a period of 6 (six) months. And as an
interim measure, the Court further directed the respondent No 3 to issue fresh
circular forming a monitoring cell and providing punitive measures in case of non-
compliance until the specific law is enacted.

Saiful Islam Dilder Vs. Government of Bangladesh and others, 1998, 27 CLC
(HCD) [7202]
Lawyers involved: Dr. Kazi Akhter Hamid, Advocate - For the Petitioner.
Judge: AM Mahmudur Rahman J Date of
judgement: February 16, 1998.
Facts:
The petitioner is actively involved with issue of Human Rights at home and
abroad. He is concerned for violation of Human Rights, viz, torture, arbitrary
arrest, extra-judicial killings, involuntary disappearance which is being carried out
by the Indian Government against the freedom fighters struggling for right to self-
determination of the Assamese people since 1979. The petitioner concerned with
the arrest of Anup Chetia, the secretary-general of the United Liberation Front of
Assam, briefly called ULFA, by the Bangladesh Government on 21-121997 and
with the issue of his extradition to India as the Government of Bangladesh has
decided to hand over him to India. He states that as Anup Chetia was charged with
treason by the Indian Government he came to Bangladesh to save his life. The
petitioner states that Chetia is not a criminal but a person who has been fighting for
right of self-determination for the Assamese people. He also states that Chetia has
not been allowed any opportunity to seek political asylum as a politically
persecuted person. He further states that under International Law, Bangladesh is
under legal obligation to grant him refugee status. The petitioner wrote to the
Hon’ble Home Minister for extending legal help to Chetia without any success.
Mr. Arabinda
Rajkhown, the Chairman of ULFA wrote to the petitioner about Chetia. The
petitioner states that Bangladesh Government has not signed any extradition treaty
with India.

Issues:
Argument of petitioner:
The learned Advocate for the petitioner contends first, that Chetia is a freedom
fighter for right of self-determination of the Assamese people and, as such, right
has evolved as a principle of International Law which is binding on the member
states of the United Nation to help people struggling for freedom and liberation. He
next contends that extradition of Chetia to India in absence of any extradition treaty
would violate the provision of Article 145A of the Constitution of the People’s
Republic of Bangladesh. His last contention is that extradition of Anup Chetia
would be offending Articles 31 and 32 of our Constitution. The learned Advocate
further contends that the Government of Bangladesh is under legal obligation not
to extradite Anup Chetia to India. To support his contention he read out to us the
following passages from International Law in Contemporary Perspective written by
Myres Dougal W Michael Reisman from the case of Ramos Vs. Diaz 1498 of the
treatise. He also referred to us Article 111 of the Convention on the Prevention and
Punishment of the Crime of Genocide (1948), Article III reads: “The following acts
shall be punishable:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.”

Judgement:
It is not found any substance in this writ petition. In the result, this writ petition is
rejected in limine without any order as to costs.
Reasoning:
It is viewed that extradition of Anup Chetia to India in no way violates Article 25
of our Constitution as contended by the petitioner rather, if the Government
extradite Anup Chetia to India it will be in consonance with the Fundamental
Principles of State Policy and help base its international relations on the principles
of respect for national sovereignty and equality, noninterference in the internal
affairs of other countries. consider section 3(1) of the Special Powers Act, 1974.
It is considered in section 3(1) of the Act empowers the Government to make an
order directing any person to remove himself from Bangladesh in such a manner as
it may specify in the order in order to prevent him from doing any prejudicial act.
Section 2(f) has given meaning of the expression “prejudicial act”. According to
sec 2 (f)(ii) “prejudicial act”, amongst others, means “act to a prejudice the
maintenance of friendly relations of Bangladesh with foreign States.” Thus, in a
case where a citizen of a foreign country intends to stay in Bangladesh and if the
Government is satisfied that extradition of such person is called for in order to
maintain friendly relations of Bangladesh with foreign States the Government can
on the strength of section 3(1) and section 2(f)(ii) of the Special Powers Act, 1974
extradite such citizen to his own country in absence of any extradition treaty
between the government of Bangladesh and such foreign States. Thus, reading
section 4 of the Extradition Act, 1974 and section 3(1) read with section 2(f)(ii)
together, It is held that the government of Bangladesh has sufficient legal authority
to extradite Anup Chetia to India in response to the right of India to demand
extradition of India.
Professor Ghulam Azam Vs. Bangladesh, represented by the Secretary,
Ministry of Home Affairs, Bangladesh Secretariat, Dhaka and others. 46 DLR
(1994) 29

Counsels:
For Appellant/Petitioner/Plaintiff: AR Yousuf, with Abdur Razzaq, Sk. Ansar Ali,
Md. Nawab Ali, Humayun Hossain Khan, Md. Raisuddin, SM Emdadul Hoque &
Md. Abdus Salam, Advocates
For Respondents/Defendant: Aminul Huq, Attorney-General, with AF Hasan Arif,
Deputy Attorney-General, M. Shamsul Alam,
Deputy Attorney-General, Serajul Hoque, Assistant Attorney-
General & Obaidur Rahman Mostafa, Advocate

Bench: Md. Abdul Jalil and Md. Ruhul Amin, JJ.

Date of judgement: 14.07.1993

Facts:

Professor Ghulam Azam, the plaintiff in this case, became the Amir of Jamaat-e-
Islami of East Pakistan in 1969. He was in this post till 1971. He was opposed to
the Liberation War of Bangladesh from the start. He and his party sided with the
Pakistan authorities at the time. Before Bangladesh won victory on December 16,
1971, Ghulam Azam left the country on November 22 and went to Pakistan and
continued to live there. On April 28, 1973, the citizenship of 38 pro-Pakistani
political persons, including Ghulam Azam, was cancelled by the Government
under Article 3 of the Bangladesh Citizenship (temporary provisions) Order, 1972.
The government argued that Golam Azam had been living outside Bangladesh
since before the liberation as a citizen of Pakistan. His anti-liberation role, active
collaboration with the Pakistani army and voluntary residing in Pakistan made him
ineligible to be a citizen of Bangladesh. On January 17, 1976 the Government
invited applications from those persons whose citizenship had been cancelled by
the previous Government for restoration of their citizenship. Ghulam Azam
immediately applied for citizenship from London. He applied again in 1977 and
1978. In 1978 he came to Bangladesh on a Pakistani passport. He was given a visa
on “humanitarian grounds”, to visit his ailing mother. Then he renewed his visa
three times and even after his visa expired, he continued to live in Bangladesh. He
was, however, arrested and detained at the Dhaka Central Jail by an order of
detention dated 24 March 1992 under section 3 of the Foreigners Act, 1946.
Ghulam Azam submitted a writ petition to the High Court, requesting for his
citizenship to be restored. His petition was accepted by the High Court and his
citizenship was restored. He argued that his father, grandfather and he himself were
all born in this country and he was a permanent resident in Bangladesh on March
25 1971 and continued to be a permanent resident. He only went to Pakistan to
attend party work and later on prohibited to enter into Bangladesh. So he went to
Saudi with a Pakistani passport and with that he entered into Bangladesh and
immediately surrendered his Pakistani passport and filed an application for
restoration of his citizenship.
An appeal was brought against the judgment of the HCD.

Issues:
Argument of appellant:
It is the further case of the detenu-petitioner that his detention is wholly malafide
and unlawful and it was issued for collateral purpose with a view to harassing him
and politically victimising him. There is no activity of the detenu-petitioner which
can be said to be prejudicial to the security of Bangladesh on which ground the
detention order was passed. The purpose of detention is vague, indefinite and
concocted and that the Foreigners Act, 1946 has no application to his case. No
ground of detention has yet been communicated to the detenu-petitioner which is
violative of Article 33 of the Constitution. The detention of the detenu-petitioner is
unauthorized and he has been put in detention without lawful authority and in an
unlawful manner.
Argument of respondent:
It is admitted that the detenu-petitioner and his fore-fathers were born in the
territory now comprised in Bangladesh but he is not a citizen of Bangladesh as he
had been staying abroad before the liberation of Bangladesh. It was further asserted
that the detenu-petitioner actively participated in the antiBangladesh campaign
both inside and outside the country during the war of liberation and continued to
remain as a citizen of Pakistan and he was instrumental to raising some Bahinis
known as Razakars, Al-Badr and Al-Shams and helped the occupation Army. He
also acted against the interest of Bangladesh by lobbying actively with other
Muslim countries during Haj to dissuade them from giving recognition to
sovereign Bangladesh. He also organised a Bahini named East Pakistan Recovery
Committee in the year 1972 in Lahore and made campaign and tried to restore East
Pakistan. It has further been stated in the affidavit- in-opposition that the detenu
petitioner cannot be treated as a citizen of Bangladesh within the meaning of
Article 1(2) of the Bangladesh Citizenship Order, 1972, though he was born in the
territory now comprised in Bangladesh and permanently residing here upto
November, 1971 and he was rightly declared disqualified to be a citizen of
Bangladesh and that the detenu-petitioner participated in the politics of Bangladesh
and got himself elected as the Amir of Jamaat-eIslami, Bangladesh and thereby he
violated the relevant provision of the Constitution.

Judgement:
The Appellate Division held that, ‘Citizenship, though not mentioned as a
fundamental right in our Constitution, is to be considered as the right of all rights
as on it depends one’s right to fundamental rights expressly provided for a
citizenship in Part III of the Constitution and his right to seek Court’s protection of
those rights.’
It also observed that, ‘Even a diehard pro-Pakistani, born in this country, is entitled
to be a citizen of Bangladesh if he fulfills the requirements under Article 2 and is
not disqualified under clause (1) of Article 2B.’And in this case Professor Azam
fulfilled all the criteria set in Article 2 and also proved his allegiance to Bangladesh
by surrendering his Pakistani passport. Also his domicile was not changed because
of his living in Pakistan because domicile of choice only occurs when a person
resides in a particular country with specific intention of living there permanently.
But he had no such intention. Honorable M Habibur Rahman J farther argued that
the notification under Article 3 of the Bangladesh Citizenship (Temporary
Provisions) Order 1972 was ultra-virus as it was given in the presumption that
Golam Azam was already a citizen of Pakistan. Government side presented the
evidence of his passport as a proof of his citizenship of Pakistan but the court
rejected the argument as it held that Citizenship is neither conferred by giving a
passport nor it is acquired by receiving a passport. It may only be a travel
document.
Thus the appeal was dismissed.
Habiba Mahmud VS Bangladesh and others, 45 DLR(AD) (1993) 89
Lawyers involved:
For Appellant/Petitioner/Plaintiff: Maudud Ahmed, Advocate, instructed by Md.
Aftab Hossain, Advocate-on-Record
For Respondents/Defendant: AF Hasan Arif, Deputy AttorneyGeneral, Sharifuddin
Chaklader, Assistant Attorney-General, with him, instructed by Zinnur Ahmed,
Advocate-on-Record
Bench: MH Rahman, ATM Afzal, Mustafa Kamal and Latifur Rahman, JJ.
Date of judgement: 31.08.1992 Facts:
The appellant’s husband, Kazi Mahmood Hossain, was arrested on August 20,
1991 in pursuance of an order of detention date August 18, 1991 under section (3)
(1) (a) of the Special Powers Act, 1974. In the grounds of detention, it is stated that
the detenu had been engaged in various anti-social and unlawful activities, and for
that there was resentment and hatred against him in the minds of the public. The
detenu was previously detained twice from April 1982 to April, 1983 and from
November 1984 to March 1985. In November 1988 another order for his detention
was passes, but the detenu evaded arrest by going over to India. For his oppressive
and terrorist activities, the detenu was suspended form the post of chairman of
Kotwalipara Upazilla. The detenu organized an armed illegal Bahini known as the
Special Army and that Bahini is still existing so that nobody dares raise any
objection against him. Although as the most important ground of detention the
Govt. in the last affidavit disclosed that, the detenu was involved in a mission to hit
225 of highest law officer of the country. Habiba Mahmud, the wife of the detenu,
filed a writ petition in the High Court Division, which was dismissed by the court.
And an appeal has been made challenging the judgment given by the High Court
Division.
Issues:
Argument of the appellant:
The appellant contends that the order of detention is liable to be set aside because
the operative portion of the grounds are vague and insufficient, that there are no
particulars, no details-nothing specific about the detenu's prejudicial activities or
maintaining of a private army immediately before his arrest that called for the order
of detention. In support of this contention, reliance is placed on the State of
Bombay Vs. Atma Ram Shridhar Vaidya AIR 1951 (SC) 157, Government of East
Pakistan Vs. Rowshan Bijaya LEX/SCPK/0062/1965 : 18 DLR 214, Bangladesh
Vs. Mohd. Abdur Razzak and another 43, Abdul Latif Mirza Vs. Government of
Bangladesh and others, 31 DLR (AD) 1 and Sdyedur Rahman Khalifa Vs.
Secretary, Ministry of Home Affairs & others. LEX/BDHC/0063/1986 : 1986 BLD
272. The appellant also contended that the order of detention is liable to be set
aside as it is based on some alleged activities of the detenu which are not at all
proximate to the date of order of detention.
Argument of respondent:
The respondent contends that there is no bar in law to pass an order of detention
where the detenu is proceeded against in a criminal proceeding and that there is
also no mechanical test for determining the proximity of the detenu's past
prejudicial activities to the date of the order of detention. Reliance is placed on a
number of decisions of the Indian Supreme Court particularly on Golam Hossain
alias Gama Vs. The Commissioner of Police, Calcutta and others :
MANU/SC/0135/1974 : (1974)4 SCC 530 (534) and on Haradhan Sana Vs. The
State of East Bengal AIR 1974 (SC) 2154. In Golam Hossain's case, where the
detenu was alleged to have indulged in bomb hurling and brickbat throwing in
public places. The learned Counsel for both parties relied on Abdul Latif Mirza Vs.
Bangladesh 31 DLR (AD) 1. In that case the main ground of detention was that the
detenu belonged to a political party whose object was to overthrow the
Government established by law. The detenu was in continuous detention from
April 22, 1974. The Government was overthrown on August 15, 1975. Though the
court held that the principal ground lost its cogency and became irrelevant, and that
other grounds of detention, which were superstructures on the principal ground,
must collapse, it went on to review the law of preventive detention.
Judgement:
The appeal was allowed and the judgment and order of the High Court Division
was set aside.
Reasoning:
It was held that the grounds upon which the detention was made were vague and
insufficient. Firstly, the ground that the detenu formed an illegal armed force was
not subjective in the present detention order. Because the Court found that there
was no fact upon which the detaining authority can be satisfied that such an armed
force was still in existence. Also there was no clear indication in the affidavit of the
respondent as to when it became aware of the return of the detenu and what kind of
prejudicial activities he resumed after returning from India.
Again the Govt. kept from the detenu one of the most important ground for
detention hidden based on the proviso of section 8 of the Special Powers Act and
Article 33(5) of the Constitution, which was only disclosed on the second day of
hearing. The court opined that Govt. have the right to not disclosure of any
particular fact which it deems as against public policy. But the Court have alone
the right to look into the materials to decide whether liberty of a citizen is
unconstitutionally violated. In this particular case the Govt. choose to disclose a
very important ground at a time when the detenu was deprived of reasonable
representation. Thus it was held that the detenu Kazi Mahmood Hossain was
detained without lawful authority.