1. T. H. KHAN, J.-On application by Asit Kumar Swarnaker on behalf of his father Mr. Hazari Lal Swarnaker under section491 of the Criminal Procedure Code, a Rule nisi was issued calling upon the opposite-parties to show cause why the detenu who is alleged to be illegally and improper detained in Khulna Jail should not be brought before this Court to be dealt with in accord--ance with law or set at liberty or such other or further order or orders passed as to this Court may seem fit and proper.
2. The impugned order in the case is the order No. 253-H. S. Doted the 15th February 1969 passed by 'the Governor of East Pakistan under clause (a) of subsection (1) of section 17 of the East Pakistan Public Safety Ordinance, 1958. Before expiry of that order which was due on 10th May 1969, another order No. 358-Poll (IV) dated the 10th May 1969, was passed by the Martial Law Administrator, Zone B performing the functions and exercising the powers of the Governor of East Pakistan which was also brought on record by a supplementary affidavit.
3. The facts relevant for the purpose of disposal of this case are that on 22nd November 1965, the detenu was arrested along with another person named Harinath Ghose without being served with any order of detention on them. The detenu was at first kept in the Thana Hajat at Satkhira Police Station and then in Khulna Police Station. On 24th November 1965, the, detenu was taken to the office of the Special Branch, Khulna for interro--gation and a statement of his was recorded there and his signa--ture was taken on that statement under threat and duress. His finger-prints and thumb-impressions were also taken in three sheets of papers and was then sent to Khulna Jail where he remained till 7th July 1967, when he was brought along with said Harinath Ghosh to Jessore Polio: Station and therefrom they were taken to the Military Camp where they were interro- -gated on 8th July 1967, and again on 24th and 26th July 196'7. They were asked various questions and after that they were sent back to Khulna Jail on 26-7-67. As no detention order was served upon them they did not know under what provisions of law they were arrested and kept in detention. On 11 January 1967, the detenu was served with art order dated 7th December 1965, in Khulna Jail with a any seal or signature of any authority affixed in the said order purported to have been made in exercise of the power given under rule 32 (1)(b) of the Defence of Pakistan Rules, directing the detention of the detenu in Khulnu Jail until further order of the Government. The petitioner's further case is that against the said order of detention under rule 32 (1)(b) of the Defence of Pakistan Rules, 1965 a petition being, Criminal Miscellaneous Case No. 265 of 1967 under section 491 of the Code of Criminal Procedure eras filed in this Court- for the release of the detenu but on the withdrawal of emergency and consequent withdrawal of the Defence of Pakistan Rules the said petition was discharged by this Court although it was pointed out on behalf of the detenu that he was still in detention which was being continued by another order under the provisions of East Pakistan Public Safety Ordinance, 1958 already served upon bin,,. The petitioner further alleges that even on the withdrawal of Defence of Pakistan Rules the detenu had not been released and on the 7th February 1969, at noon he was served with the impugned order dated 15th February 1969, purported to have been made by the Governor of East Pakistan in exercise of the powers under clause (a) of subsection 41) of section 17 of the East Pakistan Public Safety Ordinance, 1958 along with the grounds of detention which were communicated by the Section Officer, Home Special Department, Government of East Pakistan, vide Memo, No. 253 H. S, dated 15th February 1969. The detenu was directed to be detained in Khulna Jail for a period of three months with a view to preventing him from acting in any manner prejudicial to public safety and maintenance of public order whereas the facts stated in paragraphs 1 and 2 of the grounds showed that the order was made with a view to preventing the detenu from helping or volunteering to help the enemy country and that all those activities were likely to endanger that public safety and integrity of the country. It has further been alleged that the grounds served upon the detenu show that in November 1965, the detenu along with some undesirable persons held secret meet--ings with a view to devising ways and means to help the enemy country but nowhere it was stated on what date the meeting was held as the detenu was arrested on 22nd November 1965, and the statements made in paragraph 16 of the affidavit-in---opposition by the Government in the aforesaid Miscellaneous Case No. 265 of 1967 disclosed otherwise he held a secret meet--ing in the house of one Rupi Dasi where he gave out that he established connection with the Indian Army in August 1965. It has also been stated that a representation was made to the Government by the detenu against the said order of detention but no reply has yet been received by him. After the with--drawal of emergency the said Harinath Ghose was released from his detention. Furthermore, in the petition the petitioner had also made series of allegations against the acting Chairman of the local Union Council and one Abdul Gani Sardar in order to show that the detenu had long standing ill-feeling with those persons and it were they who had engineered all the troubles for him influenced the authority and got the detenu arrested.
4. This Rule has been contested by the opposite-parties by filing an affidavit-in-opposition. Their case is that sometime after Independence the detenu and his other brothers started fish business obtaining export and import licence and within a very short time they earned a huge fortune; that there is a Co-operative Society having 1,900 acres of land and 105 shares. The management and control of the said Co-operative Society is in the hands of the detenu and his other brothers. The detenu and his brothers have 10 shares in their names and their wives and the rest of the shares of the said Society were in the names of his other relatives; that his two daughters, one son, his eldest brother and the majority of the members of his family have migrated to and are living in India. Thatth Sub---Inspector of Police Mr. Abdus Sattar Talukder, the then Officer---in-Charge, Debhatta Police Station arrested the detenu under rule 204 (2) of the Defence of Pakistan Rules, 1965 and imme-- diately committed him to Khulna Jail on 24th November 1965, and at the time of his arrest he was verbally informed about his arrest under the said rule. Subsequently, the detention order under rule 32 (1) (b) of the Defence of Pakistan Rules was passed by the Deputy Commissioner, Khulna on 8th December 1965, which was duly served on the detenu. The opposite-parties have denied that the finger-prints and thumb-impressions of the detenu were taken on his statement under threat and duress. They have, however, admitted that the detenu was taken to dessore for joint interrogation by the Field Intelligence Unit an different occasions but they have stoutly denied that the high officials of the said Unit threatened the detenu with whipping. They also denied the allegation that only on 11th January 1967, the detenu was served with the detention order dated 7th December 1965, in Khulna Jail without any seal or signature of the authority affixed thereon. They have averred that the detenu was released from Khulna Jail in the morning of 17 February 1969, under order of the Deputy Commissioner, Khulna but he was re-arrested on the same date from outside the Jail compound under order of the Governor of East Pakistan ride Order No. 235 H. S. Dated 15th February 1969, under clause (a) of subsectim7 (1) of section 1.7 of the East Pakistan Public Safety Ordinance.
5. 1958 for his prejudicial activities; that having applied his mind and having considered the activities of the detenu and the pre-existing materials against him, the Governor of East Pakistan was satisfied as to the necessity of detaining him with a view to preventing him from further acting in a manner prejudicial to the public safety and interest and main--tenance of public order and it has nothing to do with his Chair--manship of the Union Council or his rivalry with other groups as stated by him in the petition. The opposite-parties have asserted that the detenu held many other secret, meetings before the one held in November 1965, with a view to devising ways and means to help India and the Indian Army against Pakistan in time of need and he also urged others present in the secret meeting held on 11th November 1965, to extend their help to the Indian Army in subjugating East Pakistan.
6. Mr. Mirza Ghulam Hafiz. Learned Advocate appearing on behalf of the detenu has contended before us, in the first place, that the emergency having been lifted after the midnight of 16thFebruary 1969, every minute of detention of the detenu since then is illegal and malafide that there being a gap of a few hours between the withdrawal of the Defence of Pakistan Rules and the service of the impugned order dated 15th February 1969, which is nothing but an order of continuation or extension of the previous illegal detention, is also illegal and malafide. In support of this contention the learned Advocate for the peti--tioner has relied on certain observation made in the case of Arbab Muhammad Hashim Khan v. The Crown (P L D1954 FC 1). The second point urged by the learned Advocate is that there being no satisfaction of the detaining authority, and there being no materials placed before the Authority before the impugned order wag passed the same was illegal and had no basis at all that the impugned order of detention was passed on in detinite baseless and ran unreasonable grounds. He has further urged in this context that the grounds, served along with the impugned order have disclosed activities which relate to the integrity of the country and the same being a Central subject, the order of detention under the East Pakistan Public Safety Ordinance is illegal and without jurisdiction as it falls outside the purview of the said Ordinance. We shall presently deal with these points seriatim.
7. In order to appreciate the force, if any, of different con--tentions raised by the learned Advocate for the petitioner it is necessary to reproduce the impugned order dated 15th February 1969, and the grounds furnished therewith. The order runs as "`Government of East Pakistan Home (Special) Department ORDERth No. 253 H. S. Dated Dacca, the 15th February 1969, Whereas the person known as Mr. Hazarilal Swarnakar, son of late Balaram Swarnakar of Debishahar, P. S. Debhatta, District Khulna, is reported to be acting in a manner prejudi--cial to the public safety and maintenance of public order And whereas the Governor is satisfied that with a view to preventing the said person from acting in any manner prejudi--cial to the public safety and maintenance of public order, it is necessary to make the following order for the purpose of his detention ; Now, therefore. In exercise of the powers conferred by clause (1) of subsection (1) of section 17 of the East Pakistan Public Safety Ordinance, 1958 (Ordinance No. LXXVIII of 1958), the Governor is pleased to direct-
(a) that the said person shall subject to the provisions of section 19-B of the said Ordinance, he detained for a period of 3 (three.) months ; .
(b) that subject to the provisions of clause (a) of this para--graph the said person shall until further orders be detained inthe Khulna Jail; and
(c) that during such detention the said person shall be subject to the conditions laid down in the East Pakistan Security Prisoners Detention Rules, 1965 By order of the Governor (Sd.) Illegible Sections Officer Government of East Pakistan."
8. The grounds served along with this order in pursuance of section 19 of the East Pakistan Public Safety Ordinance, 1958 are as follows:- "Communicatiort of grounds of orders of detention under section 19 of the East Pakistan Public Safety Ordinance, 1958 (East Pakistan Ordinance No. LXXVIII of 1958)."
9. In pursuance of section 19 of the East Pakistan Public Safety Ordinance, 1958 (East Pakistan Ordinance No. LXXVIII of 1958) you, Mr. Hazarilal Sawarnakar son of late Balaram Swarnakar of Debishaliar, P. S. Debhatta, District Khuhia r. Are informed that your detention under clause (a) of sub--section (i) of section 17 of the said Ordinance has been con--sidered necessary on the following grounds: "(1) 1n November 1965, you along with some undesirable elements held secret meeting within the jurisdiction of your Police Station with a view to devise ways and means to help tile enemy country at the time of need and that you also volunteered to help them. You also urged others to extend their help in the similar way.
(2) That all your activities mentioned above are likely to endanger public safety and integrity of the country and that furnishing any more facts other than those stated above would be against public interest.
(3) You are further informed that you have right to make a representation in' writing to this Government against the order of detention made against you and should you wish to do so, you should send the representation to the undersigned through Superintendent, Khtflna Jail.
10. By order of the Governor (Sd.) Illegible Section Officer Government of East Pakistan Home (Special) Deptt., Dacca."
11. The above order as due to expire on or about 16th May 1969, hence, another order dated 10th May 1969, was served upon the detenu along with the grounds which have been brought on record by the petitioner by filing a supplementary affidavit sworn on 28th May 1969. The new averment made in this affidavit is that after lifting of emergency and in the absence of imminent danger of being threatened by War the detention on the basis of alleged grounds are illegal and as such the con of the detention of the detenu under order dated 10th flay 1969, is also illegal. The order dated 10th May 1969, is in the same terms as the order dated 15th February 1969, quoted above, with this variation that this order was passed by the Martial Law Administrator, Zone B, performing the functions and exercising the powers of the Governor of East Pakistan. The grounds furnished along with this order are also in the same terms as those already quoted above.
12. We may now take up the first point urged by the learned for the petitioner as indicated earlier. The moot question is whether the impugned order is a fresh order of detention, or merely an order of extension of the detention as contended by the learned Advocate for the petitioner. The argument, we may say at the very outset, is based on totally wrong premises. This argument also overlooks certain important facts, which is considered in their proper perspective would at once demonstrate the futility of the same: It will have been noticed by now that the detenu was at first arrested under rule 204 of the Defence of Pakistan Rules by a Sub-Inspector of Police and was committed to Khulna Jail. Thereafter the detention order under rule 32 of the Defence of Pakistan Rules was passed by the Deputy Commissioner, Khulna and was duly served on the detenu and his detention on the basis of that order continued till the midnight of 16th February 1969. That order it is stated in the petition itself, was challenged by a petition under sec--tion 491 of the Code of Criminal Procedure, giving rise to Criminal Miscellaneous Case No. 265 of 1967 which was ulti--mately discharged by this Court after the lifting of emergency as it became infructuous. Nothing has been placed before us to show how that order was illegal or without jurisdiction. It is there--fore clear that since the date of passing of the said order or at any rate, since the moment of service of the said order upon the detenu and till the zero hour of the night following 16th February 1969, the said detention order operated as a legal and valid order for all intents and purposes. It came to an end, i.e. It became non-est by operation of law since the moment of lifting of emergency by a Revocation of Emergency dated 16th February 1969, by the President. It is therefore, futile to contend at this stage that the said order under rule 32 of the Defence of Pakistan Rules was an illegal void and mala fide one. In our opinion, the said order was perfectly a legal and valid order and the matter before us shall have to be approached from that standpoint. Moreover, we may point out that with--in the scope of the present enquiry it is not permissible to adjudicate upon the said order under rule.32 of the Defence of Pakistan Rules, which has become non-est.
13. Having visualised the new exigency and having considered the nature of the activities of the detenu and also having applied his mind to the pre-existing materials against him, the Governor of East Pakistan was satisfied that with a view to preventing him from further acting in any manner prejudicial to the public safety and maintenance of public order, it was necessary to pass fresh order for the purpose of his detention and he accordingly passed a fresh order on 15th February 1969, under clause (ii) of subsection (i) of section 17 of the East Pakistan Public Safety Ordinance, 1955. Along with this new order grounds of detention were also furnished as required under section 19 of the said Ordinance, which were duly served on the detenu. It is evident from the statements made in para--graph 12 of the affidavit-in-opposition as well as from other documents on records, especially the report of the Superintendent, Khulna Jail that the detenu was released from Khulna Jail on the morning of 17th February 1969, from his detention under clause (h) of subsection (I) of section 32 of the Defence of Pakistan Rule. 1965 as per order No. 324/Cr. Elated 15th February 1969, of the Deputy Commissioner, Khulna received tit the office of Superintendent. Khulna Jail, at 00-30 hours on 17th February 1969 (underlining is ours). The detenu was, however, re--arrested from outside the Jail compound under order of the Governor of East Pakistan bearing No. 235 H. S. Dated 15 February 1969, under clause (a) of subsection (I) of section 17 of the East Pakistan Public Safety Ordinance, 1958.th It is necessary to consider the material points of distinction between the detention order passed against the petitioner in 1965 and in 1969 inasmuch as they will have a great deal of bearing on the question whether the impugned order is a fresh order or not. The Defence of Pakistan Rules were made by the Central Government in exercise of the "Emergency Powers", vested with under section 3 of the Defence of Pakistan Ordi--nance, 1965 (XXIII of 1965), which had its origin in clause (I) of Article 30 of the late Constitution of the Islamic Republic of Pakistan, 1962 and operated only during emergency, whereas, the East Pakistan Public Safety Ordinance, 1955 (LXXVIII of 1955) under which the impugned order was passed, is a Provincial Law. It is a well known fact that no ground for detention was required to be communicated along with the order of detention under rule 32 of the Defence of Pakistan Rules nor was there any prescribed limit as to the period of detention whereas under the Public Safety Ordinance it is an imperative necessity that grounds shall have to be communicated along with the order of detention, so that the detenu may make an effective repre- -sentation against the detention. This naturally presupposes that the grounds furnished shall not be vague, indefinite or uncertain; all necessary allegations are to be supplied to the detenu. There is a time limit of three months prescribed by the law., beyond which a person cannot be detained at a time on the strength of a single order. Next, the detention order in 1965 was passed by the Deputy Commissioner, Khulna, under the delegated authority and it was he who passed the release rt order as well, whereas, the impugned order was passed by the Governor of East Pakistan, being satisfied as to the prejudicial activities of the detenu as stated in the order itself. Above all, when the provisions of sections 17 and 19 of the East Pakistan Public Safety Ordinance, 1955, are considered together, it leaves no room for doubt in our mind that the impugned order is a fresh order of detention.
14. Thus having regard to the above facts and circumstance of this cast as well as on consideration of the provisions of sections 17 and 19 of the East Pakistan Public Safety Ordinance, 1955 we line it difficult to accept the contention of the learned Advocate for the petitioner that the order dated 15th February 1969, was merely an order of extension or continuation of detention. We are clearly of the opinion that the said order was afresh order of detention. That being so, it did not matter at all if there was a gap of a few hours between the moment of lifting of emergency and the moment of re-arrest of the detenu from outside the Khulna Jail, inasmuch as the fresh order would take effect from the moment of re-arrest. In this context, we may point out that there is a material distinction between a fresh order of detention and an order of extension of detention. In the very case of Arbab MuhammadHashim Khan v. The t, relied on by the learned Advocate for the petitioner his Lordship Shahabuddin, J. Has pointed out this distinction at page 16 of the report in the following terms:- "that a fresh order is not affected by the previous detention having been illegal whereas an order of extension of detention becomes illegal, if the detention, which it extends, was itself illegal. It therefore appears to me that when an order pur--ports to be one of extension it cannot be regarded as an original order unless there be circumstances that compel us to such conclusion."
15. In the present case the circumstances which we have pointed out clearly and unequivocally show that the order dated 15th February 1969, is a fresh order directing arrest and detention of the detenu. We may at this stage also point out the impor--tant point of distinction between the facts and circumstances of the reported decision of the Federal Court relied on by the learned Advocate for the petitioner and the facts and circum--stances of the instant case. In the former case, by a majority decision (Shahabuddin and Cornelius, JJ.) the appeal of the second appellant, namely, Abdul Wali Khan was allowed on the express finding that the orders of detention passed against him which fell for consideration were orders of extension only and not orders of fresh detention. His Lordship Shahabuddin, J. After a detailed discussions of the facts anti circumstances of the case and the law bearing l1h0lt the same and after reviewing the orders passed on different occasions in relation to Abdul Wali Khan, the second appellant arrived at the conclusion at page 16 of the report in the following terms:- "I therefore, consider that the detention of Khan Abdul Wali Khan on the 9th was illegal ; and as the order of 10th December 1952, is one of extension of that detention and, as already held by me, the latest order of 16th May 1953, is another order of extension the present detention of Khan Abdul Wali Khan is therefore illegal."
16. Similarly, after a detailed review of the orders relating to Abdul Wali Khan, his Lordship Cornelius, J.
17. At pages 26-27 of the report observed as follows:-- "The order relating to Abdul Wali Khan subsequent to 10th December 1952, is one dated the 16th May 1953, and is in terms an order of extension of an existing detention. Such an order plainly cannot operate to validate either the detention which it seeks to extend or the order by which such detention has been directed. If, therefore, the detention of Abdul Wali Khan on the 9th December 1952, was illegal, it could not be extended in any legal sense by the order of 10th December 1952, and the further extension by the order of the 16th May 1953, is, on the same ground equally bad in law. The case may have been different if the order of the 10th December 1952, had been a fresh order directing arrest of Abdul Wali Khan and following up such order by a direction for his deten-- tion and custody."
18. To the same effect, in the same paragraph his Lordship after disagreeing with the view of the learned Judicial Commissioner further observed in the following terms:- "It is quite clear from a careful examination of the various dates in the orders relating to him and Abdul Wali Khan, was, in the eye of law, a free man on the 9th December 1952. He was held in illegal custody by the Provincial Government. In order to bring once again into legal custody it is necessary to pass an order for his arrest, and upon this order being executed, it would have been competent to the Provincial Government to detain him. In the absence of an order for arrest a mere direction that he be committed to custody at a certain place for a certain period as if he was already in legal detention is plainly ineffective. I conclude accordingly that the present detention of Abdul Wali Khan is illegal and that he is entitled to immediate release."
19. It may be mentioned in this connection that the directions contained in the above observation of his Lordship have been meticulously followed in the present case inasmuch as the detenu was as a matter of fact released and taken outside the Jail premises in the morning of 17th February 1969, and was re-arrested therefrom on the strength of a fresh order of the Governor of East Pakistan. It will thus be seen that their Lordships of the Federal Court were dealing with an order which was an order of extension of previous detention, whereas in the present case we are concerned with a fresh order of detention passed under the Fast Pakistan Public Safety Ordinance as distinct from the order of detention that was passed under the Defence of Pakistan Rules and this fact clearly accounts for the main difference between the Federal Court decision and the instant case. Their Lordships having found the detention of Wali Khan on 9 December 1952 to be illegal and consequently there being a gap of one day, had held that the subsequent order extending the previous detention was also illegal. But in the present case, we have seen, that under new exigencies a fresh order of deten--tion was passed by a different authority under a distinctly different law than the previous order had been passed. Therefore, the Federal Court decision relied on by the learned lawyer for the petitioner is of no avail. We, therefore, hold that the first point has no substance.
20. We may next take up the second point for consideration' of the grounds furnished to tile detenu, we are, satisfied that the grounds are not vague, indefinite or unreasonable. Of course, in the grounds the date 11th November 1965, was not specifically mentioned, but in the affidavit-in-opposition that date was specifically mentioned. But the copy of this affidavit---in-opposition served upon the learned Advocate for the petitioner was not corrected and when this matter was brought to ourth notice, the learned Advocate for the petitioner was given an opportunity to controvert that fact and accordingly he filed an affidavit denying that he held any meeting on the 11th November 1965, as alleged. The learned Advocate representing the State placed the materials before this Court and we examined them and the learned Advocate for the petitioner also examined those docu--ments wherein the corresponding Bengali date of 11th November , 1965, was specifically mentioned. As regards the contention that no materials were placed before the competent authority, suffice it to say that there were ample materials against the detenu at the disposal of the Government in order to have based or formed an opinion.
21. As regards the contention that the grounds disclosed the activities which relate to the integrity of Pakistan which is a Central subject and falls outside the purview of the provisions of East Pakistan Public Safety Ordinance is illegal, we may point out that the activities of the detenu are prejudicial to public safety and maintenance of public order and that the activities against the integrity of the country is very much a matter of public safety as well. We therefore, find no substance in this contention as well.
22. As regards the contention raised in the Supplementary affidavit that the proclamation of emergency having been with--drawn and there being no existence of war between the two countries and no imminent danger of being threatened by war the grounds as alleged are non- existent and as such the deten--tion on the basis of those grounds is illegal, we may point out that this contention is irrelevent and the least said the better. In the petition some allegations have been made against acting Chairman of the local Union Council of which the detenu was the Chairman and also against one Abdul Gani Sardar. The present opposite-parties have, in our opinion rightly, pleaded ignorance about those allegations. Moreover, those allegations have been made in order to show that those persons were in collusion with the authorities and they influenced the authorities to get the detenu arrested in November 1965. Therefore, those allegations of mala fide have nothing to do with the impugned order dated 15th February 1969. Moreover, the onus of proof heavily lies upon him who alleges mala fide. Nothing has been brought on record to show any basis for the allegations of mala fide. On the contrary; we find from examination of the materials placed before us that the detention is absolutely bona-fide.
23. For the reasons stated above the Rule is discharged.
24. SALAHUDDIN AHMED, J.-I agree.