assignment on special power act 1974

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Assignment on Special Powers Act, 1974 of Bangladesh

Special Powers Act, 1974 is one of the most important laws of Bangladesh, which is commonly termed as a 'Black Law'. It was enacted after the inception of Bangladesh, in order to remove the corruptions of the country for a certain period. But it is existing till todays date with its stringent provisions. This Assignment is made only for assignment purposes and plz use the actual bare Act to get in detailed informations

Related Papers

H.M.Younus Sirazi

In a free and democratic society based on the rule of law and other fundamental principles of justice and human dignity, the necessity for the criminal law in conformity with constitutional principles and mandates as well as international human rights discourse knows no bounds as the adoption of these norms and principles has ushered in a new dawn of criminal jurisprudence. So the state requires not to enact and to remain any oppressive, unjust and arbitrary law in force in order to ensure a just and fair criminal justice system. Nonetheless, such non-reasonable and disproportionate legislation is enacted in guise of removing the dichotomy between state security and protection of human rights. The Special Powers Act, 1974 is one of such obnoxious laws endangering liberty jurisprudence. There is no denying that this legislation violates many constitutional norms and is also ultra vires human rights instruments like the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and other international instruments that have been ratified by Bangladesh. In consequence, Bangladesh becomes obliged to respect, protect, fulfil, uphold and implement human rights. For this reason in peace time there remains no necessity of sustaining a black law like this due to its anti-human rights and fundamental rights characteristics. This paper aims to examine the incompatibility of the provisions of the Special Powers Act with constitutional and international human rights norms. At the same time it portraits the practical scenario of the indiscriminate use of the Act by the executive authority and the impacts of such misuse affecting an individual and his family as well as the state. At this paper the legal sustainability of this Act with the help of judicial activism will be assessed.

Rizvi Hasan Porosh

On 14 March 2012, the International Tribunal for the Law of the Sea (the "Tribunal") passed on its hotly anticipated judgment in the Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) (the "Judgment"). This paper discusses the four important issues of this case.

Sorowar Nizami

An important feature of the constitution is the Fundamental Principles of State Policy incorporated in the Constitution. Although the Fundamental Principles of State Policy are asserted to be "fundamental in the governance of the country," they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution's preamble. Judiciary as being the protector and promoter of rights of the individual to perform the balancing act in an unbiased and fair manner has immense role to play in these days to interpret the fundamental principles as enforceable in order to establish welfare based society. Current paper will demonstrate some verdicts of the higher Courts in making implementations of the State Policies by virtue of the Constitution of Bangladesh

Current paper is a portion of the research called, "Judicial Enforce-ability of Fundamental Principles of State Policies: A case study on Bangladesh perspective". This particular portion discusses about "International Response in relation to Judicial Enforceability of Fundamental Principles of State Policies". References of various countries such as Philippines, India, Sri Lanka has been used on this paper.

Sage, Routledge, Emerald, etc

Awal Hossain

In view of 1933 Montevideo Convention, a state forms with four basic things; i.e: people, land, government and capacity to enter onto a relationship with other states. Apart from rest three others, one of the most important thing for a country is the Government of a country. Bangladesh is a unitary State, under the meaning of Article 1 of the Constitution of the Peoples Republic of Bangladesh. Like other countries, in Bangladesh it has a government with three of its branches namely, Executive, Legislature and Judicial system. Now, when the country has got these three branches of government, theoretically and practically they will be needed to follow the popular doctrine of separation of Power in order to have checks and balances along with the said organs or more specifically the branches of the government. Even after four decades of getting the statehood, Bangladesh was not able give a separate and independent judicial system. Steps were taken by the Higher judiciary itself to do the right task in the year of 2009. Although very few tasks are yet to be done to make the judicial system of Bangladesh completely independent. Sixteenth amendment of the Constitution of the Constitution of Bangladesh is one of the latest amendments which let the power of impeaching Justices also known as the judges of higher Judiciary through the members of national legislature under certain grounds. The acts of removing or impeaching judges were used to make by the Supreme Judicial council with the approval of the President. And the latest Sixteenth amendment also requires the ultimate approval of the same person. The question lies how far the independence actually holds by the said amendment in relation to the Judicial Independence of Bangladesh. This research will have the ultimate focus over the provisions of sixteenth amendment under the Constitution of the Peoples Republic of Bangladesh and will proceed with the Empirical method of research to determine the Judicial Independence especially in the theoretical view.

Md. Kamruzzaman

The violation of Human rights has started from very beginning of our civilization. Arbitrary arrest, detention and custodial torture by law-enforcing agencies have remained a persistent feature of our criminal justice system. These practices have been widespread in Bangladesh irrespective of the forms of government and successive governments have failed to stop this endemic problem. It is being made in culture of the violation of human rights through preventive detention and abuse of Section 54 of Cr PC all over the world, especially in the third world countries. It is sorry to mention that Bangladesh is one of them. The paper aims is to show how the rights violated through preventive detention and Section 54 of Cr PC, because it is mostly used for the violation of rights of an individual. This paper highlights definition, history, nature, rationality of preventive detention and our constitutional safeguards to protect the human rights. It also examines social necessity of the law of the preventive detention for our country with citation of the leading cases relating to preventive detention in Bangladesh, Pakistan and India. It also urges that preventive detention should be used sparingly only in exceptional circumstances.

শিশু আইন, ২০১৩ The new act is harmonised with the United Nations Convention on the Rights of the Child (CRC) and has referred to the CRC in the preamble and replaced the Child Act 1974. The Child Act 2013 is drafted by the Ministry of Social Welfare and consists of 11 chapters and 100 sections. The act recognises an individual [aged 18 or below] as a child, providing a universal and internationally recognised definition for a child.

Md. Awal Hossain Mollah

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Special Powers Act, 1974

Special Powers Act, 1974 promulgated on 9 February 1974 (Act XlV of 1974) providing special measures for prevention of certain prejudicial activities and for conducting more speedy trial and effective punishment for certain grave offences. It was a follow-up of the repealed Security Act, 1952, Public Safety Ordinance, 1958 and Bangladesh Scheduled Offences (Special Tribunal) Order, 1972 (President's Order No. 50 of 1972).

Political exigencies were, however, instrumental in prompting amendments or deletion, or insertion of additional provisions, especially with regard to freedom of the press. The major insertions were related to counterfeiting currency notes and government stamps, smuggling, adulteration of food and drink, drugs and cosmetics, conspiracy to commit offences as well as related offences by companies. Under section 2, the Act defines a prejudicial act as any deed which is intended or likely to (i) prejudice the sovereignty or defence of Bangladesh; (ii) prejudice the maintenance of friendly relations of Bangladesh with foreign states; (iii) prejudice the security of Bangladesh or to endanger public safety or maintenance of public order; (iv) create or excite feelings of enemity or hatred between different communities, classes or sections of people; (v) interfere with or encourage or incite interference with the administration of law or maintenance of law and order; (vi) prejudice the maintenance of supplies and services essential to the community; (vii) cause fear or alarm to the public or any section of the public; and (viii) prejudice the economic or financial interests of the state.

The grave offences referred to in the Act were listed as:

(i) dealing in the black-market of rationed articles, licences, permits or ration documents;

(ii) hoarding of anything in excess of the quantity allowed by law;

(iii) sabotage meaning doing any act with intent to impair the efficiency or impede the working of, or to cause damage to (a) any building, vehicle, machinery, apparatus or other property used, or intended to be used, for the purposes of the government or of any local authority or nationalized commercial or industrial undertaking; (b) any railway, aerial ropeway, road, canal, bridge, culvert, causeway, port, dockyard, lighthouse, aerodrome, telegraph or telephone line or post, or television or wireless installation; (c) any rolling stock of any railway or any vessel or aircraft; (d) any building or other property used in connection with the production, distribution or supply of any essential commodity, any sewerage works, mine or factory; or (e) any jute, jute product, jute godown, jute mill or jute bailing press; (iv) counterfeiting currency notes or government stamps; (v) adulteration of or sale of adulterated food, drink, drugs or cosmetics; and' (vi) other offences, as mentioned in the schedule of the Act, under the Arms Act, 1878, Explosive Substances Act, 1908, and under sections 376, 385 and 387 of the Penal Code. By omitting sections 16, 17 and 18 by the amending Act XVlll of 1991, some vital freedom of the press were restored.

The law empowers the government to control subversive associations and prohibit formation of communal associations or unions. The Special Powers Act provides for preventive detention, constitution of advisory board to review grounds of preventive detention, trial by special tribunals, provision of sentences of death or life imprisonment for grave offences, such as sabotage, counterfeiting and smuggling. [Enamul Haq]

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Bangladesh Journal of Legal Studies

Preventive Detention And Violation of Human Rights: Bangladesh Perspective

May 2, 2016 by Editor 2 Comments

PREVENTIVE DETENTION UNDER THE CONSTITUTION OF BANGLADESH AND OTHER STATUTORY LAWS

3.1 Introduction

The claim of personal liberty being the essence of a free society, almost all every civilized country has constitutionally protected its citizens from the excesses of the coercive apparatus of state. Bangladesh is not an exception.

Among the national institutions, the legislature always comes in the forefront of the national systems for the protection of the rights of a person arbitrary arrested and detained. One of the main function of the legislature is to enact laws in protecting human rights of the arbitrary arrested persons because arrested and detained persons are considered as innocent until proved their guilt beyond reasonable doubt.

The statutory provisions regarding preventive detention are discussed below.

3.2 Preventive Detention Under the Constitution of Bangladesh

In Constitution of Bangladesh (1972), Article 33 did not leave any scope for preventive detention. But by the second amendment of the Constitution, Article 33 was replaced by the present one. Preventive detention, though an evil, in a necessity for State security and by the Constitution Act, 1973 the rights under Article 33 of the Constitution were curtailed under specific circumstances.

Art. 33(1) & (2) guarantee four rights to a person arrested. Any law or action not in conformity with those rights will be void and the arrest made will be unlawful. The four rights under Art. 33 are:

• A person arrested must be informed as soon as possible of the grounds of arrest,
• He must be allowed to consult and be defended by a lawyer of his choice,
• He must be produced before the magistrate within twenty-four hours of arrest, excluding the time necessary for journey,
• He must not be detained for a period longer than then twenty-four hours plus the time of journey without the authority of the magistrate.

But these four rights are not available to a person arrested or detained under a law providing for preventive detention. [23] Although Art 33(3), (5) & (6) provide three important safeguards in the case of preventive detention.

3.2.1 Constitutional Safeguards against Preventive Detention

After the second amendment of the Constitution any person arrested or detained under any law regarding preventive detention will not have the rights conferred by Art. 33(1) & (2) of the Constitution. But the Constitution has itself put some restrictions in the exercise of those laws proving for preventive detention. In order to protect individuals from arbitrary arrest and detention the Constitution provided some safeguards against such laws and against the exercise of powers by the executive authority. Clause (4) and (5) provide three important safeguards for this purpose.

3.2.1.1 Approval by Advisory Board :

The constitution of an Advisory Board for the purpose of reporting to the government its opinion whether a person should be detained for more than Six months may be said to have been introduced for the very reason that review by the Law Courts was excluded. This is no doubt, a special procedure but this shows that the person detained has not been left without any safeguard. The setting up of an Advisory Board to determine whether such detention is justified is considered as a sufficient safeguard against arbitrary detention under any law of preventive detention. Article 33 (4) provides that no law shall authorize detention for a period of more than six months and the period of six months can be extended only if an Advisory Board, before the expiry of six months, opinions that there is sufficient cause for detention. If no such affirmative opinion is given by the Advisory Board, the detenu has to be released on the expiry of Six months. In a writ of habeas corpus, the court is not required to wait for the opinion of the Advisory Board and should dispose of the petition if it is otherwise ready for hearing. [24]

The Advisory Board is to be constituted with three persons, two of whom must be person who are, have been, or are qualified to be appointed as judges of the Supreme Court and the other must be a senior officer in the Service of the Republic.

The Advisory Board stands perhaps midway between the court and the executive. It has the power of going through the records of a case but it will not be bound to hear any arguments addressed by a counsel on behalf of a detained person. If it reports against detaining a person any further he will be at once set free. And no law can be passed for detention of a person exceeding six months unless the Board reports before the end of such a period that he may be detained for a longer period.

If the order, of detention is only for two months there is no scope for the Advisory Board to determine the ‘Sufficiency of cause for his detention’ and so the argument that a detainee is not entitled to pay for a writ of habeas corpus unless his case is referred to the Advisory Board is not tenable clause (4) of Article 33 contemplates detention for a specific period.

3.2.1.2 Communication of Grounds of Detention:

Article 33 (5) says that the detained person right to know immediately ‘the grounds on which the order has been made”. The reason for the expression as soon as may be for furnishing grounds and the earliest opportunity for making a representation [25] indicates the extreme anxiety of the makers of the constitution to see that no person is detained contrary to the law enabling preventive detention or contrary to the safeguards provided by the constitution. Again the grounds served must be in a language that the detenu understands. [26]

There is a proviso to Art.33(5) which permits the detenu authority to refuse to disclose the facts if it considers it to be against the public interest.

3.2.1.3 Right to Representation against the orders of Detention:

The detenu authority has to inform the detenu that he has a right of opportunity to make representation and failure to inform may render the continued detention illegal. [27] Article 33 (5) again provides that the detaining authority must afford the detenu the earliest opportunity of making a representation against his detention order. It is important to mention here that the third right, Right to make an effective representation depends on the second right, Right to communication of grounds. Article 33(5) provides that the detaining authority may refuse to disclose facts which such authority considers to be against the public interest to disclose. Because grounds are reasons on conclusions drawn by the authorities from the facts or particulars on which the detention order is made.

If all the relevant facts and particulars of the grounds, therefore are not supplied to the detenu it is not at all possible for him to make an effective representation and the right to make a representation becomes illusory. It is therefore for this provides of Article 33(5) that the second and third constitutional rights of a detenu have become quite meaningless.

3.3 Preventive Detention under the Special Powers Act, 1974

The basic content of the Act lies in section 3, which enables the government to detain any person in custody under the disguise of preventive detention. The parliament on February 9, 1974 enacted this black law, Special powers Act, 1974 containing the provisions of preventive detention.

Some important sections of the Special Powers Act 1974, which is related to the prevention detention, these sections are following bellow:

Section-3: Power to make orders detaining or removing certain person

Section 3 of the Act lays down the substantive power and conditions of an order of detention. Sub-section(1) of section 3 of the Act empowers the Government to order detention of a person on the satisfaction with respect to any person that with a view to prevent him from doing any prejudicial act.

Sub- section (2) of the same section empowers a District Magistrate or an Additional District Magistrate to order detention of a person after arriving at similar satisfaction to that of government for the same purposes.

Section- 4: Execution of Detention orders

Section 4 of the Special Powers Act provides that the order of detention passed under section 3 of the Special Powers Act shall be executed as provided in section 80 of the Code of Criminal Procedure. If section 3 of the Special Powers Act, 1974 and section 80 of the Code of Criminal procedure are read together, it becomes abundantly clear that an order of detention passed under section 3 of the special powers Act, 1974 must be served upon the detenu.

Section-8: Communication of grounds of order

Section 8 of the Act requires the detaining authority to communicate the grounds of detention to the detenue within 15 days from the date of detention informing him at the same time that he has a right to submit a representation in writing against the order of detention and also affording him an opportunity of submitting the representation at the earliest possible opportunity.

Section-9: Constitution of Advisory Board

Section 9 of the Act requires the Government to constitute an Advisory Board consisting of three persons of whom two persons are or have been or are qualified to be judges of the Supreme Court and the other person should be a senior officer in the service of Republic. This section also requires the Government to appoint one of the two members who are or have been or are qualified to be judges of the Supreme Court as Chairman of the Advisory Board.

Section-10: Reference to Advisory Board

Section 10 of the Act requires the Government to place the grounds of detention and the representation, submitted by the detenue before the Advisory Board within one hundred and twenty days from the date of detention.

Section-11: Procedure of Advisory Board

Section 11 requires the Advisory Board to consider the grounds of detention, the representation submitted by the detenue, any other information which it may deem necessary and after allowing the detenue an opportunity of being heard to submit a report to the Government as to the propriety or otherwise of the detention within one hundred and seventy days from the date of detention of the detenue.

Section-12: Action upon the Report of Advisory Board

In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith [28] .

In the case, Board’s opinion regarding detention-opinion of the Advisory Board is given under section 12 and section 12 says that Government may confirm the detention order but if the Advisory Board gives the opinion that there is no case for detention then the Government shall revoke the detention [29] .

In another case of the detenu not placed before the Advisory Board within 120 days from the date of detention Government failed to show that in accordance with provision of section 12(1) of the Act the Advisory Board reported that there was sufficient cause for detention of the detenu-Detention held illegal [30] .

3.4 Emergency Power Rule-2007

The government formulates the Emergency Power Rule-2007 [31] as per the power given under section 3 of the Emergency Power Ordinance, 2007 [32] and it came into operation from 12 January 2007. Rule 14, 15, 16 and 21 deals with the provision of preventive detention and it gives a wide range of powers to the executive authority to detain a person merely on suspicion on their mind.

3.4.1 Provision related to preventive arrest warrant of warrant:

As per rule 21 of the Emergency Power Rule-2007, under the state of emergency, if it appears satisfactory or believable that a person has committed or may commit an offence under any act mentioned in this rule or rules 14 and 15, provisions related to the preventive warrant of arrest under Special Power Act, 1974 may be applied against that person. As per rule 14 of the Emergency power Rule-2007, to safeguard the security and interest of the state and the people and to maintain discipline and peace, the law and order forces will play an active role in applying the Penal Code-1860 [33] , Arms act-1878 [34] , Explosive Substances Act-1908 [35] , Foreign Exchange Regulation Act-1947 [36] , Special Powers Act-1974 [37] , Narcotics Control Act-1990 [38] and special other acts in restraining illegal arms, explosive substances, sabotage, hoarding, adulteration in drugs and food stuff, counterfeiting money and government stamps, black marketing, smuggling, narcotics and other crimes subversive of the security and economic life of the state and the people.

3.5 Conclusion

In Bangladesh, most of the developing countries, the laws regarding Preventive Detention has been used as a weapon to dominate, crash the opposition and to perpetuate rule. After achieving our independence, there are no situations of war or internal aggression or internal disturbance which are threatening our security but Art. 33, The Special Powers Act, 1974 and Emergency Power Rule-2007 are still being used to suppress anti-government movement and sometimes democratic movement also.

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Home » Law and Ethics » SPECIAL POWERS ACT [XIV OF 1974]

SPECIAL POWERS ACT [XIV OF 1974]

Section 2(f)—

Requests made through telegrams to oppose the release of the detenu from detention on the ground that some of the activities of the detenu are prejudicial to the maintenance of law and order cannot be considered to be materials sufficient for the satisfaction of the detaining authority to make an order of detention preventing detenu from indulging in any prejudicial act within the meaning of section 2(f) of the Act.

Maniruzzaman Majumder vs Bangladesh 2 BLC 151.

Sections 2 (f)(iii) and 8—

The action of the Government taken in an extraordinary situation at the time might have been justified on the doctrine of necessity but it would never qualify as a legal order under the Act for which the ground No. 1 was not pertinent and legally available to the authority for making an order of preventive detention against the detenu and as such the decision of the authority for making order of detention was wholly unfounded in law and fact and consequently the order was liable to be declared to have been passed without lawful authority.

Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry of Home Affairs and another 3 BLC (AD) 141.

Sections 2(f) and 8—

The alleged prejudicial reports are in fact, as vague as the grounds of detention made in different paragraphs of the grounds of detention. Several criminal cases as are pending against some other party men cannot be a ground for detention. There are no materials regarding causing damage to the electricity supply and to give arms and money to the educational institutions and through his speeches the detennu instigated and provoked the party men to cause damage to the cars, vehicles and shops and on such vague, unspecified and indefinite reports the detenu, who was a Minister of the previous Government cannot be detained. Rather, the detenu made speeches criticising the activities of the Government which he is entitled to in a democratic Government.

Bilkis Akhter Hossain vs Bangladesh, represented by the Secretary, Ministry of Home Affairs and others 2 BLC 257

Sections 2(f) & 8—

Any subsequent detention of the same detenu on the self-same grounds is a repetition of the illegality in gross violation of the Court’s order and that may amount to a contempt of Court. The impugned order of detention is a colourable exercise of power for a collateral purpose as it was issued at the behest of a Minister.

Nurul Amin vs State 5 BLC 53.

It appears that the detenu is the Convener of Narayanganj City BNP and he is a public figure and a member of the Supreme Court Bar Association and is associated with some educational and social institutions and is a candidate for election to the post of Chairman, Narayanganj Pourashava. Right to freedom of speech as enshrined by Article 39 of the Constitution is subject to reasonable restrictions imposed by law in the interest of the security of the State, public order, incitement to offence, etc. A democracy cannot thrive if the law of preventive detention is allowed to be used as the Damocles’ sword to stifle the voice of people working in the public field. The best course for administration is to set the appropriate law in motion in case of violation of any law. Hence, the alleged activities of the detenu as narrated in the grounds of detention do not constitute “prejudicial act” within the meaning of section 2(f) of the Act and as such the detention order is illegal and cannot be sustained.

Halima Farzana vs Government of the People’s Republic of Bangladesh and others 4 BLC 189.

Sections 2 (f)(ii) and 8—

The action of the Government taken in an extraordinary situation at the time might have been justified on the doctrine of necessity but it would never qualify as a legal order under the Act for which the ground No. 1 was not pertinent and legally available to the authority for making an order of preventive detention against the detenu and as such the decision of the authority for making order of detention was wholly unfounded in law and fact and consequently the order was liable to be declared to have been passed without any lawful authority.

Sections 2(f), 3(2) & 8—

The other averments made in the grounds of detention are the previous history of the activities of the detenu and there is only one ground which is specific, definite and very serious in nature and it comes within the mischief of prejudicial activities as defined in sub-section 2(f) of the Act which made the detaining authority to pass the order of detention under section 3(2) of the Act and in the absence of mixing up the bad ground with the good ones it cannot spoil the entire basket.

Serazul Islam vs State 1 BLC 369.

Section 2(1)—Clauses (i) & (ii)—

Both the Government and the DM/ADM have got almost concurrent power to issue an order of detention but the power of the latter is restricted as they cannot pass an order under clauses (i) and (ii) of section 2(f) of the Act.

Section 2(f)(iv) & (v)—

In the absence of any material showing that the fortnightly journal Chinta encouraged the Ansar revolt and the article contains anything encouraging a further revolt in future it can only be said a fair criticism of the problem but it cannot be construed as a prejudicial act as contemplated under section 2(1) (iv) and (v) of the Act.

Farida Akhter vs Bangladesh and others 1 BLC438.

Sections 2(f), 3 & 8—

Collecting of children with intent to smuggle them out of Bangladesh has not been included as a “prejudicial act” as defined in section 2(f) of the Act. With a view to preventing the detenu from the act as narrated in the grounds of detention an order of detention by invoking section 3 of the Act cannot be passed.

MA Hashem vs Government of Bangladesh and ors 1 BLC 5.

In the case of Abdul Latif Mirza this Division has in somewhat different language reiterated the same principles laid down in the case of Baqi Baluch. If one compares the impugned passages in the judgment of Qazi Shafiuddin, I. in the context of the law as laid down in Baqi Baluch and Abdul Latif Mirza and other cases, it will be seen that the views expressed by the learned Judge are not only unacceptable but are portentous of misleading and misguiding the people about the law. The impugned decision on the face of it put the clock back which need to be adjusted for the sake of upholding the correct law. The Indian view of “subjective satisfaction” is materially different from the view that we have been following in this Court and a note of caution was given in the case of Sajeda Parvin which the learned Judge does not seem to be aware of.

There was nothing tendentious in the interview of the detenu with the BBC and he could not be held responsible if other people were about to react violently for that interview. It was for the administration to devise ways and means for meeting such an agitational situation which was about to break out; the law does not, however, authorise the application of section 3 of the Act for detaining a person (in this case a deposed President) who was neither threatening public safety or public order nor were there materials to show that he was about to engage in acts leading to such results.

Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry of Home Affairs and another 3 BLC(AD) 141.

As the detenu is a mental patient he should be enlarged on bail treating the detenu as under trial prisoner if the two criminal cases are pending or if it is found that he was discharged from criminal cases then the detenu will be released from jail.

Abul Hasnat Md Serajudoula Bhuiyan vs Government of the People Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs & others 2 BLC 420.

Section 3(1)—

The law does not authorise the Government to detain a person for maintaining public safety and public order. Rather, the authority is given to the Government if it is satisfied that it is necessary to prevent a person from doing any prejudicial act. The condition for exercise of power under section 3(1) is therefore the necessity to prevent a person from doing any prejudicial act. The impugned order does not say that the Government was satisfied that it was necessary to detain Hussain Muhammad Ershad with a view to preventing him from doing any prejudicial act.

Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry of Home Affairs & anr 3 BLC(AD) 141.

The law has never granted absolute power either to the Government or to the President to make an order of detention even in the circumstances mentioned in the judgment nor it is the law that the satisfaction upon which an order of detention is made is immune from challenge.

Mostafizur Rahman vs Bangladesh, and another 3 BLC (AD) 141.

Section 3(1)(a)(3)—

Where the period of detention is about to expire but the Government wants to keep the detenu in detention further it can issue detention order afresh under section 3(1) (a), but there is no scope of keeping the detention going by extending the order of detention for a further period of three months.

SM Feroj vs Government of Bangladesh, represented by the Secretary, Ministry of Home and others 2 BLC 231.

Sections 3(1)(2)(3), 10, 11,& 12—

In view of the provisions of section 3(l)(2)(3) it is apparent that the Government is not vested under section 3(3), with the power of extension of the initial order of detention passed by the District Magistrate or the Additional District Magistrate under section 3(2) of the Act but as per provisions of section 3(1) of the Act, the powers of the Government directing a person to be detained is unlimited subject to sections 10, 11 and 12.

Yeasmin Akhter vs Bangladesh & others 1 BLC 94.

Sections 3(1)(2)(3) and 8—

The District Magistrate passed the order of detention for a period of 30 days and as such the question of approval of such order by the government does not arise, government instead of passing a fresh order of detention under section 3(1) extended it under section 3(3) of the Special Powers Act which is illegal and without jurisdiction.

Abdus Samad vs State 3 BLC 186.

Section 3(2)(3)—

The order of detention having been signed on 24-6-99, there is no scope of passing any order under sub-section (2) or (3) of section 3 of the Special Powers Act with a qualification that it will come into force on the date of service of the order upon the detenu and hence the order of detention is illegal as it is not in conformity with section 3(2)(3) of the Special Powers Act.

Mosharaf Hossain (Md) & anr vs Government of Bangladesh & 3 ors 5 BLC 575.

Section 3(3)—

The Government is not empowered to extend the period of detention under section 3(3) of the Special Powers Act so passed by the District Magistrate.

TM Shahidul Alam vs Bangladesh and others 1 BLC 416.

In exercise of power under section 3(3) of the Act the Government cannot extend the initial order of detention passed by the district Magistrate.

Champa Begum vs Bangladesh and others 1 BLC 275.

An order of detention passed by DWADM for 30 days only does not require approval of the Government but such approval will be necessary only if the period of detention is made for more than 30 days but the Government is not empowered to extend the period of detention beyond 30 days as passed by the DMIADM and it can only approve such an order if the detention is for more than 30 days.

It is settled law that subsection (3) of section 3 of the Special Powers Act does not empower the Government to extend the period of detention initially ordered by the District Magistrate.

Nurul Islam (Md) vs State 1 BLC 344.

Section 4 of the Special Powers Act, 1974 reading with section 80 of the Code of Criminal Procedure leave no room for doubt that an order of detention passed under section 3 of the Special Powers Act, 1984 must be served on the detenu.

If after making the order, the detaining authority was satisfied that the person to be detained by the order has absconded, the authority could proceed under section 7 of the Act which relates to the procedure of punishment of an absconder and does not in any way empower the detaining authority to detain a person by an order made more than thirty days prior to the service of the order upon the detenu.

MosharafHossain (Md) & anr vs Government of Bangladesh & 3 ors 5 BLC 575.

It is well-settled that the materials and grounds of detention upon which the detaining authority bases its decision are subject to judicial scrutiny and if the High Court Division finds that the materials and grounds of detention being unreasonable and not on rational basis and of probative value, it can strike down the detention on such ground alone. In the instant case, the alleged three reports are absolutely unreasonable and baseless having no rational basis and probative value as the same do not disclose any source or basis. The detention of the detenu is made for political victimisation and with malafide intention to harass and lower down the prestige and image of the detenu and his political party which is now in opposition in the House of the Nation.

Bilkis Akhter Hossain vs Bangladesh, represented by the Secretary, Ministry of Home Affairs & others 2 BLC 257.

Considered with the background thus given the allegations of character will stick, however emphatically the appellant or the detenu may deny it, but shorn of the background the allegations as to character are incapable of any effective rebuttal in any representation against the order of detention and consequently the continued detention of the detenu is illegal and unwarranted by law.

Nasima Begum vs Government of the People’s Republic of Bangladesh and others 1 BLC (AD) 18.

Sections 8 and 15—

All the grounds except one are absolutely vague, indefinite and lacking in material particulars as to date, place and manner which is not sustainable in law as no effective representation can be made before the authority against such grounds when specific case mentioned in the grounds is neither serious in nature nor does it fulfil any criteria as enunciated in the case reported in 45 DLR (AD) 89.

Anwar Hossain (Md) vs Government of the People’s Republic of Bangladesh and others 5 BLC 105.

Section 8(2) and 10—

There is nothing on record to show that the grounds of detention were served upon the detenu within 15 days from passing the initial order of detention and that the detenu was placed before the Advisory Board within 120 days of detention order and as such the order of detention is illegal.

Section 13—

As the Government have taken steps in time for revoking the detention order upon publication of newspaper report and that the criminal cases against the detenu are pending it is expected that the provision of law shall not be discriminately misused or abused in curtailing the fundamental right of the citizen in the enjoyment of life and liberty and that no compensatory cost was awarded as the criminal cases are sub judice against the detenu.

Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh & others 4 BLC 600.

Section 25A—

On a combined reading of section 489A-489D of the Penal Code and section 25A of the Special Powers Act it manifests that the offence of counterfeiting currency-notes as defined in section 489A- 489D of the Penal Code is alike as in section 25A of the Special Powers Act when the alleged allegations of the prosecution clearly attract the definition of counterfeiting.

Ayub Ali alias Md Ayub Ali and another vs State 5 BLC 345.

Section 25(B)—

The allegations as disclosed in the FIR or in the charge-sheet do not disclose any offence either under the Special Powers Act or any other law and as such the proceeding is an abuse of the process of Court and for ends of justice it is quashed.

Atiqur Rahman Chowdhury (Md) vs State 3 BLC 473.

Section 25B—

The seizure list witnesses were declared hostile and the prosecution cross-examined them but the PWs 1 and 5 have proved that the appellants were apprehended from the truck at about midnight along with the contraband articles but the defence failed to challenge such facts and the seized articles were of Indian origin and as such there is nothing to disbelieve the prosecution case.

Hasanuzzaman and others vs State 1 BLC 219.

As the appellants were apprehended with the contraband articles it was the duty upon the appellants to explain the circumstances under which they had been within their knowledge and since they failed to perform such duties the only inference that could be drawn under section 25B of the Special Powers Act was that the appellants were either smugglers or aided or abetted the smuggling or kept the contraband articles in their possession for sale, etc.

Section 25B(1)(2)—

As the heroin was not recovered from the possession of the accused persons at the time of their coming to Bangladesh but it was recovered from the hotels at the showing to the accused persons kept for the purpose of sale having been satisfactorily proved by reliable evidence, section 25B(2) of the Act is attracted instead of section 25B (1).

State vs Raja Abdul Majib and others 1 BLC 144.

Section 25B(1)(b)—

The allegation of contraband goods were kept in the house of the appellant at least cast doubt by the evidence of PW 6 that the building wherefrom the Indian goods were seized might not be the house of the appellant and, as such, the prosecution has failed to prove its case beyond all reasonable doubt.

Abdur Rob alias Nedon Miah vs State 1 BLC 270.

Section 25B(1)(a)—

Keeping of National VCR in one’s house even where the house is near the border of the country does not by any stretch of imagination suggest that it was kept for taking out of Bangladesh for the purpose of smuggling.

Section 25B(2)—

In view of the contradictions and failure of the prosecution to identify the place of occurrence and want of evidence as seizure of salt from the kitchen of appellant and the alleged salt was of Indian origin or that these were smuggled into Bangladesh by the appellant or that the seized salt is a contraband goods and in the absence of such proof the conviction and sentence against the appellants are not sustainable.

Nowsher Mollah, @ Md Nowsher Ali Mollah vs State 3 BLC 251.

When all the PWs being police persons and members of the police force are not disinterested witnesses as they are interested in the result of the case where corroboration on some facts with one another, if any, cannot be accepted as independent corroboration as required under law to prove the charge beyond doubt when no independent impartial disinterested neighbour witnesses as required under section 103 of the Code of Criminal Procedure could be examined to prove the recovery and seizure list and also to prove the charge beyond reasonable doubt, the prosecution has miserably failed to prove beyond all reasonable doubt the recovery and seizure of the seized articles from the actual possession and control of the convict appellants who are entitled to get benefit of doubt and also are entitled to get acquitted.

Jewel and another vs State 5 BLC 248.

Sections 25B and 27(6)—

The publication of notice under section 27(6) of the Special Powers Act is not required in this case as the convict petitioner and two others absconded after being enlarged on bail and it cannot in any way be said that there is no evidence for implicating the petitioner and two others and the petitioner was a fugitive from justice and hence the impugned judgment of conviction and sentence cannot be quashed.

Toffazel Hossain vs State, represented by the Deputy Commissioner 5 BLC 44.

Section 26—

It is well settled that if a non-schedule offence is included in the trial of a schedule offence the trial does not necessarily become void or without jurisdiction. As the evidence of the witnesses have been elaborately recorded by the Tribunal, no prejudice has been caused to the appellants by the Tribunal during trial.

Aminul Islam alias Ranga and others vs State 5 BLC(AD) 179.

Merely because of section 26(2) of the Special Powers Act the Sessions Judge does not ipso facto become an ‘Exofficio Special Tribunal’ and the offence mentioned in the schedule of the Act cannot be registered as Sessions Case to be tried by Sessions Judge and the offence under Article 4 (b) of the Cruelty to Women (deterrent punishment) Ordinance, 1983 is distant and different forum from the Court of Session.

Abdul Mannan and others vs State 2 BLC 1.

Section 27—

While considering the police report (FRT) the Special Tribunal heard the learned Advocates of the parties and on perusal of the record and case diary took cognizance, as above, after observing that a prima facie case was made out by the prosecution but the Tribunal could not agree with the opinion of the IO and took cognizance on the basis of the materials on record.

Bikish Miah vs State 3 BLC (AD) 182.

The learned Special Tribunal committed no illegality in framing charge against the appellants under section 489A-489D of the Penal Code read with section 25A of the Special Powers Act after taking cognisance of the offence of cunterfeiting currency-notes joining together for trial the schedule and non-schedule offences as before commencing the trial it cannot be said that the accused-appellants are likely to be prejudiced by such mis-joinder as the framing of such charge for a schedule and non-schedule offence cannot be saidm to be altogether without jurisdiction.

AyubmAli alias Md Ayub Ali and another vs State 5 BLC 345.

Section 27(6)—

Trial in absentia without publication vitiates the trial—case remanded to the trialCourt—The petitioner was tried in absentia by the Special Tribunal but the provisions of section 27(6) of Special Powers Act was complied with by the Magistrate concerned. The petitioner was apprehended 3 years after the pronouncement of the judgment which is under challenge under section 561A of the Code. The High Court Division under inherent powers to secure ends of justice can send back the case on remand to the trial Court for giving an opportunity to the petitioner to cross examine the PWs and to try the case of the petitioner only in accordance with law as the trial was vitiated for non-compliance of the mandatory provision of law by the Special Tribunal.

Abdul Khalique alias Mona vs State 2 BLC 423.

The publication of notice under section 27(6) of the Special Powers Act by the Magistrate and holding of trial by the learned Tribunal without publication of notice under the said section has made the entire trial illegal and without jurisdiction cannot be cured under section 537, CrPC.

Samiul Haider alias Kuib vs State 3 BLC 437.

By the amending Act the word ‘shall” in place of the word ‘may was substituted in section 27(6) of the Special Powers Act making the provision of publishing directing the absconding accused person to appear at least in two Bengali daily newspapers by a Special Tribunal as mandatory, non-compliance of such mandatory provision is not an irregularity but glaring illegality not curable under section 537 of the Code.

Section 30—

The appellant having not been named in the FIR and the arms having not been recovered from him, the prayer for bail is allowed for a period of 6 months.

Sayed Kawser @ Ahad vs State 3 BLC 55.

In view of the fact that only two bottles of Phensidyl were recovered from the appellant, he is enlarged on bail.

Shafique vs State 3 BLC 196.

Since the judgment of acquittal does not suffer from any patent illegality and perversity carrying a grave injustice, it does not warrant any interference under section 30 of the Special Powers Act.

Haren Halder vs Md Akkas Ali & ors 3 BLC 455.

Admittedly as there is enmity between the informant and the wife of informant’s brother-in-law who filed many cases implicating the son of the informant and no infection or injuries was found in the medical report and no stain of semen was noticed on the petticoat and the FIR was filed after 15 hours of the time of occurrence in a written Ejahar and in such circumstances, for ends of justice the appellants are enlarged on bail.

Mustafa Tauhidur Noor and others vs State 1 BLC 589.

It appears from the impugned order, the First Information Report, the police report and other materials on record that the Special Tribunal was not justified in refusing the prayer for bail of the appellant in the facts and circumstances of the case. Moreover, the Special Tribunal rejected the prayer for bail without applying his judicial mind and as such the impugned order is liable to be set aside and the appellant is entitled to be enlarged on bail is the interest of justice.

Mosharaf Hossain vs State 1 BLC 551.

As the charge-sheet was submitted on 21-11-1995 and then the appellant voluntarily surrendered before the court and then he was sent to jail and the other co-accused are on bail and different dates were fixed for framing of charge but charge could not be framed because the learned Public Prosecutor prayed for adjournment and thereby the disposal of the case is being delayed for no fault of the appellant and there is no early chance of framing charge and holding trial and in such circumstance the appellant is entitled to be enlarged on bail till conclusion of the trial.

Mihir Dutta vs State I BLC 591.

The charge-sheet of the case was submitted on 29-3-98 and then it was sent for trial on 29-3-98 and then charge was framed on 7-6-98 but not a single witness has yet been examined in this case when out of 16 charge sheet witnesses, 10 witnesses are police personnel including the informant. In such a position of uncertainty of concluding trial it will be improper to keep the appellant in jail custody for an indefinite period and hence the appeal is allowed enlarging the appellant on bail. The question of recovering a revolver from the possession of the appellant is a matter to be decided at the time of trial.

Anowar Hossain @ Mohasin @ Anar vs State 5 BLC 143.

Considering all the aspects of the case particularly its slow progress the High Court Division is inclined to enlarge the appellant on bail.

Akkas Ali vs State 5 BLC 420.

While admitting another criminal appeal against framing of charge filed by other co-accuseds all further proceeding of the case pending in the Tribunal has been stayed and no step has been taken by the Government for early hearing of that appeal. Since all the co-accuseds are on bail and it is uncertain when the said appeal will be disposed of and when the trial shall commence and in such circumstances ends of justice will be met if the appellant is enlarged on bail.

Liton vs State 2 BLC 355.

The appellant was enlarged on bail and then he absconded and in his absence the charge was framed as back as on 22-6-94 and subsequently he was arrested by police but his application for bail was rejected on 19-8-1996. Although the charge was framed long ago but not a single witness has yet been examined in the case and there is no certainty when the trial shall be concluded and some co-accused who stand on the same footing are on bail till the conclusion of the trial.

Montaz alias Monta vs State 2 BLC 482.

The informant-appellant was prevented from leading evidence material to the charge beyond his control and there was no real trial and the decision of the case resulted in grave injustice to the prosecutor and the prosecution should be afforded an opportunity to prove its case and after setting aside the judgment of acquittal the case was sent back on remand to the trial Court for holding trial by calling the prosecution witnesses.

Manik (Md) vs Chand Mian Sarder and others 4 BLC 152.

Sections 30 & 32—

Grounds for granting bail—The allegation made against the appellant is one of causing hurt by ram dao which definitely does come within the mischief of Explosive Substances Act and the allegation of explosion of bombs has been made in lump but the appellant surrendered before the CMM, Khulna immediately after filing the FIR and he never misused the privilege of bail and as such there should not be any discrimination in granting bail to appellant when other accused persons are enjoying the privilege of bail.

Yonus Member vs State 1 BLC 451.

Sections 30 and 32(c)(i)(ii)—

Bail—The prosecution story as disclosed in the FIR, the 161 statement of the witnesses and the charge-sheet voice the story that the alleged revolver’ was in possession of the absconding principal accused, who brought it out from his pocket and handed it over to the accused-appellant and fled away in presence of the informant and other police personnels does not disclose prima facie complicity of the appellant who is entitled to get bail.

Shahan (Md) vs State, represented by the Deputy Commissioner 2 BLC 279.

Section 32—

After conviction of an accused, even in a bailable offence, he cannot claim his bail as a matter of right which is absolutely a discretion of the court and this discretion is neither arbitrary nor capricious nor whimsical, and it should be exercised judicially with care and caution in the facts and circumstances of the case.

Abdul Sardar vs State 1 BLC 545.

Section 32-

Trial Court convicted and sentenced the petitioner under section 25B of the Special Powers Act for 3 years, the High Court Division granted bail on the grounds that the appellant petitioner was merely a helper of a truck and there was no chance of early disposal of the appeal and he had been in custody since 17-6-98.

Samnjan alias vs State 3 BLC 464.

As the appellant has been in custody since 3-5-92 without any trial, no charge has yet been framed, the trial is being delayed without any fault on the part of the appellant and the other co-accused persons have been enjoying the privilege of bail given by the Special Tribunal, the High Court Division clearly failed to apply their judicial mind in dismissing the appeal for bail summarily when the appellant was entitled to be released on bail.

Nurul Amin @ Bada vs State 1 BLC (AD) 115.

The petitioners were convicted under section 25B(1) and sentenced to suffer rigorous imprisonment for 5 years but as they have been in custody for more than one and a half month being pardanashin ladies having children they were enlarged to be released on bail.

Jahura Khatun and another vs State 4 BLC 624.

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