Act/Law wise: Judgment of Supreme Court of Bangladesh (AD)
Special Powers Act, 1974 | |||
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Section/Order/ Article/Rule/ Regulation | Head Note | Parties Name | Reference/Citation |
Section 2 (f) |
The writ of habeas corpus would be issued if the order of detention is
primafacie illegal.
|
The State: -Vs.- Human Quader Chowd-hury: A.S.F. Rahman: Md. Chand Mia Chand Mia | 10 ALR (AD) 305 |
Section 2(f), (iii-viii) |
The basic principle for making an order of detention is that a person is
involved in prejudicial acts which are such nature that his movement as a
free citizen like any other person is prejudicial to the interest of the
State.
|
The State: -Vs.- Human Quader Chowdhury: A.S.F. Rahman: Md. Chand Mia Chand Mia | 10 ALR (AD) 305 |
Section 2(f) |
Power of Preventive detention
|
Mrs. Arati Debi Vs. Govt, of Bangladesh & Ors | 12 BLT (AD) 205 |
Section 2(f) |
Criticizing the Government do not come within the mischief of prejudicial
act as well
|
Govt. of Bangladesh Vs. Professor Apu Ukil | 16 BLT (AD) 126 |
Sections 2(f) and 8 |
Burden of proof in matters of detention
|
Md Shameem Vs. Government of Bangladesh and others, | 15 BLD (AD) 138 |
Section 2(f) |
Defines prejudicial acts—Section 3(l)(a)- Order of preventive detention
can only be made when any of the grounds as defined under section 2(f)
exists and not otherwise—
|
Mustafizur Rahman vs. Bangladesh represented by the Secretary, Ministry of Home Affairs | 3 MLR (AD) 169 |
Section 3(1) (a) |
Custody on the plea of conviction—where a prisoner is in custody on the basis of an order of conviction the onus of the respondent is discharged as soon as the return relating to the appellant’s custody ‘shows that there is an order of conviction justifying the custody. But the conviction is to N placed before the court for its satisfaction whether the irregularity in It can be overlooked. The warrant of commitment issued by one not authorized under the law can hardly prove the conviction. Nasrin Kader Siddiqui Vs Bangladesh 44 DLR (AD) 16. |
Nasrin Kader Siddiqui Vs Bangladesh | 44 DLR (AD) 16 |
Section 3(1) (a) |
Where allegations are of serious nature the detaining authority may consider them, and despite pendency of a criminal case, can make an order of detention if it is satisfied that the detenu is to be prevented from indulging in prejudicial activities. Habiba Mahmud Vs. Bangtodesh 45 DLR (AD) 89. |
Habiba Mahmud Vs. Bangtodesh | 45 DLR (AD) 89 |
Section 3 |
If it is manifest from the writ petition itself that the cause or manner of detention stands adequately explained and justified on the face of it, the respondents need not file an affidavit- in-opposition and may support the detention orally relying on the petition itself. Nasima Begum vs Bangladesh. 49 DLR (AD) 102. |
Nasima Begum vs Bangladesh | 49 DLR (AD) 102 |
Section 3 |
Preventive detention— There can be no question of the detaining authority being under any obligation to act judicially or even quasi-judicially in such matter. Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52. |
Bangladesh vs Dr Dhiman Chowdhury and others | 47 DLR (AD) 52 |
Sections 3 & 8 |
Mere availability of sufficient materials in possession of the Government will not make the order of detention ipso facto lawful if the requirements of detention of a person as required under various provisions of the Special Powers Act, 1974 are not strictly complied with. Dr. Dhiman Chowdhury vs State 212. [Reversed by the decision 47 DLR (AD) 52] |
Dr. Dhiman Chowdhury vs State | 47 DLR (AD) 52 |
Section 3(1) |
Satisfaction for detention—A valid order under section 3(1) must show that the Government was satisfied that it was necessary to prevent the person from doing any prejudicial act as defined in section 2(f). It is no part of the requirement of law that in the grounds also the satisfaction of the Government with reference to prejudicial act or acts as in the detention order has to be recited once again. Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52. |
Bangladesh vs Dr Dhiman Chowdhury and others | 47 DLR (AD) 52 |
Sections 3(1) & 8 |
The purpose of detention appearing in the 'grounds' and in the order of detention shows a lack of nexus between the two which means the authority himself was not certain what prejudicial act was in fact likely to be committed by the detenu. Dr Dhiman Chowdhury vs State 47 DLR 212. [Reversed by the decision 47 DLR (AD) 52] |
Dr Dhiman Chowdhury vs State | 47 DLR (AD) 52 |
Section 3(1)(a) |
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. Mostafizur Rahman Vs. Ministry of Home Affairs 6 BLT (AD)-216 |
Mostafizur Rahman Vs. Ministry of Home Affairs | 6 BLT (AD) 216 |
Section 3(2) |
Relying on the case, 45 DLR (AD) 89, the High Court Division held that in spite of the pendency of a criminal case the detaining authority may detain a decent if it is satisfied that the detent is to be prevented from indulging in prejudicial activities Petition is dismissed. Md. Shah Alam Khan vs. Govt of Bangladesh& Ors. 4 BLT (AD)-229 |
Md. Shah Alam Khan vs. Govt of Bangladesh& Ors. | 4 BLT (AD) 229 |
Section 3 |
If it is manifest from the writ petition itself that the cause or manner of detention stands adequately explained and justified on the face of it, the respondents need not file an affidavit- in-opposition and may support the detention orally relying on the petition itself. Nasima Begum vs Bangladesh. 49 DLR (AD) 102. |
Nasima Begum vs Bangladesh. | 49 DLR (AD) 102 |
Section 3 |
Preventive detention— There can be no question of the detaining authority being under any obligation to act judicially or even quasi-judicially in such matter. Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52. |
Bangladesh vs Dr Dhiman Chowdhury and others | 47 DLR (AD) 52 |
Sections 3 & 8 |
Mere availability of sufficient materials in possession of the Government will not make the order of detention ipso facto lawful if the requirements of detention of a person as required under various provisions of the Special Powers Act, 1974 are not strictly complied with. Dr. Dhiman Chowdhury vs State 212. [Reversed by the decision 47 DLR (AD) 52] |
Dr. Dhiman Chowdhury vs State | 47 DLR (AD) 52 |
Section 3(l)(a)— |
Preventive detention on ground of prejudical activities—
|
Bangladesh represented by the Secretary, Ministry of Home Affairs and another Vs. Mostafizur Rahman | 12 MLR (AD) 316 |
Section 3(2) |
Grounds of detention—
|
Nasima Begum Vs. Government o Bangladesh | 1 MLR (AD) 129 |
Section 3(l)(a) |
Detention on ground of serious allegations— when Criminal case is
pending
|
Jabitia Mahmud Vs. 'Bangladesh | 45 DLR (AD) 89 |
Section 3 |
The Code of Criminal Procedure, 1898
|
Ministry of Law, Justice and Parliamentary Affairs =VS= Bangladesh Legal Aid and Services Trust (BLAST) (Arrest & Remand case) | 3 LM (AD) 274 |
Section 3 |
Code of Criminal Procedure, 1898
|
Bangladesh & ors Vs. BLAST & ors | 8 SCOB [2016] AD 1 |
Section 7(b) |
A proceeding under section 7(b) cannot be taken independently of an order passed under section 3(1)(a) of the Special Powers Act. It is an order which follows from non- execution of an order passed under section 3(1) (a). It is therefore a consequential order and not an independent offence. If the main offence falls through for being void ab initio the consequential proceedings also fall through. Govt of Bangladesh Vs. Anisul Islam Mahmood & Anr 6 BLT (AD)-19 |
Govt of Bangladesh Vs. Anisul Islam Mahmood & Anr | 6 BLT (AD) 19 |
Section 8 |
‘Grounds’ must include facts as well. Grounds are not only necessary to
enable the defence to make representation— they are the starting points
both for Advisory Board and the High Court Division for discharging their
obligations.
|
Habiba Mahmud Vs. Bangladesh | 45 DLR (AD) 89 |
Section 8 |
The criminal cases relied upon as a background information about the detenu's prejudicial activities having ended in final report, the background is wiped out from the grounds of detention. Nasima Begum vs Bangladesh 49 DLR (AD) 102 |
Nasima Begum vs Bangladesh | 49 DLR (AD) 102 |
Section 8 |
Considered with the background the allegations of character will stick, but shorn of the background the allegations as to character are incapable of any effective rebuttal in any representation against the order of detention. Nasima Begum vs Bangladesh 49 DLR (AD) 102 |
Nasima Begum vs Bangladesh | 49 DLR (AD) 102 |
Section 8 |
The relevant portion of the incriminating report or the facts disclosed therein having not been brought to the knowledge of the detenu, the grounds of his detention based on the report suffer from illegality. Dr Dhiman Chowdhury vs State 47 DLR 212. [Reversed by the decision 47 DLR (AD) 52] |
Dr Dhiman Chowdhury vs State | 47 DLR (AD) 52 |
Section 8 |
Of several grounds of detention, if some are good and some bad, the detention order as a whole fails, because it cannot be ascertained which grounds led to the satisfaction of the detaining authority that the detenu was likely to commit "prejudicial act." Dr Dhiman Chowdhury vs State 47 DLR 212. [Reversed by the decision 47 DLR (AD) 52] |
Dr Dhiman Chowdhury vs State | 47 DLR (AD) 52 |
Section 8 |
To make a dissection of the "grounds" which was a composite piece and then to analyse them in isolation finding fault with each dissected part was a fundamental mistake. Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52. |
Bangladesh vs Dr Dhiman Chowdhury and others | 47 DLR (AD) 52 |
Section 8 |
In the absence of any return by the respondents, the contention that the grounds of detention were served on the detenu beyond statutory period and that he was deprived of the right to make an effective representation before the authority remain unchallenged. In this view, the detenu is being detained without lawful authority. Shameen vs Government of Bangladesh and others 47 DLR (AD) 109. |
Shameen vs Government of Bangladesh and others | 47 DLR (AD) 109 |
Section 8 |
The criminal cases relied upon as a background information about the detenu's prejudicial activities having ended in final report, the background is wiped out from the grounds of detention. Nasima Begum vs Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs and others 49 DLR (AD) 102. |
Nasima Begum vs Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs and others | 49 DLR (AD) 102 |
Section 8 |
Considered with the background the allegations of character will stick, but shorn of the background the allegations as to character are incapable of any effective rebuttal in any representation against the order of detention. Nasima Begum vs Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs and others 49 DLR (AD) 102. |
Nasima Begum vs Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs and others | 49 DLR (AD) 102 |
Section 8 |
Allegations as to character- Considered with the background thus stick, however emphatically the appellant or the detenu may deny it., but short of the background the allegations 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. The Govt. Peoples Republic Of Bangladesh 4 BLT (AD)-93 |
Nasima Begum Vs. The Govt. Peoples Republic Of Bangladesh | 4 BLT (AD) 93 |
Section 8 |
Grounds being served on the detenu beyond the statutory period prescribed in section 8 of the Special Powers Act., 1974 and the detenu thus being deprived of his right to make an effective representation before the Advisory Board, the detenu is detained without lawful authority. Md. Shameem Vs. Govt. of Bangladesh & Ors. 3 BLT (AD)-119 |
Md. Shameem Vs. Govt. of Bangladesh & Ors. | 3 BLT (AD) 119 |
Section 8 |
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. |
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. |
45 DLR (AD) 89 | |
Sections 25B(1), 25D |
High Court Division rightly found that the acts or omission in the name of
physical verification alleged to have been done by the accused-petitioner
thereby allowed the other accused persons to use gate No.5 instead of using
gate No.4 in releasing the alleged imported goods in breach of law
indulging them to commit an offence of smuggling punishable under Section
25B(1) of the Special Powers Act, 1974 and thus abetted the commission of
the aforesaid offence making him punishable under Section 25D of the
Special Powers Act, this is not certainly an act in the discharge of his
official duty and as such no previous sanction of the Government in taking
cognizance of the offence by the Court is required.
|
Kazi Md. Abdul Basit -Vs- The State | 1 ALR (AD) 160 |
Section 25D |
The Explosive substances Act
|
State =VS= Amjad Ali @ Md Hossain @ Babu | 10 LM (AD) 408 |
Section 25C(d) |
The Drug Control Ordinance is an additional forum for trying drug offences.
Taking of cognizance and framing of charge by the Tribunal under the
Special Powers Act in respect of offences relating to possession of
spurious medicine, are not illegal and the proceedings thereof are not
liable to be quashed.
|
Ashraf Ali @ Asraf Ali vs State | 49 DLR (AD) 107 |
Section 25B(1) and 25D |
Reducing the sentence on compassionate ground—
|
Ashrafuddin Sekander (Major Reid) and others vs. The State | 3 MLR (AD) 164 |
Section 25B (2) |
Neither in the FIR nor in the evidence of P.W.1 or in the evidence of other witnesses, there is any allegation that the petitioner has kept or carried one bottle of phensedyl for the purpose of sale. It is the consistent case that the phensedyl bottle was recovered from his possession while the petitioner was approaching towards Dupchanchia. Only possession of contraband goods does not constitute an offence of smuggling within the meaning of section 25B (2). It is only if any person keeps in his possession for the purpose of sale of the contraband goods the bringing of which is prohibited by law, an offence of the second category of smuggling will be attracted. .....Md. Akram =VS= The State, (Criminal), 2016-[1 LM (AD) 581] ....View Full Judgment |
Md. Akram =VS= The State | 1 LM (AD) 581 |
Section 25B |
The Code of Criminal Procedure, 1898
|
Ruhul Amin(Md.) =VS= The State | 12 LM (AD) 391 |
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. |
Aminul Islam alias Ranga and others vs State | 5 BLC (AD) 179 |
Section 27(1) |
It is well settled that for taking cognizance of any offence under the Special Powers Act the precondition is that there must be a report in writing by a police officer not below the rank of a Sub-Inspector. The expression used in sub section (1) of Section 27 of the Special powers Act is mandatory in nature. This Division in the case of Siraj Miah Vs. Bangladesh and another reported in 32 DLR(AD) 34 had held that cognizance of an offence under the special Powers Act by a Special Tribunal is possible only on the submission of a written report by a police officer not below the rank of Sub-Inspector. In the present case cognizance was taken against these two appellants on the basis of a 'Narazi' petition which is on the very face illegal and agreeing with the said decision of this Division we hold that the learned Special Tribunal committed illegality and wrong by taking cognizance against these two appellants in he manner as aforesaid. Lt. Shafiqul Islam @ Shafiqul & Anr. Vs. The State. 9 BLT (AD)-199 |
Lt. Shafiqul Islam @ Shafiqul & Anr. Vs. The State. | 9 BLT (AD) 199 |
Section 27 Sub-section (6A) |
Absconding accused- upon receipt of the case records on 7-7-92, the Senior Special Tribunal at once on the same day labeled the appellant as an absconder without fixing a date for his appearance and without directing the sureties to produce the appellant. Without passing such an order the senior Special Tribunal could not have treated the appellant as an absconding accused under sub- section (6A) of Section-27, because on absent person should not be too readily assumed to be an absconder without fixing a date for his appearance and without directing his sureties to produce him. Neser Ahmed Vs. Govt. of Bangladesh 5 BLT (AD)-231 |
Neser Ahmed Vs. Govt. of Bangladesh | 5 BLT (AD) 231 |
Section 27(6) and 27(6A) |
In case of non-appearance of an accused in course of his trial after his release on bail the procedure as laid down in Sub-section (6) has got no application. In such clear indication of law we are of the view that there was no necessity to adopt to the procedure mentioned in Sub-section (6) of Section 27 in the instant case, inasmuch as the accused petitioner was allowed bail during trial and thereafter he remained absent. Mojibur Rahman @ Babu Vs. Deputy Commissioner and Ors 16 BLT (AD)185 |
Mojibur Rahman @ Babu Vs. Deputy Commissioner and Ors | 16 BLT (AD)185 |
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. |
Bikish Miah vs State | 3 BLC (AD) 182 |
Section 29 |
Applicability of the Code to proceedings before Special Tribunals: The Act provides that the provisions of the Code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act. Section 339C is intended for expeditious trial; the special statute is intended for “more speedy trial.” If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law—makers. Kamruzzaman Vs. State 42 DLR (AD) 219. |
Kamruzzaman Vs. State | 42 DLR (AD) 219 |
Section 30 |
An offence under section 342 of the Penal Code which is not included in the
schedule of the Special Powers Act cannot be the basis of conviction as the
same is a non-schedule offence.
|
Abdur Rahman and others vs State | 51 DLR (AD) 33 |
Section 30 |
Conviction under Section 342 of the Penal code
|
Abdur Rahman & Ors. Vs. The State | 7 BLT (AD) 225 |
Section 30 |
read with
|
Abdur Rahman and others Vs The State, | 19 BLD (AD) 4 |
Section 30 |
Provision of appeal—Alteration of sentence into one of non-schedule
offence- not permissible—
|
Abdur Rahman and others. The State | 4 MLR (AD) 25 |
Section 32 |
The High Court Division summarily rejected the appellant’s prayer for bail on an erroneous view of section 32 of the Special Powers Act which does not provide for absolute bar on ball. Under section 32 even when the prosecution opposes the prayer for bail the court can release an accused on ball when it is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence alleged. Madar Chandra Basu Vs. State 44 DLR (AD) 151. |
Madar Chandra Basu Vs. State | 44 DLR (AD) 151 |
Section 32 |
Long delay in holding trial provides a good ground for bail
|
Nurul Amin alias Bada Vs. The State, | 16 BLD (AD) 200 |
Section 32(C) |
Bail to convict in appeal cannot be allowed without hearing the
prosecution—
|
The State Vs. Mahibur Rahman Mariik and another | 11 MLR (AD) 230 |
Section 32 |
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. |
Nurul Amin @ Bada vs State | 1 BLC (AD) 115 |