High Court Division
(Special Original Jurisdiction)
Naima Haider J
Zafar Ahmed J
Rana Singha …….
……..Petitioner
vs
Government of Bangladesh and others……Respondents -Opposite Parties
Judgment
January 23rd, 2013.
Constitution of Bangladesh, 1972
Articles 31, 32 and 102(2)
The failure of the Government to take steps in violation of fundamental right of foreign prisoners which have been guaranteed in Articles 31 and 32 of the Constitution……(15)
Faustina Pereina vs state 53 DLR 414 ref.
Md Mahbub Ali with Rafat Zahan and Jesmin Akhter, Advocates-For the Petitioner.
Md Mokleshur Rahman, DAG with Md Bashir Ullah, AAG-For the Opposite Party (State).
Judgment
Zafar Ahmed J: In this writ petition under article 102 of the Constitution in the nature of habeas corpus at the instance of the petitioner Rule Nisi was issued calling upon the respondents to show cause as to why the detention of the convict accused Allen Marak, son of (Robindra Sharma C/o, Virenda Sagma of Kellakora, C/o. Kelagra, Police Station Moheshkhola, District-South Garohil, India in Sunamganj Jail since 27-8-2000 being convicted and sentenced by Special Tribunal Judge, Sunamgonj in Special Tribunal Case No. 29 of 2000 should not be declared to have been made without lawful authority and is of no legal effect and as to why the jail authority shall not be directed to release the convict accused Allen Marak immediately and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Mr Md Mahbub Ali with Ms. Rafat Zahan and Ms. Jesmin Akhter, the learned Advocates appear for the petitioner.
3. Mr Md Mokleshur Rahman, the learned Deputy Attorney-General with Dr Md Bashir Ullah, the learned Assistant Attorney-General appeared for the opposite-parties (State).
4. The detenue Allen Marak, son of Robindra Sharma, C/o. Virenda Sagma of Kellakora, C/o. Kelagra, Police Station Moheshkhola, District-South Garohil, India is an Indian citizen.
5. The detenue was arrested on 28-8-2000 under sections 19A and 19(f) of the Arms Act for possession of one Chinese Pistol with four rounds of ammunitions. Eventually he was tried and convicted by the Special Tribunal, Sunamganj in Special Tribunal Case No. 29 of 2000 and was sentenced to suffer 10 years rigorous imprisonments for the offence under section 19A of the Arms Act and 7 years imprisonment for the offence under section 19(f) of the Arms Act by the judgment and order of conviction dated 23-10-2001 both the sentences to run concurrently.
6. Against the aforesaid judgment and order of conviction and sentence the detenue filed Jail Appeal No. 25 of 2002 before this Court, which was dismissed by judgment and order dated 30-7-2003.
7. Mr Md Mahbub Ali, the learned Advocate for the petitioner, submits that the detenue has already served out the period of sentences but he is still detained in Jail which is illegal and a gross violation of fundamental rights.
8. Mr Md Mokleshur Rahman, the learned Deputy Attorney-General has informed us that the Jail authority has transferred the detenue to Sylhet Jail from Sunamgonj Jail and at present his status is released prisoner. However, since the detenue is an Indian citizen he cannot be released because after release he may face more difficulties and may be arrested for staying in Bangladesh without valid papers.
9. Mr Mahbub Ali, the learned Advocate for the petitioner draws our attention to the case of Faustina Pereira vs State 53 DLR 414. In that case some foreign prisoners were kept in Jail for more than 6 years after serving out the sentences. In that case this Court elaborately discussed the issue i.e. the release of foreign prisoner after serving out sentences and observed:
“We have considered the question raised above. To our knowledge there is no rule either in the Jail Code or any other law as to the release of foreign prisoners. The procedure, so long followed, is to cant2.ct with the respective embassies of such prisoners and to make arrangement for their repatriation through their embassies and we have learnt that the Government have already taken steps in this regard and contacted with the High Commission of India and Pakistan. But by this time more than five years has past. We agree with the submission of the learned Advocate for the Ain-o-Salish Kendra that keeping any prisoner in jail after serving out the sentences, amounts to violation of the Human Rights and Fundamental Rights as guaranteed by the Constitution of the country. So, we are of the view that the Government should take steps for release of such prisoners at least 3 months prior to the date of their release so that such prisoners do not languish in jail for indefinite period for no fault of their own.”
10. In the case of Faustina Periera his Court further observed that it is the duty of the Government to ensure the safety and Security of foreign prisoners after their release and for that purpose the Government may consider making contact with Human Rights bodies or any International body such as International Red Cross Society or United Nations Commission for Refugee Rehabilitation or the International Organization for Migration. This Court then observed that Government may also consider setting up of separate cell in the Ministry of Foreign Affairs with a representation of Ministry of Horne Affairs and the office of the Inspector General of Prisons to facilitate the timely release of foreign prisoners and their repatriation.
11. We have enquired with the learned Deputy Attorney-General as to whether the Government has taken any step regarding the implementation of the above observations made in the case of Faustina Periera. The learned Deputy Attorney-General frankly concedes that he has no instructions in this regard.
12. The judgment of Faustina Periera case was passed on 22-5-2001. To our utter dismay the Government has not yet taken any step to implement the observations passed in that case regarding facilitating the timely release of the foreign prisoners and their repatriation which is gross violation of Articles 31 and 32 of the Constitution.
13. Article 31 of the Constitution guarantees the protection of law. It has two parts-(i) the citizens and residents of Bangladesh have inalienable right to be treated in accordance with law and (ii) no action detrimental to the life, liberty, body, reputation or property of any citizen or person for the time being within Bangladesh shall be taken except in accordance with law. Article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law. Article 31 covers the entire range of human activities and is attracted when a person is adversely affected by any State action irrespective of the question whether it affects life, liberty or property,
14. We have no doubt that the detenue Alien Marak, an Indian citizen, is entitled to the protection given to him under Articles 31 and 32 of the Constitution so far as his personal liberty is concerned. In theory the detenue is a free man because of his present status as ‘released prisoner’ but in reality he is illegally detained in Jail simply because the Government has failed to take any step to facilitate the timely release and repatriation of the detenue although in 2001 this Court made specific observations regarding steps to be taken by the Government for that purpose.
15. Our considered view is that the failure of the Government to take steps in this matter is violation of fundamental right of foreigners been guaranteed in Articles 31 and 32 of the Constitution.
16. Considering facts, circumstances of the present case and the law discussed above we are of the view that the instant Rule has merit and accordingly the Rule is made absolute.
17. The respondent No.3 is directed to contact the Indian High Commission and to make arrangement for his repatriation through the Indian High Commission immediately. The Jailor of Sylhet Jail is directed to release the detenue Allen Marak, son of Robindra Sangma, C/o Virenda Sagma of Kellakora .. C/o Kelagra, Police Station- Moheshkhola, District-South Garohil, India after receipt of the reply from the Indian High Commission regarding the repatriation of the detenue. If the Indian High Commission fails to make any arrangement for the repatriation of the detenue to his country with 1 (one) month, the Ministry of Home Affairs shall take necessary steps within 1 (one) month next for the shelter of detenue on his release from the prison in the light of observations made in the judgment till his repatriation is finally arranged.
18. Before parting with the judgment we remind the Government once again its duty to take appropriate steps regarding facilitating the timely release and repatriation of foreign prisoners as discussed above.
Office is directed to send a copy of this judgment and order to the respondents immediately.
(Special Original Jurisdiction)
Naima Haider J
Zafar Ahmed J
Rana Singha …….
……..Petitioner
vs
Government of Bangladesh and others……Respondents -Opposite Parties
Judgment
January 23rd, 2013.
Constitution of Bangladesh, 1972
Articles 31, 32 and 102(2)
The failure of the Government to take steps in violation of fundamental right of foreign prisoners which have been guaranteed in Articles 31 and 32 of the Constitution……(15)
Faustina Pereina vs state 53 DLR 414 ref.
Md Mahbub Ali with Rafat Zahan and Jesmin Akhter, Advocates-For the Petitioner.
Md Mokleshur Rahman, DAG with Md Bashir Ullah, AAG-For the Opposite Party (State).
Judgment
Zafar Ahmed J: In this writ petition under article 102 of the Constitution in the nature of habeas corpus at the instance of the petitioner Rule Nisi was issued calling upon the respondents to show cause as to why the detention of the convict accused Allen Marak, son of (Robindra Sharma C/o, Virenda Sagma of Kellakora, C/o. Kelagra, Police Station Moheshkhola, District-South Garohil, India in Sunamganj Jail since 27-8-2000 being convicted and sentenced by Special Tribunal Judge, Sunamgonj in Special Tribunal Case No. 29 of 2000 should not be declared to have been made without lawful authority and is of no legal effect and as to why the jail authority shall not be directed to release the convict accused Allen Marak immediately and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Mr Md Mahbub Ali with Ms. Rafat Zahan and Ms. Jesmin Akhter, the learned Advocates appear for the petitioner.
3. Mr Md Mokleshur Rahman, the learned Deputy Attorney-General with Dr Md Bashir Ullah, the learned Assistant Attorney-General appeared for the opposite-parties (State).
4. The detenue Allen Marak, son of Robindra Sharma, C/o. Virenda Sagma of Kellakora, C/o. Kelagra, Police Station Moheshkhola, District-South Garohil, India is an Indian citizen.
5. The detenue was arrested on 28-8-2000 under sections 19A and 19(f) of the Arms Act for possession of one Chinese Pistol with four rounds of ammunitions. Eventually he was tried and convicted by the Special Tribunal, Sunamganj in Special Tribunal Case No. 29 of 2000 and was sentenced to suffer 10 years rigorous imprisonments for the offence under section 19A of the Arms Act and 7 years imprisonment for the offence under section 19(f) of the Arms Act by the judgment and order of conviction dated 23-10-2001 both the sentences to run concurrently.
6. Against the aforesaid judgment and order of conviction and sentence the detenue filed Jail Appeal No. 25 of 2002 before this Court, which was dismissed by judgment and order dated 30-7-2003.
7. Mr Md Mahbub Ali, the learned Advocate for the petitioner, submits that the detenue has already served out the period of sentences but he is still detained in Jail which is illegal and a gross violation of fundamental rights.
8. Mr Md Mokleshur Rahman, the learned Deputy Attorney-General has informed us that the Jail authority has transferred the detenue to Sylhet Jail from Sunamgonj Jail and at present his status is released prisoner. However, since the detenue is an Indian citizen he cannot be released because after release he may face more difficulties and may be arrested for staying in Bangladesh without valid papers.
9. Mr Mahbub Ali, the learned Advocate for the petitioner draws our attention to the case of Faustina Pereira vs State 53 DLR 414. In that case some foreign prisoners were kept in Jail for more than 6 years after serving out the sentences. In that case this Court elaborately discussed the issue i.e. the release of foreign prisoner after serving out sentences and observed:
“We have considered the question raised above. To our knowledge there is no rule either in the Jail Code or any other law as to the release of foreign prisoners. The procedure, so long followed, is to cant2.ct with the respective embassies of such prisoners and to make arrangement for their repatriation through their embassies and we have learnt that the Government have already taken steps in this regard and contacted with the High Commission of India and Pakistan. But by this time more than five years has past. We agree with the submission of the learned Advocate for the Ain-o-Salish Kendra that keeping any prisoner in jail after serving out the sentences, amounts to violation of the Human Rights and Fundamental Rights as guaranteed by the Constitution of the country. So, we are of the view that the Government should take steps for release of such prisoners at least 3 months prior to the date of their release so that such prisoners do not languish in jail for indefinite period for no fault of their own.”
10. In the case of Faustina Periera his Court further observed that it is the duty of the Government to ensure the safety and Security of foreign prisoners after their release and for that purpose the Government may consider making contact with Human Rights bodies or any International body such as International Red Cross Society or United Nations Commission for Refugee Rehabilitation or the International Organization for Migration. This Court then observed that Government may also consider setting up of separate cell in the Ministry of Foreign Affairs with a representation of Ministry of Horne Affairs and the office of the Inspector General of Prisons to facilitate the timely release of foreign prisoners and their repatriation.
11. We have enquired with the learned Deputy Attorney-General as to whether the Government has taken any step regarding the implementation of the above observations made in the case of Faustina Periera. The learned Deputy Attorney-General frankly concedes that he has no instructions in this regard.
12. The judgment of Faustina Periera case was passed on 22-5-2001. To our utter dismay the Government has not yet taken any step to implement the observations passed in that case regarding facilitating the timely release of the foreign prisoners and their repatriation which is gross violation of Articles 31 and 32 of the Constitution.
13. Article 31 of the Constitution guarantees the protection of law. It has two parts-(i) the citizens and residents of Bangladesh have inalienable right to be treated in accordance with law and (ii) no action detrimental to the life, liberty, body, reputation or property of any citizen or person for the time being within Bangladesh shall be taken except in accordance with law. Article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law. Article 31 covers the entire range of human activities and is attracted when a person is adversely affected by any State action irrespective of the question whether it affects life, liberty or property,
14. We have no doubt that the detenue Alien Marak, an Indian citizen, is entitled to the protection given to him under Articles 31 and 32 of the Constitution so far as his personal liberty is concerned. In theory the detenue is a free man because of his present status as ‘released prisoner’ but in reality he is illegally detained in Jail simply because the Government has failed to take any step to facilitate the timely release and repatriation of the detenue although in 2001 this Court made specific observations regarding steps to be taken by the Government for that purpose.
15. Our considered view is that the failure of the Government to take steps in this matter is violation of fundamental right of foreigners been guaranteed in Articles 31 and 32 of the Constitution.
16. Considering facts, circumstances of the present case and the law discussed above we are of the view that the instant Rule has merit and accordingly the Rule is made absolute.
17. The respondent No.3 is directed to contact the Indian High Commission and to make arrangement for his repatriation through the Indian High Commission immediately. The Jailor of Sylhet Jail is directed to release the detenue Allen Marak, son of Robindra Sangma, C/o Virenda Sagma of Kellakora .. C/o Kelagra, Police Station- Moheshkhola, District-South Garohil, India after receipt of the reply from the Indian High Commission regarding the repatriation of the detenue. If the Indian High Commission fails to make any arrangement for the repatriation of the detenue to his country with 1 (one) month, the Ministry of Home Affairs shall take necessary steps within 1 (one) month next for the shelter of detenue on his release from the prison in the light of observations made in the judgment till his repatriation is finally arranged.
18. Before parting with the judgment we remind the Government once again its duty to take appropriate steps regarding facilitating the timely release and repatriation of foreign prisoners as discussed above.
Office is directed to send a copy of this judgment and order to the respondents immediately.
