GAMINI PERERA, ATTORNEY-AT-LAW (ON BEHALF OF SAMAN SRIMAL BANDARA) v. W. B.

016-SLLR-SLLR-1997-V3-GAMINI-PERERA-ATTORNEY-AT-LAW-ON-BEHALF-OF-SAMAN-SRIMAL-BANDARA-v.-W.-B..pdf



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Gamini Perera, Attomey-at-Law (on behalf of Saman Srimal Bandars) v.
W. B. Rajaguru, Inspector-General of Police and Others
141
GAMINI PERERA, ATTORNEY-AT-LAW(ON BEHALF OF SAMAN SRIMAL BANDARA)
v.
W. B. RAJAGURU INSPECTOR-GENERAL OF POLICEAND OTHERS
SUPREME COURT.
FERNANDO, J„
WADUGODAPITIYA, J.
WIJETUNGA, J.
ANANDACOOMARASWAMY, J. ANDGUNAWARDENA, J.
S.C. APPLICATION 600/95JUNE 26, 1997.
Fundamental Rights – Detention Order under Emergency Regulation 17(1) -Detention for an unspecified period – Validity of detention – Article 13(2) of the
Constitution.
Regulation 17(1) of the Emergency Regulations provides inter alia, that where theSecretary is satisfied that any of the preconditions set out therein exists, theSecretary may make order that a person be taken into custody and detained for aperiod not exceeding three months. The Secretary may extend such order fromtime to time, for a period not exceeding three months at a time. Provided however,that no person shall be so detained for a period exceeding one year. However,the detention order which was challenged by the petitioner did not specify theperiod of detention.
Held: (Anandacoomaraswamy, J. dissenting)
The necessity for detention and the period of detention are interwoven in ER17(1). The Secretary must therefore necessarily consider what length of detentionis appropriate, and the detention order must state that period subject to the limitof three months imposed on the Secretary’s power.
In the context, “for a period not exceeding three months" means “for a periodtherein specified, which period shall not exceed three months”; and that adetention order which purports to authorise detention simpliciter, or detention "fora period not exceeding three months” is not in conformity with ER 17(1).
Since the impugned detention order merely ordered detention simpliciter, itwas not "according to procedure established by law" and infringed the detenu’srights under Article 13(2) of the Constitution.
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Cases referred to:
Ansalin Fernando v. Perera (1992) 1 Sri L.R. 411.
Leelaratne v. Herath S.C. Application 145/86 S.C. Minutes 9 March 1987.
Mallows v. C/7"(1962) 66 N.L.R. 321.323.
APPLICATION lor relief for infringement of fundamental rights.
Tilak Marapana, P.C. with Nalin Ladduwahetty, Jayantha Fernando, ShanilKularatne and Dammika Jayanetti for the petitioner.
Nihal Jayasinghe, D.S.G. with Patitha Fernando, S.S.C. and N. Pulle S.C. for therespondents.
Cur. adv. vult,
August 29, 1997FERNANDO, J.
Leave to proceed was granted in respect of the allegedinfringement of the Fundamental rights of the detainee (whom I willrefer to as the petitioner) under Articles 11, 13(1) and 13(2),consequent upon his arrest on 23.8.93,
According to the respondents, between 31.5.95 and 15.8.95, 21dead bodies were found at various places, and:
“… the available material including the manner in which the deadbodies had been left exposed to the public gaze there [gave]grounds to reasonably suspect that the deaths of the personswhose dead bodies were found at the Bolgoda Lake, theDiyawanna Oya, and at Alawwa had been caused with theintention of instilling terror among the inhabitants of that area andthat the [petitioner] had committed or had been concerned in thecommission of the said acts and therefore had committed or hadbeen concerned in the commission of offences in terms ofEmergency Regulation 25(1) (a).”
The petitioner was then the Officer-in-charge of the Intelligence Unitof the Special Task Force of the Police.
Gamini Perera, Attorney-at-Law (on behalf of Saman Srimal Bandars) v.
SC W. 0. Rajaguru, Inspector-General of Police and Others (Fernando, J.)143
Immediately after his arrest a Detention Order ("DO") underEmergency Regulation (“ER”) 19(2) was issued, authorising hisdetention "for a period of 07 days with effect from 23.8.95".Thereafter, on 30.8.95, arising under ER 17(1), the AdditionalSecretary, Ministry of Defence, issued the impugned DO, stating hisopinion that it was necessary to take the petitioner into custody andto keep him in detention in order to prevent him from acting in amanner prejudicial to national security, and the maintenance of publicorder, and ordering that he be taken into custody and detained at thefourth floor of the C.I.D., Colombo.
What is relevant to the present application is that the AdditionalSecretary did not specify in that DO the period for which heauthorised the petitioner's detention. Further, in the affidavit dated
which he filed in these proceedings he neither stated norindicated that he had addressed his mind to the question of theperiod for which he thought it necessary to detain the petitioner and,if he had, what that period was. All he said was:
"I, having considered the material submitted to me was satisfiedthat the [petitioner] was a person whose detention was necessaryto prevent him from acting in a manner prejudicial [to] nationalsecurity and the maintenance of public order, and I acting in termsof the powers vested in me by [ER 17(1)] issued [DO] dated 30thAugust 1995 authorising the detention of the said [petitioner] interms of the said Regulations.”
Thereafter the petitioner was detained at the fourth floor of theC.I.D.until 14.11.95. he alleged that he had been subjected to tortureand ill-treatment during part of that period, and had been compelledto sign several statements. He filed this application on 25.10.95, andon 27.10.95 when granting leave to proceed this Court directed theJMO, Colombo, to examine him. The JMO submitted a very detailedand comprehensive report in respect of medical examinations carriedout by him on 14.9.95,30.10.95,9.11.95 and 20.11.95.
On 14.11.95 – before the expiry of three months after the issue ofthe DO of 30.8.95 – the Police produced the petitioner in the
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Magistrate's Court, and the learned Magistrate remanded him to thecustody of the Fiscal, from which the petitioner was released on bailon 15.2.96. We were informed at the hearing that up to date nocriminal proceedings have been instituted against him.
This application was first argued before a bench consisting of mybrothers Wadugodapitiya, Gunawardena and myself, and wasreferred by the Chief Justice to this bench of five Judges when weinformed him that two questions of law of public and, generalimportance arose, namely:
Must the Secretary who makes an order under ER 17(1)consider for what period detention is necessary?
Must the detention order specify the period for which detentionis considered necessary?
At the hearing before this bench. Mr. Marapana, PC, on behalf ofthe petitioner said, first, that the petitioner was not pursuing his claimunder Article 11, but only because the available medical evidencewas insufficient to establish his allegations; and, second, thatalthough his position was that the petitioner’s arrest was uponsuspicion of murder, and since that was an offence under the PenalCode his arrest and detention should have been under the ordinarylaw (see Ansalin Fernando v. Perera° and not under the EmergencyRegulations, nevertheless he was not pursuing his claim under Article13(1) in respect of the initial arrest. (Mr. Jayasinghe for therespondents maintained, however, that the arrest was for an offenceunder ER 25(1).)
I must also mention that the respondents had tendered to theCourt a thick file of statements recorded by the Police, whichaccording to them constituted the material which the 3rd respondenthad considered before issuing the 00; as they considered itdesirable that this should be perused only by the Judges, it wastendered under confidential cover (in terms of the procedureindicated in Leelaratne v. Herath™. Although he said that he was
Gamin Perera, Attorney-at-Law (on behalf of Saman Srimal Bandars) v.
SC W.B. Rajaguru, Inspector-General of Police and Others (Fernando, J.)145
unaware of its contents, Mr. Marapana did not object to this materialbeing examined only by the Judges, and raised no question of non-compliance with the audi alteram partem rule. We pointed out,however, that, after we had studied that material without the benefit ofsubmissions by Counsel on both sides, there might arise some doubtor difficulty requiring clarification: it would not seem right to seeksuch clarification in the absence of the petitioner, but if, on the otherhand, clarification was sought inter partes some loss of confidentialitywas inevitable. Mr. Marapana then stated that he was no longerpursuing his contention that the 3rd respondent could not have been‘satisfied’’ on the material available to him.
It therefore became unnecessary for us to deal with any of thequestions of fact and law involved in the petitioner’s claims, otherthan the two questions of law referred to us.
ER 17(1) provides:
Where the Secretary is satisfied upon the material submitted tohim, or upon such further additional material as may be called forby him, with respect to any person, that, with a view to preventingsuch person-
fa) from acting in any manner prejudicial to the national securityor to the maintenance of public order or to the maintenance ofessential services, or
from acting in any manner contrary to any of the provisionsof sub-paragraph (b) of paragraph (2) of Regulation 32, or
from committing, aiding or abetting the commission of anyoffence set out in Regulation 25 or Regulation 26.
It is necessary so to do, the Secretary may make order that suchperson be taken into custody and detained in custody for a periodnot exceeding three months and any such order may be extendedfrom time to time for a period not exceeding three months at a time.
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Provided however that no person shall be so detained under thisregulation for a period exceeding one year. The period of detention ofsuch person may be extended if such person is produced before aMagistrate prior to the expiration of his period of detentionaccompanied by a report from the Secretary setting out the factsupon which the person is detained and the reasons whichnecessitate extension of the period of detention. Where theMagistrate is satisfied that there are reasonable grounds forextending the period of detention of such person, he may make orderthat such person be detained for a further period of time as specifiedin such order, which period should not exceed three months andmay be extended by the Magistrate from "time to time." (emphasisadded)
At first glance this formulation appears somewhat cumbersomeand ambiguous. Does the phrase ‘necessary so to do" meannecessary to prevent a person acting in a manner set out inparagraphs (a), (b) and (c), OR necessary to make an order thatsuch person be detained? Must the Secretary be "satisfied" only ofthe need to prevent a person acting in that manner, OR also of theneed to make an order that he be detained? And if the latter, must hebe "satisfied" only about the need for detention OR also about theperiod of such detention?
However, closer scrutiny reveals that on a proper grammaticalinterpretation, ER 17(1) is clear and unambiguous, and that itsupplies the answers to four questions. What ORDER can theSecretary properly make? What OBJECT would justify such an order?WHEN can the Secretary make such an order? And on whatMATERIAL can he do so? ER 17(1) means that:
The order which the Secretary may make is “an order thatsuch person be (taken into custody and) detained for a period notexceeding three months";
The object justifying such an order would be that of ("with aview to") “preventing a person from acting in a manner prejudicial tothe national security or to the maintenance of public order,., etc.";
sc
Gamini Perera, Attorney-at-Law (on behalf of Saman Srimal Bandara) v.
W. B. Rajaguru, Inspector-General of Police and Others (Fernando. J.)147
The Secretary may make such an order only when he "issatisfied that it is necessary so to do”, i.e. that it is necessary to makesuch an order to achieve the aforesaid object;
The material on which the Secretary can be satisfied is “thematerial submitted to him, or upon such further additional material asmay be called for by him";
And, further, "any such order may be extended from time to time for aperiod not exceeding three months at a time”, subject to a maximumof one year.
This becomes clear if ER 17(1) is re-phrased – and that can bedone without any change or loss of meaning – to follow the structureof the Sinhala text:
With a view to preventing a person
from acting in any manner prejudicial to the national security orto the maintenance of public order or to the maintenance ofessential services, or
from acting in any manner contrary to any of the provisions ofsub-paragraph (b) of paragraph (2) of Regulation 32, or
from committing, aiding or abetting the commission of anyoffence set out in Regulation 25 or Regulation 26,
if the Secretary is satisfied with respect to that person (upon thematerial submitted to him, or upon such further additional materialas may be called for by him), that it is necessary to make an orderthat such person be taken into custody and detained in custodyfor a period not exceeding three months,
he may make such order, and such order may be extended fromtime to time for a period not exceeding three months at a time.
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Mr. Marapana contended that the Secretary must not only considerfor what period detention is necessary, but also specify that period inthe DO – because, he said, in the Secretary’s decision-makingprocess in terms of the current text of ER 17(1), whether to detain aperson was a question inextricably linked with how long he should bedetained. If, for instance, the Secretary was satisfied that a personwas likely to act in a manner prejudicial to national security ordetrimental to public order during a limited period (e.g. while aforeign dignitary was visiting Sri Lanka), the Secretary could not orderhis detention for a period which would extend beyond that limitedperiod (e.g. after that dignitary's departure from Sri Lanka). Everydecision to detain required some consideration of the appropriateperiod of detention. Whether he considered detention to benecessary for the maximum period, or any lesser period, theSecretary was bound to specify that period, no less than a Judgepassing sentence or making a remand order. He also referred us tothe previous texts of ER 17(1). In Gazette 771/16 of 17.6.93, ER 17(1)is identical, except that there was no proviso. In the Gazette of20.6.89, ERs17(1) reads:
“Where the Secretary to the Ministry of Defence is of opinion withrespect to any person that, with a view to preventing suchperson-
fa) from acting in any manner prejudicial to the national securityor to the maintenance of public order or to the maintenance ofessential services, or
(b) from acting in any manner contrary to any of the provisionsof sub-paragraph (a) or sub-paragraph (b) of paragraph (2) ofRegulation 41 or Regulation 26 of these Regulations,
it is necessary so to do, the Secretary may make order thatsuch person be taken into custody and detained in custody."
He submitted that under the 1989 Regulations, it was permissible forthe Secretary to consider only whether a person should be detained,without concerning himself about how long he should be detained.
Gamini Perera, Attorney-at-Law (on behalf of Saman SrimaI Bandara) v.
SC W.B. Rajaguru, Inspector-General of Police and Others (Fernando, J.)149
He contended that the purpose of the 1993 amendment was both torestrict the period of detention {singly and cumulatively) and torequire the Secretary to consider what length of detention wasnecessary and set it down in the DO.
Another matter which Mr. Marapana dwelt on was the curioussituation which resulted from the Magistrate’s order of 14.11.95.During the period 14.11.95 to 30.11.95 there was, on the one hand,an executive DO which, according to the respondents, was valid,unrevoked, and operative, and in terms of which the petitioner shouldhave continued to remain in the custody of the C.I.D. On the otherhand, there was a conflicting judicial order for fiscal custody. Hecontended that the Court order was valid, and that the DO was anullity.
In written submissions filed on 24.7.97 after judgment wasreserved, it was conceded on behalf of the respondents that ER 17requires the Secretary when issuing a DO to give his mind to thenecessity of the detention and the period for which such detentionwas necessary. I must note that in his affidavit the AdditionalSecretary did not state that he had considered for what perioddetention was necessary.
As for the need to specify the period of detention in the DO, therespondents sought to draw a distinction between the date of expiryof a DO, and the date of release of a detainee. ER 17 for the period ofvalidity of a DO, namely three months. If a date prior to the expiry ofthree months appears on the DO, that would be "the date on whichthe detainee could be released as decided by the Secretary”. Thatdate of release cannot in certain circumstances be decided at thetime the DO is issued. A person held in preventive detention till theconclusion of an event can be released on the conclusion of thatevent, because the date on which the need for such detention wouldcease could be stated with certainty at the time the DO is made. Insuch a situation the Secretary must mention the date of release in theDO, and if he does not it would be reasonable to infer that he had notgiven his mind to that matter. But where it is not possible for him tostate the date of release, no date of release need be stated in the
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DO, The DO refers to ER 17, and the detainee would know that onthe expiry of three months the Secretary would review the need forfurther detention."
Mr. Jayasinghe repeatedly stressed the seriousness of thesituation, arising from the sudden discovery of a large number ofdead bodies, in which the impugned DO had been issued; and thatthe order was in the public interest. He also contended that thestatements made by the petitioner after his arrest were suggestive, toput it at the lowest, of his complicity. But the two questions which wehave now to decide do not depend on whether there was areasonable suspicion of guilt, or other such questions. All we have todecide is whether, as a matter of law, the Secretary is required toconsider the appropriate period of detention, and to state it in his DO;and, if so, whether this DO is invalid for want of due compliance withthose requirements. The answers to those questions remain thesame, whether initially the case against a detainee seems damning(or otherwise), or whether later he proves to be guilty (or innocent).
As for the conflicting orders in force between 14.11.95 and30.11.95, it was not Mr. Jayasinghe’s contention that the petitionerwas produced before the Magistrate under and in terms of theproviso to ER 17(1), i.e. “prior to the expiration of his period ofdetention accompanied by a report from the Secretary setting out thefacts upon which the person is detained and the reasons whichnecessitate extension of the period of detention". Presumably, hemust have been produced under the Code of Criminal ProcedureAct. If Mr. Jayasinghe was correct in submitting that the DO issuedby the 3rd respondent was valid for three months, then it would followthat the Magistrate's order had been made without jurisdiction; andconsequently that the petitioner's detention in fiscal custody after
was illegal.
The principal matter I have to consider is what precise order theSecretary can make and issue in respect of detention (leaving aside,for the moment, the arrest itself) – i.e. what must the DO actuallystate: is it enough to say “that X be detained", without more; OR mustit say "that X be detained [for a period)" (specifying, for example,
sc
Gamini Perera, Attorney-at-Law (on behalf of Saman Srimat Bandara) v.
W, B. Rajaguru, Inspector-General of Police and Others (Fernando, J.)151
‘for sixty days from today", or "until 30,11.95); OR can it even be said“that X be detained for a period not exceeding three months”?
In interpreting ER 17(1), the paramount consideration is that it is aprovision conferring on an executive – and not a judicial – officer thepower of depriving a citizen of his liberty for three months (quite apartfrom further extensions up to one year), and that, too, despite theabsence of a conviction, a charge, and a pending trial. If a citizen isdeprived of his liberty by the order of a competent Court, upon hisconviction for, say, using criminal force (which is punishable withimprisonment for a term which may extend to three months) – andthat, too, after a trial at which all the safeguards which the lawprovides have been observed – the Judge cannot simply sentencehim to “imprisonment” (or to "imprisonment for a term not exceedingthree months"); the Judge must first consider what period ofdeprivation of liberty is appropriate, and must go on to specify thatperiod in his order without any uncertainty, for the information of theaccused (and of those responsible for his custody). If he decidesupon the maximum sentence, he must say so, and cannot leave it tobe inferred. The Law gives even a convicted criminal that right,because he must know the consequences of the decision: whatimpact the loss of liberty would have on himself, his employment, andhis family. In the absence of compelling language, I cannot presumethat the Law intended to allow executive deprivation of liberty withless respect and concern for the liberty of the citizen, when effectedwithout conviction, charge, or pending trial, and without thesafeguards (natural justice, legal representation, confrontation withone’s accusers, and the like) of a judicial proceeding. That stronglysuggests that the Secretary must consider and specify the necessaryperiod of detention.
I need not speculate what the position might be if ER 17(1) hadrefereed not to three months, but to three years or three days.Whether it is for three years or for “only" three days, it is a deprivationof liberty. But we have to interpret ER 17(1) as it stands now; whiledeprivation of liberty for three years would undoubtedly be veryserious, deprivation for three months is sufficiently significant as torequire basic safeguards – whether or not the position might bedifferent if there were a less significant deprivation of liberty, for 24hours, or three days.
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Further, as Mr. Marapana submitted, the question of detention, thenecessity for detention, and the period of detention, are interwovenin ER 17(1). There cannot be an abstract decision to detain a person.The power to detain has been conferred on the Secretary in thepublic interest and to be used for the public benefit; detention canonly be ordered in fulfilment of the purpose for which that power wasgiven; detention must therefore be for one of the specified reasons;and that reason will almost always control or affect the requiredlength of detention. ER 17(1) is clear that the Secretary must besatisfied that it is necessary to order detention “with a view topreventing" prejudicial conduct. The period during which the“objectionable” activity is anticipated and the period of detentionmust coincide – subject to the limit of three months imposed on theSecretary's power. He must therefore necessarily consider whatlength of detention is appropriate, and the DO must state that period,because now ER 17(1) authorises an order of detention "for aperiod”, and not just “detention".
I must deal with the proviso to ER 17(1), which enables theMagistrate, if satisfied that there are reasonable ground for extendingthe period of detention, to order detention “or a further period of timeas specified in such order, which period should not exceed threemonths”. The Magistrate must therefore specify the period. Does thefact that different language has been used in relation to the Secretarymean that he need not specify the period? There is certainly adifference in phraseology, but I do not think that is of any significancein the context. The Secretary “may make order that [a] person bedetained for a period not exceeding three months '. To ascertainthe effect of that phrase, let me consider it in three stages.
If the provision had authorised the Secretary simply to “order that[a] person be detained”, it would probably not have been imperativefor him to consider or specify the period of detention. If it hadauthorised an “order that [a] person be detained for a period", thenit would have been mandatory to consider and specify the necessaryperiod; and, what is more, there would have been no limit on theperiod of detention which the Secretary could order (although, ofcourse, there could be judicial review). It was the addition of thewords “not exceeding three months” which imposed a limitation onthe period: consequently, even if the Secretary justifiably considers
sc
Gamini Perera, Atlorney-at-Law (on behalf of Saman Srimal Bandara) v.
W. B. Rajaguru, Inspector-General of Police and Others (Fernando, J.)153
that six months detention is necessary, nevertheless he can onlyorder three months. The purpose and the effect of those words wastherefore to restrict the Secretary's power, and not to dispense withthe need either to consider or to specify the period of detention whichhe considered necessary in order to attain one or more of theprescribed objects.
I must now turn to the alleged distinction between the date ofexpiry of the DO and the date of release of the detainee. That is not adistinction warranted by ER 17. ER 17 requires the Secretary toconsider what period of detention is needed. That automaticallydetermines the period of validity of the DO and the date of release:no further detention is possible under that DO – unless action is takento extend it. The opinion which the Secretary forms cannot remainunrecorded; it must certainly be the subject of an official record(Mallows v. C.LTmand being a matter which concerns the liberty ofthe citizen it must also be communicated to the detainee, unlessthere are plain words which dispense with such communication.
I hold that, in the context, "for a period not exceeding threemonths” means “for a period therein specified, which period shall notexceed three months”; and that a DO which purports to authorisedetention simpliciter, or detention "for a period not exceedingthree months”, is not in conformity with ER 17(1). I answer bothquestions referred to us in the affirmative. Since the impugnedDO merely authorised detention simpliciter, it was not in compliancewith ER 17(1), and was therefore not "according to procedureestablished by law ". I hold that the petitioner’s fundamental rightunder Article 13(2) has been infringed, and direct the State to payhim a sum of Rs. 25,000 as compensation and a sum of Rs. 15,000as costs.
WADUGODAPITIYA, J. -1 agree.
WIJETUNGA, J. -1 agree.
GUNAWARDENA, J. -1 agree.
Relief ganted.
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ANANDACOOMARASWAMY, J. (Dissenting)
I have read the judgment of my brother Fernando, J. and I regretthat I am unable to agree with him for the reasons given below.
This is an application for relief for the alleged infringement of theFundamental Rights of the petitioner under Articles 11. 13(1) and13(2), consequent upon his arrest on 23.08.1995. Leave to proceedwas granted and the matter was fixed for argument before a Benchconsisting of my brothers Fernando, J., Wadugodapitiya, J. andGunawardene. J. and was thereafter referred by the Chief Justice tothis Bench of Five Judges on the following questions of law, namely:
Must the Secretary who makes an order under ER 17(1) consider
for what period detention is necessary?
Must the detention order specify the period for which detention is
considered necessary?
At the hearing before this Bench Mr. Marapana P.C., Counsel forthe petitioner said that the petitioner was not pursuing his claimunder Articles 11, 13(1) and 13(2). This alone is sufficient to dismissthe petitioner's application.
It is therefore unnecessary to deal with any of the questions of factand law involved in the petitioner’s application except the twoquestions of law referred to this Bench, According to those twoquestions of law, the question is whether the Detention Order underthe Emergency Regulation 17(1) is invalid for want of due complianceif any with those requirements.
It is the petitioner's contention that the Detention Order shouldspecify the period of detention. The fact that the Secretary did notspecify the period makes that order invalid.
A parallel was drawn stating that if a Judge in his order has tospecify the period of remand or the period of jail term, how can anexecutive officer have the privilege of not mentioning the period of
Gemini Perera, Attorney-at-Law (on behalf of Saman Srimal Bandara) v.
SC W. ft Rajaguru, Inspector-General of Police and Others (Anandacoomaraswamy, J.) 155
detention. In the case of judicial order the command is addressed tothe executive to keep a suspect in remand for a specified period andto bring before him at the end of the period for further orders fromtime to time, until either he is charged or discharged. In the case ofconvicts sent to jail the period of imprisonment is specified as theexecutive has to release the convict after the specified period. TheDetention Order is issued by the executive to keep the suspect in hiscustody in an authorised place of detention. Therefore if theexecutive decides to detain a suspect he can do so withoutspecifying the period so long as he does not exceed the maximumperiod. If he exceeds the period only there arises a need for a judicialreview of that order provided the detention is otherwise lawful. In theinstant case the Secretary did not exceed the maximum period of threemonths and within that period he caused the suspect to be producedbefore the Magistrate who remanded the suspect. The Detention Orderwas effective from 30th August, 1995 which would have expired on30th November, 1995, but before that, the suspect was producedbefore the Magistrate on 14th November, 1995 and remanded.Therefore the judicial order superseded the Detention Order, as rightlypointed out by the Learned Counsel for the respondents.
It is therefore quite clear that the Secretary is not bound in law tospecify the period of detention when the law provides the maximumperiod of detention and the Detention Order issued by the Secretaryis valid in law.
Even if the Detention Order is invalid for the reason that the periodof detention is not specified, it is not a fatal error and has not inanyway caused prejudice to the petitioner.
For these reasons I am of opinion that the Detention Order issuedby the Secretary is valid in law and therefore the petitioner’sapplication has to be dismissed. Accordingly I dismiss thepetitioner's application.
Application dismissed.
By majority decision relief granted.