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Ismael s/o Rashidi v. R., Crim. App. 889-D-67, 16/2/68, Biron J.

Ismael s/o Rashidi v. R., Crim. App. 889-D-67, 16/2/68, Biron J.

Accused, who now stands convicted of cattle theft [P.C. ss, 268, 265], was detained by Presidential order under the Preventive Detention Act, Cap. 490. After being charged with cattle theft, accused sought bail. Section 3 of Cap. 490 provides; “No order made under this Act shall be questioned in any court.” Since the detention order had not been rescinded, the District Court held that it had no power to grant bail, although it would have liked. To do so. This question was raised in the High Court by accused as part of a general appeal from conviction of cattle theft, which appeal was rejected on the merits.

            The Court stated, obiter: (1) Although the state attorney informed the Court that the Presidential order for the arrest of suspected cattle thieves such as accused was not made pursuant to the Preventive Detention Act, the Court dealt with the point raised about bail on the footing that the District Court was right that accused was so detained. (2) “(W)here a person is detained under the Preventive Detention Act and subsequently handed over by the authorities, acting on behalf of the President, to the judicial arm to be dealt with for the very same act or omission for which he was detained, thereby being brought under the jurisdiction and custody of the court, the original detention order is rescinded, if only implicitly. In other words, in such case, although there is no evidence to the effect that the original detention order was expressly rescinded by the President, a court can assume that it has in fact been rescinded.” Therefore, the District Court could have granted bail. 

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