5 Mar 2012: Azam home food request

The first part of the hearing dealt with an application which was made by Golam Azam’s lawyers seeking delivery of home made food to his cell (to read the second part of the day relating to the charge-framing application go to this page). It made the following arguments:

That the Applicant is 89 years old and suffers from a number of old age complications and ailments. The Applicant suffers from Hypertension and Diabetes mellitus. He also suffers from Back Pain and Pain in neck and Knee Joints. The Applicant also suffers from Electrolytes Imbalance, Loss of Vision (in the right eye), Osteo Arthiritis (both knee joints) and Cervical and Lumbar Spondylosis with radiculopathy. The Applicant has an enlarged Prostrate and experiences pain in his thighs and legs when walking.

That on 11th January 2012, upon the rejection of his bail application, the Applicant was taken to Dhaka Central Jail. Thereafter, upon an application by his son, the Applicant was admitted to Bangabandhu Sheikh Mujib Medical University (BSMMU) Hospital for medical treatment. Upon being admitted to BSMMU Hospital, on 13th January 2012, a Medical Board comprising of (1) Professor ABM Abdullah, Dean, Department of Medicine (2) Professor Shajal Krishna Banerjee, Cardiologist, and (3) Professor Nokul Kumar Datta (Orthopaedics) was constituted with a view to monitoring the medical condition of Professor Ghulam Azam.

It is stated that the Applicant, being a very elderly person requires special care and attention which is not possible to be given to the Applicant in the Prison Cell in BSMMU. The Applicant has a special dietary requirement which is required to be followed strictly at all times in order to ensure that the Applicant’s health condition remains stable. Any deviation from these special dietary needs of the Applicant is seriously detrimental to the medical condition of the Applicant, which is aggravated by his Applicant’s old age. Furthermore, the standard of food being provided to the Applicant at BSMMU is unsuitable for an 89 year old and as such, the Applicant has not been able to have all the food items supplied to him at BSMMU. This has resulted in the Applicant losing weight, and has seriously aggravated his health condition. Furthermore, as a result of the poor quality of the food supplied by the hospital authorities, the Applicant suffered from diarrhoea for several days and now experiences considerable general weakness.

By letters dated 14th January 2012, the Applicant’s wife requested the Director, BSMMU and Vice-Chancellor, BSMMU and the Superintendent, Dhaka Central Jail to allow home-cooked food to be supplied to the Accused Petitioner four times a day in order to ensure his physical well-being. However, such facilities have not been made available to the Petitioner.

Furthermore, by a letter dated 26th January 2012, the Applicant’s wife informed the Superintendent, Dhaka Central Jail that the BSMMU authorities are not providing food to the Applicant, which is not included in the approved menu of the hospital authorities, and that this has resulted in a reduced food intake and consequent physical weakness of the Accused Petitioner. By the said letter dated 26th January 2012, the Applicant’s wife once again sought permission to provide home-cooked food to the Applicant. However, the said application of the Applicant’s wife has not been allowed.

That since being taken to jail custody, the Petitioner’s health has deteriorated as a result of his inability to have the food supplied at BSMMU Hospital. The news of the deterioration of the Accused Petitioner’s health while in jail custody has been widely reported in a number of daily newspapers, including the Daily Sangram.

It is stated that by section 31 of the Prisons Act 1894, an unconvicted criminal prisoner is allowed to receive food from private sources at proper hours, subject to examination and to such rules as may be approved by the Inspector General. Section 31 of the Prisons Act provides as follows:

‘A civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or other necessaries, but subject to examination and to such rules as may be approved by the Inspector General.’

It is stated that in view of the express provision in section 31 of the Prisons Act 1894, the Jail authority is under an obligation to allow the Petitioner to receive home-cooked from his family, subject to examination and to such rules as may be approved by the Inspector General.

It is submitted that in view of the Accused Petitioner’s ill health and old age complications, the Accused Petitioner may be allowed to receive home cooked food from his family four times a day in accordance with section 31 of the Prisons Act, otherwise the Petitioner’s medical condition is likely to aggravate in jail custody as a result of his inability to have the food supplied at BSMMU Hospital.

It is submitted that no one will be prejudiced if the Accused Petitioner is allowed to receive home cooked food from his family and as such, this Hon’ble Tribunal may be pleased to direct the Jail authorities to allow the Accused Petitioner to receive home cooked food from his family four times a day.

The prosecutor, Advocate Zaed Al Malum responded by referring to section-1238 of the Bengal Jail Code

‘Now, it is clear from the abovementioned sections that-the doctor will settle the issue what and which types of food would be supplied to the person. Bangabandhu Sheikh Mujib Medical University has issued a certificate about this matter on 27/02/2012.’

Justice AKM Zaheer interrupted and said that this relates the matters of sick person and the question is that Mr. Golam Azam is now imprisoned in a prison cell.

Advocate Zaed Al Malum said that the Prison Cell is the part of the Jail, so it is immaterial to ask whether Mr. Golam Azam is imprisoned in Jail or elsewhere.

Justice AKM Zaheer: Who is the supplier of food to him?

Advocate Zaed Al Malum: The medical authority.

Justice AKM Zaheer: As the accused person is not staying in jail custody, rather he is staying in a prison cell of a particular Medical authority, so the question is on whom does the responsibility lie.

Advocate Zaed Al Malum: Now he is in the custody of the Bangabandhu Sheikh Mujib Medical University which is a large institute and supplying foods to thousands of sick people in their wards, so they are the proper authority to supply.

Justice AKM Zaheer then asked the prosecution: The question here is, who is responsible in this case to provide food, whether Jail authority or the Medical authority? Whether section 1238 of Bengal Jail Code 1864 is applicable here?

Barrister Abdur Razzak: At first we have to understand the status of Jail Code-1864 and the Prison Act 1894. We’ve to look into the difference between the Act and Code.

He pointed to section-923 of the Prison Act-1894 and section-31 of the Prison Act- 1894 and stated that in case of conflict the Act will always prevail over the Code. Jail Code is not binding. We’ve just asked for providing food from home. And the section-31 deals with prisoners in general. And the Prison Act 1894 applies to all prisoners.

Justice Nizamul Haq: It deals with the patients in hospital. And we just want to know whether section 1238 of the Bengal Jail Code is applicable to Mr. Golam Azam.

Barrister Abdur Razzak: This section does not make any bar. As he is so old and feeble, he needs extra and special care. He is passing a difficult moment in the jail.

Advocate Zaed Al Malum read out sections of the Prison Act- 1894? Section 31 states:

“A civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or other necessaries, but subject to examination and to such rules as may be approved by the Inspector General.”

Section 37 reads as-

“(1) The names of prisoners desiring to see the Medical Subordinate or appearing out of health in mind or body shall, without delay, be reported by the officer in immediate charge of such prisoners to the Jailer.

(2) The Jailer shall, without delay, call the attention of the Medical Subordinate to any prisoners desiring to see him, or who is ill, or whose state of mind or body appears to require attention, and shall carry into effect all written directions given by the Medial Officer or Medical Subordinate respecting alterations of the discipline or treatment of any such prisoner.”

Section-38 states.

“All directions given by the Medical Officer or Medical Subordinate in relation to any prisoner, with the exception of orders for the supply of medicines or directions relating to such matters as are carried into effect by the Medical Officer himself or under his superintendence, shall be entered day by day in the prisoner's history-ticket or in such other record as the Government may by rule direct, and the Jailer shall make an entry in its proper place stating in respect of each direction the fact of its having been or not having been complied with, accompanied by such observations, if any, as the Jailer thinks fit to make, and the date of the entry.”

And section-39 states:

“In every prison a hospital or proper place for the reception of sick prisoners shall be provided.”

He said that from these sections it is apparent that, section-1238 of the Bangal Jail Code- 1864, will apply in this case.

Barrister Abdur Razzak: Section 37, 38, 39 of the Prison Act deals with only the health of the prisoners. My final submission is that Mr. Golam Azamis in real trouble. Even one day we found him not having breakfast till 2 P.M.

Justice Nizamul Haq: Let the order be heard tomorrow.