Section- 2(f)

The State may prosecute a person if found committing a criminal offence and the law of preventive detention is to be used only to prevent a person from doing any prejudicial act within the meaning of Section 2 (f) of the Special Powers Act.

Halima Farzana Vs. Bangladesh & Ors. 7 BLT (HCD)-86

Section-2(f)

Power of Preventive detention

Held; Thus in spite of pendency of a criminal case over the selfsame allegations as have been detailed in the grounds of detention against the detenu and those allegations having the effect of trafficking criminals out of the Country or passing out information out of the country or spreading the communal disturbance or disturbing communal harmony etc. and thereby creating an impression, apprehension or reasonable suspicion of likelihood of repetition of the alleged offence in the mind of the detaining authority that the detune may indulge in activities prejudicing the security of Bangladesh or maintenance of public order and the maintenance law and order of the Country etc. and such activity or activities being prima facie of serious in nature the authority has the satisfaction requiring the detune to be dealt with an order of detention for preventing him from indulging in prejudicial activities contemplated under section 2(f) of the Special Powers Act.

Mrs. Arati Debi Vs. Govt, of Bangladesh & Ors 12 BLT (AD) 205

Section- 2(f) (VIII)

Whether the detaining authority while issuing the initial order of detention did apply judicial mind.

It appears that the main prejudicial act alleged against the detent in the memo containing the grounds is that he is injuring the 'economic and financial interest of the country' by smuggling and illegal dealing in currency. The prejudicial act thus alleged comes within the mischief of section 2(0 (viii)of the Special Powers Act whereas the prejudicial act stated in the initial order of detention is 'law and order' which comes within the ambit of section 2(f) (iii) of the Special Powers Act. Therefore, we find that there is no nexus between the initial order of detention and the memo containing of which only establishes that the detaining authority while issuing the initial order of detention did not apply judicial mind.

Naureen Aziz Mohammad Bhai Vs. Bangladesh & Ors 7 BLT (HCD)-198

Section- 3 Read with Section- 2(f)

Detention Prejudicial Act alleged against the detenu—Non-application of mind by the District Magistrate and non-compliance with the provisions of Section 3 read with Section 2(f) of the Special Powers Act, 1974 make the detention of the detent illegal and invalid.

Md. Golam Hossain Vs. The State 3 BLT (HCD)-95

Section- 3(1)(a)

The grounds on which the detention order was passed are that the detent although is not a regular practicing lawyer was engaged as an Advocate by the Ex-President Mr. H. M. Ershad and in the name of taking instruction he used to meet the Ex-President who is an accused in Criminal cases and also meet in court in the recreation room attached to the Court but instead of taking instruction in connection with the Criminal cases he used to act as illegal agent and used to supply information variable and in writing- the detent helped in deteriorating the law and order situation by supplying the information received from Ex- President Mr. H. M. Ershad to the supporters of the Jatiya Party and as a result there were clashes between the police and the supporters of the Jatiya Party and so keeping him outside will be a threat to public safety and public order-Held: The alleged act cannot be said to be prejudicial to public order- The detention of the detent is declared to be without any lawful authority.

Hafiza Akhter Vs. Bangladesh & Anr 3 BLT (HCD)-240

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

Section-3(l) and Section-3(3)

Preventive detention—the word "approval" —the government is the authority to extend the period of detention undergoing by any person under Section 3(1) or 3(3) of the Act and such authority of the government is not independent or discretionary but dependent on the report of the Advisory Board.

Kudrat Alahi Khan Vs. Bangladesh & Ors 11 BLT (HCD)-42

Vague and Indefinite Allegation

In the memo containing the grounds the allegations made are vague and indefinite as for example that there is no material to support that he is carrying on smuggling through beautiful girls or actresses of different countries with whom he has special and illicit relationship. Other grounds for his detention that he is supplying state secrets to foreign countries by using his connection with the elites of the country, diplomats and by throwing lavish parties, that he is leading a perverted life, that he has misappropriated fifteen cores of Takas from commercial banks by fraudulent means, that he is involved in the killing of Sohel Chowdhury and Salman Shah, both film actors and that he is a man of bad repute are also vague and indefinite not supported by any material.

Naureen Aziz Mohammad Bhai Vs. Bangladesh & Ors. 7 BLT (HCD)-198

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

Section-3(2)

Grounds of detention that the detent is a leader of terrorist group, a man of dangerous character and he is in possession of unauthorized arms and he is habit of abduction, secret killing, extortion, realizing ransom etc. But no specific time, place or date of any particulars of alleged overt acts mentioned —Grounds to be vague, indefinite and untenable in the eye of law.

Maksuda Begum Vs. Ministry of Home Affairs & Ors 8 BLT (HCD)-33

Section-3(2)

General Diaries have been mentioned without any specific date, time, or date of any overt acts allegedly committed by the detenu nor admittedly any criminal case have been filed for those alleged acts and as such we hold that mere filing of General Diaries in question does not come within the purview of section 3(2) of the Special Powers Act.

Maksuda Begum Vs. Ministry of Home Affairs & Ors 8 BLT (HCD)-33

 

Section-3(2)

A.G.D. Entry cannot be a legal basis for holding a citizen of the country in detentions.

Alamgir Vs. The State 8 BLT (HCD)-134

 

Section-3(2)

The grounds of detention are that the detenue is an illegal arms holder, notorious murderer, terrorist and god-father of gold smuggling of Zia International Airport. He is involve in Murgi Milon Murder case, A pistol with two magazines containing 19 rounds of bullets were recovered from his luggage. The detenu is involved in transferring of thousands of dollars to foreign countries. The officers of the Airport are afraid of the detenu and are helpless to deal with detenue and as a result huge financial loss is sustained by the Government. Besides that, the detenu is responsible for the instability of the academic atmosphere in the Dhaka University and it is he who supplies arms to the students, He imports arms through the sea and that there are several criminal cases pending against him such as Kotwali P.S. Case no 46(9)2000 under Section 326/302/34 of the penal Code, Cantonment P.S. Case No. 10(4)2001 under section 19(ka) of the Arms Act; that he was detained twice before.

Held : The grounds for detention is vague, unspecified, indefinite, and as such the detenu was prevented from making any effective representation to be considered for his release by the authority, We also find clear non-application of mind by the detaining authority in passing the order for detention of the detenu. We have given our anxious consideration to the facts and circumstances of the case and the relevant provisions of the consititution and the special powers Act. We hold that the detenu Amin Rasul Shagor alias Tikai Shagor is being detained in custody without lawful authotiry and in an unlawful manner.

Md. Azimul Kabir Vs. Bangladesh & Ors 10 BLT (HCD)-5

 

Section-3(2)

We know that a District Magistrate passes such an order on basis of a police report but the police who submits a report is not supposes to act judiciously but a Magistrate who exercise an extraordinary power is supposed to act judiciously. He cannot curtail the liberty of a person by whimsical exercise of power given to him. He is not supposed to put his signature and seal on a police report without applying judicial mind. He is not supposed to pass "parrot like orders in a light hearted fashion."

Md. Korban Vs. Govt. of Bangladesh & Ors 11 BLT (HCD)-166

 

Section-3(2)

Colourful Exercise of Power—Compulsory cost—There are some 'Shadows' behind the screen who, though can be seen but cannot be touched, sometimes influence a Magistrate to pass such an order but we like to emphasis that a Magistrate should not exercise his power in such a manner at the influence or at the desire of anybody else. So according to us, the District Magistrate, Dhaka should pay the compensatory cost in the instant case of the detenu.

Md. Korban Vs. Govt. of Bangladesh & Ors 11 BLT (HCD)-166

 

Section- 3(3)

The Government is not vested u/s 3(3) with the power of extension of the initial order of detention passed by the District Magistrate or the Additional District Magistrate u/s 3(2) of the Special Powers Act- relied on 47 DLR (HCD) 12.

Jesmin Akhter Vs. Bangladesh & Ors 3 BLT (HCD)-254

 

Section- 3(3)

Government could have passed a fresh order of detention under sub-section (1) of section 3 of the Special Powers Act, but the second order of detention under sub-section (3) of section 3 and consequently sub- sequent orders of extending the second order of detention passed by the government are all illegal and without jurisdiction.

Abdus Samad Vs. the State 6 BLT (HCD)-43

 

Section-3(3)

In Section 3(3) there is no provision empowering the Government to extend any order of detention passed under Section 3(2) of the Special Power Act, 1974.

Miss Zubaidunnahar Vs. District Magistrate & Ors 10 BLT (HCD)-184

 

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

 

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

 

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

 

Sections- 8(2) 3(3) and 10

How the period of 15 days should be calculated whether extension of the detention of the detenu, 35 days before us expiry was justified.

(a) Section- 8 (2)

In view of Section- 9 of the General Clause Act, the date of detention is to excluded while computing the period of 15 days.

Mrs. Samirunnesa Vs. Govt, of Bangladesh & Ors. 2 BLT (HCD)-121

(b) Section 3

Does not expressly speak of any extension of detention order though it has been used for the said purpose- the order of extension of the detention of a detenu should be made in accordance with law with proper application of the mind of the detaining authority- it should not be only a mechanical routine work by the office staff much ahead of the date of expiry as the detention showing hollowness of the application of the mind of the detaining authority.

Mrs. Samirunnesa Vs. Govt of Bangladesh & Ors 2 BLT (HCD)-121

(C) Section 10

From the initial order of detention, the period of 120 days has already expired but the case of the detenu does not appear to have been placed before the Advisory Board- the mandatory provisions of Section 10 have not been complied- detention to be illegal and improper.

Mrs. Samirunnesa Vs. Govt of Bangladesh & Ors 2 BLT (HCD)-121

 

Sections-10 & 12(1)

Reference to the Advisory Board under the Statutory Provision of S. 10- The Government has not been able to show that the case of the detenu was referred to the Advisory Board within 120 days and 170 or 180 days have in the meanwhile expired but the Government is unable to show that in accordance with the provisions of section 12(1) of the Special Powers Act the Advisory Board has reported that there is sufficient cause for further detention of the detenu has- Held: The delineation of the detenu has become illegal.

Md. Golam Hosain Vs. The State 3 BLT (HCD)-95

 

Section-12(1)

In the instant Rule it is on record that the initial order for detention of the detenu communicated by Memo dated 04.12.2001 had found to valid in Writ Petition No. 6911 of 2001 filed by the Writ Petitioner. In the instant Rule the order of extension of the initial period of detention of the detenu for further period of 3(three) months passed by the government under Section 3(3) of the Act (Communicated by the Memo No.3332/ SHA:MA/NIRA-3) dated 27.12.2001 Annexure-'c' to the Writ Petition) has been challenged. No materials could be placed before that to show that the order passed under Section 3(3) of the Act is based on a report of an Advisory Board constituted under Section-3 and submitted complying with the provisions of Section 10,11 and 12 of the Act. Further we are of the view that orders relating to detention beyond 30 days passed under Section 3(2) approval is dependent on the report of the Advisory Board in terms of Section 11 and 12 of the Act and the government is empowered to extend the period of detention only under Section 12(1) of the Act and that too on the basis of the report of the Advisory Board.

Kudrat Alahi Khan Vs. Bangladesh & Ors. 11 BLT (HCD)-42

 

Section-25A(b)

From the entire evidence brought on record by the prosecution, the prosecution has not been able to show that the convict appellant was in any manner connected or involved with any organized gang involved in counterfeiting currency notes or nothing was found, such as tools or machinery from her control and possession which could be used for counterfeiting currency notes. In the absence of such evidence mere possession of the said counterfeit notes or tempted use one of them cannot be said to be dishonest or incriminating warranting conviction and sentence under Section 25(A)(b) of the Special Powers Act.

Omela Bibi Vs. The State 10 BLT (HCD)-95

 

Section-25 B (1)

(a)  Goods- Section 25B (1) (b) of the Special Powers Act- the catties or bullocks being moveable properties capable of being sold and purchased fall within the definition of the term "goods".

KabilMiah & Ors. Vs. The State 2 BLT(HCD)-184

(b)  I. O. stated in his deposition that there was a rubber garden towards the south at a distance of 300 yards from the place of occurrence and he admitted that he did not examine any person of the rubber garden before submitting the charge sheet. – This shows that possibly he didn't visit the place of occurrence at all.

Kabil Miah & Ors. Vs. The State 2 BLT (HCD)-184

(c) Auction- The auction of the seized catties (alamats) before filing charge- sheet without permission of the court must be disapproved and also deprecated as there was chance of the defence being prejudiced in such process as adopted by the Customs Authority in the case.

Kabil Miah & Ors. Vs. The State 2 BLT (HCD)-184

 

Section- 25 B (2)

(a) Before convicting a person under section 25 B of the Special Powers Act, the trial court must find that the goods are contraband goods or that these goods are smuggled goods- Without that finding the appellants were convicted and sentenced which cannot be sustained.

Forkan Mondal & Ors Vs. The State 2 BLT (HCD)-10

(b) Prosecution case suffers from inherent defect as none of the witnesses stated from which accused what articles were seized-Seizure list also is silent on that point individual liability of each of the appellant has also not been considered by the trial court, appellants are entitled to get benefit of doubt.

Forkan Mondal & Ors Vs. The State 2 BLT (HCD)-10

 

Section-25B(b)

In the present case the prosecution's allegation that the accused appellants were found with Bangladeshi currency brought from India being the sale proceeds of the gold has not been proved with sufficient evidence. The accused appellants were not found with any objects or articles indicating that they had crossed the border so that an inference may also be made that the currency notes found their possession were also brought from outside Bangladesh, Mere possession Bangladeshi currency near the border area is not sufficient for conviction under the section charged and it must be shown with a certain degree of certainly that the said currency was brought from across the border to bring the act within the mischief of the said section.

Md. Enamul Hoque & Ors. Vs. The State 12 BLT (HCD)-22

 

Section-25B(b)

In the absence of evidence or any finding even that sharies recovered were of Indian origin, the order of conviction under section 25B(b) of Special Powers Act 1974 is without jurisdiction.

Md. Alam Hossain Vs. Govt. of Bangladesh & Ors 13 BLT (HCD)-465

 

Section -25 B(1)(b)

Since, the goods were released on basis of documents which were found valid, the goods could not be characterised as contraband goods. Convict-appellant cannot be held guilty for breach of any prohibition or restriction imposed by or under any law or for evading customs duty or for any other offence.

Mujibor Rahman Vs The State 14 BLT (HCD)-109

 

Section -25C

Disclosed by the co-accused against the appellants regarding dealing in adulterate hair oil and Cosmetics are not admissible in evidence. No incriminating articles was recovered from the possession of the appellants. There is absolutely no evidence that the appellants brought different chemical, machineries, labels etc. from India for the purpose of preparation of adulterate hair oil and Cosmetics. We find that the conviction and sentence  against the appellants are not based on legal evidence and as such the same cannot be sustained in the eye of law.

Abul Mollah & Anr Vs. The State 15 BLT (HCD)-184

 

Sections-26(1) and 32(C)

Accuseds committed around dacoity in the house and committed rape on the minor victim girl- Accused granted bail despite bar of S. 32 (c) of the Special Powers Act-Framing of charge being defective due to the joinder of schedule and non schedule offence. High Court Division made direction to the Special Tribunal Feni in Criminal Revision filed by the accused how to frame charge and in what manner the trial may be held accordingly- Rule made absolute with directions to the Special Tribunal No. 1 Feni.

Abdul Hadi Vs. The State 1 BLT (HCD)-42

 

It appears that Special Tribunal No. 1 Feni is also trying to show his ignorance of the provision of section 32 (c) of the Special Powers Act, 1974 which provides that no person accused or convicted of an offence triable under this Act shall, if in custody, be released on bail if the prosecution opposes such prayer after being heard in respect of the application for such release, and if the Special Tribunal or Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence. It further appears that Special Tribunal No. 1 Feni apart from being unaware of section 10 of the Cruelty to women (Deterrent Punishment) Ordinance, 1983 is also not aware of sections 4 and 9 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983.The Special Tribunal concerned is directed to frame fresh charges under sections 4 and 9 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 and also under section 376 of the Penal Code as well as under section 376 of the Penal Code read with section 9 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 against all the accused persons in the manner set out below.

Abdul Hadi Vs. The State 1 BLT (HCD)-42

 

Section- 27

The Tribunal is not bound to frame charge under the law mentioned in the charge sheet. In other words, the Tribunal is competent to take cognizance of the offence disclosed in the police report and other connected papers in exercise of its power irrespective of the law mentioned in the charge sheet.

Makhon Lai Sarker Vs. Nihar Mohar Mondal & Ors. 6 BLT (HCD)-77

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

Section- 27 (6)

Trial in absentia- F. I. R. having been lodged on 25.4.89 under Section 156(B) of the Customs Act read with 25B and 25D as the Special Powers Act, 1974- The police submitted charge sheet against the accused petitioner and another- on receipt of the charge sheet the Magistrate having found the miscreants absconding issued process and published notifications in the official gazette and also in the daily newspaper published from local town and thereafter sent the case to the Special Tribunal for trial, on receipt of the record the Senior Special Tribunal, without issuing any process and without publishing further notification in the official gazette and in the local daily newspaper hold the trial in absentia, on conclusion of the trial the Tribunal by his judgment and order dated 15.2.90 convicted the accused petitioner and another under sections 25B and 25D of the Special Powers Act- Trial having been held in absentia without complying with the mandatory provision of law so far it relates to the publication of the notification in the daily newspaper for procuring the attendance of the accused has been vitiated by illegalities occasioning failure of justice and hence the order of conviction and sentence has been passed without lawful authority and of no legal effect- set aside the judgment and order of conviction and sentence passed against the accused petitioner with a direction to the Special Tribunal to hold the trial, if the prosecution intends to proceed further after observing all the formalities and complying with the requirements of law.

Md. Sadeque Ali Vs. Judge. Thakurgaon 2 BLT (HCD)-156.

Section- 27(6)

Accused appeared before the Magistrate and after getting bail, absconded-The power of releasing the accused person on bail is not confined to the tribunal only. The Magistrate during the investigation of the case can exercise the power of issuing the process warrant of arrest and granting bail as he exercise under the Code of Criminal Procedure in any other criminal case. Therefore even if the accused person is released on bail by the Magistrate who had no power to try the case sub- section 6(A) would be attracted and the procedure of sub­section 6 shall not apply. Consequently, the trial can be held in absentia which will not be without jurisdiction.

Mizan & Ors. Vs. The State 7 BLT (HCD)-232

 

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

Section-27(6)

In the instant case we do not find from the order sheet that the Tribunal has issued any notice for publication in daily newspaper as reared under Section 27(6) of the Special Powers Act rather the Tribunal relied on the notice published in daily newspapers by the order of the Magistrate before sending the record for trial, So we are of the opinion that the trial of the case held by the Special Tribunal relying on the notice published by the Magistrate was not in accordance with the provision of Sub Section (6) of Section 27 of the Special Powers Act and as such the trial held in absentia was Proper and legal.

Samsul Alam Vs. The State 9 BLT (HCD)-352

Section- 30

Bail on the ground of inordinate delay, in pending Special Tribunal Case under Section 19(A) and (f) of the Arms Act read with the Special Powers Act, 1974 the accused appellant has been in jail hajat without conclusion of his trial for about 3 years which is nothing but sheer injustice to j the accused and there has been undoubtedly inordinate and unreasonable delay in the trial of the case- even at this stage of trial of the Case when some of the witnesses have been examined the accused appellant in the interest of justice should be granted bail.

Manirul Haque Vs. The State 3 BLT (HCD)-29

Section- 30

F. I. R. lodged by the police constable and a case was started against the accused appellant under section 25B of the Special Power Act, 1974- the Investigating Office is a S. I. who has submitted the police report after investigation recommending discharge of the accused appellant having no prima facie case against him and there after sent the case record to the Special Tribunal for passing necessary order- the learned Special Tribunal without passing necessary order, fixed the matter for having at a longer date after more than a month and at the same time rejected the prayer for bail of the accused appellant without applying his judicial mind to the facts and circumstances of the case- the Special Tribunal was not justified in refusing the prayer for bail-appeal is allowed.

Md. Mosharraf Hossain Vs. The State 3 BLT (HCD)-69

Section- 30

Conviction under Section 342 of the Penal code

Jurisdiction of the Special Tribunal-The Special Tribunal had only jurisdiction to try cases as enumerated in the schedule of the Special Powers Act and not beyond that. 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. Hence, the learned Judges of the High Court Division acted wrongly and without jurisdiction in convicting the appellants under Section- 342 of the Penal Code when the same is not triable by the Special Tribunal at all.

Abdur Rahman & Ors. Vs. The State 7 BLT (AD)-225

Section-30

Bail—humanitarian ground —the accused petitioner was caught red-handed with revolver—Accused-petitioner is a student of Jagannath University College, Dhaka and the examination will be commenced from 10.06.2000 to 29.07.2000 Held : Considering the humanitarian aspect of the accused we think that the accused petitioner may be granted bail for a limited period in order to give him, examination after proper preparation.

Shakiluddin Vs. The State 8 BLT (HCD)-265

Section-30

Bail—since the accused appellant is in jail custody for a considerable period and prosecution could not produce any witnesses of the case before the Tribunal and there by the trial of the case delayed and one of the Co accused is no bail granted by this Court, We think the accused appellant deserves consideration in respect of his bail matters.

Shohag Vs. The State 9 BLT (HCD)-156

Section- 32

While considering the application for bail in a Pending Appeal

It is not always possible or desirable to go into the evidence of the case and other materials connected therewith to examine the merit of the appeal- the conduct of absconsion of the accused or the convict should be taken into consideration as a relevant fact under section 8/9 of the Evidence Act.

Abdul Sardar Vs. The State 2 BLT (HCD)-148

After conviction of an accused even in a bailable offence, he cannot claim his bail as a matter of right which is absolutely a discretion of the court and this discretion is neither arbitrary nor capricious nor whimsical, and it should be exercised judicially with care and caution in the facts and circumstances of the case, the nature of the offence and the manner of involvement of the accused/ convict and also in the context of the law involved in the charge.

Abdul Sardar Vs. The State 2 BLT (HCD)-148

Bail can be granted only after giving an opportunity to the prosecution of being heard of the application for bail and if opposed, then only on a satisfaction of the Magistrate, Special Tribunal or court to the effect that there are reasonable grounds to believe that the accused/convict is not guilty of the offence charged with.

Abdul Sardar Vs. The State 2 BLT (HCD)-148

Section-32

Bail- under Section 19 (A) (F) of the Arms Act- after conviction of an accused, even in a bailable offence he cannot claim his bail as a matter of right which is absolutely a discretion of the court- the nature of the offence and the conduct of absconsion of the petitioner should certainly be taken into consideration as a relevant fact while considering the application for bail in a pending appeal.

Abdul Sardar Vs. The State 2 BLT (HCD)-231

Special Powers Act, 1974

[XIV of 1974] [As Amended by Act No. 18 of 1991]

Section-2 read with Section-3(2)

Publishing a parody of the National Anthem in the Inquilab which is Bengali Daily Newspaper—detenu is connected with publication business and newspaper industry of their family, but he is not connected with day to day publications of the Daily Inquilab he is neither the Editor nor the Printer and Publisher and is not looking after the writings, reports, news and view as published in the said Daily Inquilab Held : The publication of the said parody, we find do not fail within the mischief or scope of the Special Powers Act, for passing an order of detention.

Aafrin Moinuddin Vs. Govt of Bangladesh 9 BLT (HCD)-3

Testimony of a victim of sex crime

Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition of judicial reliance on the testimony of a victim of sex crime is not a requirement of law but merely a guidance of prudence under a given circumstance but not a requirement of law.

Harun-or-Rashid & Anr. Vs. The State & Anr. 8 BLT (HCD)-402

Special Powers Act [XIV of 1974]

Section 2—

Sending manpower by practicing fraud and obtaining money
from the national of Bangladesh is not an act to be considered prejudicial as
defined in this section.

Hasina Begum vs Government of Bangladesh and others 47 DLR 572.

Sections 2(f) &
3—

Subsequent order of detention which is impugned in this application
was passed while the detenu was still in custody and as such, there was no
reason for the detaining authority to hold that the detenu was likely to
indulge in “prejudicial acts”

It appears to us that recourse to the subsequent order of
detention was adopted by the detaining authority as a crude device to avoid the
order whereby this court directed release of the detenu vide this court’s order
dated 29-11-93 passed in Criminal Misc, case No.1730 of 1993. The subsequent
order of detention was, therefore, a colourable exercise of power and not a
bonafide exercise of power with which the detaining authority is vested by
section 3 of the Special Powers Act, 1974, and was, therefore absolutely
malafide.

Nasima Akhter (Popi) vs Government of the People’s Republic of
Bangladesh, represented by the Secretary, Ministry of Home Affairs 49 DLR 57

Sections 2(f) &
3(l)(a)—

In order to avert prejudicial acts by the protesters the
Government passed the order of detention against the detenu. It might have been
a necessary and situational decision hurriedly taken by the newly installed
Government in the interest of maintaining law and order but it cannot be
justified as a legal order passed under the Act.

Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1

Sections 2(f) &
3(l)(a) —

The detenu in the present case committed no crime or
illegality in telling the BBC that he would start the election campaign for his
party soon and that he had no regrets or excuses.

Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1

Sections 2(f) &
3(l)(a)—

The detention order is bad not only because the two alleged
grounds are not relatable to the order of detention, but on the face of the
order it shows that it was not passed in terms of sub-section (1) of section 3
which manifests a total non-application of mind.

Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1

Sections 2(f) &
3(l)(a)—

The law does not authorize 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.

The condition for exercise of power under section 3(1) is
therefore the necessity to prevent a person from doing any prejudicial act. The
impugned order does not say that the Government was satisfied that it was
necessary to detain Hussain Muhammad Ershad with a view to preventing him from
doing any prejudicial act. That having not been said, the condition for
exercise of authority under the sub-section was lacking and the satisfaction of
the Government in the circumstances was only a mechanical one meant only to
formalize the order of detention. The application of mind of the authority
which sustains such an order is thus plainly absent in the present case.

Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1

Sections 2(f) &
3(l)(a)—

The authority can never justify an order of preventive
detention by merely saying that the action was taken in the interest of public
safety and public order. It has to satisfy the High Court Division which is an
obligation cast upon the Court by the Constitution, that there were materials
on record as would satisfy a reasonable person to justify the order of
detention. It must be made clear that the law which we have declared has never
granted absolute power either to the Government or to the President to make an
order of detention even in the circumstances mentioned in the judgment nor it
is the law that the satisfaction upon which an order of detention is made is
immune from challenge. The power of the Supreme Court in making scrutiny of
executive acts never recedes to the background, as observed by the learned
Judge, so long as the Constitution remains operative. The maintenance of law
and order, public peace, public safety and security are undisputedly concerns of
the State and the Government know best how to preserve them, but the Court’s
concern in a case of preventive detention is to see whether the person is being
detained without lawful authority or in an unlawful manner.

Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1

Section 3—

Pendency of specific criminal cases and facts giving rise to
such cases cannot be used as grounds of detention under this section.

Jahanara Begum vs State 46 DLR 107.

Section 3—

An order of the District Magistrate for detention of a
person shall not remain in force for more than 30 days unless it is approved by
the Government.

An order of detention passed by the District
Magistrate/Additional District Magistrate for 30 days only does not require
approval of the government. Approval is necessary only if the period of
detention is more than 30 days. So the government is passing redundant orders
by approving the detention order passed by the District Magistrate or Addl.
District Magistrate for a period of 30 days.

Serajul Islam vs State 49 DLR 209

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.

Section 3—

Sub-section (3) of section 3 of the Act has not empowered
the government to extend the period of detention beyond 30 days as passed by
the District Magistrate or the Additional District Magistrate. It can only
approve such an order if the detention is for more than 30 days.

Serajul Islam vs State 49 DLR 209.

Section 3—

In the absence of any materials merely because petitioner
has been termed a dangerous terrorist he cannot be detained in custody as there
was no materials to justify the District Magistrate or the Government that his
detention is required under the provision of the Act.

Pranajit Barua vs State 50 DLR 399.

Section 3—

Sub-section (3) of section 3 has not empowered the
Government to pass any order of detention or to extend the period of detention
as passed by the District Magistrate or Additional District Magistrate. The
term “approval” includes power to extend the period of detention.

Serajul Islam vs State 49 DLR 209

Section 3—

The detention of the detenu appears to be in colourable
exercise of statutory power and then the detenu being a foreign national, in
order to prevent him from doing prejudicial act, the government, instead of
detaining him, could direct him to remove himself from Bangladesh.

Shahidul Alam vs Government of Bangladesh and others 95 DLR 15.

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.

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]

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.

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]

Sections 3(i) &
2(f)(ii)—

The government has sufficient legal authority to extradite
An up Chetia to India in response to the right of India to demand extradition
of Anup Chetia.

Saiful Islam Dilder vs Government of Bangladesh and others 50 DLR 318

Section 3(3)—

The extension of the detention of detenu 35 days before its
expiry is a mechanical work showing hollowness of mind of the detaining
authority.

It may be pointed out that no counter affidavit on behalf of
the opposite parties has been filed in this Court against the application under
section 491 CrPC and when asked the learned AAG could not produce any material
before us which actually necessitated the passing of the impugned order of
detention and its further extensions in the manner as stated above. In these
circumstances, we are of the view that the order of detention of the detenu and
subsequent extensions of his detention have been made not in accordance with
law.

Samirannesa vs Bangladesh and others DLR 276.

Section 3(3)—

The order of detention having neither been served upon the
detenu within 30 days of its making or approved by the Government within 30
days lost its force with the expiry of 30 days.

Iskander Lasker vs District Magistrate Jessore, and others

Section 8—

Since the grounds are too remote about 21 years back, the
same cannot be the grounds of preventing the detenu from doing any prejudicial
acts as contemplated by the Special Powers Act.

Rieta Rahman vs Bangladesh 50 DLR 201.

Section 8—

Detention shall be held illegal if the grounds of detention
are vague and indefinite. The satisfaction of the detaining authority must not
be wholly subjective; rather detention must have an objective basis amenable to
judicial review and scrutiny.

Rieta Rahman vs Bangladesh 50 DLR 201.

Section 8—

When sustainable grounds are mixed up with unsustaina­ble
grounds and it cannot be ascertained which of the grounds actually actuated the
detaining authority to invoke the law of preventive detention, the entire order
of detention fails.

In the present case of there is nothing on record to show
that the detaining authority was actually satisfied on the basis of the
sustainable grounds alone to invoke section 3(2) of the Special Powers Act,
1974 for ordering the detention of the detenu. Since it cannot be predicted
which of the grounds led to the satisfaction of the detaining authority that it
was necessary to order the detention of the detenu with a view to prevent him
from doing “prejudicial act” we find that the entire order of
detention has been bad in law.

Jahanara Begum vs State 46 DLR 107.

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

Section 8—

Grounds for detention must be specific to enable the detenu
to make an effective representation before the Advisory Board.

Serajul Islam vs State 49 DLR 209

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

Section 8—

An order of detention becomes subject to impeachment in the
court of law if good grounds are mixed up with bad grounds in such a manner
that it becomes difficult to ascertain as to which ground actually led the
detaining authority to be satisfied as to the necessity of the detention order.

Serajul Islam vs State 49 DLR 209

Section 8—

Since the grounds are too remote about 21 years back, the
same cannot be the grounds of preventing the detenu from doing any prejudicial
acts as contemplated by the Special Powers Act.

Rieta Rahman vs Bangladesh 50 DLR 201

Section 8—

Detention shall be held illegal if the grounds of detention
are vague and indefinite. The satisfaction of the detaining authority must not
be wholly subjective; rather detention must have an objective basis amenable to
judicial review and scrutiny.

Rieta Rahman vs Bangladesh 50 DLR 201

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]

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]

Section 8—

Despite pendency of the criminal case, where allegations
against detenu are of serious nature and his background satisfies the authority
that he need be detained for preventing prejudicial acts, an order of his
detention can be made.

Nasima Begum vs Government of the People’s Republic of Bangladesh,
represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat,
Dhaka and others 47 DLR 407.

Section 8—

Ground of detention— Plea of vagueness—Although further
particulars of grounds could be given, the grounds that the detenu was a leader
of a group of terrorists and a toll collector within DND embankment, he
tortured people refusing to pay tolls and forcibly dispossessed the inhabitants
from their purchased lands, are at least adequate in order to enable a
reasonable person to file effective representation against the grounds.

Rokeya Begum vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs and others 47 DLR 411.

Section 8—

Grounds of detention are not absolutely vague—It is
contended that the grounds of detention are absolutely vague, indefinite and
unspecified and as against that no effective representation can be made. Held,
that the grounds are not absolutely vague so as to deprive the detenu of his
right to submit effective representation against the allegation constituting
the grounds and it cannot be assailed on the ground of the infirmity of the
grounds.

Rokeya Begum vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs and others 47 DLR 411.

Section 8—

Pendency of criminal cases—Its use in the grounds of
detention—Although pendency of criminal cases has been mentioned in the grounds
of detention the same has not been used as the grounds of detention but the
grounds are his prejudicial activities—So there is no illegality in the order
of detention.

Rokeya Begum vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs and others 47 DLR 411.

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.

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.

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.

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.

Section 8—

Since the grounds are too remote about 21 years back, the
same cannot be the grounds of preventing the detenu from doing any prejudicial
acts as contemplated by the Special Powers Act.

Rieta Rahman vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs, and others 50 DLR 201

Section 8—

Detention shall be held illegal if the grounds of detention
are vague and indefinite. The satisfaction of the detaining authority must not
be wholly subjective; rather detention must have an objective basis amenable to
judicial review and scrutiny.

Rieta Rahman vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs, and others 50 DLR 201

Section 8(2)—

Grounds of detention were not served on the detenu within 15
days from the date of his detention.

Consequently, the detention of the detenu became illegal
with the expiry of 15 days from the date of his detention and as such further
detention of the detenu has become illegal with effect from 17-5-95. The order
of the Government extending the period of detention could not render the
illegal detention legal.

Muklesur Rahman (Md) vs Government of Bangladesh represented by the
Secretary, Ministry of Home Affairs, and others 49 DLR 63

Section 8(2)—

Communication of grounds of detention within 15 days— There
is no specific provision in the Special Powers Act for calculation of the
period—In view of section 9 of the General Clauses Act the date of detention is
to be excluded while computing the period of 15 days.

Samirannesa vs Bangladesh and others 46 DLR 276.

Section 25B—

Quantum of the incriminating material (heroin) is not a
determining factor for awarding sentence under the Special Powers Act.

State vs Raja Abdul Majid and others 48 DLR 336.

Section 25B(l)(b)—

Cattle or bullocks being movable properties capable of being
sold and purchased fall within  the  definition 
of the term “goods”.

Kabil Miah and others vs State 46 DLR 463.

Section 25B(2)—

In view of the fact that the accused could not prove any
evidence to show that the sarees were Bangladeshi sarees or in view of the fact
that accused could not show any papers for possessing those sarees it can be
said that he committed the offence under sub­section (2) of section 25B of the
Special Powers Act, 1974.

Shamsul Haque and another vs State 49 DLR 528

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.

Ordinance No. VIII of 1982 has been promulgated not with a
view to excluding all other trials on the same offence but as an additional
forum for trying drug offences. If the same offence can be tried by a Special
Tribunal under the Special Powers Act it cannot be said that the
accused-petitioner has an exclusive right to be tried by a Drug Court only. As
on the petitioner’s own showing he has been charged only under section 25C(d)
of the Special Powers Act by the Senior Special Tribunal, we do not find any
illegality in the proceedings.

Ashraf Ali @ Asraf Ali vs State 49 DLR (AD) 107.

Section 26—

By inclusion of the offence of the above ordinance in the
schedule to the Special Powers Act the jurisdiction of the Sessions Court has
been ousted. Now, as the death is proved but not for demand of dowry, the
present case is sent back to the Sessions Court for trial.

Firoz Miah vs State.

Section 26—

When the offences alleged are offences punishable under the
Cruelty to Women (Deterrent Punishment) Ordinance the trial of the present case
by the Sessions Judge under sections 302/201 Penal Code was not proper and
legal. The case should have been tried by a Special Tribunal constituted under section
26 of the Special Powers Act.

Ekramul Huq @ Bachchu and another vs State 219.

Section 27—

Without any investiga­tion or inquiring in the case by the
police or any report of any such enquiry or investigation by the police, taking
of cognizance by the Tribunal is illegal.

Mossaraf vs State 49 DLR 487

Section 27—

The Tribunal is competent to take cognizance of the offence
disclosed in the police report and other papers in exercise of its power under
section 27 of the Act irrespective of the law mentioned in the chargesheet.

Makhon Lai Sarker vs Nihar Mondol alias Pagol and 8 others 51 DLR 464

Section 27(1)—

In spite of discharge of the accused by the Magistrate on
the basis of recommendation by the police Special Tribunal has the discretion
of taking cognizance against such a discharged accused.

Above discretion has been given to the Special Tribunal
inspite of the power of the Magistrate to discharge an accused on the basis of
the police report to prevent abuse of power by the police in recommending
discharge of the accused in the presence of clear allegations and materials.

Narayan Chandra Das vs State and others 48 DLR 302.

Sections 27(6A) &
30—

An 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.

Nesar Ahmed vs Bangladesh 49 DLR
111.

Sections 27(6) &
30—

There being no order that the Tribunal had reason to believe
that the petitioner had absconded or was concealing himself and there was no
immediate prospect of arresting him, he has made out a case that he had no
opportunity of availing the alternative remedy provided under section 30 of the
Act.

Mobarak Ali alias Mobarak Ali Mondal vs People’s Republic of Bangladesh
and others 50 DLR 10.

Section 29—

It is true that no charge was framed against the accused
under section 25B(2) but in view of the provisions of section 29 of the Special
Powers Act and sub-section (2) of section 238 of the Code of Criminal
Procedure, he may be convicted under sub-section (2) of section 25B of the
Special Powers Act, 1974.

Shamsul Haque and another vs State 49 DLR 528.

Section 29—

A Tribunal constituted under section 26 of the Special
Powers Act is also required to follow the provisions of section 476 of the Code
of Criminal Procedure if it likes to proceed against any witness of a case for
commission of offence under section 193 of the Penal Code.

Idris Miah (Md) vs State 50 DLR 629.

Section 30—

Inherent jurisdiction of court—Whether such jurisdiction is
applicable in cases from which appeals are barred by limitation—Section 561A
CrPC cannot be conceived to give the High Court Division jurisdiction to
retrieve the cases from the moratorium after they have been barred by
limitation. Then, in the memo of the appeal taken or in the submission no
ground has been taken that the Tribunal had no jurisdiction to try the case or
that it arrived at absurd or preposterous conclusion from the evidence on
record.

The section 561A of the Code of Criminal Procedure has not
given any new jurisdiction to the High Court to override other laws. It is easy
to see that this Court cannot have any inherent jurisdiction to strike down the
law of limitation. The law of limitation is so inexorable that a person loses
his good title on account of law of limitation. It may be desirable that
something is done for the redress of the accused who lost their right of appeal
and has very good case in their defence, but it is for the legislature to do.

Mir Mohammad Ali vs State 46 DLR 175.

Section 30—

An appeal filed under section 30 of the Special Powers Act
but not admitted for hearing as it was found barred by limitation can be
allowed to be converted to a Miscellaneous case under section 561A of the CrPC
for securing the ends of justice.

Sohail Ahmed Chowdhury vs State 47 DLR 348.

Section 30—

After conversion of an appeal to an application under
section 561A CrPC the application can be disposed of by the same Bench without
issuing a Rule afresh—technicalities of procedure may be avoided with a view to
securing the ends of justice.

Sohail Ahmed Chowdhury vs State 47 DLR 248.

Section 30—

In the state of evidence on record the materials recovered
from the appellant do not attract the mischief of the Arms Act and the alleged
offence could not have been taken cognizance of. As such the whole trial and
the order of conviction and sentence were without jurisdiction.

Nesar Ahmed vs Bangladesh 49 DLR (AD)lll.

Section 30—

The conclusion of the trial of the case has become
uncertain, the accused is in detention for a long period of time. In view of
such a situation the appellant-accused is granted bail.

Aslam vs State 50 DLR 161.

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.

Had the original offence charged been one under Penal Code
then the learned Judges by application of section 238 of the Penal Code could
come to a finding that the offence constitutes a minor offence and in that view
could have convicted the appellant under a minor offence, but here the original
offence charged was exclusively triable by the Special Tribunal and in that
view the alteration of the conviction from a schedule offence to an offence
which is only referable under Penal Code is not legally permissible.

Abdur Rahman and others vs State 51 DLR (AD) 33.

Section 32—

Delay in concluding trial is a good ground for allowing bail
to the accused.

Shahid Mia and Others vs State 51 DLR 207.

Words and Phrases

Abettor—

An abettor in principle ought not to be awarded a higher
punishment than that meted out to the principal offender.

Major (Retd) Ashrafuddin Sekander vs State 50 DLR (AD) 108

Acquittal of
non-appealing accused—

After the Court finds that the order of conviction as a
whole is not maintainable in law even the non-appealing accused should be given
the benefit of the order of acquittal. This is necessary to ensure that the
fountain of justice is not stopped to the deprivation of any aggrieved person so
that every­body may share justice equally.

State vs Mesbahuddin 49 DLR 245.

Accomplice Witness—

The court was not justified to tender pardon to the
accomplice witness and examine him as a PW without assigning any reason
specially when the prosecution did not pray for tendering pardon to him.

Zakir Hossain vs State 46 DLR 287.

Advocates practicing before any Court should be careful to
conduct themselves in such a manner so as not to lower the Court in the
estimation of others which ultimately lower themselves in the estimation of
others.

State vs Shahidul Alam Chowdhury and two others 51 DLR 380

Criminal Trial—

Every Court should keep in view the well-settled principle
that justice should not only be done but should manifestly and undoubtedly be
seen to be done” as has been further stressed by their Lordships of the
Appellate Division in the case of Khondker Mostaque Ahmed vs Bangladesh
reported in 34 DLR (AD) 222. Otherwise, the common proverb that “justice
hurried, is justice buried” may be proved true.

Mostafizur Rahman (Md) vs State

Criminal Justice—

It is high time that the system of investigation of criminal
case by the police alone should either be abandoned or completely reformed.
Otherwise there is no chance of retrieving the system of criminal justice from
the malaise.

With the tremendous increase in the number of crimes,
specially organized crimes, time has come to give a second thought about the
above principle that ten offenders may be acquitted but a single innocent
person not be punished.

Ali Akbar (Md) vs State and ors 51 DLR 268

Corroboration—

In the context of realities the concept of ‘independent
corroboration’ must be given a liberal construction and restricted meaning and
it should not be rigidly sought for when some evidence worthy of credence is on
record.

Nurul Alam Chowdhury and another vs State 51 DLR 125

Defence Case—

The defence case of same side shot in a murder case is not
appreciated when there is no evidence that any person belonging to the
informant party was carrying any gun or that there was second gun at the place
of occurrence.

State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR 154.

Departmental Proceeding—

The other respondent engineers are found not amenable to any
criminal charge under the law but their conduct as responsible officers leaves
much to be desired! The University Authority may yet consider the advisability
of a departmental proceeding to find out if there was any negligence of duty on
the part of any of the engineers in the matter of receiving/checking the
disputed pumps and issuing certificate for payment.

State vs Md Iqbal Hossain and others 48 DLR (AD) 100.

Law & Procedure—

Principle of Law and Procedure, importance of; often the
case is decided only upon a dogma unsettling the established law and procedure.
This, we must say, is highly undesirable and has a corroding effect on the
administration of justice itself.

State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR AD 154.

Martial Law—

While leaving, the Martial Law does not leave a trail and it
is good as long as it lasts, but with its departure it no longer casts a shadow
upon the ordinary laws of the land.

The learned Divisional Special Judge has committed gross
illegality in disposing of the case on the evidence recorded by the Summary
Martial Law Court and this disposal is no disposal in the eye of law. The order
of conviction and sentence passed by the Divisional Special Judge is set aside
and the case is sent back of the Special Judge, for fresh trial of the
appellant after examination of the prosecution witnesses afresh.

Saidur Rahman vs State 49 DLR 206

Professional Etiquette—

In the greater interest of justice always a safe distance is
to be maintained between the judges and members of the legal profession
retaining good relations and respect for each other.

If any member of the legal profession hobnobs with any Judge
and such a member appears in any case before that Judge, the party adverse to
his client gets apprehensive about getting fair justice from that Judge. Even
if the client of that member of the profession wins the case by the merit of
the same his adversary cannot dissuade himself from his doubt about the
fairness in the matter and thus his faith in the administration of justice is
shaken.

State vs MA Wahab, Advocate 51 DLR 257.

Sentence—

The sentence of the appellant is reduced upon submission of
his lawyer, who appeared for him all-through, that the appellant is 90 years
old as recorded in his statement under section 342 CrPC, although in the record
of the appeal his age has not been mentioned.

Hasan Ali and others vs State 47 DLR (AD) 69.

Remand—

The appeal is sent on remand as the judgment in question
laid down some unacceptable principles and there has not been a proper disposal
of the appeal.

The appeal was disposed of practically in a summary manner
without properly considering the entire evidence on record, particularly the
evidence of eye-witnesses and upon making a wrong approach based on untenable
premises. We are not satisfied with the manner of disposal.

State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

TI Parade—

When TI parade is held after an inordinate delay from the
time of commission of the crime, the chance of mistake increases and this is a
major reason for not depending on such TI parade.

Mizanur Rahman (Md) vs State 49 DLR 83.

 

Special Powers Act, 1974

 

Section 25A – Offence of counterfeiting currency notes and
government stamp falls under section 25A but not under section 489C of the
Penal Code.

When the recitals of the FIR and the police report clearly disclose the offence
of counterfeiting currency notes and government stamp, the offence is
punishable under section 25A of the Special Powers Act, 1974 and not under
section 489C of the Penal Code. The impugned order summarily passed by the High
Court Division is held by the apex court erroneous and not sustainable in law.

The State Vs. Nur Hossain @ Hiron 12 MLR (2007) (AD) 72.

 

Special Powers Act, 1974

Section 25B(2) – Offence of possession of phensidyle – Evidence to
warrant conviction Examination by Chemical expert necessary- The convict-appellant denied that no phensidyle was recovered
from his possession. The alleged phensidyle were not examined by Chemical
examiner as to whether those articles were phensidyle or not. In the absence,
of any such evidence the learned Judge of the High Court Division held the
charge against the convict-appellant not proved beyond reasonable doubt.

Ershadul Vs. The State 12 MLR (2007) (HC) 90.

 

Special Powers Act, 1974

Section 25B(1)(a) – Offence of smuggling- Evidence of BDR
personnel may well be relied upon- Non-examination of local seizure list
witness is not always fatal to the prosecution.

When the convict-appellant was caught red-handed with the
contraband goods while being smuggled out of Bangladesh and the charge appears
to have been well proved beyond all reasonable doubt by the consistent and
reliable evidence of the BDR personnel, the learned judges of the High Court
Division held the conviction and sentence perfectly justified.

Aifti Mia (Md.) Vs. The State 12 MLR (2007) (HC) 312.

Special Powers Act, 1974

Section 25A – Mere possession of counterfeit currency without
knowledge does not constitute offence.

Since counterfeit currency may come into possession of a person in
course of daily transaction without the knowledge of the same being
counterfeit, the learned judges held mere possession of a counterfeit currency
without the knowledge of the nature thereof does not constitute offence
punishable under section 25A of the Special Powers Act, 1974.

Manzu Sweeper Vs. The State 13 MLR (2008) (HC) 417.

Special Powers Act, 1974

Section 25B – When the offence
alleged does not fall within the definition of smuggling the accused is
entitled to acquittal – Smuggling when not done directly by the accused. No charge lies against him.

Mujibar Rahman Vs. The State 13 MLR (2008) (HC) 88.

 

Special Powers Act, 1974

Section 25B/25C– Offence
of adulteration

Disclosure by co-accused is no evidence in the eye of law against
the convict appellants. The seized articles were not examined by chemical
expert. The impugned judgment and order of conviction and sentence having not
been based on any legal evidence the learned judges of the High Court Division
set aside the same.

Abul Mollah (Md.) and another Vs. The State 14 MLR (2009) (HC)
197.

Special Powers Act, 1974

Section 32(C) – Bail to convict appellant in appeal cannot be
allowed without hearing the prosecution.

In an appeal against the conviction and sentence of 10 years
rigorous imprisonment and fine of Taka 5000/- for offence under Explosive
Substance Act, 1908. The High Court Division cannot grant bail to the convict
appellant without hearing the prosecution and without the finding that the
convict is not guilty of the offence. The apex court set-aside the order of
bail of the convict appellant passed by the High Court Division as being one
illegal.

The State Vs. Mahibur Rahman Manik and another 11 MLR (2006) (AD)
230.

 

Special Powers Act, 1974

 Section —2(f)

Criticizing
the Government do not come within the mischief of prejudicial act as well

Order
of Detention
—The High Court Division upon hearing the parties found that the order of
detention has been made without application of mind and upon colorable exercise
of power and that there is no nexus between the grounds and the purpose of the
detention made the Rule absolute on the finding that: “In consideration of the
materials produced and the submissions of the learned Counsels of both the sides,
we are of the view that the allegations made in the grounds do not come within
the mischief of prejudicial act as defined in section 2(f) of the Special
Powers Act, 1974. Admittedly, there is no other allegation neither in the
grounds served vide Annexure-I nor in the affidavit-in-opposition submitted by
the respondent Nos. I and 5 except those as stated there in the memo of
grounds. Memo making of G.D. entry as contained in the memo of grounds. Mere
making of G.D. entry as contained in the memo of grounds and describing him as
terrorist, miscreant, bomber etc. are not enough to detain a citizen of the
country in custody curtailing his civil liberties. We also find that there is
no specific case mentioned in the grounds nor about his involvement in alleges
supply of M- 16 Rifle. Even if there has been any specific case filed against
the detenu subsequent to his arrest he will face legal consequence in the said
case. Delivering of speeches, making of political statements, criticizing the
Government and its activities and attending political meetings of the
opposition political parties do not came within the mischief of prejudicial act
as well.” —Held In view of the above, we do not find any substance in the
submission of the learned Deputy Attorney General. The petition is dismissed.

Govt. of Bangladesh Vs. Professor Apu Ukil 16
BLT (AD)126

Section-3(2)

The
Government is not empowered by law to extend the period of detention under
section 3 of the Act so passed by the District Magistrate or Additional District
Magistrate, under section 3(2) of the Act.

Mohammad Sayed Vs. Govt. of Bangladesh 16 BLT
(HCD)27

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

The Stamp Act, 1899 (II of 1899) Section- 18

The very
act of revalidating or restamping the power of attorney is defendant upon
reciprocal arrangement.

Molay Behari Biswas Vs. Govt. of Bangladesh
5BLT (AD)-109

Section-35

A
failure to comply with the stamp duty as provided under the Stamp Act may
entail penalty but the instrument cannot be thrown away for want of stamp as
inadmissible in evidence not being duly stamped.

Abdul Karim & Ors. Vs. Mvi Serajuddin
Ahmed & Ors. 7BLT (AD)-160

The State Acquisition and Tenancy Act, 1950 Section
—2 clause —23 read with Registration Act,

Section-60

The
plaintiff claims the suit land on the basis of registered Patta of 1945 —patta
holder remains as under Raiyat under Sebayat who was a raiyat of the deity and
entire right does not evaporates and no recital is necessary in a patta
regarding legal necessity and after promulgation of state Acquisition and Tenancy
Act the patta holder under raiyat automatically became tenant under the
government under the law whether any entry was made or not.

Mofizul Haque Khan Chowdhury Vs Jogesh Chandra
Basu Molick & Ors 16 BLT (HCD)310

Section- 17(3)

Whether the Patta is a genuine document as it was
executed in 1956

As per
provision of the State Acquisition and Tenancy Act after the whole sale
acquisition of rent receiving interest by notification no. 18636 dated
13.12.1955 no under tenancy could be created. In this view of this matter the
patta in question is not a valid document in the eye law and it conveyed no
title.

Tayab Ali Shaik & Ors. Vs. Hashem Shaik
& Anr 12BLT(HCD)510

Section —20

The case
of the plaintiff is that the ex-landlord auction purchased the suit land in rent
sale and certified copy of the sale certificate was produced without calling
for the original of the same and as such the High Court Division was not
inclined to rely upon the same —Held: in our view, the High Court Division took
correct view that the plaintiff could not prove that the ex-landlord auction
purchased the suit land and made the same khas and thereafter, the same vested
in the Government as excess non-retainable khas land of the ex-landlord. But no
paper has been produced by the plaintiff in that respect to show that the
Provisions of Section 20 of the State Acquisition and Tenancy Act, 1950 were
duly complied with in the matter of acquisition of khas lands in excess of the
limit imposed by law.

Bangladesh & Ors Vs. M. Ali Khondokar 15
BLT (AD)161

Section-20(2)(a)(iii)

It
appears that a vast tract of land within the reserved forest has been claimed
by Abbas Ali Munshi as he plaintiff in Title Suit No.160 of 1966 on the basis
of taking pattan from the exlandlord in the year 1946. But in that suit he
could not produce any supporting evidence of title as claimed. Moreover, in
view of the statement made in the plaint that the suit land has been recorded
as forest land, the trial court committed an error of law in decreeing the
suit, mechanically, ex parte without considering the effect of the provisions
of the S.A.T. Act, as well as the Specific Relief Act.

Bangladesh Vs. Karimun Nessa & Ors. 9
BLT(AD)-242

Section-43 (2) Read with Section-44 (3)

Publication
of a notification in the official gazette declaring that a compensation
assessment-roll has been finally published for a village or group of villages
or local area as the case may be, specifying in such notification the date of
the final publication of the compensation assessment-roll, as required under
section 43 (2) is a conclusive proof of such publication and of the date
thereof. After the said notification all interests of tenants in respect of
their non-returnable property would vest in the Government under section 44 (3)
of the said Act with effect from the first day of the agricultural year next
following the date of publication of such notification in the official gazette.
Even if there be any defect in the preparation and publication of the
compensation assessment-roll that by itself shall not stand in the way of the
vesting.

Md. AliAkbarVs. Govt. of Bangladesh & Ors.
5BLT (AD)-145

Section-68C

Admittedly
the period for which the rent suit was filed is the period covered by the years
1359 to 1362 B.S. which is prior to the date of the State Acquisition &
Tenancy Act came into force. But the provision of section 68C does not make any
suit for realisation of the arrear rent by the ex-landlord either barred or
prohibited and therefore the said rent suit was not barred or invalid as was
illegally found by the trial court and was upheld by the High Court Division.

Amullya Ranjan Das & Ors Vs. Gol Bahar
Khatun & Ors. 12 BLT (AD)-37

Section-81(b)

Complete
and legal settlement—unless and until the provision of section 81(b) is
complied with through registration of the lease deed, cannot be called a
complete and legal settlement.

Abdul Kader & Ors Vs. Abdullah & Ors.
6BLT (HCD)-112

Section-82 (1)

It is
the evidence of P.W. I that he cultivates his land with the aid of ‘Baragadars’
and in the background of the said evidence of P.W. 1 the High Court Division
held that the preemptor is a bonafide cultivator because of satisfying one of
the circumstances as set forth in sub-section 1 of Section 82 of the Act—Held:
Pre-emptor is a bonafide cultivator.

Md. Fazlu Miah & Ors Vs. Asabur Rahman
& Ors 12 BLT (AD)252

Section-90

On
remand —Pre-emption
under section 96 of the State Acquisition and Tenancy Act — since the vital
question regarding the quantum of land in possession of the pre-emptor as
ordained by section 90 of the S.A.T. Act has remained unsettled with reference
to any evidence equity demands that the pre-emptor should not be non-suited on
a mere technical ground, which was never agitated and decided in the trial
Court, and as such it is found expedient in the interest of justice that the
case be sent back to the trial Court on remand for a fresh hearing.

M.A Karim & Ors. Vs. Md. Shamsuddin 5BLT
(HCD)-161

Section-91

Pecuniary
jurisdiction—
for pre-emption actual value of the land—whatever might be the actual price of
the land, the amount stated in the deed of sale as consideration shall have to
be taken as the valuation of the proceeding for the purpose of pecuniary
jurisdiction.

Most. Sajeda Khatoon Vs. Asad Ali &Ors. 9
BLT (HCD)-267

Pre-emption —subsequent
reconveyance not defeat pre-emption

Sale of
a property takes effect from the date of the execution of the sale deed and as
such any subsequent agreement for re-conveyance of the property cannot defeat
the right of preemption

Captain Mohd. Lutfar Rahman Vs. Mohd. Abu
Taher & Ors. 9BLT (HCD)-429

Sections-91 and 92

Evidence
Act—pre-emption—if the Ext-1 is read in juxtaposition with provision of
sections 91 and 92 this Ext-i is an out and out sale but not a deed of gift.

When
this application under section 96 of the State Acquisition and Tenancy Act was
filed for pre-emption at that time this new case was made by the pre-emptee
petitioner. If I read the evidence of P.Ws. and O.P.Ws. and Ext. A in
juxtaposition with the provisions of section 91 of the Evidence Act, it and out
sale deed and by no manner of interpretation it can be treated as a deed of
gift. The oral evidence as given by the O.P.Ws. cannot alter or change the
contents of the sale deed Ex. 41 have gone through the evidence of P.Ws. and
0/Ws in this case. It appears to me that if I read and the deed of sale along
with the evidence of P.Ws. 1 and 2 it will be clear that it is a deed of sale
out and out. The D.Ws. wanted to prove by saying that due to love and affection
this property was given to the plaintiff by way of gift and not by way of sale.
This oral evidence is contrary to the deed, Ext. A which cannot be accepted in
view of the provisions of sections 91 and 92 of the Evidence Act.”

Mst. Saleha Bibi Vs. Taib Ali & Others
1BLT (HCD)-57

(b)
Question of Joinder of necessary parties at appellate stage—Objection as to the
impleading of a party ought to have been taken at the earliest stage — Since
the objection has not been raised earlier it cannot be raised at an appellate
stage.

Mst. Saleha Bibi Vs. Taib Ali &Others 1
BLT (HCD)-57

Section-92

Government claimed the suit land on the basis
of eascheat.

Held: On
an examination of the written statement I could not find out the disclosure of
the name of any raiyot of the holding who had died in testate leaving behind no
heir to inherit the property and the property became escheat to the government.
In the absence of any assertion or any evidence in that behalf the government
is not permitted to treat a property as escheat and became government khas land
under Section 92 (l)(a) of the State Acquisition and Tenancy Act. Further,
before taking any such steps the Revenue Officer shall cause a notice to be
published in the prescribed manner declaring his intention to enter on the
holding and specifying the reason thereof and also inviting objections from all
persons interested in the holding and shall consider any objection that may be
submitted to him within the period specified in that behalf in the notice and
shall record a decision There is complete absence of pleading of this mandatory
provision of Sub-section 3 of section 92 of the State Acquisition and Tenancy
Act. There is no evidence before the court that the Revenue Officer caused any
notice published in the prescribed manner before he took the decision. The
Revenue Office is again required to enter on the land in order to complete the
vesting of the property in the government as khas land and to this item also
there is no evidence that the Revenue Officer at any time entered on the suit land
and complied with the provisions of Sub-section 2 of Section 92 of the State
Acquisition and Tenancy Act.

Mollick Ali 
Ahmed & Ors Vs. Govt. of Bangladesh & Ors 16 BLT (HCD) 221

Section-92(4)

Institution
of civil suit within 90 days is not mandatory. The provision of section 92(4)
of the Act instituted a civil suit within 90 days of the notice-served by the
designated Revenue Officer does not provide for any penal consequence for
failure of the aggrieved party institute the suit within 90 days of the notice.
The provision for institution of the civil suit within 90 days is thus found to
be directory and not mandatory.

Hindu Devi Lakshimi Gobinda Jew Vs. Bangladesh
& Ors. 7BLT (HCD)-133

Section-95

The
historical background of the legislation as mentioned in P.O. 88 of 1972 in
respect of subsisting usufructuary mortgage is hit by Section 95A of the State
Acquisition and Tenancy Act which is meant to protect the helpless raiyat. A
raiyat in Bangladesh cannot enter into any form of usufructuary mortgage other
than complete usufructuary mortgage which is capable of enjoyment for a maximum
period of 7 years and the raiyat will get back his property under Section 95 of
EBSAT Act.

Asmat Ali Vs. Abdur Rafique Mridha & Ors.
9 BLT(AD)-77

Section 95

A rayat
shall not enter into any form of usufructuary mortgage other than a complete
usufructuary mortgage in respect of a holding or of a portion or a share
thereof and the period for such complete usufructuary mortgage shall not exceed
seven years.

Selim Saial Vs A. Majid Molla & Ors. 14
BLT (HCD)62

Section-95A

The
appellant sold the land to respondent No. 1 by Kabala dated 24.6.1967 and the
agreement for reconveyance of the said land executed on the same day stipulated
a period of 4 (four) years from the said date. The time for reconveyance
expired on 23.6.1971 — so the transaction cannot be said to be alive and
subsisting on the date of promulgation of P.O. No. 88 of 1972, i.e. on 3.8.1972,
section 95A will have no application to the transaction which was past and closed
— appeal dismissed with cost.

Abdul Kaleque Sarnamath Vs Abdul Kaleque
Sarnamath & Ors. 3BLT (AD)-140

Section-95A

Plaintiff
transferred 54 acres agricultural land to the defendant, by kabala executed on 10.7.49.
Transferee executed an Ekrarnama on 13.7.49. Both the documents were registered
on 7.11.49. Transferee agreed to reconvey the land as per terms of Ekrarnama if
consideration money was paid back within 6 years—The transfer in question is a
complete usufructuary mortgage although it is sale with a condition to reconvey
and although it took place, before the commencement of the second Amendment of
the Act.

Md. Rajiuddin Chowdhury Vs Suruj Ali 3BLT
(HCD)-135

Section-95A

Cases of
sale attended with agreement for reconveyance whether or not registered would
be within the ambit of complete usufructuary mortgage for a period of 7 years
and provisions of Section 95 (4) (5) would apply to such transfers. A contrary
view would clearly make the provision of Section 95A nugatory and frustrate its
purpose.

Abdus Salam Sheikh & Ors Vs. Puspa Rani
Shil & Ors. SBLT (AD)-58

Section-95A

In the
instant case two sale deeds being Exts. 4 and 5 are registered sale deeds of
the year 1968 when section 95A of the State Acquisition and Tenancy Act was not
born even. These two registered deeds of out and out sale without any condition
shall prevail over other oral evidence and this cannot be constructed in any
manner whatsoever as an out and out sale with an agreement of reconveyance, so
the question of invoking section 95A of the state Acquisition and Tenancy Act
does not arises at all.

Hazi Nur Mohammad Sarker & Ors. Vs. Kashem
Mollah 8BLT (HCD)-72

Section-95A

The deed
of sale was executed on 18.12.1969 and the Ekrarnama was also executed and
registered on the same date being 18.12.1969 stipulating terms and conditions
that after 7 years he would get back his property. The transaction was alive
and subsisting on the date of promulgation of P.O. 88 of 1972 i.e. on
03.08.1972.

Md. Abdul Karim Khan Vs. Md. Abdul Hamid Gayeen
& Ors. 9BLT (HCD)-260

Section —95A

The
amended provision of section 95A of the State Acquisition and Tenancy Act read
with P.O. No. 80 of 1972 providing for a complete usufructuary mortgage is made
when there is a transfer of any land by out and out sale together with an
agreement for reconveyance constitutes complete usufructuary mortgage for
maximum 7 years. Accordingly section 95A provides that in any transaction when
the transferor received from the transferee any consideration and transferee
acquires the right to possess and enjoy usufructuary of such holding etc. for
specified period in lieu of such consideration than such transfer shall be
deemed to be a complete usufructuary mortgage for maximum 7 years and the
provision of section 95(4) and (5) of the State Acquisition and Tenancy Act
shall apply for restoration of possession. After an enjoyment of usufructs for
a maximum period of 7 years under section 95A of the state Acquisition and
Tenancy the right to get back the property accrues. In that event the provision
of Transfer of Property Act shall not apply to such kind of transaction except
those which were not alive when P.O. No.88 of 1972 was promulgated being
transaction past and enclosed.

Md. Yaor Mia & Anr Vs. Haji Shah Dhanai
Ali & Ors 16 BLT (AD)55

Section —95A

Section
95A of the State Acquisition and Tenancy Act has no application to a
transaction which was past and closed before the promulgation of President
Order No. 88 of 1972.

Mahadeb Chandra Mondol & Anr. Vs. Dulal
Chandra Mondal & Ors 16 BLT (AD)357

Section-95A Read with Section-95 Sub-Sections-(4)
and (5)

Respondent
No. 4 sold .87 acres of land to the appellant by a registered kabala dated
11.1.1965 corresponding to 27^th Poush 1371 B.S and handed over the
possession of the said land to the appellant. On the same date a
contemporaneous agreement was made between the appellant and respondent No. 4
to the effect that the appellant would enjoy the usufruct of the land for 5
years with effect from first Ashar 1371 B.S. to Agrahayan 1376 B.S. and if the
respondent could return the entire consideration money to the appellant within
the next 2 years starting from the month of Poush 1376 B.S. then the respondent
would get back the land and in case of failure of the respondent to repay the
consideration money within the stipulated period he would have no right to
claim the land or anything from the appellant — In order to recover the
disputed land under the agreement which expired on 10.1.72 long before the
promulgation of P.O. No. 88 of 1972 on 3.8.72, respondent No. 4 filed R.P. Case
No.67 of 1973 on 25.6.1973 against the appellant for redemption of the land
which was allowed — Held: It was a case of an out and out sale with a
contemporaneous agreement for reconveyance relied on 32 DLR (AD) 233 — the
appeal is allowed.

Anwaruddin Bepari Vs. The Asst. Comm. (Land)
& Ors. 4BLT (AD)-52

Section 95A read with The Registration Act,
1908 Section 17(2)(v)

An Agreement for re-conveyance merely creating a right to obtain another document
does not require registration as engrafted in section 17(2)(v) of The
Registration Act, 1908 and on the strength of an unregistered deed of Agreement
of re-conveyance, property conveyed in the sale deed can be reconveyed on
institution of a suit for specific performance of contract. But a deed of
Agreement of re-conveyance if to be deemed and treated to be an usufructuary
mortgage under section 95A of The Act, the Agreement must be a registered one.

Selim Saial Vs A. Majid Molla & Ors. 14
BLT (HCD)62

Section-96

Pre-emption—The law on pre-emption is a beneficial
legislation for the benefit of the cosharers and contiguous land holders in a
proceeding under Section 96 of the Act and that statutory right cannot be
defeated by a casual plea of waiver and acquiescence unless a clear case of
estoppel is made out by cogent and convincing evidence. Even a certain amount
of inaction or lack of vigilance and indolence on the part of the pre-emptor
cannot constitute estoppel unless by conduct the preemptor is proved to be in
loco parentis with the pre emptee and he has taken an active part in bringing
about the disputed transfer.

Mst. Tahera Khatun Bibi & Ors Vs. Abdul
Jalil Mondal & Ors. 7 BLT (HD)-308

Section-96

Defect
of parties—As a matter of fact, some of the S.A. recorded tenants as appeared
from the khatian filed in this case have been omitted. In view of the legal
position the application for pre-emption was not legally maintainable for
non-impleading necessary parties in the pre-emption proceeding.

Indrojit Kundu & Ors Vs. Biswajit Kundu
& Ors. 7BLT (AD)-386.Section-96

The land
in question was transferred by a kabala dated 18-1-78 and registered on 22-1-
81 the respondents knew of the transfer long before the date of registration
and as such limitation will start from the date of this knowledge as contended
by the petitioner’s Advocate.

Held:
The right to pre-emption accrues on the date the kabala is registered and from
this date, the application for pre-emption in this case was filed within the
prescribed time.

Md. Moslem Uddin & Anr Vs Md. Abdul Hakim
& Ors. 3BLT (AD)-134

Section – 96

In the
present case admittedly the application for pre-emption was filed after 7 years
of transfer and a heavy burden lies on the preemptor to discharge the onus of
proof that he filed the case within four months from the date of his knowledge.
The pre-emptor having failed to discharge the initial onus by adducing cogent
and reliable evidence the learned Single Judge ought to have held that the
application for pre-emption is baited by limitation.

Abdul Mazid Howlader & Anr Vs. Lahajuddin
Howlader & Ors. 4BLT (AD)-275

Section-96

It is
admitted by the parties that no notice about the transfer was ever served upon
the pre-emptor petitioner the learned Subordinate Judge came to the finding
that the petitioner pre-emptor knew about the transfer as he belonged to the
same family—Held: The learned Subordinate Judge however did not consider or
discuss as to any notice was at all served upon the petitioner or not and
further more he came to the wrong finding that as he being one of the member of
the family, he also knew about the transfer. this finding is absolutely wrong
and is not sustainable in law.

Nasiruddin Ahmed Vs. Abdul Majid Howlader 8
BLT (HCD)-322

Section-96

Both the
courts below having found that the original pre-emptor became a co-sharer in
the holding on the basis of a deed of gift High Court Division committed no
illegality in holding that he was not a co-sharer by inheritance. Present
petitioners are not preemptor but they are merely representatives of the
pre-emptor and as such there is no scope to hold that they were co-sharers by
inheritance at the time of filing the case for pre-emption. Subsequent becoming
of their co-shares by inheritance during pendency of the case cannot alter the character
and status of the original pre-emptor.

Khorshed Alam & Ors. Vs. Abdur Rob &
Ors 9 BLT (AD)-34

Section-96

Waiver and Acquiescence

Held: In
our view High Court Division has correctly held in the light of the observation
in a case reported in 44 DLR (AD) 62, said expressing of inability cannot be
considered waiver and acquiescence on the part of the pre-emptor and that his
right of pre-emption cannot be denied while the same has been sought to be
enforced within time and that otherwise not incompetent in law and fact.

Kohinoor Hamid Vs. Abdul Khaleque & Ors (AD)-172

Section-96

Both the
courts below having found that the original pre-emptor became a co-sharer in
the holding on the basis of a deed of gift High Court Division committed no
illegality in holding that he was not a co-sharer by inheritance. Present
petitioners are not preemptors but they are merely legal representatives of the
pre-emptor and as. such there is not scope to hold that they were co-sharers by
in heritance at the time of filing the case for preemption. Subsequent becoming
of their cosharers by inheritance during pendency of the case cannot alter the
character and status of the original pre-emptor.

Khorshed Alam & Ors. Vs. Abdur Rob &
Ors. 9 BLT(AD)-34

Section-96

The law
is now settled that homestead of the raiyat outside municipality is Preemptible
under sect ion 96 of the Act.

Md. Fazlu Miah & Ors Vs. Asabur Rahman
& Ors 12 BLT (AD)252

Section-96

Since
Pre-emptor Subitri Sundari Mali transferred by way of gift deed dated 27.10.1999
in favour of substituted opposite party No. 1(a) the contiguous plot No. 334
and got no subsisting interest on the contiguous plot No. 334 to the plot
transferred which is plot No. 335 she got no right to be graced with a verdict
of pre-emption. Both Pre-emptor and the Pre-emptee acquired equal status that
is strangers to case holding.

Md. Mafizul Islam Sarker Vs. Sunil Chandra
Biswas & Ors. 12 BLT (HCD)-169

Section – 96

Whether the Pre-emptee a co-sharer by
inheritance in the case holding.

The High
Court Division on consideration of the evidence and the material on record
specially heba-bil-ewaj deed dated 7.10.1968 Ext.2 executed by Abdus Samad
Pandit, father of pre-emptee in favour of his wife Ful Banu, opposite party
No.54 came to the conclusion that Abdus Samad Pandit, father of the preemptee
did not exhaust his entire share in this khatian and accordingly the pre-emptee
son of Abdus Samad Pandit is a co-sharer by inheritance. Therefore, the
pre-emption of Khatian No. 543. Accordingly the High Court Division modified
the judgment of the appellate court and trial court and allowed pre-emption in
respect of land of khatian No.1369, 583, 585, 1682. The Rule was accordingly
made absolute in part – Petition is dismissed.

Abul Kashein Vs. A. N. M. Azizur Rahman &
Ors 14BLT(AD)13

Section – 96

Right of Pre-emption

It is
not enough that the pre-emptor must have subsisting interest at the time of
filing of the pre-emption cases but the pre-emptor also must have interest at
the time when the final order pre-emption case is passed.

Sushil Kumar Ghosh Vs. Md. Nurul Hawlader
& Ors. 14 BLT (AD)69

Section—96

The
intention of the legislature according to provisions of section 96 of the State
Acquisition and Tenancy Act, 1950 is very clear that to shut the door against all
strangers, who shall encroach upon the ownership and possession of the real
co-sharers and whereupon the real co-sharers can remain in enjoyment of their
property and others cannot interfere with their right and possession.

Md. Rajab Ali Sheikh & Anr. Vs. Md.
Redoyanul Islam & Ors 14 BLT (HCD)357

Section-96

Non-impleading the Co-sharers in the
Preemption application

It
appears that the pre-emptor claimed property as usual by inheritance from his
father, and admitted that they were three brothers but he did not implead the
other two brothers, who are necessary parties in the preemption application.
Furthermore, one Bhimdeb and Biddhadhor. who were cosharers in the Parcha have
also not been impleaded. Although there was no specific written objection regarding
defect of parties of the aforesaid persons but the petitioner himself admitted
in his cross-examination and having failed to implead them as parties even at
the appellate stage, the case must be held to be bad for defect of parties for
non-impleading the co-sharers in the pre-emption application.

Sree Biraj Mohan Roy Vs. Binodini Roy &
Ors 12 BLT (AD) 111.

Section —96(1)

Miscellaneous
Case was filed on 13.3.1990 seeking pre-emption of the transfer that was made
by the kabala dated 18.1 . 1990 and was registered on 17.2.1990 and the
reconveyance took place on 28.3.1990. So the contention that exception ought
not to have been taken in respect of the reconveyance which took place before
the expiry of time prescribed by law for seeking pre-empt ion is of no substance.

Ambiya Khatun & Ors. Vs. Noor Ahmed &
Ors 13 BLT (AD)206

Section – 96(1)

In the
instant case, admittedly, the respondent No.1 being a co-sharer by purchase was
entitled to pre-empt the transferred land by either filing an application under
section 96(1) of the State Acquisition and Tenancy Act within 4 months of the
service of the notice given under section 89 of the State Acquisition and
Tenancy Act or if no notice has been served as aforesaid, within 4 months of
the date of knowledge of the transfer.

Moharaja Bibi & Ors. Vs. Khandakar
Mosharraf Hossain & Ors. 14 BLT (AD)269

Sections-96(1) & 2(13)

Part of
a holding—in the instant case, the preemptor is being a co-sharer and the
purchaser, being stranger, case land being part of a holding that is portion of
a compact land, although there is no Khatian Number or Plot Number of the transferred
land, it constitutes a part of an agriculture holding, so preemption, is to be
allowed.

Abdul Jabber & Ors. Vs. Mohammad Sekander
& Ors. 6BLT (HCD)-172

Section-96(3)

In the
face of the specific statutory bar the preemptor is not at all entitled to
claim any money above the amount specifically mentioned in the disputed deed of
transfer.

Mrs. Ayesha Khatun Vs. Mst. Jahura Akter Banu
& Ors. 7BLT (HCD)-245

Section-96 (3a)

Petitioner
as co-sharer in the case holding filed the pre-emption Misc Case 409/73. In
terms of compromise the pre-emption case was allowed and the consideration
money was withdrawn by the purchaser pre-emptee and had given delivery of
possession of the case land to the pre-emptor, petitioner — The Appellate Court
dismissed the preemption Misc. Case 409/73 on the ground that since the
registration under section 60 of the Registration Act was not completed in time
before filing the pre-emption case it was not maintainable — petitioner
thereafter again filed the Misc Case 369/75 within the statutory period of
limitation from the date of registration of the deed under section 60 of the
Registration Act, and he made a prayer to exempt him in depositing the
consideration money again. Trial court did not pass any order but kept the
application with record—on appeal the appellate court allowed on the ground of
non-depositing the consideration money along with the pre-emption application—
Held: It is on record that in view of the compromise between the pre-emptor and
the opposite party No. 2 who is the purchaser pre-emptee the money was
withdrawn by the pre-emptee purchaser and in that view of the matter, she did
not contest either in the trial court in the first or second time pre-emption
cases or in the appeals. Since the money was withdrawn by the rightful person,
the second deposit is not necessary and the conception of it in the present
circumstances is a redundant one. So the appellate court wrongly and illegally
under mis-interpretation of law and fact, has allowed the appeal by the
impugned judgment and order which resulted and error in the decision
occasioning failure of justice and the view taken by the trial court was a
correct and legal one. Law and the courts of law have been established to meet
the ends of justice to the deserving party in the litigation. So an aggrieved
person should not be under double jeopardy.

M. Ishahaque Ali Vs. Danesh Ali & Ors.
5BLT (HCD)-103

Section -96(3)(a) read with Evidence Act, 1872
Section-91

Pecuniary
jurisdiction — for pre-emption — actual value of the land — whatever might be
the actual price of the land, the amount stated in the deed of sale as
consideration shall have to be taken as the valuation of the proceeding for the
purpose of pecuniary jurisdiction.

Most Sajeda Khatoon Vs. Asad Ali & Ors. 9
BLT (HCD)-267

Section-96(4) and 6(b)

In the
instant case, prima-facie, upon assertion of the applicant-petitioner that he
is the cosharer by inheritance if found to be true having undoubtedly a prior
claim over the preemptor who is admittedly a co-sharer by contiguity and there
being no other claimant- applicant to pre-empt the case land, the Subordinate
Judge did not commit any error of law in directing the applicant-petitioner to
deposit the consideration amount and the compensation thereon in the facts and
circumstances of the case.

Md. Chan Mia Vs. Md. Dabirul Islam Khan &
Ors. 12 BLT (AD)-31

Section-96(10)

Since
the original jama of the C.S. Khatian remained intact, the pre-emption case hit
by section 96(10) of the State Acquisition and Tenancy Act as both parties are
co-sharers by inheritance.

Mafizuddin & Ors
Vs. Mohammad Shorab Ali & Ors (AD)162

Section-96(10)(a) Read with Registration Act Section-47

Clause
(a) of sub-section 10 of section 96 of the State Acquisition and Tenancy Act
stands as a bar for the pre-emptor to pre-empt the land under the deed of
transfer in favour of the pre-emptee who became a co-sharer in the tenancy by
way of inheritance not on the date of transfer but subsequent in the date of
transfer.

Abdul Malek Majhee
Vs. AA. Howlader & Ors 5BLT (HCD)-168

Section-96(10)(b)

Instant
case, the contest is between the preemptor and the pre-emptee as to whether the
kabala in question was a sale or an ewaz. The pre emptor was not a party to the
document. She is perfectly at liberty to question the nature of the transaction
and the pre-emption court has full jurisdiction to entertain the preemptie’s
challenge.

Tambia Khatun Vs.
Rafiqullah  8BLT(AD)-230

Section 96 (10) (c) read with Section-23 of
Succession Act, 1925

The
learned Judge of the High Court Division erred in law in holding that cousin
sister’s son is a relation by consanguinity within three degrees from the donor
and the transaction in question is covered by Sub-Section 10(c) of the State
Acquisition and Tenancy Act, 1950 as contended by the petitioner’s Counsel.

Held :
In the instant case the parties are Muslims and the Principle of Succession
Act, 1925 is not applicable — The learned Judge of the High Court Division
applied the principle enunciated in the case reported in 20 DLR 376 and rightly
held that a cousin sister’s son is within three degrees of consanguinity from
the donor.

Shamsul Islam &
Ors. Vs. Badiar Zaman & Anr. 4BLT (AD)-12

Section-96 (10)(d)

Whether the alleged
agreement for reconveyance dated 4.3.84 Ext. B as a bar against Pre-emption

O.P.W.l
stated in his evidence that the deed of agreement was not registered for
financial reasons from that it is evident that the parties were fully aware of
the necessity and importance of registration of this valuable document
witnessing an agreement for reconveyance of the case land but the fact of the
agreement for reconveyance was not at all mentioned in the sale deed and it was
left unregistered on unconvincing grounds— Admittedly the case land has not as
yet been reconveyed by the pre-emptee in favour the vendors of the disputed
sale deed, although in the meantime more that 15 years have passed. In the
facts and circumstances of the case, it is evident that the opposite parties
entered into an unholy alliance amongst themselves to defeat pre-emption by
fabrication the so-called agreement for reconveyance for the purpose of the
case — Held: I am of the view that the learned courts below clearly erred in
law in disallowing pre-emption on an erroneous view regarding the real import
of section 96 subsection 10(d) of the State Acquisition and

Tenancy
Act.

Sri Joy Sankar
Sarker Vs. Atul Ch. Sarker & Ors. 7BLT (HCD)-119

Section-96 (10) (b)

By 3 consecutive
deeds were executed in the same sitting and registered on the same by bearing
Nos 12006, 12007 and 12008 captioned as sale deeds transfers of some lands were
affected. By deed No. 12006 Ahmed Ali, Belayet Ali. Arab Ali and Rajab Ali
transferred 18 decimals of land to Mokbul Hossain, Amzad Hossain and Afzal
Hossain, by deed No. 12007, Mokbul Hossain, Amzad Hossain and Afzal Hossain
transferred 4h12 decimals of land to Belayet Ali, Arab Ali and Rajab Ali by
deed No. 12008, Mokbul Hossain, Amzad Hossain and Afzal Hossain transferred
13’12 decimals of land to Ahmed All—if these 3 deeds considered together, then
the transactions would be treated as exchanges and that the land transferred by
deed No. 12008 cannot be pre-empted.

Ahmed Ali Vs. Ramjan
Ali  2BLT (HCD)-223

Section-96 (10)(d) read with Section 95

Agreement
being an unregistered one thus cannot be deemed to be a complete usufructuary
mortgage deed and the same cannot at all come under the mischief either of
section 95 or 95A of The Act. Corollary thereof is that Sub 10(d) of section 96
of The Act cannot stand as a legal bar or legal predicament on the part of
Pre-emptor. First party in having a favorable judicial verdict of an order of
pre-emption over the land under pre-emption proceeding.

Selim Saial Vs. A.
Majid Molla & Ors 15BLT(HCD)69

Section 96 read with Non-Agricultural and
Tenancy Act, 1951, Section —24

High
Court Division reserved judgment of the trial Court on the sole ground that the
land sought to be pre-empted is within the municipality and consequently being
nonagricultural land pre-emption application filed under Section 96 of the
State Acquisition and Tenancy Act was not maintainable. —Held: The application
for pre-emption was quite in from except mis-description or misquoting of the
provision of law in the cause title or in other words non-inserting of the
correct provision of law under which relief sought. In our view the aforesaid
state of the matter does not dis-entitles a person of the relief if the Court
finds that he is entitle to the relief sought and in such a situation the Court
is required to grant the relief sought for. In the instant Miscellaneous Cases
similar thing having had happened, the Court ought to have granted the relief
prayed for.

Rokeya Begum, Vs. Md
Nurul Absa, & Ors 15BLT(AD)13

Section-96 and 117

Unless
it is established that the parent jama has been duly separated on proper
service of notice upon all the co-shares a co-sharer to it his right of
pre-emption subsists.

Md. Tofazzal Hossain
& Ors. Vs. Momtaj Begum & Ors. 8BLT (HCD)-85

Section-117(c)

Co-sharer in the
joint tenancy

The
property was originally owned and possessed by Golam Mortuza Khan. After his
death the petitioner and his three brothers and six sisters inherited. They are
living separately—Mutation of the Dhaka Municipal Corporation to be valid must
be based on an order in writing of the Revenue officer concerned making the
joint tenancy subdivided and rents distributed. It cannot be other way round.
Separate holding number given by a Municipal Corporation cannot replace an order
under Section 117(c) of the State Acquisition and Tenancy Act. so the heirs of
Golam Mortuza Khan must be held to be still enjoying the joint tenancy left by
him. Similarly no amicable partition among the cosharers even if reached in
writing nor even a decree passed in a partition suit allotting different shares
to the co-shares can substitute the order as mentioned in Section 117(c) of the
State Acquisition and Tenancy Act. In such view of the legal position as well as
the factual position, the court of appeal below was perfectly justified in
holding that the joint tenancy of Golam Murtoza khan was never subdivided and
the rents were never distributed amongst his heirs, pre-emptor and his brothers
and sisters in accordance with law, and thereby the pre-emptor did not cease to
be a co sharer in the joint tenancy left by him.

Harunur Rashid Vs.
Afroza Khanam & Ors. 9 BLT(HCD)-135

Section-117(1)(c)

An order
of a competent Revenue Officer separating the jama in strict compliance of the
provision of section 117(1)(c) of the SAT Act if not appealed only then it
becomes final and binding upon all the co-sharers of the holding and in other
case(s) it is not.

Rokeya Begum, Vs.
Md. Nurul Absar & Ors 15 BLT (AD)13

Section-117(1)(c)

Since it
has not been established that the claimed pathway is of the Municipality or is
a recorded path we are of the view the High Court Division was in error in
holding that pre-emptor was not a contiguous land holder to the land sought to
be pre-empted. It may be mentioned that the land of R. S. Khatian No.791/I is
the ‘ejmali’ land of the recorded tenants and the same was never partitioned
amongst the co-sharers either by the decree of

the
Court or by any other mode of portion.

Rokeya Begum, Vs.
Md. Nurul Absar & Ors 15BLT(AD)13

Section – 144A

In the
instant case the plaintiffs name has been recorded in the finally published
R.S. Khatian in respect of the suit property and the Government is realizing
rent from him regularly thereby recognizing him as a tenant. Recognition of the
plaintiff as a tenant in respect of the suit property by the Revenue Authority
of the Government is binding upon the vested property department and
consequently the latter cannot claim the suit property as vested property.

Maran Mondal &
Ors. Vs. A. D. C. (Rev). 6 BLT (HCD)-22.