The Government of the People’s Republic of Bangladesh (Appellants)
Horng Woei Industrial Co. Pte. Ltd. & anothers (Respondents)
Appellate Division Cases
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 20th June 2005
Declaring that confiscation of the vessel as well as imposing of penalty on the writ petitioners and each of the members of the crew are illegal and without lawful authority ………………………..(1)
Accordingly since it was established that the containers were full of the offensive goods when the vessel sailed from Singapore and when it is also an admitted fact that the vessel came to Chittagong Port straight from Singapore Port without calling at any other port before arriving at Chittagong Port, the customs authority very reasonably concluded that the offending goods were unloaded within the territory of Bangladesh…………….. (9)
A.H.M. Mushfiqur Rahman, Deputy Attorney General, instructed, by B. Hossain, Advocate-on-Record …………………………For the Appellants.
Respondents………………… Ex- Parte.
Civil Appeal No. 21 of 2000
(From the judgment and order dated 28.7.1993 passed by the High Court Division in Writ Petition No. 316 of 1988).
Md. Tafazzul Islam J: This appeal by leave is directed aeainst the judement and order dated 28.7.1993 passed by a Division Bench of the High Court Division in Writ Petition No. 316 of 1988 making the Rule absolute declaring that confiscation of the vessel as well as imposing of penalty on the writ petitioners and each of the members of the crew are illegal and without lawful authority.
2. The respondent No.l filed the above writ petition stating, inter alia, that M.V. HOKNG LHH. a sea going vessel, carried merchandise from Singapore to Chittagong on several occasions and in its voyage from Singapore to Chittagong the above vessel after discharging imported goods at Chittagong Port loaded the cargo for export and than applied to the customs authority, Chiltagong for clearance but then notice dated 9.6.19S7 was issued by the Collector of Customs, Chittagong directing the respondents to show cause why the above vessel should not be confiscated and penalty should not be
imposed on the Captain and other crews of the above vessel for carrying contraband goods in Bangladesh by smuggling; the respondents submitted reply dated 11.6.1987 denying the allegations made in the said notice and asserted that no consignment was ever loaded in four containers as alleged and the said containers were carried by the vessel in empty condition and off loaded at Chittagong in empty condition and that although at one stage certain consignments were loaded in these four containers at Singapore but those had to be off loaded due to stability problem of the ship and in support of the above assertion respondent submitted an Inward Declaration which was issued on 14.6.1987 and a letter of Singapore Port Authority dated 9.6.1987 wherein it was certified that the said four containers sailed for Bangladesh in the vessel in
empty condition; subsequently Collector of Customs.
3. Chittagong passed an adjudication order on 7.7.1987 finding that the respondents had smuggled contraband goods into Bangladesh and accordingly confiscated the vessel and imposed fine; the respondents then preferred an appeal before the Board of Revenue who by order dated 13.10.1987 set aside the order of the Collector of Customs; the Government filed revision and after hearing by order dated 6.1.1988 the order of Collector of Customs Chittagong was restored. The respondent No.l then moved the High
Court Division and after hearing the High Court Division made the Rule absolute and restored the order passed by the Board of Revenue holding that the order dated 7.7.1987 passed by the Government confiscating the vessel imposing fine was illegal and without jurisdiction.
4. The learned counsel appearing for the appellants submits that the High Court Division having found that the vessel in question sailed from Singapore with consignments in four containers of the vessel erred in law in making the rule absolute inasmuch as the shipowner failed to give any satisfactory explanation as to where and under what circumstances the goods contained in four containers were offloaded specially when the vessel arrived Bangladesh direct from Singapore not having stopped at any other port of
any other country and that under such circumstances there cannot be any doubt that
the ship earned the contraband goods to Bangladesh in the four containers and the fact that the ship in question carried contraband goods having been proved beyond all reasonable doubt by the papers submitted by the appellants being Annexure A-l and B to the supplementary affidavit-inopposition filed by the appellants the High Court Division erred in law in making the Rule absolute.
5. As it appears the High Court Division after referring to the contents of Annexures-A, A(i) and B of the supplementary-affidavit-in-opposition found as follows:”From the above it appears that the Collector of Customs mainly depended on the enclosure to the letter as at Annexure- A (1) to he supplementary-affidavit-in-opposition of the respondent
6. Mr. Hosein has attacked this enclosure to the Annexure-A(i) contending that this could not be believed as substantive evidence in order to come to the conclusion about the truth or otherwise of the contents thereof in preference to the inward declaration and the letter issued by the Sinapore Port Authority as at Annexurc-C and C(i) to the writ petition.
7. We are unable to accept this contention of Mr. Hosein. It appears that a very responsible diplomat attached to the High Commission for Bangladesh in Singapore asserted by contacting the Port of Singapore Authority that when the offending vessel sailed from Singapore the four containers were loaded with 710 ctns Cigarettes in Container No. FLXU 5000467, 700 ctrs cigarettes and 23 pkgs textiles in Container No. UPCU 5012487, 290 ctns cigarettes and ‘300’ ctns whisky in Container No.FLXU 5000153 and 90 ctns garment and shecs in Container NO. FLUX 5000662. We have no reason to think that the High Commission for Bangladesh in Singapore sent this note to
the Ministry of Foreign Affairs without asserting with extreme certainty that the four containers were loaded with the above goods when the vessel sailed from Singapore for Bangladesh in November. 1986 and, particularly so, sine this note was subsequently confirmed by the Ministry of Foreign Affairs by another note dated 2nd July, 1987 as at Annexure-B to the affidavit-in-opposition filed by the respondent No.l, Although in
Annexurc-B the particulars of goods in the four containers were not mentioned, the Ministry of Foreign Affairs of the Republic of Singapore confirmed that “the containers were loaded when the vessel” Homg Lee” left Singapore.”
8. We, therefore, find that there were sufficient materials to conclude that the four containers were loaded with the above offensive goods when the offending ship M.V.HORNG LEE sailed from Singapore for Bangladesh and with the above findings
of the Collector of Customs, this Court cannot interfere.”
9. Accordingly since it was established that the containers were full of the offensive goods when the vessel sailed from Singapore and when it is also an admitted fact that the vessel came to Chittagong Port straight from Singapore Port without calling at any other port before arriving at Chittagong Port, the customs authority very reasonably concluded that the offending goods were unloaded within the territory of Bangladesh.
10. Accordingly the appeal is allowed and the impugned judgment and order dated 28.7.1993 passed by the High Court Division in Write Petition No. 316 of 1988
is set aside. There is no order as to costs.
Source : V ADC (2008),611