The Solicitor represented by the State, Government of the People’s Republic of Bangladesh Vs. Anisuzzaman Chowdhury and other

Appellate Division Cases

(Criminal)

PARTIES

The Solicitor represented by the State, Government of the People’s Republic of Bangladesh…………….Petitioner.

-Vs-

Anisuzzaman Chowdhury and other……………………………..Respondents.

JUSTICE

Syed J.R. Mudassir Husain CJ

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

JUDGEMENT DATE: 17th August 2006

Sections 420/409/467/468/471/466 of the penal Code. Sections 439A/435 of the Code of Criminal Procedure

The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufacturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged can not be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax………….(7)

The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facilitated the importers to release imported goods without paying any tax…………. (8)

(Bangla)….(9)

Criminal Petition For leave to appeal No. 189 of 2006 (From the judgment and order dated 27-032006 passed by the High Court Division in Criminal Miscellaneous Case No. 3659 of 2003)

Faisal H. Khan, Deputy Attorney General, instructed by Md. Ahsan Ullah Patwary,

Advocate-on-Record……………. For the Petitioner.

Farooq Ahmed, Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on Record…………..Respondent Nos.l and 2

Not represented……………. Respondent No. 3

JUDGMENT

1. Syed J.R. Mudassir Husain CJ : This criminal petition for leave to appeal has

arisen out of judgment and order dated 27-03-2006 passed by a Division Bench of the

High Court Division in Criminal Miscellaneous case No. 3659 of 2003 filed under Section 561A read with Section 517 of the Code of Criminal Procedure discharging

the Rule.

2. The facts, leading to this petition, are that the informant Md. Moazzem Hossain S.P.S.

(Jety) Mongla Bandor Custom Check Post lodged an F.I.R. with Mongla Police Station

against the 3 (three) accused persons named in F.I.R. alleging that the said accused-persons in collusion with each other having created a forged Bond Licence imported 48

Metric Tons of poly propylene value amounting to Tk. 21,00,000/- and deceived payment of Tax to the authority by forging signature of the commissioner; that by submitting the aforesaid documents on 15-062002 in the office of Custom House tried to release the said goods and at that time, the informant came to know that the accused party had no Bond Licence and thereupon seized the said goods. Thereafter, Police started Mongla P.S. Case No. 18 dated 2606-2002 under Sections 420/409/467/468/471/466 of the Penal Code.

3. Upon the said F.I.R, Police started investigation and during the investigation, the accused-respondent No.l, Anisuzzaman Chowdhury filed an application before the Magistrate 1s t Class, Bagerhat with a prayer for taking back the seized -goods. The

Magistrate upon hearing the parties directed to release the goods to the accused by order dated 05-08-2002 against which the Commissioner of Customs, Mongla filed an application under Sections 439A/435 of the Code of Criminal Procedure before the learned Sessions Judge, Bagerhat being Criminal Revision case No. 165 of 2002, who hearing the parties dismissed the said Criminal Revision on 28-09-2002 thereby affirmed the order of the Magistrate of Bagerhat. Against the aforesaid judgment of affirmance, the Solicitor, representing the Sate moved the High Court Division under Section 561A of the Code of Criminal Procedure read with Section 517 of the said Code and obtained Rule calling upon the respondents to show cause as to why the impugned judgment and order dated 28-092002 passed by the learned Sessions Judge, Bagerhat in Criminal Revision No. 165 of 2002 dismissing the Revision by allowing the order dated 05-08-2002 passed by the Magistrate 1st Class, Bagerhat in Mongla PS. Case No. 18 dated 26-06-2002 corresponding to G.R. Case No. 105 of 2002 now pending in the Court of Magistrate  1st Class, Bagerhat shall not be set aside.

4. The High Court Division by impugned judgment and order dated 27-03-2006 discharged the Rule. Hence, is this leave-petition.

5. Mr. Faisal H. Khan, the learned Deputy Attorney General appearing for the leave-petitioner, placed before us the impugned judgment of the High Court Division as well as the judgments of the Courts below and thereafter, submitted that the accused-persons imported the goods by deceitful means and those are banned item being raw materials for manufacturing polythine bags which are threat to environment of the country. In such view of the matter, the learned Judges of the High Court Division having failed to apply their judicial mind to appreciate the above aspect of national interest of the goods in question causing failure of justice.

6. Mr. Deputy Attorney General next contended that while discharging the Rule, the learned Judges of the High Court Division made certain observations in respect of the petitioner’s office (Solicitor) which are unwarranted and uncalled for and as such the said observations are required to be expunged.

7. Mr. Farooq Ahmed, the learned Advocate papering for the respondent Nos. 1 and 2, on the other hand, contended that the respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufacturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged can not be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax.

8. Learned Advocate next contended that the imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facilitated the importers to release imported goods without paying any tax.

9. In support of his argument, he pointed out the observation made by the learned

Magistrate, which runs as follows: (Bangla) In view of the above observations, the learned Sessions Judge also considered this aspect and affirmed the judgment of the learned Magistrate and it is argued that the learned Judges of the High Court Division totally misdirected in arriving at the finding and decisions.

10. We have heard the learned lawyers of both sides and perused the records and considered their submissions, it appears that the learned Judges of the High Court Division meticulously considered the materials on record and we are of the view that the findings and decisions of the High Court Division do not suffer from any illegality for our interference.

11. Accordingly, we find no cogent ground for granting leave. This petition is dismissed.

Ed.

Source: IV ADC (2007), 177

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