The State Vs. A. K. M. Saiful Islam

Appellate Division Cases

(Criminal)

PARTIES

The State…………………………Appellant.

-vs-

A. K. M. Saiful Islam…………..Respondent.

JUSTICE

Syed J. R. Mudassir Husain C J

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

JUDGEMENT DATE: 21st November 2005

Narcotics Control Act, 1990, Sections 23, 25, 39 The Code of Criminal Procedure Section 173(3B),439

The letter dated 20-08-1998 returned by the Department of Narcotics Control to the

Chief Metropolitan Magistrate is not merely letter, it is a naraji petition, it is not a letter simpliciter, it is an application based on certain facts and circumstances of the case and as such the learned Judges of the High Court Division are wrong in holding that the order of the learned Chief Metropolitan Magistrate dated 28-05-1998 is not a legal order but based on cogent grounds. The High Court Division having not applied its judicial mind in construing the provisions of Section 173(3B) of the Code of Criminal Procedure, which conferred on the Magistrate jurisdiction to direct further investigation and as such the findings and decisions arrived at by the High Court Division are liable to set aside……………..(6)

The letter dated 20-08-1998 returned by the Department of narcotics Control to the

Chief Metropolitan magistrate having considered the letter of the said Director

General rightly directed further investigation on the prayer of such officer (Director

General of Narcotics Control) …………………..(7)

CRIMINAL APPEAL NO.34 OF 2000 (From the judgment and order dated 14-111999

passed by the High Court Division in Criminal Revision No.672 of 1998)

Golam Kibria, Deputy Attorney General, instructed by A. K. M. Shahidul Huq,

Advocate-on-Record ……………For the Appellant

Md. Nawab AH, Advocate-on-Record. ………… For the Respondent

JUDGMENT

1. Syed J. R. Mudassir Husain CJ : This is an appeal by the State arisen out of the leave

granting order dated 12-07-2000 passed by this Division in criminal petition for leave to

Appeal No. 37 of 2000 which was preferred against the judgment and order dated 14-111999 passed by the High Court Division in Criminal Revision No.672 of 1998 making

the Rule absolute upon setting aside the order dated 25-08-1998 passed by the Chief

Metropolitan Magistrate, Dhaka in Sabujbagh PS. Case No.69 (9) 1997 directing to make

further investigation.

2. Facts, in brief, are that Mr. Md. Abdul Mnnan, Inspector, Tejgaon Circle, Dhaka

Metropolitan Area, Dhaka, started Sabujbagh P. S. Case No.69(9) 1997 against the respondent under Sections 23 and 25 of Narcotics Control Act, 1990 on the allegation that while inspecting the register of dangerous drugs of jayson Pharmaceuticals ltd. He found that the respondent for financial benefit approved to lift additional 69,100 ampoules of pathedine and 15,500 ampoules of morphine injections beyond the stipulated quota through 120 transport passes in connivance with some officers and license holders of drug and thus committed an offence under Sections 23 and 25 of the said Act. After investigation, the Investigating Officer submitted a charge-sheet on 28-7-1998 against 17 accused persons but final report in favour of 5 accused persons including the respondent in the said case and the investigating officer prayed for release of those persons from the said case on 20-071998 and the learned Magistrate was pleased to accept the said prayer on that date. Thereafter, the Director General, Department of Narcotics Control wrote letter on 20-081998 to the Chief Metropolitan Magistrate, Dhaka giving naraji petition to the police report and praying for further investigation into the case. The learned Chif Metropolitan Magistrate received the said letter on 25-08-1998 and treated the same as naraji petition and directed to make further investigation by order dated 25-08-1998.

3. Being aggrieved by the same the respondent filed Criminal Revision No.672 of 1998

before the High Court Division under Section 439 of the Code of Criminal procedure. After hearing the parties, the High Court Division, made the Rule absolute and set aside the order of the Magistrate dated 25-08-1998. Against the judgment and order of the High Court Division, the appellant has filed this petition for leave to appeal before this Division. Leave was granted to consider that the High Court Division erred in law setting aside the order of further investigation passed by the Chief Metropolitan Magistrate in view of the provisions of the Section 173(3B) of the code of Criminal Procedure which empowers the learned Magistrate to order further investigation.

4. The director General of Narcotics having power of an officer in charge under Section 39 of the Narcotics Control Act, 19990, the learned Magistrate having directed for further

investigation on an application of Naraji submitted by the Director General, the High Court Division erred in law in setting aside the order of the investigation passed by the learned Magistrate.

5. Mr. Golam Kibria, the learned Deputy Attorney General, appearing for the appellant, contended that in pursuance of the F.I.R. dated 17-09-1997 lodged with Sabujbagh P.S. against the respondent No. 1 and others, police investigated the case and ultimately submitted final report in respect of the respondent and the charge-sheet against others in connection with aforesaid Sadujbagh P. S. Case and under this circumstances Department of Narcotics Control by a letter dated 20-08-1998 requested to the Chief Metropolitan Magistrate for further investigation against the respondent herein. The Chief Metropolitan Magistrate having considered the facts and circumstances of the case and upon perusal of the aforesaid letter, the Chief Metropolitan Magistrate having applied its juridical mind rightly passed an order directing further investigntion under the provision of Section 173(3B) the Code of Criminal procedure which reads as follows: “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (1) has been forwarded to the Magistrate and, whereupon such investigation, the officer in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (1) to (3A) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section(l).” The learned Deputy Attorney General, therefore, contended that the High Court Division committed an error of law in setting aside the order of further investigation passed by the learned Chief Metropolitan Magistrate, and as such, the High Court Division erred in law in setting the order of further investigation on the basis of a letter. He, therefore, argued that for technicalities an offence cannot be allowed to go undetected and an accused can not be allowed to escape prosecution.

6. Learned Deputy Attorney General further argued that the letter dated 20-08-1998 returned by the Department of Narcotics Control to the Chief Metropolitan Magistrate is not merely letter, it is a naraji petition, it is not a letter simpliciter, it is an application based on certain facts and circumstances of the case and as such the learned Judges of the High Court Division are wrong in holding that the order of the learned Chief Metropolitan Magistrate dated 28-05-1998 is not a legal order but based on cogent grounds. The High Court Division having not applied its judicial mind in construing the provisions of Section 173(3B) of the Code of Criminal Procedure, which conferred on the Magistrate jurisdiction to direct further investigation and as such the findings and decisions arrived at by the High Court Division are liable to set aside.

7. Learned Deputy Attorney General further argued that the letter dated 20-08-1998 returned by the Department of narcotics Control to the Chief Metropolitan magistrate having considered the letter of the said Director General rightly directed further investigation on the prayer of such officer (Director General of Narcotics Control). He then refers to the order of.Chief Metropolitan Magistrate passed on 25-08-1998 which is quoted below: (Bangla) He then submits that the order is based on sound reasoning. Mr. Nawab AH, the learned Advocate-on-Record appearing for the respondent, finds difficulty in supporting the impugned of the High Court Division under the aforesaid facts and circumstances of the case.

8. We have considered the submissions and find substance in the argument of learned

Deputy Attorney General and we, therefore, hold that the High Court Division having not

taken into consideration of the facts and law legally decided the case without proper appreciation of the High Court Division committed serious error of law in setting aside the judgment and order of the Chief Metropolitan Magistrate, Dhaka for further investigation.

9. In the aforesaid premises, we find substance in the appeal Accordingly, the appeal is

allowed and judgment and order of the High Court Division is set aside. The aforesaid

Sabujbagh P. S. Case proceeds in accordance with law.

Ed.

Source: IV ADC (2007), 79

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.