Appellate Division Cases
The State, represented by the Deputy Commissioner, Chittagong …………….Petitioner.
Md. Manzurul Alam ……………………………….Respondent
Syed J.R. Mudassir Husain CJ
M.M. Ruhul Amin J
Amirul Kabir Chowdhury J
Order Dated: 23rd May 2006
Section 561A of the Code of Criminal Procedure. Sections 16/32 of the Customs Act. Section 3 (1) foreign Exchange Regulations Act, 1947. 25 (B) of the Special Powers Act, 1974. Rules 6 of the “Passenger (Non Tourists)” Baggage (Import) Rules, 2000.
Section 561A of the Code of Criminal Procedure for quashing the proceeding of Patenga P.S. Case No.9 (5) 2002 under Sections 16/32 of the Customs Act and under Section 3 (1) foreign Exchange Regulations Act, 1947 and 25 (B) of the Special Powers Act, 1974 fded against him and he obtained Rule in the aforesaid Miscellaneous Case …………………(5)
Violating Rules 6 of the “Passenger (Non Tourists)” Baggage (Import) Rules, 2000…………….(7)
Criminal Petition for Leave to Appeal No. 283 of 2005 (From the judgment and order dated 3rd May, 2005 passed by the High Court Division in Criminal Miscellaneous Case No. 5650 of 2003)
Abdur Razzaque Khan, Additional Attorney General, instructed by Abu Sams Md.
Khalequzzaman, Advocate-on-Record …………….For the Petitioner
A.K.M. Naznd Islam, Senior Advocate, instructed by A.K.M. Shahidul Haq, Advocate-on-Record ………………………For the Respondent
1. Syed J.R. Mudassir Husain CJ: This criminal petition for leave to appeal, at the instance of the State, represented by the Deputy Commissioner, Chittagong, is directed against the judgment and order dated 3rd May. 2005 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 5650 of 2003 making the Rule absolute of 2003 pending in the Court of Metropolitan Sessions Judge and Metropolitan Special Tribunal No. 1, Chittagong.
2. The facts leading to this petition are that the respondent was provisionally selected as an Apprentice Mechanic in Bangladesh Biman Corporation vide offer letter dated 26-10-1981 under certain terms and conditions. Thereafter, the respondent after completion of successful Aero Apprentice training was provisionally appointed as Mechanic (Airframe)
in Pay Group-Ill (Technical) of Bangladesh Biman vide appointment latter dated 11-08-1983. Thereafter, on promotion stage by stage he became an Engineer Officer, Pay Group
IX. That the respondent was temporarily suspended from his service vide order dated 16-05-2002 for his being found in possession there 3 Kgs. gold while on duty in BG-022/
16-0502002 flying from Muscat-Chittagong-Dhaka.
3. The Chittagong Airport Customs Authority having searched his body found him carrying 35 gold bars and recovered the same from him and thereafter he was asked to give reply within 96 hours from the date of receipt of the show cause notice. Accordingly, the petitioner replied to the aforesaid show cause notice on 17-06-2002 denying all allegations against him. The petitioner was charge-sheeted on 26-06-2002 vide Annexure-C to which the petitioner give reply on 11-08-2002. The matter was enquired into and the enquiry officer submitted his report on 26-10-2002 vide Annexure-E. Thereafter second show cause notice was issued on 10-11-2002 asking the petitioner as to why he should not be dismissed from service (Annexure-F).
4. The respondent challenging the said show cause notice, charge-sheet and second show
cause notice filed the Writ Petition and obtained Rule, which is till pending for hearing.
5. During the pendency of the writ petition, the respondent filed a Miscellaneous Case
under Section 561A of the Code of Criminal Procedure for quashing the proceeding of
Patenga P.S. Case No.9 (5) 2002 under Sections 16/32 of the Customs Act and under
Section 3 (1) foreign Exchange Regulations Act, 1947 and 25 (B) of the Special Powers
Act, 1974 filed against him and he obtained Rule in the aforesaid Miscellaneous Case.
6. Upon hearing the parties, the learned Judges of the High Court Division made the
Rule absolute and against which this leave-petition has been filed.
7. Mr. Addur Razzaque Khan, the learned Additional Attorney General, appearing for
the petitioner, placed before us the materials and impugned judgment of the High Court
Division and thereafter he submitted that the respondent is employed in Bangladesh Biman Corporation and posted at Biman Engineering Hanger, Engineering Department, ZIA and he is an officer of Pay Group-IX Bangladesh Biman while his was no duty in BG-022/162002 flying from Muscat-Chittagong-Dhaka, he was carrying 245 totals gold violating Rules 6 of the “Passenger (Non Tourists)” Baggage (Import) Rules. 2000. He could import only things valued 100 U.S.S without paying tax but he imported the aforesaid gold violating the aforesaid Rules and he was caught red handed with the gold and as such he committed offence as alleged in the F.I.R. and charge-sheet. Learned Additional Attorney General argued that the High Court Division having failed to apply their judicial mind passed the impugned order illegally and as such the impugned judgment is liable to be set aside.
8. Mr. A.K.M. Nazrul Islam, the learned Senior Advocate appearing for the respondent,
tried to support the impugned judgment, contending that the High Court Division rightly
passed the impugned judgment upon consideration of facts, circumstances and the relevant laws and as such no illegality has been committed by the High Court Division for interference by this Division.
9. The submissions made by the learned Counsel for the petitioner deserve consideration.
Leave is granted upon condonation of delay.
10. Preparation of paper book is dispensed with as prayed for.
11. Stay granted earlier be further extended till disposal of the appeal.
12. The petitioner is directed to make the appeal ready for expeditious hearing.
Source: IV ADC (2007), 349