Appellate Division Cases
Wilfredo M. Rosales and another ………………………..Petitioners
The State …………………………………………………Respondent
Md. Ruhul Amin. J
K.M. Hasan. J
Md. Fazlul Haque. J
JUDGEMENT DATE: 24th February, 2003
The Special Powers Act Section 25B (1), (2).
50 DLR (AD) 108. BLD 1995 (HCD) 224.
On arrival inside Bangladesh one having in his possession contraband goods or quantity of goods beyond permissible quantity import where of requires permission and that the articles so brought is livable with duty required to make declaration thereof the prescribed authority inside the port of arrival or at the customs station………………. (3)
Criminal Review petition No. 14 of 2002. (From the judgment and Order dated April 16, 2002 passed by the Appellate Division in Criminal Petition for Leave to Appeal No. 183 of 2001).
Kazi Shahadat Hossain .Senior Advocate, instructed by Md. Nawab AH, Advocate-onrecord,………………….For the Petitioners
Not represented………………. Respondent
1. Md Ruhul Amin, J :- This petition for review is directed against the judgment and order date April 16, 2002 dismissing the petition for leave to appeal No. 183 of 2001 filed against the judgment and order of August 16, 2001 of a Division Bench of the High Court Division in Jail Appeal No. 1727 of 1997 dismissing the same. The Jail Appeal was filed against the judgment and order dated June 24, 1997 in special Tribunal Case No. 137 of 1994 passed by the Special Tribunal No. 3, Chittagong convicting the petitioners under Section 25B (1) of the Special Powers Act. 1974 and sentencing them to suffer rigorous imprisonment for 14 years and 10 years each and to pay fine of Tk. 10,000/- each, in default to suffer rigorous imprisonment for one month more respective. The Special Tribunal by its aforesaid judgment and order confiscated 150 gold bars to the State.
2. Prosecution case in brief was that while the petitioners were passing through Gate No. 5 of the Chittagong port Jetty, the guards on duty stopped them and found something hard tied with their thighs. The guards took the petitioners to the nearby customs preventive officer and therefore the petitioners were taken to gate No. 4. police personnel of Bandar Police Station were informed over telephone and the police personnel on their arrival at gate No. 4 searched body of the convicts and found gold bars of 10 tolls each. Since the convicts could not account for the contraband gold bars found in their possession, the gold bars were seized and the convicts along with the incriminating materialswere taken to the Bandar Police Station and thereafter regular case was started upon filing formal FIR against the petitioners.
3. On completion of investigation prosecution report was filed against the petitioners under the provision of Customs Act as well as under the provision of Special Powers Act. In due course papers were sent to Special Tribunal. On Conclusion of trial the petitioners were convicted and sentenced as stated herein before. Their appeal before the High Court Division was without any success. This Division upon hearing the learned Counsel of the petitioners dismissed the petition for leave to appeal upon observing that convict petitioners contention that while they were going to make declaration about the contraband goods they were apprehended does not inspire credence since there was no necessity of going out of the jetty area for making declaration about the contraband goods since customs office was very much inside the Jetty area and that if they had the mind to make declaration as regards the contraband goods they would have gone to the Customs office inside the Jetty area instead of making attempt to go outside the Jetty area without making declaration of the contraband goods at the appropriate place. This Division while dismissing the petition for leave to appeal also considered the contention of the convicts that they were arrested with the contraband goods inside Bangladesh more than 5 miles off from the boarder belt areas of Bangladesh territory and as such they can not be prosecuted under Section 25B (1) of the Special Powers Act and rejected the said contention upon observing that requirement of law is that on arrival inside Bangladesh one having in his possession contraband goods or quantity of goods beyond permissible quantity import where of requires permission and that the articles so brought is livable with duty required to make declaration thereof the prescribed authority inside the port of arrival or at the customs station but the convicts did not do so. They tried to leave the customs area without making declaration and at that time they were apprehended.
4. The learned Counsel for the petitioner submits that as the petitioners were apprehended while inside Bangladesh 5 miles away from boarder belt this Division was in error in maintaining conviction and sentence of the convicts under Section 25B (1) of the Special Powers Act instead of altering the conviction to one under Section 25B (2) of the Special Powers Act and thereupon in not passing sentence there under for shorter period. The contention so made has already been considered by us while dismissing the leave petition and we find no reason to alter the sentence passed by the Special Tribunal to one under Section 25 B (2) of the Special Powers Act. The learned Counsel also could not make out a case in support of the aforesaid contention. In support of the aforesaid contention learned Counsel has referred to a case reported in BLD 1995 (HCD) 224. The fact of the said case is distinguishable and as such the decision so referred to by the learned Counsel has no relevancy. The learned Counsel also submitted that in view of the statement made by the petitioners explaining the situation relating to their apprehension with the contraband goods the sentence so imposed is harsh and that the explanation so offered merits consideration for awarding of sentence for leaser period and in support of the contention that in appropriate case on consideration of the explanation offered by the convict (s) this Division taking lenient view of the matter has reduced the sentence referred to a case reported in 50 DLR (AD) 108.
5. Facts in the background where of in the reported case sentence was reduced is absent in the instant cases since the explanation offered by the petitioners as regards their apprehension was found to be not correct and as such was left out of consideration while Tribunal awarding sentence. In view of the discussions made hereinabove there is no substance in the petition. Accordingly the petition is dismissed.
Source: I ADC (2004), 369