Appellate Division Cases
(Criminal)
PARTIES
Zoad Miah @ Zayed Ali ………………………Appellant.
-vs-
The State ………………………….Respondent
JUSTICE
Md. Ruhul Amin, J.
M.M. Ruhul Amin, J.
Md. Tafazzul Islam, J.
JUDGEMENT DATE: 6th April, 2004
The Special Power Act 1974, Section 25(1).
The Code of Criminal Procedure, Section 561A.
The Essential Commodities Control Order, 1981, Sections 14 and 15.
Nikunja Bihari vs. Special Tribunal reported in
27 DLR 309.
Because the state failed to exhibit any ceiling regarding quantity of salt and as such the conviction and sentence of the accused appellant under section 25(1) of the Special Powers Act is bad in law as such liable to be set aside by this Court…….. (4)
At the time of seizure of the salt in question there was no ceiling whatsoever prescribing the quantity of salt which one could keep in his possession and further merely 600 Kgs of salt, which amounts to about 16 mounds, were found in the house of the appellant and the learned Special Tribunal Judge as well as the High Court Division failed to consider the above aspect of the matter and so the conviction is illegal on the face of it. Further, the appellant who surrendered before the court on 6.2.2001, is in custody for more than 2 years……………………… (5)
Abdus Sobhan, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record.
……………….For the Appellant.
Abdur Razzak Khan, Additional Attorney General, instructed by Mr. B. Hossain,
Advocate-on-Record………………… For the Respondent.
JUDGMENT
1. Md. Tafazzul Islam, J:– This appeal by leave is directed against the judgment and order dated 1.3.2001 passed by the High Court Division in Criminal Miscellaneous Case No. 1627 of 2001 filed under section 561A of the Code of Criminal Procedure rejecting the prayer for quashing the judgment and order dated 16.2.2000 passed by the learned Special Tribunal Judge, Tribunal No. 3, Gazipur in Special Tribunal Case No. 69 of 1998 by which the appellant was convicted under section 25(1) of the Special Power Act and sentenced to suffer rigorous imprisonment for a term of 7 years and to pay a fine of Tk. 3,000/- in default to suffer rigorous imprisonment for 3 (three) months more.
2. The prosecution case, in short, is that one M.A. Khaleque, Sub-Inspector of Police, Joydebpur Police Station ledged an FIR on 2.3. 1998 stating that he along with other members of the team headed by Mr. Akhtaruzzaman, Magistrate, 1st Class, Gazipur, raided the house of the appellant and on search recovered 600(six hundred) Kgs of salt of various types from the house of the appellant and he then prepared seizure list in presence of the witnesses and then Joydebpur PS. Case No. 1 dated 2.3. 98 was started and after investigation the police submitted charge sheet against the appellant under section 25(1) of the Special Act, 1974.
3. The Senior Special Tribunal Judge Gazipur took cognizance of the offence under section 25(1) of the Special Powers Act, 1974. The learned Special Tribunal Judge No. 3, who heard the case on transfer, framed charge against the appellant under section 25(1) of the Special Powers Act in the absence of the appellant as he, after obtaining bail earlier, failed to appear. The prosecution examined in all 7 witnesses and after hearing the learned Special Tribunal Judge No. 3 found the appellant guilty under section 25(1) of the Special Powers Act 1974 and sentenced him to suffer rigorous imprisonment and to pay fine as stated earlier.
4. The appellant then filed Criminal Miscellaneous Case No. 1627 of 2001 under section 561A of the Code of Criminal Procedure stating inter alia that on 1.9.1999, being attacked by viral hepatitis, he went to Dr. Md. Kamaruddin, Medical Officer, Sadar Hospital, Gazipour on 2.9.1999 and was under his treatment upto 28.2.2000 and even then he was not fully cured and could not move from one place to another due to his feeling sicken and there having no other competent person to look after, he was not able to take any step in the above case. Moreover he again being attacked by the same viral hepatitis remained under the treatment of a village Kabiraj and he became fully cure only on 6.2.2001 and then came to know that he has been convicted under section 25(1) of the Special Powers Act and was sentenced as aforesaid and on that very day the appellant surrendered before the learned Special Tribunal Judge No. 3 and prayed for bail which was rejected and the appellant is in custody since 6.2.2001. Subsequently the appellant intended to file a regular appeal but since the statutory period for filing appeal expired, the petitioner had to file application under section 561A of the Code of Criminal Procedure praying for quashing the above judgment and order dated 16.2.2000. A Division Bench of the High Court Division, after hearing, rejected the above case summarily. Then leave was granted by this Division on the following terms: “Because the state failed to exhibit any ceiling regarding quantity of salt and as such the conviction and sentence of the accused appellant under section 25(1) of the Special Powers Act is bad in law as such liable to be set aside by this Court.”
5. Mr. Abdus Sobhan, the learned counsel appearing for the appellant, has submitted that P.W.I in his deposition stated that the appellant kept those salt in his house at Gazipur for smuggling and other P.Ws. also corroborated the above statement of the P.W. 1 in the above respect whereas Gazipur District is far away from the border and the appellant was also not convicted for smuggling under section 25(2) but for hoarding under section 25(1) of the Special Power Act. Mr. Sobhan further submits that at the time of seizure of the salt in question there was no ceiling whatsoever prescribing the quantity of salt’ which one could keep in his possession and further merely 600 Kgs of salt, which amounts to about 16 mounds, were found in the house of the appellant and the learned Special Tribunal Judge as well as the High Court Division failed to consider the above aspect of the matter and so the conviction is illegal on the face of it. Further, the appellant who surrendered before the court on 6.2.2001, is in custody for more than 2 years.
6. Mr. Abdur Razzak, the learned Additional Attorney General appearing for the respondent, frankly concedes that he finds it difficult to defend the conviction. However he brought to our notice sections 14 and 15of the Essential Commodities Control Order, 1981 and also the case of Nikunja Bihari vs. Special Tribunal reported in 27 DLR 309.
7. As it appears P.W.I in his deposition stated that the appellant kept those salt in his house at Gazipur for smuggling which appears to have been corroborated by other P.Ws. However the fact remains that Gazipur District is for away from border and moreover the appellant has not been convicted for smuggling under section 25(2) but for hoarding under section 25(1) of the Special Power Act.
8. Section 14 of the above Essential Commodities Control Order, 1981 which controls hoarding provides as follows:14. Fixing maximum quantity- The Director or any officer authorized in this behalf by the Government may, by notification in the official Gazette, fix in respect of any scheduled article(a) the maximum quantity which may at one time be possessed by a producer, importer or dealer, and (b) the maximum quantity which may in one transaction be sold to any person.
9. As it appears on 2.3.1998, when 600 kg of salt was recovered from the house of the appellant, there was no order providing the ceiling in respect of retention of salt.
10. Section 15 of the above Order 1981 provides as follows:15. General limitation on quantity to be possessed at one time,-(l) No person other than a dealer or producer shall keep in his possession at any one time a greater quantity of scheduled article as the Director may, from time to time, specify than the quantity necessary for the reasonable needs of himself and his family, for a period up to three months or such longer period as may for special reason in a particular circumstances be considered a reasonable period. 11. (2) For the purposes of clause (1), the expression “reasonable needs” includes the requirement for fulfillment of social, religious or other customary obligations.
12. As it appears the definition of “dealer” as given in the above Order 1981 is much wide and there is also nothing on record that the appellant was not a dealer of salt.
13. Regarding the applicability of section 25( 1) of Special Powers Act in the present case, the case of the prosecution is that 600 Kgs of salt was found in the house of the appellant but the prosecution did not produce any order to show that at the time of seizure he was not entitled to keep 600 kgs of salt.
14. The facts of the deision reported in 27 DLR 309 cited by the learned Additional Attorney General are that one Nikunja Bihari, the appellant in the above case, along with another was arrested on 3.9.74 as the police found in his possession 26 bags of salt weighing abut 52 maunds and police submitted charge sheet on 15.9.74 under section 6 of the Control of Essential Commodities Act, 1956 (Act No. 1 of 1956) read with Section 25 of the Special Powers Act, 1974 and then Special Case No. 17 of 1974 was registered against Nikunja Bihari and another under section 25( 1) of the Special Powers Act and Nikunja Bihari challenged the validity of the proceeding taken against him in the above Special Tribunal Case No. 17 of 1974 as being without any lawful authority.
15. The High Court Division found that clause (a) of the Notification No. 234 MFCS(XIV) Salt-4(74) dated 26th August 1974 published in the Gazette on 5th September, 1974 in exercise of the powers conferred by clause 7 of the Foodstuffs Price Control and Anti-Holding Order, 1953 fixed the maximum limit of retention of salt providing that a person, who is a retailer, may retain 150 mounds of salt and accordingly since Nikunja Behari was not found in possession of any quantity in excess of the quantity permitted to be retained he has committed no offence and cannot be prosecuted and further, the provision contained in section 25 of the Special Powers Act which provides the penalty for hoarding or dealing in black market are not attracted in the case of Nikunja Beheri who was found in possession of only 52 maunds of salt which is much less than the permissible limit under the aforesaid clause of the Notification. The High Court Division accordingly declared that the proceedings taken against Nikunja Beheri in Special Tribunal Case No. 17 of 1974 has been taken without any lawful authority and is. therefore, of no legal effect.
16. In the present case there being no prohibition against retention of salt of 600 K.gs. theconviction and sentence dated 16.2.2000 passedby the Special Tribunal Judge No. 3 Tangail capnot be sustained.
17. In view of above the appeal is allowed arid the judgment and order dated 16.2.2000 passed by the learned Special Tribunal Judge No. 3, Gazipur in Special Tribunal Case No. 69 of 1998, convicting the appellant under section 25(1) of the Special Powers Act is set aside and the appellant is acquitted and he be set nt liberty at once.
18. Since the appellant is in custody from 6.2.2001, an advance order of release may be issued.
Ed.
Source: I ADC (2004), 547