Case No: Civil Appeal No. 25 of 1999
Judge: Mohammad Fazlul Karim ,
Court: Appellate Division ,,
Advocate: Mr. A. J. Mohammad Ali,Mr. Mahbubur Rahman,,
Citation: 58 DLR (AD) (2006) 50
Case Year: 2006
Appellant: Government of Bangladesh
Respondent: Amora Holding Inc. Panama
Delivery Date: 2004-7-14
Syed JR Mudassir Hussain CJ
Md Fazlul Karim J
Amirul Kabir Chowdhury J
Abdur Rahim Chowdhury
Bangladesh Bank and others
July 14th, 2004.
The Special Powers Act, 1974
The Customs Act, 1969
The accused has been acquitted of the charge of smuggling in the Special Tribunal Case under the Special Powers Act, the offence being against the accused persons but not against the smuggled goods. This case being under section 156 of the Customs Act for bringing smuggled goods inside the country. Section 156 of the Customs Act is directed against the goods itself, which were not subject matter of the case under section 25 of the Special Powers Act. Provisions in both the Acts are distinct and different. One Act is in personem and the other is in rem and, as such, acquittal and conviction under one Act will not automatically operate as acquittal or conviction or a bar in respect of the other proceeding under another Act………(13)
AJ Mohammed Ali, Additional Attorney-General, (Probir Neogi, Advocate with him), instructed by B Hossain, Advocate-on-Record—For the Appellants.
Mahbubur Rahman, Senior Advocate instructed by ASM Khaleque, Advocate-on-Record—For the Respondent No. 1.
Ex-parte—Respondent Nos, 2 & 3.
Civil Appeal No. 25 of 1999
(From the judgment and order dated 10th June 1998 passed by the High Court Division in Writ Petition No. 1515 of 1988).
Md. Fazlul Karim J.
1. This appeal by leave arose out of impugned judgment and order of the High Court Division dated 10-6-1998 making the rule absolute in Writ petition 1515 of 1998 and directing return of the Bank guarantee furnished by the writ-petitioner and the sale proceed of the confiscated vessel and goods found therein to the respondent.
2. Messrs Amora Holding Inc., the respondent, filed writ petition No. 1515 of 1998 under Article 102 of the Constitution through its local agent Messrs Mariner Bangladesh Ltd. impugning the order dated 16-6-88 passed by the respondent Nos. 1-3 to the writ-petition in its revisional jurisdiction under section 196B of the Customs Act, 1969 setting aside the order dated 28-1-88 passed by Member, (Appeal and Revision). National Board of Revenue in Appeal No. 1 (78) Cus-(6, 87)reversing the order dated 4-6-97 of the Collector of Customs, Chittagong in so far as it related to confiscation of vessel MV Alba with the goods and penalty of Taka 50,00,000 imposed on the Captain of the vessel. The case of the writ petitioner was that the vessel AL-Sara sailed for Chittagong port from Penag with cargo for Chittagong, Colombo and Maldives Ports. The local agent on receipt of information regarding sailing of the vessel applied to the Director General, Department of Shipping under Bangladesh Flag Vessels (Protection) Rules, 1982 for waiver certificate and the same was issued on 21-12-85, the local agent applied to the Harbour Master, Chittagong Port Authority, for allotting a suitable berth and a pilot to bring the said vessel in from the outer Anchorage. The agent also applied on 21-12-85 to the Assistant Collector of Customs, Chittagong for importer Rotation and the Customs Authority allotted Import Rotation No. 1118/85. The Master of the vessel received a wireless message during the voyage in the mid-sea to change the name of the vessel MV AL Sara to MV Alba and he displayed the name of the vessel as MV Alba. When on 23-12-1985 in the evening she reached at a point towards Chittagong Port due to darkness and failure to contact the local agent, she stopped her voyage before entering into the Customs waters of Bangladesh. The customs authority, Chittagong on 23-12-85 at 3-00 PM got secret information regarding discharging of smuggled goods by a foreign vessel. On such information, a squad of customs officers started to locate the vessel with naval, gunboat BNS Tamjeed and at 9-00 PM saw the vessel MV Alba in anchorage in the sea surrounded by fishing trawlers. Most of said trawlers on seeing the gunboat fled away except MV Shah Amanat and when the gunboat BNS Tamjeed was busy in arresting MV Shah Amanat, MV Alba tried to escape, Tamjeed, started firing upon MV Alba causing damage to her and injuries to the Master and Chief Officer of the Vessel. The customs officers brought the vessel and trawler MV Shah Amanat to the Naval Jetty at Chittagong on 24-12-85 at 11-00 AM and the Master and the Chief Officer were sent to hospital for treatment. The customs authority prepared seizure list of the seized vessel and the cargoes. Thereafter, a notice was served upon the said Captain and the Chief Officer of MV Alba by the Collector of Customs to show cause as to why penalty would not be imposed on them for smuggling. The Captain and the crew members replied to the show cause notice denying all the allegations stating that as per instructions of the owner they loaded cargoes with valid documents for different ports and sailed for Colombo via Chittagong. The Collector of Customs after hearing the parties by his order dated 4-6-1987 confiscated MV Alba and the cargoes except the coconut oil and imposed a fine of Tk. 50,00,000 upon the Captain. On appeal by the respondent, the Member (Appeal/Revision) of the National Board of Revenue set aside the order in so far as it relates to confiscation and the fine by his judgment dated 21-1-88. Against the said order, the Government petitioner filed a revision petition which was heard by respondent Nos. 1-3 of the writ petition and by an order dated 16-6-88 they set aside the order of appellate authority and restored the order of the Collector of Customs. Abdul Alim Mallick, a Custom Inspector, also filed a complaint petition on 2-1-86 against the Captain and the crew members of MV Alba and others under section 25B of the Special Powers Act, 1974. The learned Special Judge, however, on hearing of the case by his judgment and order dated 22-5-88 acquitted the accused persons from the charge of smuggling.
3. The writ-respondent-appellant contested the Rule by filing an affidavit-in-opposition stating, inter alia, that for MV Alba no import rotation number was obtained and import rotation No.1118/85 was given to MV Al Sara and the customs house had no knowledge of MV Alba which stopped inside Bangladesh territorial water near Kutubdia with oblique motive and BNS Tamjeed found her surrounded by several fishing trawlers and all but one MV Shah Amanat fled away on the arrival of the gunboat BNS Tamjeed, MV Shah Amanat was arrested. And while BNS Tamjeed was busy in arresting MV Shah Amanat, MV Alba tried to flee away out of the territorial waters of Bangladesh. To stop her BNS Tamjeed started firing and captured MV Alba inside the territorial water of Bangladesh. The Customs authority found huge quantity of contraband items in MV Alba and seized her trawler MV Shah Amanat and the goods on the vessel. As those goods were brought for smuggling the customs authority imposed penalty and confiscated the goods and the vessel.
4. The writ-petitioner also filed an affidavit-in-reply mostly reiterating the statements made in the writ-petition stating that before the Special Tribunal, no evidence was produced regarding location of arrest of the vessel MV Alba and the revisional authority has no jurisdiction to entertain new evidence. The Special Tribunal on the finding that the vessel was arrested beyond the territorial waters of Bangladesh acquitted the accused persons and the appeal preferred by the appellant against that order was dismissed. Leave was granted to consider the submissions as under:
6. At the hearing of the appeal Mr. AJ Mohammad Ali, the learned Additional Attorney-General appearing for the appellant submitted that the goods having been confiscated by the Collector of Customs on 4-6-1987 and the said order having been set aside by the appellate authority on 21-1-1998 the criminal case having been decided on 22-5-1998 reference having been made by the criminal Court about the order of appellate authority dated-21-1-1988 thereafter, the Government in its revisional power having set aside the order of the appellate authority dated 28-1-1988, the High Court Division committed a serious error in relying upon the decision of the criminal Court in deciding the legality of the order dated 16-6-1988 passed by the Court in exercise of its revisional jurisdiction. The learned Additional Attorney-General further submitted that the Government in exercise of its revisional power having set aside the order of the appellate authority on 28-1-1988 considering relevant papers of the vessel in respect of the goods and not only upon the Map prepared by the Navel authority, the High Court Division committed a serious error declaring the order of the Government holding that the Government has not acted legally in relying upon the Map prepared by the Navel authority. The learned Additional Attorney-General lastly, submitted that the admitted fact that the ship was coming to Chittagong port for discharge of its cargo and subsequently the ship having been found breaking its bulk without arriving to the place of his berth and the master of the vessel and its owner holing not been able to produce relying papers for the goods which it was carrying and the fact of arresting the ship within the territorial water of outside territorial water is not at all relevant as the vessel was arrested within the territorial limit of Bangladesh in the instant case and the High Court Division committed an error in not putting much importance upon the Map prepared by the Navel authority but on considering the annexures of the writ petition itself.
7. Mr. Mahbubur Rahman, the learned Counsel appearing for the respondent has, however, submitted that in revisional jurisdiction under section 196B of the Customs Act, the Government could call for the records and examine the same only to decide as to whether there was any error but those error should be apparent on the face of the records and further such records are records which were available before the collector of customs and member NBR and not the records gathered in the revision by further investigation. The learned Counsel further submitted that in the charge framed in Special Tribunal Case No.69 of 1987 against the Master, Chief Officer and the Engineer of MV Alba, it was categorically stated that the vessel with cargoes were seized by the customs authority in the Bay of Bengal within the Economic Zone of Bangladesh adjacent to the territorial water and in the FIR against the master and crews of the said vessel, out of which the aforesaid Special Tribunal Case No.69 of 1987 arose, there is also no mention as to at what location in the sea the said vessel was seized by the customs authority and moreover, none of the witness in the said case during their depositions could state the exact location of the vessel in the sea at the time of its seizure. The learned Counsel lastly, submitted that the Collector of Customs, Chittagong in his order dated 4-6-87 did not give any finding as to whether the said vessel was seized within the customs water of Bangladesh. The Member NBR in his judgment and order dated 28-1-1988 on the basis of the record available found that there was doubt as to where from the said vessel was seized. But the respondent Nos. 2-4, in the revision, on the basis of one map alleged to have been supplied by Bangladesh Navy during the hearing of the revision found that the vessel was seized from longitude 21.06 and latitude 90.31 which is a new fact and not urged either before the appellate authority i.e. Member NBR or even before the Special Tribunal, Chittagong and no such map or papers were also seized by the customs authority.
8. It appears that the vessel in question was detected by the Bangladesh Navy BNS Tamjeed surrounded by several trawlers and on its approach towards the vessel all other trawlers except Shah Amanat fled away and while BNS Tamjeed was busy in arresting Shah Amanat, the vessel in question MV Alba tried to flee out of the territorial water of Bangladesh and in order to stop doing so BNS Tamjeed had to shot fires and ultimately captured MV Alba inside the territorial water of Bangladesh. The said vessel along with trawler were scored within custom barrier and on search by the custom authority found huge quantity of contravened items in vessel MV Alba against which there appears no mention of the goods in the manifest. The Customs authority on search having found the goods board the vessel for smuggling imposed penalty and confiscated the goods and the vessel. The Captain and crews were, however, prosecuted for smuggling the goods under section 25B of the Special Powers Act and though the respondent having denied to have arrested within the territorial water of Bangladesh but nothing including the log book of the vessel specifying the place where it stood stationed was produced excepting a general denial of the vessel alleging having been stationed outside the territorial water of Bangladesh. The said fact, in view of the assertion of the appellant that the vessel was stationed within the Bangladesh territorial water whereupon, it was arrested by BNS Tamjeed along with MV Shah Amanat and fact of arrest belies the belated assertion of the respondent. The Bangladeshi trawler along with seized vessel were confiscated by the custom authority, but in appeal the same having been reversed, on a further revision therefrom before the authority the appellant produced the log book of BNS Tamjeed showing that the vessel was arrested well inside the Bangladesh territorial Water. The learned Counsel for the respondent found fault with the production of the logbook at the stage of revision on the plea that the same did not form part of the record required for the disposal of the revision and, as such, the revisional authority has illegally resorted to the said logbook. Admittedly, the log book was produced in reiteration of the assertion of the appellant that the vessel in question was arrested within the territorial water of Bangladesh and the log book which has been prepared in the usual official course of business, carries a presumption that the official acts were done regularly to support the case of the appellant as to the point or place where the respondent's vessel was found and arrested and that the map in question was produced to ascertain the location of the vessel in order to resolve the material issue as to the place of arrest inasmuch as there was no challenge regarding the genuineness of the map either before the revisional authority or before the High Court Division but the High Court Division acted without jurisdiction in holding that the revisional authority had no power to take into consideration the map. The fact that the vessel was within the Bangladesh territory is also borne out by the fact that the vessel was found encircled by the trawlers within the territorial water of Bangladesh and at least one out of the trawlers were seized along with vessel which also go to show that the vessel was at the place of arrest shown in the map prepared by the BNS Tamjeed.
9. Admittedly, the ship carried huge amount of contravened goods of various types having no bearing to its manifest inasmuch as the goods have not been found place in the manifest supplied by the Captain and the Captain also could not explain the purpose of carrying those goods without any manifest and had not stated at the time of seizure that the cargo were shipped for another destination or that the manifest of goods of the ship was awaiting and accordingly, the goods were seized from the vessel as controversial goods.
10. In view of the above, we do not find any cogent reason why the said unaccounted for huge quantity of goods brought by the vessel should be left out of the manifest while going into any port except for the purpose of smuggling. The circumstances leading to the conclusion that the goods were brought inside the Bangladesh for the purpose of smuggling is not incompatible in the facts and circumstances of the case and, as such, the circumstances are so strong as to lead to that inference and no other conclusion other than that the said goods were brought inside Bangladesh for the purpose of smuggling could be arrived at.
11. The aforesaid circumstances lead to the inevitable conclusion that the vessel in question was carrying the huge quantity of unmanifested goods for attempted smuggling of the same inside Bangladesh, even without the payment of custom duties and taxes leviable thereon within the meaning of smuggling as contemplated under section 2(5) of the Customs Act, 1969 and the same is an offence as enumerated under clause 95(6) of the Custom Act.
12. The learned Counsel for the respondent, however, has submitted strenuously relying on the judgment and order of the High Court Division affirming the order passed by the Special Tribunal acquitting the Captain and crews of the vessel from the charge of smuggling under section 25B of the Special Powers Act that the goods could not be the subject-matter of smuggling as the master and the crews of the vessel have been acquitted of the charges of smuggling.
13. It may be noted here, that the accused were charged for the offence of smuggling as the persons committing the offence and that it appears from the judgment and order of the Special Tribunal that the accused has been acquitted of the charge of smuggling which has been maintained by the High Court Division but the charge for the offence was against the person and not against the smuggled goods itself which has been the subject-matter of the instant case under section 156 of the Customs Act for bringing the goods inside the Country for smuggling or for evading the payment of the custom duties and VAT etc. Section 25 of the Special Powers Act is designed towards a person or persons, i.e. whoever, in breach of any prohibition or restriction imposed by or under any law for the time being in force or evading payment of customs duties or taxes leviable thereon under any law for the time being in force bring within Bangladesh any goods shall be punishable but the offence under section 156 of the Customs Act is directed against the goods itself. Admittedly, the goods in question were not the subject matter of the case under the Special Tribunal Acts wherein only the Captain and crew of the vessel in question carrying smuggled goods were implicated. The provisions of both these acts are distinct and different. One acts in personem and other acts in rem and, as such, acquittal or conviction under one Act will not automatically operate as acquittal or conviction or a bar in respect of other proceeding under another Act. The custom authority acting under section 156 of the Custom Act was empowered to deal with the goods in question seized as contraband goods bringing inside the territory for the purpose of evading payment of taxes and duties etc.
14. The custom authority by its order dated 16-6-1988 found on consideration of materials on record that on 21-12-1985, the manifest of the vessel was filed in the name of MV Al Sara and there is nothing on record to show that the name of the ship was changed to MV Alba prior to that date, for otherwise the manifest would have been issued in the name of MV Alba. It is curious to note here that the said manifest did not include a huge quantity of cigarette cartoons numbering one and a half (1.5) lac together with certain other undeclared prohibited goods. High Court Division has undoubted exceeded its jurisdiction in deciding certain disputed questions of fact in exercise of its jurisdiction in certiorari.
15. In view of the above, we are of the view that the High Court Division really and as a matter of sat over in appeal over the judgment of the appellate authority and made the Rule absolute in excess of its jurisdiction under writ of certiorari and accordingly, the impugned judgment is not sustainable in law and the same is accordingly, set aside and accordingly, the Rule is recalled.
In the result, the appeal is allowed without any order as to costs.