Md. Abdus Sobhan Vs. Government of Bangladesh & ors., 2018(1) LNJ 196

Case No: Writ Petition No. 3816 of 2015

Judge: Mohammad Ullah, J.

Court: High Court Division,

Advocate: Dr. Kazi Aktar Hamid & Mr. Tapash Kumar Biswas, DAG,

Citation: 2018(1) LNJ 196

Case Year: 2017

Appellant: Md. Abdus Sobhan

Respondent: Government of Bangladesh and 11 (eleven) others

Subject: Customs Act & Constitution of Bangladesh, 1972

Delivery Date: 2018-06-03

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Quazi Reza-Ul Hoque, J

And

Mohammad Ullah, J

Judgment on

09.05.2017

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Md. Abdus Sobhan

...Petitioner

-Versus-

Government of Bangladesh and 11 (eleven) others

...Respondents

Customs Act, (IV of 1969)

Section 156

Since the gold ornaments were not seized or confiscated by the customs authority under any provisions of the customs Act and no proceeding has initiated by the customs authority with regard to the confiscation of the gold ornaments and as such there is no question has arisen to deal with the matter of releasing or delivery of the ornaments to its original owner by the customs authority. If the goods as confiscated by the BGB personnel were determined as smuggled one by the customs authority only then it could have been confiscated the same for breach of the particular provision of the Customs Act.                    . . .(8)

Constitution of Bangladesh, 1972

Articles 40 and 102

Subject to any restriction imposed by law every citizen has the right to conduct any lawful trade or business. This right of a citizen is a constitutional right which cannot be infringed by the intervention of the unlawful activities of the respondents. Accordingly, the Rule is made absolute. The respondents No. 3 and 12 are hereby directed to handover the seized gold ornament to the petitioner within 30 (thirty) days from the date of receipt of a copy of this judgment.                           . . . (7 to 10)

Dr. Kazi Aktar Hamid with

Mr. A.Q.M. Sohel Rana, Advocates

...For the petitioner

Mr. Tapash Kumar Biswas, DAG with

Mr. Titus Hillol Rema, AAG and

Mrs. Mahmuda Pervin, AAG

… For the respondent No. 2

 

JUDGMENT

On an application under Article 102 of the Constitution, this Court issued the Rule in the following terms:

Let a Rule Nisi be issued calling upon the respondents to show cause as to under what authority the respondent Nos. 2, 5-11 have seized the property of the petitioner thereafter without initiating any procedure or depositing the same to the Government treasury in time and withholding those for 13(thirteen) days on 10.08.2014 deposited the same at the Government treasury being No. 10/2014 dated 10.08.2014 and why the respondents shall not be directed to deliver the Jewelleries of the petitioner now being kept in Government treasury under Treasury No. 10/2014 dated 10.08.2014 and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.          The facts necessary for disposal of the Rule, as has been stated in the writ petition, in short, are that the petitioner is a businessman having licence to deal in gold business and he is a proprietor of Gousia Jewelers located at Nolta Bazar, Kaliganj, Satkhira and is a tax payee having TIN No. 331547407541/2014-2015/103. The petitioner usually purchased gold made ornaments from different markets of Dhaka City and used to carry the same to his jewellery for retailing. In the usual course of business on 27.07.2014, the petitioner bought different types of gold made ornaments measuring 1153.72 grams worth Taka 51,45,475/-(Taka Fifty one lac forty five thousand four hundred seventy five)  from a wholesaler, namely, Priya Parl House Jewelers located at Mascot Plaza, Uttara, Dhaka. Thereafter Md. Abdul Malek an employee of the petitioner’s shop, carried the said gold made ornaments from Dhaka to Satkhira. On the following day, i.e. on 28.07.2014 while the said employee of the petitioner was carrying the said gold made ornaments from his house to the Jewellery Shop, the respondents No. 5-10 being BGB personnel illegally stopped him and made him forcefully bound to handover the said gold made ornaments to them in spite of showing valid challan of the ornaments. Soon after the occurrence, the petitioner communicated with the local Police Station and local customs authority who informed that the said ornaments were not deposited to them by any person. Later on, the petitioner communicated with the respondent No. 4, Commanding Officer, BGB, Satkhira and asked him to handover the said ornaments but he did not take any steps for handing over the same. Thereafter on 10.08.2014, the petitioner filed CRP Case No. 238 of 2014(Kali) before the Senior Judicial Magistrate, Satkhira under section 523 of the Code of Criminal Procedure, 1898 (the Code) against the respondents No. 5-10 for getting  delivery of the gold made ornaments taken by the BGB personnel. After obtaining the complaint, the learned Senior Judicial Magistrate examined the petitioner under section 200 of the Code and directed the Officer-in-Charge of Kaliganj Police Station to hold an inquiry about the allegation raised by the petitioner with regard to seizing of the gold made ornaments and to submit a report to that effect. On the self-same day, i.e. on 10.08.2014, the BGB personnel deposited the said ornaments to the District Treasury through Treasury Registration No. 10 of 2014. One Md. Mohsin Tarafdar, Sub-Inspector of Police, Kaliganj Police Station, Satkhira during inquiry recorded statements of 8(eight) witnesses under section 161 of the Code and after inquiry into the matter submitted report on 22.09.2014 to the learned Senior Judicial Magistrate, Cognizance Court No. 2, Satkhira contending, inter alia, that the allegation as raised by the petitioner appears to be true and the petitioner is a genuine gold businessman at the locality. Having received the inquiry report, the learned Senior Judicial Magistrate rejected the prayer of the petitioner  made under section 523 of the Code holding, inter alia,  that the petition has been preferred  regarding recovery of smuggling  goods; which comes within the ambit of Customs Act, 1969 and it has no jurisdiction to deal with the matter. Thereafter the petitioner approached this Court and   obtained the Rule as stated above.

3.          The Rule is contested by the respondent No. 2, Director General of BGB through Mr. Titus Hillol Rema, learned Assistant Attorney General who filed an affidavit-in-opposition controverting the statements of the writ petition.

4.          Dr. Akter Hamid, leaned Advocate appearing for the petitioner submits that without complying any legal formalities and any assistance of law, BGB personnel illegally confiscated the gold made ornaments of the petitioner who is a genuine gold businessman at Kaliganj, Satkhira. Mr. Hamid next submits that in spite of showing valid challan of the ornaments, the respondents No. 6-11 illegally confiscated the same and retained in their custody unlawfully for about 13(thirteen) days therefore the seizing of the ornaments is liable to be declared illegal and without jurisdiction. The learned Advocate drawing our attention to the police inquiry report dated 22.09.2014 submits that on an inquiry it is revealed that the petitioner is  a genuine gold businessman having jewellery shop located  at Kaliganj, Satkhira  and as such seizing of the ornaments by BGB personnel is liable to be declared illegal and without lawful authority. The learned Advocate lastly submits that since the petitioner is a genuine gold businessman and the confiscated gold is not the smuggled one which is retained in the District Treasury without any process of law and as such a direction should be given to the respondents to handover the same to the petitioner.

5.          Mr. Titus Hillol Rema, learned Assistant Attorney General appearing for the respondent No.2 submits that  the ornaments  seized by the BGB personnel is a smuggled  one and the law enforcing agency rightly confiscated the same.

6.          We have heard the submissions of the learned Advocates for the parties and perused the writ petition, other materials on record including the documents filed by the petitioner. It appears that the petitioner is doing gold business having a jewellery shop located at Nolta Bazar, Kaliganj, Satkhira who produced Trade Licence (annexure-A), a licence granted under paragraph 5 of the Gold (Procurements, Storage and Distribution) Order, 1987  issued from the office of the Deputy Commissioner, Satkhira (annexure-A-1), TIN Certificate (annexure-A-2) and a copy of Challan (annexure-B) to show that the petitioner purchased the ornaments in question from Priya Parl House Jewelers, Mascot Plaza, Uttara, Dhaka. On the basis of a complaint made under section 523 of the Code, the learned Senior Judicial Magistrate, Satkhira examined the complainant and directed to conduct an inquiry with regard to the allegations made by the petitioner. Accordingly one Md. Mashin Tarafdar, Sub-Inspector of Police, Kaliganj Police Station, Satkhira after inquiry into the matter submitted a report to the Senior Judicial Magistrate, Cognizance Court No. 2, Satkhira. The relevant portion of the report needs to be incorporated in our judgment for arriving at a conclusion with regard to the claim of the petitioner. The relevant portion of the said report dated 22.09.2014 (annexure-F to the writ petition) are reproduced below:

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7.          The learned Senior Judicial Magistrate after obtaining the report quoted above refused to release or deliver the ornaments to the petitioner observing, inter alia, that since the gold is smuggled one as such the matter of seizing of the same is required to be disposed of by the customs authority and deal with the matter under the provisions of section 156 the Customs Act, 1969. In this regard, our view is that since the gold ornaments were not seized or confiscated by the customs authority under any provisions of the Customs Act and no proceeding has initiated by the customs authority with regard to the confiscation of the gold ornaments and as such there is no question has arisen to deal with the matter of releasing or delivery of the ornaments to its original owner by the customs authority. If the goods as confiscated by the BGB personnel were determined as smuggled one by the customs authority only then it could have been confiscated the same for breach of the particular provision of the Customs Act.  No criminal proceeding has initiated with regard to seizing of the gold ornaments for determining whether the ornaments is smuggled one or not. From the police report, it appears that the respondents No. 6-11 being the BGB personnel seized the gold made ornaments when the employee of the petitioner was heading to the business place at a jewellery shop of the petitioner in spite of showing valid challan of the gold without any formal seizure list. Thereafter 13(thirteen) days after seizing the ornaments, the BGB personnel deposited the same to the District Treasury without any explanation of delay in depositing the same. Meanwhile the petitioner communicated with the respondent No. 4, Commanding Officer, BGB, Satkhira and asked him to handover the ornaments but he did not take any steps on this regard. As part of due diligence exercise we examined the validity of the documents of the ornaments filed by the petitioner, wherefrom it transpires that the petitioner is a genuine gold businessman having a jeweler shop inasmuch as the respondent did not deny the documents as produced by the petitioner in support of the valid ornaments and therefore we are accepting the submissions of the learned Advocate with regard to the documents submitted by the petitioner as a genuine one. The Annexures A, A-1, A-2 and B of the writ petition filed by the petitioner constitute conclusive admission by the respondents of certain incontrovertible truth which cannot be denied. Moreover, police inquiry also finds the truthfulness of those documents. Subject to any restriction imposed