Md. Jamir Uddin Sheikh and another Vs. The State, 2 LNJ (2013) 318

Case No: Criminal Appeal No. 586 of 2009

Judge: Md. Akram Hossain Chowdhury,

Court: High Court Division,,

Advocate: Mr. Gazi Md. Mamunur Rashid,Mr. Md. Asaduzzaman Asad,Mr. Md. Zulfiqur Motin,,

Citation: 2 LNJ (2013) 318

Case Year: 2013

Appellant: Md. Jamir Uddin Sheikh and another

Respondent: The State

Delivery Date: 2013-02-17

 HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
M. Enayetur Rahim, J.
And
Md. Akram Hossain Chowdhury, J.

Judgment
17.02.2013
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Md. Jamir Uddin Sheikh and another
. . . Appellants
-Versus-
The State
. . . Respondent
 
 
Special  Powers Act (XIV of 1974)
Sections  25 (1) and 30
সার (ব্যবস্থাপনা) আইন, ২০০৬ (২০০৬ সনের ৬ নং আইন)
ধারা ১২, ১৭ এবং ২১
In  the instant  case, the learned Judge  of  the Special Tribunal  framed  charge against the accused appellant and others under section 25(1)  of  the Special Powers Act, 1974. But it  appears that the offence as described  in  the FIR  and  charge sheet has fallen within the purview of সার (ব্যবস্থাপনা) আইন, ২০০৬. Hence the appeal is disposed  of  on setting aside the impugned  order as it was passed without jurisdiction, Accordingly, learned judge  of  the tribunal was directed to send the case to   the appropriate court  for  holding the trial in accordance with সার (ব্যবস্থাপনা) আইন, ২০০৬....(4,11 and 12)

Abdur Rahman and other Vs. State, 19 B L D (AD) 4  ref .
 
Mr. Md. Zulfiqur Motin
. . . For the Appellants

Mr. Gazi Md. Mamunur Rashid, AAG with
Mr. Md. Asaduzzaman
. . . For the State

Criminal Appeal No. 586 of 2009
 
JUDGMENT
Md. Akram Hossain Chowdhury, J:

The appeal is directed against the order dated 19.01.2009 passed by the learned Additional Sessions Judge, 2nd Court and Special Tribunal No. 6, Kushtia, in Special Tribunal Case No. 23 of 2008 arising out of Kushtia Sadar Police Station Case No. 18 dated 18.11.2007 corresponding to G.R. No. 303 of 2007, framing charge against the appellants under Section 25(1) of the Special Powers Act, 1974.

The prosecution case in short is that one Md. Rejaul karim, Sub-Inspector of Police, Detective Branch, Kushtia being informant lodged an FIR with Kushtia Sadar Police Station implicating the present appellants and six others as accused stating inter-alia that on the basis of secret message he, upon making entry of a General Diary (G.D.) being No.90 dated 18.11.2007, with his force went to Mojompur area to apprehend the terrorists and for recovery of narcotics from there. Then they got an information from a secret source that some accused persons might carry fertilizer for smuggling or black marketing by a truck. While they reached at the petrol pump of one Mojaffar at Mojompur out of suspicion they made signal to stop a truck being number Jessore Da-11-0588. At that time the passengers of the Truck accused Joni and Nayan took steps to flee away; the informant’s accompanied forces caught hold the accused Joni and Nayan on the spot and another accused namely Nazrul managed to flee away from the place of occurrence. The informant and his forces upon searching the truck in presence of the witnesses recovered 60 bags of M.O.P fertilizer and 120 bags of T.S.P fertilizer. On interrogation the accused persons disclosed the names of other accused Nazrul, Jamiruddin, Sagor, Jhontu, Laltu and shajahan. Thereafter preparing a seizure list in presence of witnesses the informant lodged the FIR. Upon which Kushtia Sadar Police Station case No. 18 dated 18.11.2007 corresponding to G.R. No. 303 of 2007 under Section 25(1) of the Special Powers Act, 1974 was started against the accused appellants and others.
The police after holding investigation in to the case submitted charge sheet being No.282 dated 16.12.2007 against the six accused persons including the present appellants under the aforesaid Provisions of Law. Eventually the case was transferred to the Court of Special Tribunal No. 6, Kushtia for trial and the same was registered as Special Tribunal case No. 23 of 2008.

The learned Judge of the Special Tribunal No. 6, Kushtia upon hearing the parties, by his Order dated 19.01.2009, framed charge against accused appellants and others under Section 25(1) of the Special Powers Act, 1974.

Being aggrieved by and dissatisfied with the said order of framing charge dated 19.01.2009 the present accused appellants preferred this appeal under Section 30 of the Special Powers Act, 1974.

Mr. Zulfiquer Motin, the learned Advocate appearing on behalf of the appellants submitted that the appellants are the bonafide businessman by profession and they deal with fertilizer business at Vatoibazar under Jhena-idah District. The appellants have the license and other legal documents for the same business. They have been falsely implicated with the case though they have not committed the alleged offence. He further submitted that though the accused appellants had filed their legal documents with their application under Section 265C of the Code of Criminal Procedure but the learned Judge of the Tribunal without considering the said documents and assigning any cogent reason therein rejecting the said application framed charge against the appellants. The learned Advocate of the appellants further submitted that there is no ingredients of Section 25(1) of the Special Powers Act, 1974 against the appellants to implicate them in the case for committing such offence. His further submission was that the alleged fertilizer have been seized at Mojompur bus stand which is situated under the District of Kushtia, whereas the accused appellants are living and deal with their business at Vatoibazar in Jhenaidah District and at the time of occurrence of the case nothing has been recovered from the house or business place of the appellants. As such, the impugned order of charge as framed against them is liable to be set aside.

Mr. Motin finally placing before us the “সার (ব্যবস্থাপনা) আইন-২০০৬” submitted that though the appellants were not involved with the alleged occurrence of black marketing of fertilizer or smuggling but the alleged offence may attract within the purview of the “সার (ব্যবস্থাপনা) আইন, ২০০৬”. According to the “সার (ব্যবস্থাপনা) আইন-২০০৬” the alleged offence is triable by the 1st Class Magistrate and not by the Special Tribunal under the Special Powers Act, 1974. The learned Judge of the Tribunal without appreciating the said provisions of law framed charge against the accused appellants by the impugned order which is to be interfered with by this Hon’ble Court and the same is liable to be set aside.

Mr. Gazi Md. Mamunur Rashid, the learned Assistant Attorney General though opposes the said submission of the appellants but he find difficulties to rebut the submission of the learned Advocate of the appellants with regards to that the offence as alleged attracted within the purview of “সার (ব্যবস্থাপনা) আইন-২০০৬” and its trial should have to be held by the Magistrate, 1st class under the said provisions of law and not by the Tribunal under the Special Act, 1974.

Heard the learned Advocates, perused the FIR, Charge Sheet and other materials on record. We have gone through the impugned order as well as the “সার (ব্যবস্থাপনা) আইন-২০০৬” for proper disposal of the appeal. It appears from the record that the offence as alleged in the case for hoarding and transporting the fertilizer for the purpose of black marketing has been committed by the accused persons including the present appellants and upon which the case was initiated against them under Section 25(1) of the Special Powers Act, 1974. But while the “সার (ব্যবস্থাপনা) আইন-২০০৬” has been promulgated by the Government for protection and proper management of the fertilizer and also to impose punishment to the offender for such offence like the offence narrated in the instant FIR and charge sheet, its proceedings should have to be proceed under the said Ain and not under the Special Powers Act. After promulgation of the said Ain such offence should not come within the purview of any other law other than the “সার (ব্যবসহাপনা) আইন-২০০৬”. In the “সার (ব্যবস্থাপনা) আইন, ২০০৬” there are some specific sections provided for such offence like unlawful hoarding, carrying and producing of fertilizer and those offence are punishable under Section 12/17 of the said Ain and the trial of such offences as provided therein to be held by a Magistrate, 1st class under Section 21 of সার (ব্যবস্থাপনা) আইন, ২০০৬। Since the Government promulgated the Specific Law for protection and proper management of fertilizer, after which trial of such offence should not be held under any law other than the “সার (ব্যবস্থাপনা) আইন, ২০০৬”।

Apart from this the offences as described under the সার (ব্যবস্থাপনা) আইন, ২০০৬ are not the scheduled offence to the Special Powers Act, 1974 and on that regard we find support in the case of Abdur Rahman and others =Vs= The state, reported in 19 BLD (AD)-4, wherein our apex court held that- “The Special Tribunal had only Jurisdiction to try cases as enumerated in the schedule of Special Powers Act and not beyond that”.

Having considered the facts and circumstances of the case and discussion made herein above it appears to us that the offence as described in the FIR and charge sheet has fallen within the purview of  “সার (ব্যবস্থাপনা) আইন, ২০০৬”. Thus, we are inclined to dispose of the appeal upon setting aside the impugned order, as it was passed without jurisdiction, with an observation that since the alleged offence as enunciated has fallen within the purview of the “সার (ব্যবস্থাপনা) আইন, ২০০৬” the trial of the instant case should have to be held in accordance with Section 21 of the said Ain not beyond that.

Accordingly, the appeal is disposed of with the above observation. The impugned order dated 19.01.2009 passed by the learned Additional Sessions Judge, 2nd Court and Special Tribunal No. 6, Kushtia, in Special Tribunal Case No. 23 of 2008 is hereby set aside and the learned Judge of the Tribunal is directed to take necessary steps to send the case to the appropriate Court for holding the trial of the case in accordance with the “সার (ব্যবস্থাপনা) আইন, ২০০৬”।

Communicate the judgment and order to the Court concerned at once.

Ed.