Case No: Criminal Appeal No. 5 of 1987
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Mr. Abdul Wadud Bhuiyan,,
Citation: 40 DLR (AD) (1988) 170
Case Year: 1988
Appellant: Sk. Ali Ahmed
Respondent: Government of Bangladesh
Subject: Principles of Natural Justice, Criminal Trail,
Delivery Date: 1987-7-29
Supreme Court of Bangladesh
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
A.T.M. Afzal J
Sk. Ali Ahmed
Secretary, Ministry of Home Affairs, Govt. of Bangladesh and others
July 29, 1987.
The Arms Act, 1898
Sections 16 & 18
In the facts of the case we think it was absolutely necessary to hold the inquiry with notice to and in the presence of the appellant. At the very least he ought to have been given a show cause notice against the enquiry report before the order was passed. "No one should be condemned unheard," is a settled principle of law which is embodied in the maxim audi alteram partem. the authorities in the present case at all stages failed to adopt the elementary and essential principles of fairness by proceeding against the appellant keeping, himself in complete darkness and then presenting him with a fait accompli. The Government order (cancelling the revolver licence) has been passed without lawful authority and is of no legal effect ……………………. (17, 18, 19 & 24)
Cases Referred to-
Godha Singh Jabra Singh vs. District Magistrate, Farozepur (A.I.R. 1956 Panjab 33); The University of Dhaka vs. Zakir Ahmed, PLD 1965 S.C. 90 = 16 DLR (SC) 1 722.
S.S. Halder, Senior Advocate, instructed by Ranesh Chandra Maitra, Advocate-on-Record-For the Appellants,
A.W.Bhuiyan, Additional-Attorney-General instructed by B. Hossain, Advocate-on-Record- For the Respondents.
Criminal Appeal No. 5 of 1987
Converted to Civil Appeal No. 36 of 1987.
(From the judgment and order dated 22.7.87 passed by the High Court Division, Dhaka in Writ Petition No. 4 of 1985.)
A.T.M. Afzal J.
1. This appeal by leave is from judgment and order dated 22 July, 1986 passed by the High Court Division, Dhaka in Writ Petition No. 4 of 1985 discharging the rule and upholding the Government order canceling the appellant's license for revolver and confiscating the same.
2. Appellant has been elected chairman of Fakirhat Upazila Parishad, District Bagerhat in the election held on 16.5.85. He is a leader of the local Awami League, has been involved in political and social works for a long time, was elected member of the Provincial Assembly in 1970 and of the Constituent Assembly after the emergence of Bangladesh, For his personal safety he needed a firearm and obtained a license for a revolver from the Deputy Commissioner, Khulna in 1970 and it was renewed every year up to 31.12.85.
3. A notice dated 30.1.85 issued by the officer in charge Fakirhat P.S.(Respondent No. 4) was served at the appellant’s village home at Attaka (he is a residence of Khulna town) by hanging wherefrom the appellant learnt that the license of his revolver and the weapon confiscated by government
4. This notice was challenged in the aforesaid writ petition alleging that the order-was illegal and without jurisdiction and-further that; it was made malafide having been obtained by respondent No. 4 by exerting influence upon higher authority against whom he had filed, a damage suit claiming compensation. It was asserted that the appellant was not at all aware as to why his license had been cancelled, The appellant, staled in his writ petition that on 20.1.84 the Upazila Nirbahi, Officer, Fakirhat forwarded a letter to the Secretary, Ministry of Home Affairs, Respondent No. 1 for Hiking necessary action against him alleging certain objectionable conduct including misuse of the revolver. Respondent No.1 referred the matter to the Zonal Martial Law Administrator, Jessore' and an enquiry committee consisting of three members found the appellant not guilty of the charges.
5. Respondent No.1 in his affidavit-in-opposition stated that the appellant was involved in a number of Criminal cases and earned ill-reputation in the locality for his rude and rough behaviour. The Chairman of Fakirhat Union Parishads submitted a prayer to the Deputy Commissioner, Bagerhat (Respondent No. 1) for cancellation of license of the revolver of the appellant and confiscation of the same. It was, inter alia, alleged, that the appellant, a man of desperate temperament threatens to kill respectable men with his revolver with whom he differs. He threatened to kill Nawab Ali Fakir, Chairman, Fakirhat Union Parishad with his revolver in broad day light
6. The allegations of the Union Parishad Chairman were inquired in to by the Additional Superintendent of Police, Bagerhat who found the allegations to be substantially correct: he recommended for immediate cancellation of the appellant's license which was by the Superintendent of Police and the Deputy Commissioner, Bagerhat was about to take action but the Martial Law authorities-asked him not to proceed in the matter as they were taking up the matter for enquiry and necessary action. He forwarded the case to the Divisional Commissioner, Khulna who on his part forwarded the case to the Government with all relevant papers expressing agreement with the recommendation of the officers. The higher authority of the Government (it, transpires the Home Minister himself) passed the impugned order on the basis of report and recommendations. It has been stated that the Ministry of Home Affairs was not aware of any Martial law enquiry Committee or any report by such Committee.
7. The High Court Division by the impugned judgment and order discharged the rule upon finding that the order of cancellation of license was neither illegal nor malafide as alleged.
8. Leave was granted to consider several contentions but the appeal, was pressed mainly, on the ground that the High Court Division was not justified in upholding the order of cancellation and. confiscation which was passed by the Minister without recording any reason and any finding that it was deemed necessary to cancel the license for the security of the public peace and further without affording any opportunity to the appellant to refute the allegations on the basis of which the license cancelled. This submission involves examination of Section 18 of the Arms Act 1879 which deals with deals with the subject of cancellation and of license of foe-arms. The main burden of the judgment has been to interpret the provisions, of the said section and to hold that the order in the present case was passed within the bounds thereof.
9. Section 18 of the Arms Act reads thus:
"18. Any license may be cancelled or suspended (a) by the officer by whom the same was granted, or by any authority to which he may be subordinate, or by any Magistrate of a district, ********** within the local limits of whose jurisdiction the holder of such license may be, when, for reasons to be recorded in writing, such officer, authority, Magistrate deems it necessary for the security of the public peace to cancel or suspend such license; or
(b) by any Judge or Magistrate before whom the holder of such license is convicted of an offence against this Act, or against the rules made under this Act; and the (Government) may by a notification in the official Gazette cancel or suspend all or any licenses throughout (Bangladesh) or any part thereof."
It will be relevant to reproduce the impugned notice (Annexure "B" to the writ petition) which is as follows:
Ref: Ministry of Home affairs Memo No. IC-9/ 84(Pedl-IV) 25 Dated. 9.1.85 D.C. Bagerhat Memo No. 15/C dt. 15.1.85 UP. Bagerhat Memo No. 24/C Dt. 16.1.85.
প্রতিঃ— জনাব শেখ আলী আহাম্মদ, পিতা মৃত শেখ কেরামত আলী, আটকা থানা ফরিদপুর, জিলা বাগেরহাট।
উপরুক্ত এ বিষয়ে আপনাকে জানানো যাইতেসে যে, উপরের স্মারক মোতাবেক আপনার নামীয় রিভলবার লাইসেন্স বাতিল করা হইয়াছে এবং কর্তৃপক্ষের নির্দেশ মোতাবেক আপনি নোটিশ প্রাপ্তির সঙ্গে আপনার ৩২... Bore revolver Bearing No. EB-6246 Star Special made in Pakistan, থানায় জমা দিবেন কারন ইহা সরকার কর্তৃক বাজেয়াপ্ত করা হইয়াছে অন্যথায় আপনার বিরদ্ধে আইনতঃ ব্যবস্থা গ্রহন করা হইবে।
মোঃ লোকমান আহমেদ
ও, সি, ফকিরহাট
উপজিলা- পি, এস কে
10. At the hearing of the writ petition the Government file was produced in support of the facts stated in the affidavit-in-opposition. The learned Additional Attorney General brought the file before us also.
11. The impugned notice communicated to the appellant does not give any reason for cancellation of his license. Admittedly the Minister also did not himself record any reason or finding that it was deemed necessary for the security of the public peace to cancel the appellant's license. He perused the papers and notes prepared by the successive officers from the Additional Superintendent of Police, Bagerhat to the Joint Secretary, Ministry of Home Affairs and approved the Joint Secretary's note reading "action as suggested above for cancellation of Mr. Ali Ahmed's revolver license and confiscation of his revolver may be approved".
12. It is not disputed that the Government is authorised to cancel a license under Section 18 of the Arms Act. For the exercise of such authority, however, section 18(a) provides for fulfillment of two conditions precedent (i) that reasons have to be recorded in writing and (2) it must be deemed necessary for the security of the public peace. In the instant case the reasons for and necessity of cancellation of the appellant' license were there in the report, notes and recommendations made by the officers with whom the Minister only agreed. The question, there-fore arises, is it imperative that the person/authority empowered to take action must himself or itself record the reasons for cancellation and finding as to the security of the public peace? Some decisions from the Indian jurisdiction were considered by the High Court Division which shows a conflict of views. The High Court Division, however, agreed with the decision in Godha Singh Jabra Singh Vs. District Magistrate, Farozepur (A.I.R. 1956 Panjab 33) in which it has been held that where a detailed report was made to die district Magistrate who after going through it wrote the word "cancelled" it must be read as if the District Magistrate is agreeing with the reasons given in the report and is accepting them to be sufficient for cancellation of the license. We think the High Court Division is justified in taking the said view, more so, because in the present case there were elaborate rate notes prepared with recommendation by the officials in the ministry on the basis of materials in the file forwarded by the deputy commissioner, Bagerhat. The High Court Division rightly found that the minister’s order could not be held to be bad merely because the Minister himself did not record the reasons in writing.
13. The necessity of recording reasons, however, by the appropriate authority itself must always be emphasized as a general rule. The High Court Division has rightly recording a caution that the appropriate authority should ordinarily record the reasons itself; if it is not done the civil court will certainly scrutinize the order and will strike it down if it is found that the order has been passed without application mind to the materials on record. If the appropriate authority chooses not to make its order a speaking one and merely relies on the materials on record, it has been rightly held, its order stands a greater risk of being struck down. And it will be more so if is such order is passed by a Magistrate or any other officer who is authorized.
14. The High Court Division then considered whether it is necessary to communicate the reasons for cancellation of the license to the licensees which was not done in the present case. It took the view since there is no provision of appeal against order in our law the order will not be struck for not communicating the reasons. It has been however, that a licensee has a right to know the reasons if the order is challenged in a court and the appropriate authority must lay before reasons for its decision and the materials behind it. The learned Judges went on to say that that it is desirable to communicate the reasons for the decisions for, it lends credibility to the administration creates public confidence. Withdrawal of information, when circumstances do not exist in favour of withdrawal, only creates a communication gap as a Credibility gap. We have no hesitation in the observations made by the High Court albeit there is no requirement under the law the reason of cancellation to the licensees. Indeed there is little to differ with the findings and observations made by the High Court Division regarding the validity of the impugned order in the context of the provisions of section 18 of the Arms Act except on one point to which we shall presently refer.
15. As to the question whether the appellant was entitled to a show cause notice hearing before the decision to cancel his license was taken the High Court Division took the view that there is no such requirement under the Arms Act nor can such a requirement be imported into the statute because of the sensitive nature of the subject matter. This view seems to find support from some decisions in the Indian Jurisdiction (vide AIR 1956 Calcutta 96, AIR 1954 Rajasthan 264). It must, however, be pointed out that there is a long line of decisions from the Pakistan Jurisdiction. (The University of Dhaka Vs. Zakir Ahmed, PLD 1965 S.C. 90 = 16 DLR(SC)1 722) which have consistently taken the view that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned." This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.
16. We are in respectful agreement with the above principle but like to add a rider that so far as exercise of power under Section 18 of the Arms Act is concerned the absence of a prior notice/ hearing may not always invalidate the order passed thereunder, the subject matter being directly related to the security of the public peace. It may not be possible or advisable to adhere to the principles of natural justice of a prior show cause in every case because of the exigencies of situation. Each case has to be examined on its own merit to see whether a prior notice was required to be given. It may be pointed out that Wanchoo CJ. in the aforesaid Rajasthan case while holding that absence of hearing would not invalidate the order observed that "It may perhaps be advisable, before such action is taken, that the licensee should be heard and we believe that generally licensees are heard before licenses are cancelled."
17. In the present case the inquiry on the basis of which action has been taken was held admittedly behind the back of and without notice to the appellant. It is not a case where the Police was making a report to the Magistrate in course of its normal public duty. Nor a case where police received information in course of its ordinary investigation into crimes. The enquiry was undertaken on a sprawling private complaint made by local Upazila Chairman which concerned a variety of subjects and which continued for a long time. There appeared to be no emergency or any other compelling situation preventing giving of notice of enquiry to the appellant. There is nothing on record to show that any specific case was started against the appellant involving alleged misuse of his revolver. It should be remembered that the appellant is in local politics and motivated charges from interested quarters are not unlikely. In the facts of the case we think it was absolutely necessary to hold the inquiry with notice to and in the presence of the appellant. At the very least he ought to have been given a show cause notice against the enquiry report before the order was passed. We cannot understand why the inquiry was secretly held and worse of it why the appellant was not even heard before the decision was taken.
18. "No one should be condemned unheard," is a settled principle of law which is embodied in the maxim audi alteram partem. Whenever any person, or body of persons, the Supreme Court of Pakistan says in the Dhaka University Case, is empowered to take decision after expost facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with a duty to act in accordance .with such principles of natural justice as may be applicable in the facts and circumstances of a given case. What these principles of natural justice are it is not possible to lay down with any exactness, but Hamoodur Rahman, J. has pointed out in the aforesaid case that "Nevertheless, the general consensus of judicial opinion seems to be that in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and "to correct or controvert any relevant statement brought forward to his prejudice". It has been further observed, in other words, "in order to act justly and to reach just ends by just means" the courts insist that the person or authority should have adopted the above "elementary and essential principles" unless the same had been expressly excluded by the enactment empowering him to so act."
19. We have noticed that the authorities in the present case at all stages failed to adopt the elementary and essential principles of fairness by proceeding against the appellant keeping, himself in complete darkness and then presenting him with a fait accompli.
20. Apart from the inquisitorial nature of the inquiry certain facts transpire on record which seems to have aggravated the degree of unfairness. It appears that a vilification campaign was started against the appellant in the early part of 1984 when he was about to seek election for the office, of chairman of the Upazila Parishad, one application (20.1.84) was sent to the Government by the head of the local administration, the UNO and the other (12.4.84) was sent to the Deputy Commissioner, Bagerhat by all the chairmen of the Union Parishads of Fakirhat Upazila. In both the applications allegations were made; inter alia, as to misuse of revolver by the appellant. From the inquiry report (Anx."B") to the affidavit in reply) of the Martial Law Inquiry Committee, it is found that the inquiry was held with notice to the appellant who made allegations against the then Home Secretary who, we are told, hails from the same Upazila. The Inquiry Committee found that there was no reliable material as to the allegation that the appellant threatened people with his revolver whom he dislikes and that those who came to depose were not the victims themselves but enemies of the appellant. The committee was of opinion that there appeared to be dispute between the then Home Secretary and the appellant over local development and enlarging of personal influence and authority in the locality. The committee observed that in the Fakirhat Upazila there were two parties and the people support two persons; Appellant is the leader of one party and the other party is the local administration itself and the Home Secretary works silentlyntly for them from behind. We are far from any making any assessment of or comment on the said inquiry report but when it is found that a secret inquiry was held by a police officer of the local administration on a complaint filed by the local union parishad chairman and the decision to cancel the appellants license was taken without hearing him in the secretariat (Home Ministry) when a gentleman alleged to be interested in the local affairs happened to be the Home Secretary, the Court cannot but feel disturbed and disconcerted in the face of the aforesaid facts. It is difficult to dispel an impression that the proceeding taken against the appellant was not free from taint and there was an element of framing up the appellant because of his involvement in the local affairs as a political and social leader. It is thus clear that just ends have not been reached by just means as the authority did not act justly in the matter and. we have no hesitation in holding that the impugned order of the Government is liable to be declared illegal and of no legal effect as the same has been passed, in violation of the principles of natural justice.
21. The other contention raised against the impugned order is that the same is without jurisdiction in so far as it relates to confiscation of the revolver. Power of confiscation is provided in Section 24 of the Arms Act which says that when any person is convicted of any offence under the said Act committed by him in respect of any arms ammunition etc. it shall be in the discretion of the convicting court or Magistrate further to direct that the whole or any portion of such arms etc shall be confiscated. Evidently the order of confiscation passed by the authority was beyond its powers and to that extent at least the Government order was bad on the face of it. This aspect of the matter has been overlooked by the High Court Division.
22. The learned Additional Attorney-General conceded this position and tried to explain that what was meant by confiscation was to seize the said weapon, Upon cancellation of license the licensee is obliged to deposit his firearm with the officer in charge of the nearest police station or with a licensed dealer (Section 16) but his weapon does not become liable to be confiscated. The explanation of the learned Additional Attorney General does not appeal to us because not only in the O.Cs notice (Anx.'B') it has been said that the revolver has been confiscated by the Government but in the Joint Secretary's a note shown to us it is clearly mentioned that cancellation of license and confiscation of the revolver were both recommended for approval of the Minister.
23. It has also been argued that; since the order of cancellation was passed by the Government a notification was necessary to give effect to the said order. We do not think there is substance in the said contention because the power of the Government to cancel or suspend all or any license by a notification is a general power which does not detract from its power of cancelling a particular license under section 18 (a) of the Arms Act by making an order.
24. In view of the discussion above, this appeal is allowed and the impugned order of the High Court is Division is set aside. It is declared that the Government order as communicated to the appellant by the notice (Annexure ‘B’ to the writ petition) has been passed without lawful authority and is of no legal effect. There will be no order as to costs