State Vs. Mirza Abbas, 15 MLR (AD) (2010) 141

Case No: Criminal Petition for Leave to Appeal No. 392 of 2009

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Rafique-ul-Huq,,

Citation: 15 MLR (AD) (2010) 141

Case Year: 2010

Appellant: The State

Respondent: Mirza Abbas

Subject: Fiscal Law,

Delivery Date: 2009-11-23

 
Supreme Court
Appellate Division
(Criminal)
 
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Abdul Matin J
Md. Abdul Aziz J
 
The State
…………………Petitioner
Vs.
Mirza Abbas
……………..Respondent
 
Judgment
November 23, 2009.
 
Foreign Exchange Regulation, 1947
Section 23
Proceedings against contraventions of the provisions shall have to be initiated by a complaint by a person duly authorized either by the Government or the Bangladesh Bank.
 
Cases Referred To-
Mst. Mumtaz Begum and others Vs. The State 1968 PCrLJ 97; Muhammad Yaqoob Vs. State PLD 1978 Karachi 723.
 
Lawyers Involved:
Mahbubey Alam, Attorney General (with A.K.M. Zahirul Haque, Additional Attorney General) instructed by B. Hossain, Advocate-on-Record-for the Petitioner.
Rafique-Ul-Huq, Senior Advocate (with Ahsanul Karim, Advocate), instructed by Mvi. Md. Wahidullah, Advocate-on-­Record- for the Respondent.
 
Criminal Petition for Leave to Appeal No. 392 of 2009.
(From the Judg­ment and Order dated 22.07.2009 passed by the High Court Division in Criminal Miscellaneous Case No.1930 of 2008)
 
JUDGMENT
 
Md. Joynul Abedin J.
 
This petition for leave to appeal is directed against the Judg­ment and Order dated 22.07.2009 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.1930 of 2008 making the Rule absolute and thereby quashing the proceedings in Foreign Exchange Control Tribunal Case No.12 of 2007.
 
2. The prosecution case, in behalf, in behalf, is that S. I. Md. Rafiqul Islam lodged Motijheel P.S. Case No. 70(2)07 on 24.2.2007 alleging, inter alia, that he while on patrol duty along with his two constables raided the house of the accused Mirza Abbas at 2.15 a.m. in the night on 4.2.2007 under the lead­ership of Major Khijir Khan, the leader of the joint forces, seized amongst others, the fol­lowing currencies.
  1. U.S. Dollar: 4600
  2. Thailand Bath: 17000 equivalent to US$ 1051 @ 30.33 per Dollar.
  3. Singapore Dollar: 418 equivalent to 285.13 US$ 1.466 per Dollar.
  4. Malaysian Ringit: 432 equivalent to 130.12US$ 3.32 per Dollar.
3. They also seized from the house 5(five) international passports belonging to other family members of the accused on the allega­tions that the accused brought those foreign currencies into Bangladesh and kept them in his custody by evading custom duties and thus committed the offence under section 25 (B) (1) (a) and (b) of the Special Powers Act, 1974, section 23 of the Foreign Exchange Regulation Act, 1947 and column 8 section 156 (1) of the Customs Act, 1969.
 
4. The police thereafter having completed investigation submitted charge sheet on 5.7.2007  under section 25(B)(2) of the Special Powers Act read with rule 19 (Neo) of the Emergency Power Rules, 2007.
 
5. Thereafter, the case record was trans­mitted to the Metropolitan Special Tribunal No.1, Dhaka for trial and it was registered as Special Tribunal Case No. 544 of 2007. The said Tribunal by order dated 18.7.2007 took cognizance of the case against the accused under section 25(B) (2) of the Special Powers Act, 1974. Subsequently Metropolitan Special Tribunal No.1, Dhaka directed the Investigating Office thereafter submitted a supplementary charge sheet on 19.11.2007 under section 23 of the Foreign Exchange Regulation Act, 1947 read with rule 19 (Neo) of the Emergency Power Rules, 2007. The learned Special Tribunal thereafter took cog­nizance on 27.11.2007 against the accused respondent under section 23 of the Foreign Exchange Regulation Act, 1947 and trans­ferred the case to the Metropolitan Special Tribunal No.3, Dhaka for trial. The Metropolitan Special Tribunal No.3 thereafter having received the case record framed charge against the accused respondent under section 23 of the Foreign Exchange Regulation Act, 1974.
 
6. In this backdrop, the accused respon­dent moved the High Court Division in Criminal Miscellaneous Case No.1930 of 2008 for quashing the proceedings of the said criminal case and obtained rule. A Division Bench of the High Court Division after con­tested hearing made the rule absolute and quashed the proceedings in Foreign Exchange Control Tribunal  Case  No.12 of 2007 by the impugned judgment and order dated 22.7.2009 on the ground that the letter dated 19.6.2007 issued by the Bangladesh Bank allegedly cording authority to the inform­ant S. I. Rafiqul Islam to lodge complaint hav­ing been issued long after the lodgment of the F.I.R. can not be taken to have authorized the informant to lodge the complaint as contem­plated  under section 23(3) of the  Foreign Exchange Regulation Act, 1947.
 
7. The petitioner, the State, thereupon being aggrieved filed this criminal petitioner for leave to appeal.
 
8. Mr. Mahbubey Alam, the learned Attorney General for he petitioner submits that the High Court Division erred in failing to appreciate and consider that since Bangladesh Bank has given sanction to inves­tigate in to the matter and lodge a case against the accused respondent the initiation and continuation of the proceedings of the said criminal case against him is not barred under section 23 of the Foreign Exchange Regulation Act 1947. He further submits that the F.I.R. having disclosed a prima facie case under section 23 of the Foreign Exchange Regulation Act, 1947 and a charge having been framed accordingly the High Court Division erred in law in making the rule absolute by quashing the proceedings. He lastly submits that the facts and circum­stances of the cases cited and relied on by the High Court Division being distinguishable from the facts and circumstances of the case, the High Court Division erred in law in passing the impugned judgment in quashing the pro­ceedings and making the rule absolute.
 
9. In order to properly appreciate the aforesaid submissions of the learned Attorney General it is advisable to set out herein below section 23 of the Foreign Exchange Regulation Act, 1947, which reads as under:
 
"23. (1) whoever contravenes, attempts to contravene or abets the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder, shall notwith­standing anything contained in the Code of Criminal Procedure, 1898, be tried by a Tribunal constituted by sec­tion 23A, and shall be punishable with imprisonment for a term which may extend to four years of with fine or with both, and any such Tribunal try­ing any such contravention may, if it thinks fit, and in addition to any sen­tence which it may impose for such contravention, direct that any curren­cy, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated.
(2) Notwithstanding contained in the Code of Criminal Procedure, 1898, any offence punishable under this section shall be cognizable for such period as the Government may from time to time, by notification in the official Gazette, declare.
(3) A Tribunal Shall not take cog­nizance of any offence punishable under this section and not declared by the Government under the pro­ceeding sub-section to be cognizable for the time being, or of an offence punishable under section 54 of the Income-tax Act, 1922, as applied by section 19, except upon complaint in writing made by a person authorized by the Government or the Bangladesh Bank in this behalf:
Provided that where any such offence is the contravention of any of the pro­visions of this Act or any rule, direc­tion or order made thereunder which prohibits the doing of an act without permission and is not declared by the Government under the preceding sub-section to be cognizable for the time being, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission.
(4) Where the person guilty of an offence under this Act is a company or other body corporate every director, manager, secretary and other officer thereof who is knowingly a party to the offence shall also be guilty of the same offence and liable to the same punishment."
 
10. Careful reading of the aforesaid provi­sions shows that in case of any contravention of any provisions of the Foreign Exchange Regulation Act etc. or even any attempt to contravene such provisions as well as abate­ment of such contravention complaint thereof can only be filed by a person authorized by the government or the Bangladesh Bank. Further no such complaint can be filed unless the person accused of such offence has been given an opportunity to show that he had per­mission to do the act which in the absence of permission would be a punishable offence under the Act. The "word" complaint as appearing in sub-section 3 of Section 23 is not defined in the said Act. In the absence of such definition in the Foreign Exchange Regulation Act the word "complaint" should be taken to mean the complaint as defined under section 4(1) (h) of the code of Criminal Procedure. Section 4(1) (h) reads as under:
 
"4. (1)(h) "Complaint". Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this code that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer." (The underlining is for emphasis).
 
11. The legal position as deduced from the above discussions is that in case of any contravention of any provision of the Foreign Exchange Regulation Act etc. complaint   should be filed before the Magistrate by the person authorized in this behalf either by the Government or by the Bangladesh Bank and not by lodging any FIR and that too by an authorized person. This apart, lodgment of such complaint should be preceded by an   opportunity given to the accused person to show whether he had any permission in this behalf.
 
12. F.I.R. in the present case was lodged by the S.I. of police and that too without any authority as required under section 23 (3) of the Foreign Exchange Regulation Act. Even the charge-sheet that has been filed in the present case can not be treated as a com­plaint inasmuch as the said charge sheet being a police report can not be regarded as a complaint as defined under section 4(1) (h) of the Code of Criminal procedure inasmuch as the definition of 'complaint' given under said section excludes the report of a police officer. It is a well-known and settled principle of law, as propounded in the case of Mst. Mumtaz Begum and others Vs. The State reported in 1968 PCrLJ 97, a case initiated under the provisions of the West Pakistan Suppression of Prostitution Ordinance, 1961 providing that the investigation into the allega­tions could not be made without prior permis­sion of the Magistrate, that where a power is given to do a certain thing in a certain manner, the thing must be done in that manner or not at all. All other methods of performance of that act are necessarily forbidden. This principle was also followed and applied in the case of Muhammad Yaqoob Vs. State reported in PLD 1978 Karachi 723, filed under section 4(1) (b) of the Passports Act, 1974 which required an investigation to be made into the case by the police with permission of the Magistrate but investigation was not made accordingly and as a result the cognizance taken by the Magistrate was held illegal and the proceed­ings were quashed accordingly.
 
13. Therefore, the lodgment of the FIR, submission of the charge-sheet by the sub-Inspector Md. Rafiqul Islam and cognizance taken by the Tribunal in the present case being contrary to and in violation of the requirements of section 23(2) (3) of the Foreign Exchange Regulation Act are bad in law. From the scheme of the Foreign Exchange Regulation Act it can be said with­out any hesitation that the legislature want­ed that any person accused of any offence for contravention of the provisions of the Foreign Exchange Regulation Act etcetera should not be subjected to unnecessary harassment by the police and accordingly safeguards are provided in the Act. But in the instant case the police officer has in con­travention of the safe-guards provided in sec­tion 23 of the Foreign Exchange Regulation Act initiated the present criminal case against the accused respondent by lodging the FIR treating the alleged offence under the said Act as a normal Penal Code offence. The letter dated 19.6.2007 of the Bangladesh Bank issued at a date subsequent to the lodg­ment of the FIR can not be construed to have accorded the requisite authority to the informant to lodge the present criminal case against the accused respondent under the Foreign Exchange Regulation Act.
 
14. Since the proceedings of the afore­said criminal case under challenge have not been validly initiated in terms of the require­ment of section 23 of the Foreign Exchange Regulation Act the same (proceedings of the aforesaid criminal case) are liable to be quashed.
 
15. We regret we do not find any merit in the points urged by the learned  Attorney General and hold that the High Court Division took the correct view that the informant lodged the FIR against the accused respondent for committing offence under the Foreign Exchange Regulation Act without the requisite authority contemplated under section 23 of the Foreign Exchange Regulation Act and the letter dated 19.6.2007 of the Bangladesh Bank did not confer the requisite authority on the informant to lodge the FIR. There is there­fore no valid reason to interfere with the impugned judgment.
 
Accordingly, the petition is dismissed.
 
Ed.