The State v. Md. Manzurul Alam

Judge: MUHAMMAD IMMAN ALI ,

Court: Appellate Division ,,

Advocate: Kh. Deluruzzaman,Chowdhury Md. Zahangir,,

Case Year: 2014

Appellant: The State

Respondent: Md. Manzurul Alam

Delivery Date: 2014-07-02

IN THE SUPREME COURT OF BANGLADESH

Appellate Division


PRESENT

Madam Justice Nazmun Ara Sultana  

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali


Criminal Appeal No. 27 of 2006

(From the judgement and order dated 3rd of May, 2005 passed by the High Court Division in Criminal Miscellaneous Case No. 5650 of 2003)


The State

... Appellant

  = Versus =

 

 

Md. Manzurul Alam

... Respondent

For the Appellant

 

:Mr. Kh. Deluruzzaman, Deputy Attorney General, instructed by Mr. A.S.M. Khalequzzaman

Advocate-on-Record

For Respondent

 

Mr. Chowdhury Md. Zahangir

Advocate-on-record.

Date of hearing

:The 18th of June, 2014

Date of Judgement

:The 2nd of July, 2014




J U D G E M E N T

 MUHAMMAD IMMAN ALI, J:-

This criminal appeal by leave arises out of the judgement and order dated 03.05.2005 passed by the High Court Division in Criminal Miscellaneous Case No. 5650 of 2003 making the Rule absolute quashing the proceedings of Metropolitan Special Tribunal Case No. 167 of 2003 in the court of Metropolitan Sessions Judge and Metropolitan Special Tribunal No. 1, Chittagong.

The facts relevant for disposal of this appeal are that the respondent, Md. Manzurul Alam is a Ground Service Engineer Officer of Bangladesh Biman Corporation and posted at Biman Engineering Hangar, Z I A. On 16.5.2002, while on duty on Biman flight No. BG-022 Muscat-Chittagong-Dhaka, he had concealed inside his socks and underwear 25 gold bars weighing 3 kg. A Departmental proceeding was started against him and after receiving his reply to the show cause notice, the matter was enquired into and a report submitted on 26.10.2002. Thereafter, a second show cause notice was issued, whereupon the respondent filed a writ petition and obtained Rule, which is still pending for hearing. In the meantime Patenga P.S. Case No. 9 (5) 2002 under sections 19/32 of the Customs Act, 1969, section 3 (1) Foreign Exchange Regulations Act, 1947 and section 25 B of the Special Powers Act, 1974 was filed against him. Challenging the criminal case, the respondent filed Criminal Miscellaneous Case No. 5650 of 2003 under section 561 A of the Code of Criminal Procedure for quashing the criminal proceedings.

By judgement and order dated 03.05.2005 the High Court Division quashed the criminal proceedings, against which the State filed Criminal Petition for Leave to Appeal No. 283 of 2005. Leave was granted by this Division to consider whether the High Court Division failed to apply its judicial mind in quashing the criminal proceedings when the respondent was caught red-handed when carrying 245 tolas of gold violating Rule 6 of the Passenger (Non-tourist) Baggage (Import) Rules, 2000.

Mr. Kh. Deluruzzaman, learned Deputy Attorney General submitted that admittedly the respondent was on duty in the flight and cannot be considered as a passenger within the Passenger (Non-tourist) Baggage (Import) Rules, 2000. He submitted that the said Rules are applicable for passengers as defined in Rule 2 (kha), who at that time could bring up to 10 kg of gold on payment of customs duty. He pointed out that the only benefit given under the Baggage Rules to crew members is found in Rule 6 of the said Rules, which allows a crew member to import any goods up to the value of $ 100 without payment of customs duty. The learned DAG finally submitted that in view of the facts and circumstances of the case and the legal provisions involved, the High Court Division seriously erred in quashing the criminal proceedings.

Mr. Chowdhury Md. Jahangir, learned Advocate on Record appearing on behalf of the respondent, by reference to section 139 of the Customs Act, 1969, submitted that the law does not make any distinction between a passenger and a crew member and allows import of up to 10 kg of gold upon payment of customs duty. He pointed out that the respondent was due to travel to Dhaka. But before he reached his destination, he was searched and apprehended at Chittagong airport before he had the opportunity to declare the gold in his possession and pay customs duty.

We have considered the submissions made by the learned Deputy Attorney General appearing for the appellant and the learned Advocate on Record appearing for the respondent, perused the impugned judgement and other materials on record.

At the outset, we would like to point out that section 139 of the Customs Act refers to declaration of contents of baggage carried by passengers or crew members. It is true that under this provision of law crew members and passengers are liable in the same way to declare the goods carried in their baggage. In other words, there is no distinction or extra privilege afforded to either category of persons so far as declaration of their goods carried in their baggage is concerned. However, this provision has no connection with the import of goods under the baggage rules. The relevant rules under consideration are the Passenger (Non-tourist) Baggage (Import) Rules, 2000. Quite clearly, the rules apply generally to goods imported by passengers.

The Passenger (Non-tourist) Baggage (Import) Rules, 2000 give details of items that may be brought into the country either free of duty or on payment of duty, by passengers, who are defined in Rule 2 (kha) as any passengers coming from abroad. A special facility is provided by these rules for crew members, who may bring into the country goods to the value of $ 100 without payment of customs duty. By no stretch of the imagination can crew members be equated to or classified as passengers.

In view of the above discussion, we find substance in the submissions made by the learned Deputy Attorney General. We are of the view that this is not a proper case for quashing the criminal proceedings. Accordingly the appeal is allowed and the impugned judgement and order passed by the High Court Division is set aside.