Tarun Majumder vs State (2012) 64 DLR & Mahbub Alam vs Excise and VAT (2010) 62 DLR

Tarun Majumder vs State 64 DLR 2012

Fact:

One SI of police of Narayanganj Sadar Model Police Station lodges a FIR on the basis of GD No. 1457 dated 28-10-2010. There was a secret information to the informant that hoarding and black marketing had done by the petitioner. The officer in charge went to the place of occurrence and saw a track loading with rice with goods. The accused petitioner No. 1 confessed purchasing OMS rice sell at Feni. The police seized the track and 17 metrictons rice. Then the police registered a case under section 25(1) of the Special Power Act 1974 against the accused and was taken to him to the police station also.

Issue:

1. Can the seized rice be released in favour of the accused?

Decision:

The court decides that the seized rice will be released in favor of the accused.

Justification:

1. Argument of the petitioner: Advocate Mr. Sharif U Ahmed, the learned Advocate submits that the proceedings against the accused petitioner are without jurisdiction, improper. He further submits that the seized materials are valid. But there was nothing about hoarding and black marketing. False case has been lodged against the petitioner.

Further, the petitioner says that those goods were actually handed over to him by the relevant authority. As a result, the judgment and order dated 17-02-2011 should be canceled to serve the interests of justice.

2. Argument of the Respondent: The learned Attorney General opposes and submits that these goods may be released in favor of the petitioner by furnishing bank guarantee.

3. Court’s Opinion: The seized rice has been kept in open place. So, it appears to the court that the seized rice can be damaged if it is remained in open place for some days in rainy season. Since it is perishable item so, the accused petitioner will suffer irreparable loss and injury. So, justice will met if the seized rice can be given to the accused petitioner furnishing bank guarantee.

 

Cases Cited:

1. Gopal Chandra Chowdhury VS State 47 DLR 224

2. Md. Ismail VS State 21 DLR (SC) 161

3. Income Tax VS Tax Agencies, 6 (2007) Supreme court cases 429

4. Miah Mohammad VS Ghulam Mustafa, PLD 1973 (SC) 304 ref.

Mahbub Alam vs Excise and VAT 62 DLR 2010

Fact:

The petitioner Mahbub Alam landed at the Osmani International Airport. He was going to make a declaration in declaration counter of the airport. But the custom officials took him to the Deputy Commissioner of customs and interrogated. He confessed that he had 19 gold bars. The custom inspector lodged first information report with Kotwali Police Station. 19 gold bars were recovered searching the petitioner and some drugs and cosmetics also. As he did not make declaration sender rule 3(5) of the of the passenger (Non-tourist) and Baggage (Import) Rules 2000 and evaded customs duties, thereby committed offence under section 16/32/300/156 (1)of the Customs Act, 1969 and section 25 B of the Special Power Act, 1974.

Issue:

1. Was the writ petition maintainable?

2. Had the Special Tribunal authority to dispose of the seized gold bars?

Decision:

The court decides that the writ petition is not maintainable and appropriate remedy and confirmed that the Special Tribunal has the authority to dispose of the seized gold bars.

Justification:

1. Argument of the petitioner: Mr. Md. Shahidul Islam, the learned advocate submits the seizure of the gold from the petitioner and the proceeding of the Special Tribunal were illegal because the petitioner was entitled to bring 10 kg of gold under rule 3(5) of the rules 2000. He did not commit any offence under section 25B of the Special Power Act, 1974 because he was ready to pay the custom duty.

2. Argument of the respondent : Mr. Abdur Rahman Howlader, the learned Assistant Attorney General submits that the petitioner is alleged against smuggling of gold. The customs Department has the authority to dispose because the same can be disposed by Special Tribunal. He further added that though the petitioner was going to declare, he is not admitted. Because it is a disputed question of fact and can’t be solved in this writ petition. The writ petition is not maintainable in the eye of law.

3. Court’s Opinion: The court decides that to challenge the criminal proceeding can’t be the proper remedy under section 561A of the Code of Criminal Procedure. The writ petition was not maintainable because the petitioner was not entitled to get the remedy.

4. The court referred section 34B of the Special Power Act because it is about superiority over other laws. Smuggling case was pending before the Special Tribunal and it had authority to dispose. So, the writ petition isn’t maintainable and the Special Tribunal had the authority.

 

Cases Cited:

1. Khalilur Rahman VS Bangladesh 2000 BLD (AD) 152=52 DLR (AD) 115

2. Samsunnahar Salam VS Md. Wahidur Rahman 510 DLR (AD) 232

3. Md. Idris VS EP Timber Merchants 20 DLR 355

4. Dr. Md. Ghani VS Dr. ANM Mahmood 18 DLR (SC) 463 ref.

Written By---
Most. Shathy Khatun
Department of Land Management and Law
Jagannath University, Dhaka