P L D 1970 Dacca 279 (PLP)

"Such goods (i.e. the goods mentioned in column 1 against item 8 (a) of section 167) shall be liable to confiscation ; and any person concerned in the offence shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding. 6 years and to pay a fine not exceeding five times the value of the goods, and in addition, shall also be liable, if the Magistrate in his discretion so orders, to the punishment of whipping." The necessary implication of the expression "on conviction before a Magistrate" underlined by me above is that the trial of an offence under item 8(a), section 167 shall be held by a Magistrate. The term "Magistrate" has not been defined in the Code of Criminal Procedure or in the Sea Customs Act. According to its definition in the General Clauses Act of 1897, the term "Magistrate" includes every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force. Thus the expression "on A conviction before a Magistrate" occurring in column 3 against item 8 (a) of section 167 of the Sea Customs Act mans a Magistrate appointed under the Code of Criminal Procedure. The other relevant provisions with regard to the mode of trial and imposition of sentences are contained in sections 187, 193‑A and 193‑B of the Sea Customs Act. The said sections as they were in force at the relevant time and which are still in force run thus: "

187. Offences not specially provided for, how tried.‑All offences against this Act, other than those cognizable under section 182 by Officers of Customs, may be tried summarily by a Magistrate Provided that in the cases mentioned in numbers 8 and 81 of the Schedule to section 167, so far as concerns special goods, the offences shall be tried by a Court having powers not inferior to those of a Magistrate of the first class." 193‑A. Power to try summarily.‑Any Magistrate for the time being empowered to try in a summary way the offences specified in subsection (1) of section 269 of the Code of Criminal Procedure, 1898 (Act V of 1898), may, if he thinks fit, on application in this behalf by the prosecution, try an offence under this Act, except where the value of goods in volved in such offences exceeds five hundred in accordance with the provisions of subsection (1) of section 269 and sections 263, 264 and 265 of that Code. 193‑B. Special powers "for Magistrates.‑Notwithstanding anything contained in the Cole of Criminal Procedure, 1898 (Act V of 1898), any Magistrate of the first class specially empowered by the Provincial Government in this behalf, may pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees or any person convicted of an offence mentioned in items 8 and 81 in the Schedule to section 167." These provisions also go to indicate that an offence under item 8 (a) of section 167 is triable by a Magistrate of the first class appointed under the Code of Criminal Procedure. If it is contended that the Court competent to try an offence under item 8 (a) of section 167 of the Sea Customs Act has not been specifically mentioned in that Act, the position as regards the Court competent to try such offence will not be different. Section 29 (2) of the Code of Criminal Procedure, as already pointed out, provides that when no Court is mentioned in a special law, the Court mentioned in the 8th column of the Second Schedule of the Code is competent to try an offence created by the special law. According to the Second Schedule of the Code of Criminal Procedure relating to offences against other laws, an offence punishable with imprisonment for three years and upwards, but less than 7 years, as in the instant case, is triable by the Court of Sessions or a Magistrate of the first class. Therefore, a Magistrate of the first class appointed under the Criminal Procedure Code, in any view of the matter, is competent to try an offence under item 8 (a) of section 167 of the Sea Customs Act. In the present case, the Magistrate who tried and convicted the petitioners was a Magistrate of the first class appointed under the Code of Criminal Procedure but specially empowered under section 193.B of the Sea Customs Act to pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees. The Sea Customs Act itself does not provide for an appeal against an order of conviction made by such a Magistrate for an offence thereunder. In fact, no provision for appeal is there at all in that Act. However, the learned Judges of the Division Bench have held that when the trial in this case was held by a Magistrate of the first class appointed under the Code of Criminal Procedure, an appeal against the order convicting the petitioners lies under section 408 of the Code. As, however, some of the petitioners were sentenced to rigorous imprisonment for a term exceeding 4 years, a question may arise if the Magistrate of the first class appointed under the Criminal Procedure Code, but specially empowered under the Sea Customs Act to impose enhanced penalties, is also a Magistrate of the kind envisaged in section 408 of the Criminal Procedure Code, so that his order of conviction may be appealable under that section. As both the learned Judges of the Division Bench are agreed that an appeal lies in this; case and as the point of reference requires us only to decide the forum of appeal in the case of a sentence exceeding four years, we are not called upon to express any opinion on the said question. We are only to give our opinion as to whether the appeal, in the case of the sentence exceeding four years, will lie to the Court of Session or to the High Court. The main part of section 408, Criminal Procedure Code provides that any person convicted on trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the first class, may appeal to the Court of Sessions. This is, however, subject to the proviso that when in any case an Assistant Sessions Judge or a Magistrate specially empowered under section 30 of the Code of Criminal Procedure passes any sentence of imprison ment exceeding four years, or any sentence of transportation, the E appeal of all or any of the accused convicted at the trial shall lie to the High Court. This proviso does not appear to be applicable in this case inasmuch as the Magistrate who convicted and sentenced the petitioners is not an Assistant Sessions Judge or a Magistrate specially empowered under section 30 of the Code of Criminal Procedure. Mr. Justice Abdul Hakim appears to be of the view that the trial Magistrate in this case was specially empowered by the Provincial Government to impose enhanced penalties under section 30 of the Code of Criminal Procedure and not under section 193‑B of the Sea Customs Act. and, in that view of the matter, has held that the sentence of some of the petitioners being in excess of four years, the appeal from such sentence, in view of the proviso (b) to section 408,. would lie to the High Court. With due respect to the learned Judge, we regret that we are unable to accept this view as, correct. The Sea Customs Act is as much a Central Act as the Code of Criminal Procedure. Section 193‑B of the Sea Customs Act has expressly authorised the Provincial Government to empower a Magistrate of the first class to pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees on any person convicted of an offence mentioned in items 8 and 81 of section 167 of that Act. The power of the Provincial Government to specially empower a Magistrate of the first class to impose higher penalties p is derived from section 193‑B itself and not from section 30 of the Code of Criminal Procedure. Section 30 of the Code is obviously more wide than section 193‑B of the Sea Customs Act inasmuch as a Magistrate of the first class specially empowered under section 30 of the Code is competent to try as a Magistrate all offences (whether the offences are under the Penal Code or under other laws) not punishable with death. Moreover, a Magistrate of the first class empowered under section 30 may, in view of section 34 of the Code, pass any sentence authorised by law, except a sentence of death or of transportation for a term exceeding seven years or of imprison ment for a term exceeding 7 years. In the case of a Magistrate specially empowered under section 193‑B of the Sea Custom Act, his powers to impose penalties are not as wide as that of a Magistrate specially empowered under section 30 of the Code of Criminal Procedure. Section 193‑B of the Sea Custom Act and section 30 of the Code of Criminal Procedure stand absolutely on different footings; they are mutually exclusive and operate independently in fact, in the instant case, Mr. M. A. Hamid, a Magistrate of the first class who tried the petitioners for an offence under item 8 (a), section 167 of the Sea Customs Act, was specially empowered by the Provincial Government under section 193‑B of that Act and not under section 30 of the Code of Criminal Procedure. This is evident from the Notification No. GAV‑146/63‑151, dated the 11th February 1964, published in the Dacca Gazette, dated February 17, 1964. The said notification is reproduced below "The Dacca Gazette. Thursday, February, 27, 1.964. POWERS : Rajshahi‑Dinapur‑Bogra‑Kushtia‑Jessore‑Rangpur‑Khulna‑Chittagong‑Comilla‑Noakhali‑Sylhet‑Chittagong Hill Tract-- Mymensingh No. GAV‑146/63‑151‑11th February 1964. In exercise of the powers conferred by section 193‑B of the Sea Customs Act, 1878 (Act VIII of 1878), the Governor is pleased to empower the following Magistrates of the first class to pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees on any person con victed of an offence mentioned in items 8 and 81 in the Schedule to section 167 of the said Act. (1) Mr. Muhammad Mahbubur Rahman, No. 1 Extra Assistant Commissioner, Rajshahi Sadar. (2) Mr. Muhammad Hamidul Haque, Extra Assistant Commissioner Naogaon, Rajshahi. (3) Mr. Z. A. Shamsul Huq, lawyer‑Magistrate, Nawabganj,. Rajshahi. (4) Mr. T. I. M. Rafiuddullah Chowdhury, Extra Assistant. Commissioner, Dinajpur Sadar. (5) Mr. Syed Mymtazul Huq, Extra Assistant Commissioner. (6) Mr. Md. Abdul Hamid, Extra Assistant Commissioner, Bogra. (7) Mr. Muhammad Hussain, Extra Assistant Commissioner,. Netrakona, Mymensingh. By order of Governor (Sd.) H. T. Ali, Addl. Chief Secretary." The Magistrate at item No. 6 in the above notification is the Magistrate who tried the petitioners. Thus the fact remains that the trying Magistrate in this case is not a Magistrate specially empowered under section 30 of the Code of Criminal Procedure. He was specially empowered under section 193‑B of the Sea Customs Act. When the trying Magistrate in this case was not empowered under section 30 of the Code of Criminal Procedure, the proviso (b) to section 408 of the Code is not attracted here. It will be noticed that the main part of section 408 of the Code of Criminal Procedure refers to a District Magistrate or other Magistrate of the first class. The expression " other Magistrate of the first class" occurring in that section necessarily includes a Magistrate of the first class specially empowered under section 30 of the Code, because no Magistrate other than a Magistrate of the first class specially empowered under that section can impose a sentence of imprisonment exceeding two years. When a Magistrate of the first class specially empowered under section 30 passes a sentence up to 4 years, an appeal from that sentence lies to the Court of Session under section 408 of the Code, but when such Magistrate passes a sentence for a term exceeding four years, an appeal lies to the High Court. This provision for appeal to different forums from different sentences passed by a Magistrate of the first class specially empowered under section 30 of the Code of Criminal Procedure has been in vogue for a very long time. In conformity with this provision, the Legislature might have made provision in the Sea Customs Act for appeal to the Court of Session or to the High Court according as the sentence of imprisonment under that Act is four years or more than four years. But such provision is wanting in the Sea Customs Act. In fact, no provision for appeal is there at all in the Sea Customs Act. That being so, section 408 of the Code of Criminal Procedure is the only provision which can be invoked in support of a right of appeal in, this case. If an appeal from a sentence for a term exceeding ‑tour years passed by a Magistrate of the first class specially empowered under section 193‑B of the Sea Customs Act is competent under section 408 of the Code of Criminal Procedure, as has been held by the learned Judges of the Division Bench, then, the appeal will lie to the Court of Sessions because of non‑applicability of the proviso (b) to the said section, and we answer the point of reference accordingly. In the course of examination of the various amendments made in the Sea Customs Act from time to time, a certain fact has come to our notice which appears to have a bearing on this case, and it is for the learned Judges of the Division Bench to give it such consideration as they may think fit. An offence under item 8 of section 167 of the Sea Customs Act was made punishable by a Court for the first time in 1958 by the Sea Customs (Amendment) Act, 1958 (XIV of 1958). By the Central Ordinance No. LVIII, 1962, item 8 of section 167 of the Sea Customs Act was split up into two items, namely, item 8 (a) and item 8 (b). According to this newly introduced item 8 (a), the goods involved became liable to confiscation by the Customs Authorities, and the person concerned in the offence, on conviction before a Magistrate, became liable to imprisonment and fine. But as regards the offence under item 8 (b), no conviction by a Court was provided, although the goods involved became liable to confiscation by the Customs Authorities. By the Sea Customs (Amendment) Ordinance of 1963 (Ordinance No. VIII of 1963), the entry in the third column with regard to penalties against item 8 (a) was substituted, but this Ordinance also did not make the offence under item 8 (b) punishable by a Court. An examination of the various items of section 167 of the Sea Customs Act, read with sections 182, 188 and 191 reveals that in respect of offences under various items of section 167 the Customs Authorities alone can confiscate goods and impose penalties. But in respect of offences under some of those items, namely, items 8 (a), 26, 72, 74, 75, 76, 77, 78 and 81, the persons involved in the offences, apart from confiscation of goods and imposition of penalties by the Customs Authori ties, are liable to be convicted and sentenced on trial by a Magistrate. Item 8 (b) of section 167 is one of the items which provides only for confiscation of goods and imposition of penalty by the Customs Authorities for the offence under that item, but the offence under item 8 (b) is not one which is triable by a Magistrate and, as such, no order of conviction can be passed by a Magistrate for an offence under that item. In the present case, the learned Judges of the Division Bench have found on the facts of the case that this is a case which is covered by item 8 (b) of section 167, but does not fall under item 8 (a) of that section. Accordingly, they have altered the conviction of each of the petitioners from one under item 8 (a) of section 167 to one under item 8 (b) of section 167 of the Sea Customs Act. As,, however, the offence under item 8 (b) of section 167 is not a penal offence triable by a Court, the learned Judges might like to consider this legal position. MAKSUM‑UL‑HAKIM, J.‑I agree. K. B. A. Reference answered.