1969 P Cr (PLP)

Section 6 of the Imports and Exports Act lays down that no Court shall take cognizance of any offence punishable under section 5 of the said Act except upon complaint in writing by a Customs Collector or the Chief Controller or any officer authorised in that behalf and that no Court inferior to that of Magistrate of the First Class shall try any such offence. The offences in the present cases were punishable under section 5 of the Imports and Exports Act as also under section 167(8), (81) of the Sea Customs Act. That being so, the Magistrate had no jurisdiction to take cognizance of the cases on the reports of E. P. R. personnel and police, or in other words, except on complaint made in writing by the Customs authorities. The trial had thus been without jurisdiction and the conviction was illegal. Habib Ahmed for Petitioners (in Revision No. 643/66). Nurul Haq Bhuiya for the State. Azizuddin Ahmed for Petitioner (in Revision No. 405/67). A. T. M. Masud, D. L. R. for the State. In these two cases the petitioners have been convicted under section 167 (81) of the Sea Customs Act. The petitioners in Revision Case No. 405 of 1967 have been sentenced to rigorous imprisonment for two years each and a fine of Rs. 100 each, or in default to rigorous imprisonment for a further period of one year, while the petitioners in Revision Case No. 643 of 1966 have been sentenced to pay fine of Rs. 500 each, or in default to suffer rigorous imprisonment for six months each. 2. The facts out of which Revisions Case No. 405 of 1967 arises in a nutshell are that police found the petitioners of the said case in possession of Tendu leaves inside a boat and arrested them as they were smuggling the said bidi‑leaves into Pakistan from India. The facts of the other case briefly are that the E. P. R. personnel detected the petitioners while they were proceeding towards India in two boats loaded with 40 bags of powder milk and eventually arrested them. In one case the prosecution was launched on the report of police and in the other on the report of E. P. R. personnel. These two revisional applications raise two points of law, firstly whether the High Court has revisional jurisdiction in this matter and secondly whether the Magistrate had jurisdiction to take cognizance of the cases. 3. Mr. Azizuddin Ahmed and Mr. Habib Ahmed, learned Advocates appearing on behalf of the petitioners in the two cases have urged that section 193‑E made provisions for appeal and revision by the High Court in cases under the Sea Customs Act, but the said section along with three other sections were omitted by Ordinance VIII of 1963. Their contention is that since section 193‑E has been deleted from the statute, there is no longer any provision for the exercise of powers of appeal and revision by the High Court. In answer to this contention Mr. Nurul Huq Bhuiya, learned Advocate appearing on behalf of the State has submitted that this was a trial by the Magistrate, First Class and that being so, Criminal Procedure Code has full application to these cases so far as appellate and supervisory powers of the High Court are concerned. To appreciate this point it is necessary to refer to certain other sections of the Sea Customs Act. The original section 193‑E provided for appointment of Special Judge by the Central Government after consulting the High Court having jurisdiction in the area for which a Special Judge was to be appointed. That section has been substituted by the present section 193‑E which lays down that any Magistrate of the First Class specially empowered by the Provincial Government may pass a sentence of imprisonment for a term exceeding two years and a fine exceeding one thousand rupees on any person convicted of an offence mentioned in items (8) and 81 in the Schedule to section 167. Thus under the present law such offences are triable by a Magistrate of the First Class specially empowered in that behalf by the Provincial Government, and such Magistrate may pass a sentence of imprisonment for over two years and of the fine exceeding rupees one thousand. The section gave extended powers to the Special Magistrate. The other sections omitted by Ordinance VIII of 1963 are sections 193‑E, 193‑D and 193‑F. These are only resultant changes which followed from the amendment of section 193‑B. Trial of these offences by Special Judge was abolished and it was substituted by trial by a Magistrate of the First Class specially empowered to pass sentences higher than those contemplated in the Criminal Procedure Code. Section 193‑C provided for trial of such cases under the Act as the Central Government would by notification specify and for transfer of such cases. Section 193‑D provided the procedure and powers of Special Judges. Section 193‑F laid down that no Court other than a High Court would have authority to transfer any case from a Special Judge to any other Court or Special Judge. As soon as section 193‑B was amended in the above terms, omission of sections became necessary, inasmuch as there was no longer any provision for trial of such offences by Special Judge. 4. It may be mentioned here that section 193‑E as it stood before its repeal laid down that the High Court might exercise all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, on a High Court, as if the Special Judge were a Court of Session trying cases without a jury within the local limits of the High Court's jurisdiction. The High Court undoubtedly retains its power of appeal and revision as conferred by the Code of Criminal Procedure. A similar question came to be considered in the case of Mrs. Nur Jahan Begum v. Authorised Officer, Chittagong (P L D 1967 Dacca 166) and it was held by a Division Bench of this Court that a Magistrate of the First Class trying a case under the East Bengal Building Construction Act does not cease to be a Magistrate under the Code of Criminal Procedure within the meaning of section 408 thereof merely because some additional power, namely the power of imposing a fine to the extent of Rs. 10,000 while the ordinary limit under the Criminal Procedure Code of imposing fine is Rs. 1,000 has been conferred upon him by a special enactment. In order to decide that appeal would lie under section 408 of the Code of Criminal Procedure one has to see whether it is the kind of Court specified in that section. The present case is exactly similar in nature to the case referred to above inasmuch as the question that requires decision is whether a Magistrate who has been conferred extraordinary powers beyond those conferred by the Criminal Procedure Code should be treated as a Magistrate and whether an appeal would lie against the order of the said Magistrate under section 408 of the Code of Criminal Procedure. The revisional jurisdiction of the High Court follows from the appellate jurisdiction of the Sessions Court. The fact that the Magistrate has been given certain special power of imposing heavier sentences of fine makes no difference whatsoever in deciding the question of appellate and revisional jurisdiction of superior Courts. The crucial fact is that the trial was held by a Magistrate of the First Class, a kind of Court which comes within the purview of section 408 of the Code of Criminal Procedure. It is thus abundantly clear that this Court has got powers of revision of the order passed under the Sea Customs Act by a Magistrate specially empowered for trial of such cases and to pass sentences beyond the normal limits set in the Criminal Procedure Code. 5. The second contention of the learned Advocates for the petitioners is based on the provision of section 6 of the Imports and Exports Act which lays down that no Court shall take cognizance of any offence punishable under section 5 of the said Act except upon complaint in writing by a Customs Collector or the Chief Controller or any officer authorised in that behalf and that no Court inferior to that of Magistrate of the First Class shall try any such offence. The offences in the present cases were punishable under section 5 of the Imports and Exports Act as also under section 167(8) (81) of the Sea Customs Act. That being so, the Magistrate had no jurisdiction to take cognizance of the cases on the reports of E. P. R. personnel and police, or in other words, except on complaint made in writing by the Customs authorities. The trial has thus been without jurisdiction and the conviction is illegal. The Rules are made absolute. The conviction and sentences in the two cases are set aside. The petitioners in Revision Case No 405 of 1967 be discharged from their bail bonds and the order of stay of realisation of fine imposed on them is made absolute. The order of stay of realisation of fines in Revision Case No. 643 of 1966 is also made absolute. Rules made absolute. Convictions and sentences set aside.