P L D 1960 Dacca 410 (PLP)

S. K. Basu for Petitioners. A. M. Sayem for the State. This Rule has been issued at the instance of the accused petitioners who have been convicted by a Magistrate of the 1st class, Comilla, under section 4 of the Prevention of Smuggling Act, (Act LVIII of 1952), and sentenced to pay a fine of Rs. 500 each or in default to suffer rigorous imprisonment for six months and the dry fish for the smuggling of which they were charged has been confiscated to Government. 2. The accused persons preferred an appeal against the said order of conviction to the Sessions Judge of Tippera but he dismissed the appeal holding that no appeal lay against the order of the Special Magistrate, as the trial had taken place under. Ordinance No. XVIII of 1957. 3. This Rule was adjourned, pending the decision of the Supreme Court in the case of Hari Miah v. The State (P L D 1958 Dacca 333), by my learned brother Chakraborti, J. The Supreme Court has now armed the decision of this Court but it is now argued before me that the decision in Hari Miah's case is not applicable to the present case, for, the trial was not held and could not be held under the said Ordinance No. XVIII of 1957. 4. The offence is alleged to have occurred in the present case on the 20th of December, 1951, and it appears that Ordinance No. XVIII of 1957 was published in the Gazette, Extraordinary, on that very day, namely, the 20th of December, 1957. In the Ordinance, dried fish has not been mentioned as an essential commodity. Hence, in terms of the said Ordinance, to make dried fish an essential commodity, a notification in the Official Gazette by the Central Government was necessary. There was no such notification, nor could such notification have been made simultaneously with the promulgation of the Ordinance. Hence, Ordinance No. XVIII of 1957 did not apply to this case. 5. Again, a Special Magistrate under the said Ordinance had to be appointed by the Central Government by notification in the Official Gazette. No such notification has been produced to show that the Magistrate concerned in the present case was so appointed as a Special Magistrate. Indeed, the learned Advocate appearing for the State in this matter has placed before me Notification No. 6559 G. A. which purported to have been made on the 18th of December, 1957, and was published in the Dacca Gazette of the 26th of December, 1957, showing that the Magistrate concerned, Maulvi A. M. M. Khan, Deputy Magistrate of Tippera, Sadar, was only empowered under section 7 of the Prevention of Smuggling Act, 1952, Act LVIII of 1952, with the higher powers of punishment specified therein. The date of promulgation of Ordinance No. XVIII of 1957 is also the 18th of December, 1957. It is thus clear that Maulvi A. M. M. Khan, Deputy Magistrate of Tippera, Sadar, was not a Special Magistrate appointed under Ordinance No. XVIII of 1957 on the 21st of December, 1957, when he made the order of conviction. He could, therefore, have tried this case only as an ordinary Magis trate of the 1st class under Act LVIII of 1952, the Prevention of Smuggling Act, 1952. 6. Under section 6 of this latter Act, any Magistrate for the time being empowered to try in a summary way the offences specified in subsection (1) of section 260 of the Code of Criminal Procedure could, on an application in that behalf being made by the prosecution, try an offence under the said Act LVIII of 1952 in accordance with the provisions of subsection (1) of section 262 and sections 263 to 265 of the Code of Criminal Procedure and such Magistrate of the 1st class could be specially empowered by the Provincial Government to pass a sentence of imprisonment for, a term exceeding two years and to impose a fine exceeding one thousand rupees on any person convicted for a contravention of the provisions of the said Act. The notification referred to above gave this special power to the Magistrate concerned on the 18th of December, 1957. 7. Now, it has been decided by a Division Bench of this Court in the case of Jafar Khan and others v. The State (P L D 1959 Dacca 68) that when a Magistrate of the first class has only been invested with special powers under section 7 of the Prevention of Smuggling Act (LVIII of 1952), he is an ordinary Magistrate under the Code of Criminal Procedure' invested with special powers and not a Special Magistrate appointed under any other special statute and, hence, an appeal would lie from the decision of such a Magistrate to the Sessions Judge. This decision is binding on me. It is clear, therefore, that the learned Sessions Judge was entirely wrong in holding that no appeal lay. 8. In these circumstances, this Rule is made absolute, the judgment of the lower Appellate Court is set aside and the case is remanded to the Court of Appeal below to be disposed of in accordance with law. K. B. A. Rule made absolute.