P L D 1970 Dacca 289 (PLP)

ABDUL HAKIM, J.

‑With all regards to my learned brother Salahuddin Ahmed, J. I regret, I cannot agree with the views expressed above by him. I wish to add a few words of my own on both the points recommended to the larger Bench for consideration. The points recommended for consideration are as follows :‑ (a) Whether an offence falling under item 8 (b) of section 167 of the Sea Customs Act is triable by a Magistrate. (b) What is the forum of appeal under section 408 of the Code of Criminal Procedure from a conviction under sec tion 167 (8) (a) of the Sea Customs Act and a sentence of rigorous imprisonment exceeding four years passed thereunder by a Magistrate, 1st Class exercising power under section 193‑8 of the Sea Customs Act. Before dealing with the points let me narrate briefly the background of the present reference. The three revision cases were originally heard by a Division Bench comprised of Salahuddin Ahmed and Abdul Hakim, JJ. This Bench consider ing the cases on merits and noticing the differences between items 8(a) and 8(b) of section 167 held that item 8(a) had no application to the facts of the cases. But since the two Judges differed on the question of forum of appeal against a sentence of imprisonment exceeding four years passed by a Magistrate, 1st Class exercising power under section 193‑B of the Sea Customs Act, no final order was passed in these Rules and it was proposed that the cases should be sent to the learned Chief Justice to refer them to a third Judge of this Court. In his judgment, although Saiahuddin Ahmed, J. individually opined that the conviction of the accused‑petitioners should be altered from one under section 167 (8‑a) to one under section 167 (8‑b) of the Sea Customs Act and actually altered the same to the latter section, the second Judge was not a party to it and he delivered a separate judgment. Salahuddin Ahmed, J. then alone passed the proposed order sending the records of the cases to the learned Chief Justice for appointing a Judge or Judges of this Court to hear the cases on the point formulated therein, in the following terms :‑ As I have the misfortune to differ with my learned brother on the forum of appeal with the result that no final order can be passed in the rules I send the records of these cases to the learned Chief Justice to appoint a Judge or Judges of this Court under clause 36 of the Letters Patent to hear the cases. In the context of the above order proposed to be passed by Salahuddin Ahmed, J. the second Judge (Abdul Hakim, J.) in his judgment observed : "I, therefore, agree with the order proposed to be passed in the matter by my learned brother". This observation refers only to the order proposed to be passed in the matter and not to the individual view already expressed in his judgment by Salahuddin Ahmed, J. on the interpretation of section 167(8‑b) of the Sea Customs Act. Further, no final order having been passed in these Rules at the first hearing, the second Judge may express his independent opinion on section 167(8‑b) when the cases come second time for consideration before the same Bench. It is, therefore, of no help to further proceed on the matter. The matter was thereafter referred to a third Judge as proposed but it was ultimately heard by a Division Bench. The third Judge Mr. Justice M. R. Khan (as he was then) in his order dated 1‑11‑68 observed that no appeal was competent in the facts of the present case but the Division Bench comprised of Mr. Justice M. R. Khan and Mr. Justice Maksum‑ul‑Hakim on 11‑11‑68 held that if any appeal lay, the appeal would lie to the Court of Sessions Judge under the main part of section 408, Cr. P. C., because of non‑applicability of the proviso (b) to the said section and thus indirectly concurred with Salahuddin Ahmed, J. The said Bench did not, however, finally dispose of the cases and so these Rules again came to the original Division Bench (Salahuddin Ahmed and Abdul Hakim, JJ.), for disposal on 21‑3‑

69. This time Mr. Khan Bahadur Md. Ismail, learned Advocate appearing for the petitioners strenuously argued that the same Division Bench having already held that item 8(a) of section 167 had no application to the facts of the cases and that item 8(b) would be attracted to these matters, the order of conviction and sentence must be set aside as the offence under item 8(b) is not triable by the Magistrate. In support of the point he relied on a decision of this Court in Criminal Revision Case No. 472 of 1966. Salahuddin Ahmed, J. declined to accept the contention of the learned Advocate and expressed the same opinion which he has recorded today on the point but the second Judge adhered to his own view that an offence under item 8(b) of section 167 is not triable by a Magistrate and the conviction under item 8(a) cannot be converted to one under section 8(b). Due to this difference, Salahuddin Ahmed, J. thought it desirable to refer this question to a larger Bench while the other Judge observed as follows :‑ On the question whether the offence under item 8(b) of section 167 is triable by a Magistrate or not, I have already answered it in the negative. In a recent decision in Criminal Revision No. 472 of 1966 I have found that the offence under item 8(b) is not triable by a Magistrate and there is no reason to revise the view I have already taken there. The view expressed by me on the point receives support from the decision of the Division Bench mentioned above (vide 21 D L R 1). My learned brother Salabuddin Ahmed, J. has, however, differed and accordingly decided to refer the question to a larger Bench. I do not mind to refer the point to a larger Bench or Full Bench but in view of the great public importance of the question of forum of appeal, I think, that question should also go to the Full Bench along with the question relating to 8(b) dissented to by my learned brother. Hence the two questions referred to above have come for consideration before this Special Bench on the recommendation of the aforesaid Bench. To start with, Mr. Khan Bahadur Md. Ismail has raised a preliminary objection questioning the constitution of this Special Bench and its authority to hear the cases. He has argued that the two learned Judges of a Division Bench having differed on a particular point, namely, whether an offence under item 8(b) of section 167 of the Sea Customs Act is triable by a Magistrate or not, this question, in view of the provisions of section 429 of the Code of Criminal Procedure, ought to have been referred to a third Judge of the Court and this Bench having not been constituted in accordance with law, has no jurisdiction to hear these cases. I think, I cannot readily accept the grievance of the learned, Advocate. In my opinion, any question of unusual difficulty, any substantial question of law as to the interpretation On the Constitution or Statutes or any point of great public, importance may be referred to and decided by a larger Bench consisting of three or five Judges on the requisition of the Division Bench and the learned Chief Justice of the Court may appoint a Special Bench to decide those questions and dispose of the cases. The question of forum of appeal, as raised in the case, is one of great public importance and it has got a far‑reaching effect. Such an important question of public importance having been involved in these Rules, the learned Chief Justice may naturally think to get these cases heard by a larger Bench and this Special Bench has accordingly been constituted to dispose of the case. In this connection Rules 1 and 7 of Chapter II of the Rules of the High Court of Judicature for East Pakistan, Volume I may be referred to. The above argument would have been forceful if the point of forum of appeal would not have been recommended for considera tion of this Bench. Constitution of the Special Bench is, therefore, lawful and this Bench of five Judges can hear the cases in its entirety and everything including the question of forum of appeal is open before it. Even decision of a Full Bench may be reversed by a larger Bench specially constituted by the Chief Justice in this respect. (Vide Rule 7 of Chapter VII of the said High Court Rules). A similar question was raised in the case of Zakir Ahmed v. The University of Dacca (P L D 1965 Dacca 122) and a Special Bench of this Court considering the constitutional position and other legal respects, rejected the preliminary objection as there was no substance in the contention. Let me now record my views on the points. It is not necessary to repeat the facts of the case here in detail. The three Rules arise out of the same judgment. Seven persons were put on trial before the learned Magistrate. One was acquitted and six were convicted and sentenced under sec tion 167(8‑a) of the Sea Customs Act. Amongst the convicts, two were women and they were sentenced to suffer rigorous imprisonment for 3 years and 6 months each and also to pay a fine of Rs. 503 each in default to rigorous imprisonment for 6 months more, three other accused were sentenced to suffer rigorous imprisonment for 5 years each and also to pay a fine of Rs. 4,000 each in default to rigorous imprisonment for one year more and the last one was sentenced to suffer rigorous imprisonment for 5 years and 6 months and also to pay a fine of Rs. 5,000 in default to rigorous imprisonment for one year more. Their sentences were, however, modified by the learned Sessions Judge to some extent. The charges framed against the accused persons show that they attempted to smuggle out gold ornaments, wrist‑watches and fountain‑pens. The evidence on record indicates that one pair of gold bala, two gold chains, one pair of gold earring and one gold ring, all weighing 3 tolas were recovered from the person of accused Sumitra Bosu ; one pair of gold bala, two bronge churls, two gold chains, one pair of gold earring and one gold ring, all weighing 6 tolas were recovered from the person of accused Shilpi Rani. Two gold balas and one necklace with locket weighing about 3 tolas 11 annas were also found in her Tiffin box. Accused Alok Mitra, Binendu Kundu, Shilpi Rani had each in their wearing a wrist‑watch and fountain‑pen and Sumitra had also a wrist‑watch in her hand and all those articles were seized from them. Considering the facts of the case and the nature and quantity of articles recovered from the possession of seven accused, I have already agreed with my learned brother Salahuddin Ahmed, J. that item (8‑a) of section 167 has no application to the facts of the present case as the goods are such and in such quantity as would normally be imported or exported for bona fide personal use. The Division Bench consisting of M. R. Khan and Maksum‑ul‑Hakim., JJ. which was in full seisin of the case has not also taken any contrary view on the point. The learned Advocate for the State has not made any grievance in this respect and as a matter of fact, no argument from the bar has been advanced on the point before the Special Bench. There is, therefore, no reason to change the accepted position that item (8‑a) of section 167 has no application to the present case. On the question whether the offence under item 8(b) of section 167 is triable by a Magistrate or not, I have earlier answered it in the negative. In my decision in Criminal Revision Case No. 472 of 1966 (Shish Muhammad and others v. The State) I have found that an offence under item 8(b) is not triable by a Magistrate and there is no reason to revise the view I have already taken there in this respect. The relevant portion of the judgment runs as follows :‑ "An offence coming under part (a) of clause (8) of sec tion 167 of the Sea Customs Act is triable before a Magistrate but an offence falling under part (b) of clause (8) of the said section appears to be not so triable. The penalty column of part (a) of clause (8) provides that the contravened goods shall be liable to confiscation and any person concerned in the offence shall, on conviction before Magistrate be liable to imprisonment for a term not exceeding six years and to 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 order, to the punishment of whipping, whereas the penalty column of part (b) provides that the goods shall be liable to confiscation ; and any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods. It is apparent therefrom that part (b) of clause (8) does not provide for any conviction before a Magistrate. It only speaks of confiscation and penalty and not of imprisonment, fine or whipping. Such confiscation and penalty may be made by the Customs Authority itself. Thus the matters falling under part (b) of clause (8) may be dealt with by the Customs Department and for such offences no trial by a Magistrate is necessary. That is, perhaps the intention of the Legislature. The offence under part (b? of clause (8) of the said section not being triable by a. Magistrate the question of deciding any case thereunder by a Magistrate does not arise." The view expressed by me on the point above receives support from the case of Shauket Ali v. The State as well as from the decision of the Division Bench mentioned above. It is true that section 193‑B of the. Sea Customs Act mentions item (b) and not specifically the part (a) of the said item. But from that it cannot be argued that part (b) of item 8 is triable by a Magistrate. A careful perusal of sec tion 193‑B will show that a Magistrate, 1st Class may pass, enhanced sentence of imprisonment and fine under the section when a person is convicted of an offence. The offence under part (b) of item 8 does not provide for any conviction and sentence of imprisonment of fine. It only provides for confis cation and penalty. The fine and penalty are not the same thing. The power of confiscation and penalty under section 182 is vested exclusively in the Customs Authorities. Reference in this connection may be made to 16 D L R

165. Hence the question of trial of the offence under item 8(b) by a Magistrate does not arise. Item 8 mentioned in section 193‑B, in my opinion, actually means and refers to part (a) of item 8 of section

167. It is needless to mention here that in view of the provisions of sections 5(2) and 29(l) of the Code of Criminal Procedure a Magistrate has got jurisdiction to try the offences under items 8(a) and 81 of section 167 of the Sea Customs Act. I am, therefore, of the opinion that an offence under item 8(b) of section 167 is not triable by a Magistrate and the Magistrate has no jurisdiction to deal with it. A conviction under item 8(a) of the said section cannot, therefore, be altered to one under item 8(b). In this view of the matter, the offence in the instant case having fallen under item 8(b), the learned Magistrate has no jurisdiction to try the case and the order of conviction and sentence is liable to be set aside. The offence under item 8(b) is a departmental matter and the Customs Authorities may take whatever action they deem fit in the circumstances of the case. The order of conviction and sentence is accordingly set aside and the accused are acquitted. I may, however, observe here that the conduct of accused Md. Afsaruddin Sarkar is highly reprehensible and the concerned Department may deal with it separately. It requires to be mentioned here that the three revision cases were originally heard with a Criminal Appeal (No. 104 of 1968) and a Writ Petition (No. 613 of 1966). Mr. Md. Ayazuddin, learned Advocate appearing in the writ petition contended that the learned Magistrate who passed the order of conviction and sentence exercising power under section 193‑B of the Sea Customs Act was not a Magistrate under the Code of Criminal Procedure and his Court was not a criminal Court as defined in section 6 therein and as such no appeal or revision would lie against his order. Mr. Khan Bahadur Md. Ismail, learned Advocate appearing in the revision cases contended that the Magistrate concerned was a Magistrate, Ist Class, specially empowered under the Sea Customs Act and not a Special Magistrate and as such appeal and revision would lie against his order and the appeal under section 408, Cr. P. C. would lie to the Court of Sessions. Mr. Mofezzal Ali learned Advocate appearing in the appeal contended that the learned Magistrate was a Magistrate under the Code of Criminal Procedure and not a Special Magistrate and hence appeal and revision would lie in normal course against his order and an appeal against a sentence of imprisonment exceeding four years should be preferred before the High Court. Mr. Ali argued the question of forum of appeal with considerable force. Thus the question of forum of appeal arose in the case but since it was referred to the Third Judge, the other cases were not disposed of. It may be seen that in the original judgment we have already held that the Magistrate concerned is a Magistrate under the Code of Criminal Procedure and not a Special Magistrate appointed under the Special law. We have also held, after consider ing a number of case‑laws on the point that where a Magistrate acts not as Special Magistrate appointed under a special law but as an ordinary Magistrate specially empowered by the Provincial Government in this behalf, an appeal will lie against his decision in the usual course under section 408 of the Code of Criminal Procedure. The Magistrate referred to above being a Magistrate under the Code of Criminal Procedure his order would be appealable or revisable under the said Code. In this connection, the cases reported in P L D 1958 Dacca 552, P L D 1959 Daeca 279, P L D 1959 Dacca 616, 12 D L R 407, P L D 1967 Dacca 166 and 20 D L R 546 may be referred to. The Division Bench mentioned above has not also taken any contrary view on the point. They also have treated the learned Magistrate as a Magistrate, 1st Class under the Code of Criminal Procedure and held that the appeal would lie to the Court of Sessions under the main part of section 408, Cr. P. C. But the learned Third Judge having observed that no appeal was competent in the facts of the case, a question might arise which of the views expressed above should be followed by the original Division Bench in deciding the question of forum of appeal. The above mentioned Division Bench did not finally dispose of the Rules and returned the cases with some observations and opinion contrary to the opinion of the third Judge. In the circumstances which of the above two views shall be deemed as the opinion of the third Judge, in terms of section 429, Cr. P. C. to be followed in the judgment of the original Bench. The section contemplates a Third Judge and not a Third Bench of two Judges, The matter thus remains somewhat cloudy. It has already been indicated earlier that in view of the great public importance of the question of forum of appeal, that question along with the question relating to section 167 (8‑b) was recommended for consideration of the larger Bench. A larger Bench constituted specially by the learned Chief Justice i3 competent even to reverse a decision of the Full Bench under Rule 7 of Chapter VII of the High Court Appellate Side Rules. Accordingly during the course of hearing of the case by this Bench of five Judges, I put some questions to the learned Advocate for the State on the forum of appeal which is equally a point for consideration here along with the other points Involved in the matter. Section 408 of the Code of Criminal Procedure confers a right of appeal on a person convicted on a trial by the Assistant Sessions Judge, the Magistrate of the 1st Class or the Magistrate specially empowered under section 30 of the Code. According to the scheme of the section the conviction confers the right of appeal but the quantum of sentence determines the forum thereof. The section runs as follows :‑ "Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the 1st Class, or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 380 by a Magistrate of the 1st Class, may appeal to the Court of Sessions: Provided as follows :‑ (b) When in any case an Assistant Sessions Judge or a Magistrate specially empowered under section 30 passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation the appeal of all or any of the accused convicted at such trial shall lie to the High Court. (c) When any person is convicted by a Magistrate of an offence under section 124‑A of the Pakistan Penal Code the appeal shall lie to the High Court." The first paragraph of section 408 speaks of an appeal from sentence of Assistant Sessions Judge or Magistrate of the First Class. A Magistrate, 1st Class can award an imprisonment only for two years under section 32 of the Code and cannot exceed the limit prescribed by that section. An appeal under the main part of section 408 lies before the Sessions Judge only in those cases where a Magistrate, 1st Class passes a sentence of imprisonment within the limit of section 32 and the Assistant Sessions Judge passes a sentence not exceeding four years. This part of the section does not contemplate any appeal against a sentence above two years passed by an ordinary Magistrate, 1st Class or a sentence above four years passed by the Assistant Sessions Judge.' It cannot, therefore be argued that an appeal against a sentence exceeding four years, passed by an ordinary Magistrate, 1st Class, shall lie to the Court of Sessions under the main part of section 408 merely due to non‑applicability of the provisos to that section: An ordinary Magistrate, 1st Class can by, no means pass any sentence of imprisonment exceeding two years. A Magistrate, 1st Class authorised to pass sentence for two years under section 32 of the Code of Criminal Procedure and a Magistrate, 1st Class specially empowered to pass enhanced sentence for six years under section 193‑B of the Sea Customs Act are not exactly the Magistrates of same kind. The main part of section 408 does not provide for an appeal against a sentence exceeding four years passed by an ordinary Magistrate, 1st Class specially empowered under the Sea Customs Act. The first part of t he section cannot be stretched beyond its scope. Section 408 has at present two provisos. Proviso (b) to the section provides when in any case an Assistant Sessions Judge or a Magistrate specially empowered under section. 30 passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation, the appeal shall lie to the High Court. Conversely it follows that in cases where they pass sentence below four years, the appeal shall be filed before the Sessions Judge. Proviso (c) stipulates that any person convicted by a Magistrate under section 124-A of the Penal Code shall file the appeal before the High Court. . It is apparent from the above that an appeal against a sentence passed by a Magistrate, 1st Class within the limit of section 32 and an Assistant Sessions Judge or a Magistrate specially empowered under section 30, within the limit of four years shall lie to the Court of Sessions, but in a case where an Assistant Sessions Judge or a Magistrate specially empowered under section 30 has passed any sentence of imprisonment exceeding four' years the appeal shall lie to the High Court. Thus there is no provision in section 408 for appeal against the sentence above two years passed by an ordinary Magistrate, 1st Class; created by the Code of Criminal Procedure unless specially empowered by section 30 of the said Code. Section‑ 408 of the Code must be read with its provisos. Provisos (b) and (c) each has put an embargo on the main part of the section and made a departure from the ordinary provision of filing an appeal to the Court of Sessions. Why the Legislature has introduced these bars? The reasons obviously are the severity of the sentence and the gravity of the offence. The Legislature by introducing these provisos seems to have intended that when a long term of imprisonment has to be undergone the question whether the offence is proved and whether the conviction and sentence are justified should be heard in appeal by a Court of higher grade than it would be heard by if the sentence were less. Thus the underlying principles behind the section are that appeals against long term sentences in grave and complicated nature of offences should be taken to a Court of higher grade. This seems to be the general scheme of section 408, Cr. P. C. According to strict construction of the section even if there be any difficulty to convert the instant case yet judging the same in the above principles and treating the sentence of 5J years passed by the learned Magistrate specially empowered in this behalf, as a long one; I think, the appeal will lie to the High Court and not to the Court of Sessions. Even in the High Court too such long sentence matters are heard by the Division Bench and not by a single Judge. Proviso (b) to section 408 indicates that a Sessions Judge can hear the appeal against an order of conviction and sentence up to four years only. 1n the Criminal Procedure Code there is no other provisions empowering the Sessions Judge to hear an appeal against a decision where the sentence is more than four years. This proviso thus gives a right to the accused who have been sentenced to a period more than four years to have his appeal heard by the High Court. Judging the present case in this principle also the appeal cannot be heard by the Sessions Judge and it should be heard by the High Court. There is another aspect of the matter. In the present case, it appears, the learned Magistrate passed the enhanced sentence of imprisonment for a term exceeding two years and a fine exceeding Rs. 1,000 on the accused persons in exercise of his power under section 193‑B of the Sea Customs Act. This section 193‑B was added to the Sea Customs Act by the Central Ordinance No. VIII of 1963 which came into force on 16‑11‑1963. It has been seen from numerous decisions that on 16 11‑63 when section 19.3‑B was brought on the Statute Book, most .of the Magistrate, 1st Class in West Pakistan were specially empowered under section 30 of the Code of Criminal Procedure and those learned Magistrate used to try the offence mentioned in items 8(a) and (81) of the Schedule to section 167 of the Sea Customs Act, in terms of section 193‑B. An appeal against sentence of imprisonment passed by such Magistrate for offences mentioned in items (8‑a) and (81) had always been filed before the High Court or the Sessions Judge, according to the quantum of sentence. In cases where the sentence of imprisonment was above four years the appeal was preferred to the High Court but where the sentence was up to four years the appeal was taken to the Sessions Judge. A glance to the cases reported in Muhammad Akbar v. State (P L D 1964 Lah. 627) and Shaukat Ali v. State will clarify the position. In East Pakistan there was/is seldom a Magistrate, 1st Class specially empowered under section 39 of the Code. Hence the question has arisen where an appeal will lie against a sentence exceeding four years passed under section 167 (8‑a) of the Sea Customs Act by a Magistrate, Ist Class, not empowered under section 30 of the Code but specially empowered under section 193‑B of the said Act. If it is held that the appeal will always lie to the Court of Sessions, a further question will arise why an appeal against offences mentioned in items (8‑a) and (81) of section 167 tried in West Pakistan will lie to the High Court in severe sentence cases and why the appeal against the same offences tried in East Pakistan shall lie to the Sessions Judge under all circumstances. Can the Legislature intend different forums of appeal for different parts of the country against similar conviction and sentence in same offences ? In my opinion, the Legislature of the country can never intend such a dual situation. Let us, therefore, see the background and circumstances under which section 193‑B was introduced by the amended Ordinance VIII of 1963 so as to gather the intention of the Legislature. It is an admitted position that before this Ordinance VIII of 1963, the special Judges used to try the offences under items (8), (81) and others of section 167 of the Sea Customs Act. At that time there was a specific provision for appeal and revision in the Act (vide section 193‑E now repealed by the above Ordinance) and appeal used to lie before the High Court against the decision of the Special Judge. The Legislature omitted the old sections 193‑G, 193‑D, 193‑E and 193‑F and in their places, added the new section 193‑B by the Ordinance No. VIII of 1963. Consequently there is now no provision for appeal in the Sea Customs Act. In the circumstances can it be held that the Legislature intended by this amended section 193‑B to change the forum of appeal exclusively to the Court of Sessions ? The provision of preferring appeal under section 408, Cr. P. C. to different forums from different sentences passed by a Magistrate, Ist Class empowered under section 30 of the Code of Criminal Procedure has been in force in West Pakistan for a long time. It seems that when section 193‑B was added by the new Ordinance, the Legislature actually thought of section 30 Magistrates without ascertaining as to whether in East Pakistan there were such Magistrates, 1st Class. So in conformity with the position and practice in West Pakistan, the Legislature, not being presumably conversant with the real state of things in this wing of the country, brought section 193‑B in the Statute Book with the intention that an appeal against a sentence would, in normal course, lie under section 408 of the Code to the High Court or the Court of Sessions, according to the quantum of sentence passed by the Magistrate, in exercise of power under section 193‑B. The circumstances and background of the new amendment indicate that the Legislature never intended to change its mind from the general scheme of section 408 of the Code and it was never the intention of the Legislature that an appeal against a sentence exceeding four years, passed by a Magistrate, 1st Class exercising power under section 193‑B of the Sea Customs Act, would lie to the Court of Sessions. Thus it seems, the present difficulty has arisen due to unawareness of the real state of things and absence of some details in the added section 193‑B by the Legislature. Although a Magistrate, Ist Class empowered under section 30 was actually in the mind of the Legislature it was not so mentioned in the said section and hence the trouble. Section 193‑B empowers a Magistrate, 1st Class to pass enhanced sentence only in offences mentioned in (8-a) and (81) of section 167 of the Sea Customs Act. It cannot be presumed that for these two limited offences the Legislature will intend a forum of appeal contrary to the scheme of section 408 of the Code of Criminal Procedure. The intention of the Legislature having thus remained unaltered the Court is at liberty to infer that the added sec tion 193‑B by implication empowers that detail to be carried out and also to hold that the original intention of the Legislature as envisaged in section 408, Cr. P. C. should be given effect to. A bona fide mistake cannot take away the effect of the law which the Legislature actually intended. If the law, be different from what the Legislature supposed it to be, the implication arising from the statute, it has been said, cannot operate as a negation of its existence. In this connection I may quote two passages one from Maxwell on Interpretation of Statutes and another from Craies on Statute law which support the above proposition :‑‑ Maxwell on Interpretation of Statutes (Eleventh Edition) a page 306 observed as follows:‑ "Provisions sometimes found in statutes, enacting imperfectly or for particular cases only that which was already and more widely the law, have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting to on the maxim expression unius, exclusio alterius. But the maxim is inapplicable in such cases. The only inference which a Court can draw from such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), Is that the Legislature was either ignorant or unmindful of the real state of the law, or that is acted under the influence of excessive caution. If the law be different from what the Legislature supposed it to be, the implication arising from the statute, it has been said, cannot operate as a negation of its existence, and any legislation founded on such a mistake has not the effect of making that law which the Legislature erroneously assumed to be so." Craies on Statute law (Sixth Edition) at page 111 observed as follows :‑ "If a statute is passed for the purpose of enabling some thing to be done, but omits to mention in terms some detail which is of great importance (if not actually essential to the proper and effectual performance of the work whic the statute has in contemplation the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out." In the circumstances, I am of the opinion that an appeal in the instant case shall lie to the High Court in accordance with the general scheme of section 408, Cr. P. C. as, intended b the Legislature. Let us now turn to section 193‑B of the Sea Customs Act which runs as follows :‑ "Notwithstanding anything contained in the Code 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 on any person convicted of any offence mentioned in items 8 and 81 in the Schedule to section 167." A careful perusal of the section will show that the jurisdiction of the Magistrate to pass an enhanced sentence under section 193‑B depends upon the investment of special powers by the Provincial Government in this behalf. Now the question is wherefrom the Provincial Government derives its source to empower the Magistrate in this behalf. Section 193‑B only delegates power to the Provincial Government to invest its Magistrates with special powers. It is thus an enabling section. In the Sea Custom; Act there is no such provision reserving power for the Provincial Government to invest its Magistrates with additional power. The Magistrates are the officers of the Provincial Government. In the absence of any provisions in that Act where is the source of the Provincial Government to specifically empower the Magistrates to act under sec tion t93‑B ? In my opinion, the source of the Provincial Government is section 30 of the Code of Criminal Procedure. The Provincial Government may invest any of its First Class Magistrates with special power contemplated in section 193‑B of the Sea Customs Act under section 30 of the Code of Criminal Procedure. Section 30 of the Code of Criminal Procedure provides that the Provincial Government may not withstanding anything contained in section 29 invest the District Magistrate or any Magistrate of the 1st Class, with power to try as a Magistrate all offences not punishable with death. The general power given to the Provincial Government under section 30 of the Code is unfettered and the Provincial Govern ment may use that power in aid of section 193‑B of the Sea Customs Act which is supplementary to the said section

30. The words "all offences" mentioned in section 30 may include the offences in items (8‑a) and 81 (of section 167, too). In this view of the matter, the Magistrate in the instant case may be deemed as a Magistrate, 1st Class specially empowered by the Provincial Government under section 30 of the Code, in terms of section 193‑B of the Sea Customs Act and‑ as such an appeal against his decision where he has awarded sentence of imprisonment exceeding four years shall lie to the High Court under section 408 (6) of the said Code. It has already been shown earlier that the' Legislature at the time of introduction of section 193‑B by Ordinance No. VIII of 1963 actually thought of section 30 Magistrates but that being not detailed in the section, the Provincial Government did not mention section 30 of the Code in the Notification issued in this behalf. The Notification No. O. A. V.‑146/63‑151. dated the 11th February 1964, published in the Dacca Gazette, dated February 17, 1964 under which the Magistrate was empowered to pass enhanced sentence ought to have mentioned section 193‑B of the Sea Customs Act, read with section 30 of the Code of Criminal Procedure but non‑mention of section 30 in the said Notification does not mean that the general power given to the Provincial Government under that section is waived. The question of forum of appeal; as raised in this case, is a new one and does not seem to have been considered in any previous decision of any Court. Since the creation of the Code of Criminal Procedure in 1898 there is no identical case to support the view that an appeal against a sentence exceeding four years, passed by an ordinary Magistrate, 1st Class under the Code of Criminal Procedure would lie to the Court of Sessions. In my opinion in any view of the matter, for the sake of long established practice, decorum and legal norms, an appeal in such matters should not be allowed to be presented before the Court of. Sessions at least on the ground of severity of the sentence and gravity of the offence. Hence for the reasons stated above, I differed with my learned brother on the last occasion, although I am now bound by the majority view on the, point and have all respects for the same. Before parting with the matter, I shall, however, add that this decision of ours may create complication in future because this is probably for the first time since 1898 we are allowing the Sessions Judge to hear appeal against sentences above four years passed by an ordinary Magistrate, 1st Class. Such a bold step may go against the intention of the Legislature embodied in section

408. Cr. P. C... It may be noted here that if for want of forum no appeal lies anywhere, then the only, other alternative is to prefer, a revisional application before the High Court under section 439, Cr. P. C. in such a matter. In conclusion, I shall also say that in order to bring harmony in the laws and resolve the difficulties indicated above, the provisions of the Sea Customs Act should be suitably amended. T. H. KHAN, J.‑

I had the opportunity of going through the judgment prepared by my learned brother Salahuddin Ahmed, J., and I am in full agreement with him and hold that the Magistrate shall have jurisdiction to try an offence mentioned in item 8(b) of section 167 of the Sea Customs Act. ORDER OF THE COURT In view of the majority decision of this Bench the order of the Court is as follows : The conviction and sentences passed upon the petitioners are hereby set aside and they are acquitted of the charge framed against them. The Rules are accordingly made absolute. We further direct that the petitioners who are on bail be discharged from their bail bonds. This order, however, will not stand in the way of the Customs Autho rities in taking such action in the matter as is authorised under the Sea Customs Act. K.B A. Rules made absolute.