P L D 1960 Dacca 941 (PLP)

Hari Meah v. The State P L D 1958 Dacca 333 and Jafar Khan and others v. The State P L D 1959 Dacca 68 ref. Shahabuddin Ahmad for Abdul Wadud Chowdhury for Petitioners. M. Fazlul Huq for the State. SATTAR, J.‑The two petitioners were tried by Mr. A. F. M. Majid, a Magistrate of the 1st Class, Sylhet, and convicted on 24th December 1957, and sentenced to undergo rigorous imprisonment for two months each under section 7 (1) (c) (2) and (3) of the Land Customs Act. The petitioners preferred an appeal to the Sessions Judge, Sylhet, against their convictions and sentences. The appeal was heard by Mr. A. H. Chowdhury, Additional Sessions Judge, Sylhet. The learned Additional Sessions Judge, following the decision of this Court in the case of Hari Meah v. The State (P L D 1958 Dacca 333), held that the appeal was incompetent. According to the learned Additional Sessions Judge, as the petitioners were tried by a Special Magistrate, no appeal lay against his decision.

2. It is contended on behalf of the petitioners that the learned Additional Sessions Judge wrongly applied the principle laid down in the above‑mentioned decision of this Court to the facts of this case. It is pointed out that the learned Magistrate did not and could not try the petitioners as a Special Magistrate. Under section 7 of the Land Customs Act, the `Magistrate' men tioned in subsection (2) of that section means an `ordinary Magistrate', and there is no provision in the said Act for appoint ment of Special Magistrates. It is, therefore, contended that the provisions of the Code of Criminal Procedure would be applicable to such trials and decisions, and, as such, there was an appeal against the decision of the Magistrate to the Sessions Judge. The learned Magistrate in his explanation has stated : "I was appoint ed Special Magistrate under Government Order No. 6590‑G. A., dated 19th December 1957. I was also appointed Special Magis trate under Essential Commodities Act, 1956. In such capacity read with Ordinance XVIII of 1957, 1 was to try cases under the Prevention of Smuggling Act, Essential Commodities Act, 1956, Land Customs Act and Sea Customs Act". Under section 14 of the Code of Criminal Procedure, the Provincial Government may confer upon any person all or any of the powers conferred or conferr able by or under the said Code on a Magistrate of the First, Second or Third Class in respect to particular cases or to a particular class or particular classes of cases or as regards cases generally in any local area, and such persons are called Special Magistrates. It has not been shown to us on behalf of the State that the present Magistrate was appointed as Special Magistrate to try offences as Special Magistrate under the Land Customs Act. Even if he was so appointed, we do not see why the provisions of the Code of Criminal Procedure in regard to appeals would not apply. Ordinance XVIII of 1957, was promulgated on the 20th December 1957. It provides for trial of offences under the East Bengal Smuggling of Foodgrains Act, 1950, and the Prevention of Smuggling Act, 1952, by Special Magistrates appointed under the said Ordinance. In the case of Jafar Khan and others v. The State '(P L D 1959 Dacca 68), it has been held by this Court to which one of us is a party that no appeal would lie against the decision of Magistrates who are appointed as Special Magistrates under Ordinance XVIII of 1957. Mr. M. Fazlul Huq has conceded before us that in view of the definition of essential commodities in sub‑clause (c) of clause (2) of the Ordinance, as there is no notification specifying oranges, in respect of which the present smuggling is said to have taken place, to be essential commodities by the Central Govern ment, Ordinance XVIII of 1957 has no application in this case. The trial in this case was not held for an offence either under the East Bengal Smuggling of Foodgrains Act, 1950, or under the Prevention of Smuggling Act,, 1952. It is, therefore, clear that the learned Magistrate did not try this case as a Special Magistrate under Ordinance XVIII of 1957. The decision of the learned Additional Sessions Judge that this trial was held by the learned Magistrate as a Special Magistrate under Act X of 1956 is equally untenable as the offence for which the petitioners were tried does not come within the purview of that Act. The learned Advocate for the State concedes that the Magistrate concerned was not authorised to hold trials as a Special Magistrate for offences under section 7 of the Land Customs Act. In that view of the matter, we hold that the decision of the learned Additional Sessions Judge holding that the appeal was incompetent is wrong.

3. In the result, this Rule is made absolute, the judgment of the learned Additional Sessions Judge is set aside, and it is directed that the appeal be heard on merits. ISPAHANI, J.‑I agree. K. B. A. Rule made absolute.