P L D 1961 Dacca 148 (PLP)

This application in revision has been filed by the accused -petitioners against their conviction and sentences under section 167 (8) and (81) of the Sea Customs Act as applied to Land Custom passed by Mr. A. K. M. A. Awal, Magistrate, 1st class, Jamalpur, by his judgment and order dated the 18th day of December 1958, which have been confirmed in appeal by the learned Additional Sessions Judge, 2nd Court Mymensingh, by his judgment and order dated the 22nd day of August 1959. Of the four petitioners, petitioner No.1 has been sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 500 in default, to rigorous imprisonment for six months more and the other three petitioners have been sentenced to rigorous imprisonment for six months each.

2. The facts leading to this application are these. On 1‑6‑58 Nasiruddin, an Inspector of Land Customs at Chilmari was on patrol duty under the close door operation. He received certain information that some persons were loading jutes at Nayarchar hat within five miles of the Indo‑Pak border belt with a view to send them across the Pakistan border. He then sent his sepoys, named, Jinnat Gul and Mohammad Sharif, in the guise of Farias. These two Sepoys contacted the accused petitioners and wanted to purchase their jutes and the accused‑petitioners agreed to sell the jutes provided they were paid in Indian currency but the Sepoys failed to pay them in Indian currency. So the petitioners told them that as they failed to pay in Indian currency they would carry the jutes either to Bahadurabad or to Dewangonj. The Sepoys then returned and kept a close watch on the boat of the accused‑petitioners. It was a hot day of Nayarchar hat. Through out the whole day the boat of the accused‑petitioners did not move and in the evening at about 5 p.m. when the hat people dispersed the accused‑petitioners moved with the loaded boat towards the east. The patrol party, referred to above, followed them till the boat arrived at a place called Sanairchar at the crossing point of Jinjiran and a branch of the Brahmaputra river. This place is within 3 to 3 miles from the Indo‑Pak border belt. The patrol party challenged the accused‑petitioners when the accused‑petitioner Bonez Bepari offered a ten rupee note to Mokbul Hussain Chowdhury, the Jamadar, E. P. R., as bribe but the latter refused to accept the same and took the four accused‑petitioners in custody and seized the jutes weighing 72 maunds. According to the pro secution, the accused‑petitioners were trying to export these jutes to India without any valid licence. A licence was, however, produced by Bonez Bepari which was not found valid for broder trade. ‑

3. On these facts all the accused‑petitioners were tried on a charge under section 167 (8) and (81) of the Sea Customs Act: 1878, as applied to the Land Customs Act.

4. The accused‑petitioners pleaded not guilty to the said charge and their defence was that they did not enter into five miles of border belt with the jutes in question and that the place where they were arrested was the Sonavari river, a branch of Brahmaputra, south of Nayarchar running towards Bahadurabad.

5. The learned Magistrate, who tried the accused‑petitioners, found on a consideration of the evidence on record that the accused‑petitioners were arrested with the jutes in question at the crossing of Jinjiran, and a branch of Brahmaputra river near a place called Sonairchar within five miles of border belt while they were going towards India and not at Sanavari river outside the border belt as alleged by the defence and as such he found the accused‑petitioners guilty under section 167 (8) and (81) of the Sea Customs Act, 1878 as applied to the Land Customs Act. The accused‑petitioners took an appeal to the learned Sessions Judge against their conviction and sentences and the latter dismissed the same. Hence the accused‑petitioners have come up in revision before this Court.

6. Mr. Shaukat Ali Khan, learned Counsel, has appeared on behalf of the accused‑petitioners in support of the Rule while Dr. Shaukat Ali has appeared on behalf of the State‑opposite party in opposition thereto.

7. Mr. Khan has urged that the learned Courts below acted illegally and without jurisdiction in applying the provisions of the Sea Customs Act in this case inasmuch as if any law applies at all to the alleged offence, if any, it is the Land Customs Act as the alleged offence was alleged to have been committed along the inland waterways and as such the order of conviction and sentence was illegal and without jurisdiction: He has further contended that the learned Magistrate had no jurisdiction to try the alleged offence said to have been committed by the accused‑petitioners as he was not specifically empowered to try the offence under section 167 (8) and (81) of the Land Customs Act which provides punishment beyond the power of a Magistrate, 1st class, as pro vided in section 32 of the Code of Criminal Procedure. He has further urged that the examination of the accused‑petitioner under section 342 of the Code of Criminal Procedure has been improper and has caused the accused‑petitioners serious prejudice inasmuch as they were not asked by the Court whether they would adduce any defence.

8. As regards the first point, it appears from the judgment of both the Courts below that the accused‑petitioners were tried on a charge under section 167 (8) and (81) of the Sea Customs Act, 1878 as applicable to the Land Customs Act as the accused -petitioners were carrying on trade in jute within the border belt of five miles without any valid licence and made attempt to smuggle or export Pakistani jutes to Indian territory although in the charge the learned Magistrate did not mention the expra3sions as "applicable to the Land Customs Act" after the expressions "under section,167 (8) and (81) of the Sea Customs Act, 1878." In my judgment this omission by the learned Magistrate to mention in the charge is a mere irregularity and is curable by section 537 of the Code of Criminal Procedure. It is abundantly clear from the judgments of both the Courts below that the accused‑petitioners were tried on a charge under section 167 (8) and (81) of the Sea Customs Act, 1878 as applied to the Land Customs Act as the accused -petitioners were exporting jutes without any valid licence to a foreign country, namely, India, and as they were carrying on trade in jute within the prohibited border belt of 5 miles without any valid licence Mr. Khan has urged that the alleged offence having been committed by the accused‑petitioners being at a place along inland waterways such offence is triable under the Land Customs Act and not under Sea Customs Act as has been done in this case. In support of his contention he has relied on the case of the Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Ragbat Ali and others (10 D L R 84 : P L D 1958 Dacca 301), in which it has been held that, `Where smuggling was done along inland waterways part of which constituted the water ways between India and Pakistan, the offence falls under the Lands Customs Act and not under the Sea Customs Act'. I am afraid, the facts of this case are quite different from those of the present case and as such the rule of law quoted above is not applicable to the present case. Further more, this case was decided in February 1957. The Sea Customs Act was amended by the' (Amendment) Act (XIV of 1958) and by that amendment provisions of section 167 (8) and (81) of the Sea Customs Act, 1878, have been made applicable to the Land Customs Act. Therefore, offences committed by the accused -petitioners have been rightly tried under section 167 (8) and (81) of the Sea Customs Act as applicable to the Land Customs Act.

9. As to the next point that the Magistrate, who had not been specially empowered, had no jurisdiction to try the offence under section 167 (8) and (81) 'of the Land Customs Act, I may observe that the contention on this point is of no substance.

10. Clause (k) of section 3 of the Sea Customs Act defines "Special Goods' meaning any goods which the Central Government may from time to time declare by notification to be special goods". This clause (k) was inserted in the Sea Customs Act by the (Amendment) Act (XIV of 1958). On the 17th January 1958, the Central Government by a Notification No. 1‑C, dated 17th January 1958, Gazette, Extraordinary, declared the raw jutes amongst other goods to be special goods for the purpose of the Sea Customs Act in exercise of the powers conferred by clause (k) of section 3 of the Sea Customs Act, 1878 (VIII of 1878). Proviso to section 187 of the Sea Customs Act Provides that in the cases mentioned in numbers (8) and (81) of the Schedule to s. 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 The proviso was inserted by Customs Act (Amendment) Act, 1958 (XIV of 1958), referred to above. So, under this proviso to section 187 the offences concerning `special goods' and in this case the export of jutes which are `special goods' are triable by a Court having/ powers not inferior to those of a Magistrate, of the first class'. This case has been tried by a Magistrate, Ist class, and as such the trial of the accused‑petitioners was not without jurisdiction. Mr. Khan has referred to the case of Abdul Mansur Rahman v. Crown (5DLR26), in which it has been held that `A Magistrate has no jurisdiction to try an offence created by a special statute if the special statute sets up a tribunal for its trial.'

11. Under the Land Customs Act read with Chapter XVII of the Sea Customs Act, a special tribunal has been set up for trial of an offence falling under Clause (c) of section 7 of the Land Customs Act and such an offence is therefore exclusively triable by the Special tribunal and not by a Magistrate.' In that case the offence was one falling under Clause (c) of sec tion 7 of the Land Customs Act and for the trial of that offence special tribunal was set up but the offence committed in this case is one under section 167 (8) and (81) of the Sea Customs Act as applied to the Land Customs Act and that being so it is provided, by the proviso to section 187 of the Sea Customs Act which has been quoted above. So, the decision in 5 D L R 26, is not appli cable to the present case. I hold that the Magistrate, who tried the accused‑petitioners under section 167 (8) and (81) of the Sea Customs Act as applicable to the Land Customs Act has jurisdic tion to try the accused‑petitioners under the provisions of proviso to section 187 which was inserted by Customs Acts (Amendment) Act, 1958 (XIV of 1958).

12. Next as regards the examination of the accused‑petitioners under section 342 of the Code of Criminal Procedure, it appears from the record that the accused‑petitioners were not, in fact, asked whether they would adduce any defence. So, Mr. Khan has urged that in view of the law laid down in the case of Mosked Ali Molla and others v. The State (11 D L R 296), it must be held that the examination of the accused‑petitioners was improper and such they were prejudiced in their trial. It appears from the record that although the accused‑petitioners were not asked in their examination under section 342 of the Code of Criminal Procedure whether they would adduce any defence yet they adduced defence evidence which clearly show that they followed the proceedings quite well and understood the evidence and circumstances appearing against them. In the case reported in 11 D L R 296 referred to above, Rahman, J., has observed "Taking into account the perfunctory nature of the examination under section 342 of the Code of Criminal Procedure and the fact that accused were never called upon to indicate as to whether they had any defence to make or any defence evidence to adduce it seems to me that the complaint is legitimate. It may well be that the accused persons were misled into the belief that the stage for calling of the defence evidence would after they had been asked by the Court if they wished to adduce any such defence." Hence the learned Judge set aside the conviction and sentence and remanded the case for a re‑hearing in accordance with law from the stage of examining the accused under section 342 of the Code of Criminal Procedure. Now, in this case although the accused‑petitioners were not asked whether they would adduce any defence evidence, the accused‑petitioners were not at all misled rather they adduced evidence and. it appears from the order recorded by the Magistrate dated 25th day of November 1958, that after examining the accused persons under section 342 of the Code of Criminal Procedure the Magistrate adjourned the case to another date for defence and argument. In these circumstances, I am not prepared to hold that the accused‑petitioners have been prejudiced in the least in their trial. In the result, the Rule is discharged. K. B. A. Rule discharged.