(Criminal Miscellaneous Jurisdiction)
ANM Bashir Ullah J } .
Mohammad Ullah J }
Abdullah (Md) Accused-Petitioner
VS
State …………Opposite Party
Judgment
March 11th, 2018
Code of Criminal Procedure (V of 1898)
Section 561A
On the date of issuance of the Rule 6 witnesses were examined and the case was fixed for the examination of the accused under Section 342 of the Code for twice but each and every time the accused could not be examined for the c1every step of the accused that he could not cross-examine the witnesses but whenever he was allowed to cross-examine the witnesses, he the accused was not diligent and serious to achieve the goal. The petitioner ought to have moved this Court immediately after framing charge but he awaiting for the last 7 years in the trial Court all on a sudden when the case became very matured for pronouncement of judgment moved this Court in order to frustrate the trial as a whole. ………………(17)
Golam Sarwar Hiru vs State 13 MLR (AD) 103 = 14 BLC (AD) 26 ref. None appears-For the Petitioner. Anwara Shahjahan, DAG-For the State
Judgment
ANM Bashir Ullah J : This Rule, on an application under Section 561A of the Code of Criminal Procedure (in short, the Code) filed by the accused Mohammad Abdullah was issued calling upon the opposite party to show cause as to why the proceedings of Special Tribunal Case No. 1617 of 1999 arising out of Bandar Police Station Case No.8 dated 4-5-1999 corresponding to GR No. 398 of 1999 passed by the Additional Sessions Judge, 3rd Court, Chittagong should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts relevant for disposal of the Rule, in short, is that one Abdus Sattar, SPS of MA Hannan International Airport, Chittagong lodged the First Information Report (in short, the FIR) against the sole accused Mohammad Abdullah alleging, inter-alia, that on 4-5-1999 .at 10-30 am the accused getting down from Bangladesh Biman Airbus being No: BG-046 having passport No. M-0764317 had entered in the passengers lounge of the said Airport with his baggage. Before checking the baggage of the accused he was asked whether he had any gold or gold ornaments in the baggage when he made a negative answer but the authority suspected him and searched his body and on such search they found 30 gold bars attached to the knee which was kept there using scotch tape. The accused was arrested and the goods were seized and producing him with the Bandor Police Station of Chittagong Metropolitan Police the informant lodged the above FIR.
3. On the basis of the said FIR Bandar Police Station Case No. 8 dated 4-5-1999 corresponding to GR No. 398 of 1999 were started.
4. The case was endorsed to Police Sub-Inspector Abdul Kader for investigation who could not complete the investigation. There after, the case was investigated by Police Sub Inspector Mafiz Uddin who on completion of the investigation submitted Police report and recomrnended the trial of the accused under Sections 25B of the Special Powers Act, 1974 (in short, the Act) along with under Sections 156 (9) and 14 of the Customs Act.
5. On receipt of the Police report, the learned Magistrate transmitted the case record to the Metropolitan Sessions Judge and Metropolitan Special Tribunal, Chittagong, where the case was registered as Special Tribunal Case No. 1617 of 1999 and eventually the case was transferred in the Court of Metropolitan Additional Sessions Judge, 3rd Court, Chittagong for trial where charge was framed on 1-2-1999 under Section 25B of the Special Powers Act 1974 and thereafter prosecution examined as many as 6 witnesses till 1-1-2001. Thereafter, the case was adjourned consecutively for examination of the rest witnesses till 23-9-2003 and on that date the case was again fixed on 2-10-2003 for examination of the accused under Section 342 of the Code, but the defence on that date filed an application to recall the witnesses. Accordingly, the case was again fixed for examination of witnesses and after a long gap the case was again fixed on 30-3-2005 for the examination of the accused under Section 342 of the Code. But on that particular date the accused was not examined and on an application filed by the accused the case was adjourned and fixed for examination of the witnesses and when the case was fixed on 30-4-2006 for further trial, the accused petitioner moved this Court filing an application under Section 561A of the Code challenging the proceeding as a whole and a Rule was issued on 17-4-2002 as stated hereinabove.
6. At the time of issuance of the Rule, the trial of the Special Tribunal Case No. 1617 of 1999 was stayed for a period of 6 (six) months. Thereafter it extended from time to time and lastly on 16-1-2007 it was extended till disposal of the Rule and the trial of the original proceeding has been stayed till now.
7. No one appears on behalf of the petitioner to support the Rule though the Rule has been appearing in the daily cause list of this Court for several days and over and again the Rule is pending in this Court from 2006. In that view of the matter, the Rule is pending for the last 12 years but there appears no effort on the part of the Rule petitioner for disposal of the Rule.
8. Mrs. Anwara Shahjahan, the learned Deputy Attorney-General appearing for the State opposite party submits that for alleged smuggling of 30 gold bars equivalent to 30 tolas gold on 4-5-1999 by the accused petitioner the case was filed and Police on completion of the investigation submitted report recommending the trial of the accused petitioner under Section 25B of the Special Powers Act, 1974. The trial Court rejecting an application of the accused petitioner under Section 241A of the Code for discharging him framed charge under Section 25B of the Act and on the above charge 6 witnesses were examined and when the case was awaiting for its final disposal after 7 years of its filing, the petitioner had come in this Court challenging the proceeding as a whole.
9. Since the petitioner brought gold bars evading customs duty as prevailed under Section 25B of the Act he had committed an offence punishable under Section 25B of the Act. The trial Court rightly framed the charge and by this time most of the witnesses were examined by the trial Court and against the order of framing charge by the trial Court, the accused petitioner came to this Court but failed. The learned Deputy Attorney-General also submits that when the trial begins in a criminal case the accused cannot invoke the jurisdiction of Section 561A of the Code. So, the Rule is liable to be discharged with cost.
10. We have considered the above submissions of the learned Deputy Attorney General and have gone through the materials on record with profound attention particularly the FIR, the order of framing charge, the Police report and the other materials on record annexed by the accused petitioner.
11. On going to the materials on record it appears that the accused petitioner filed this application under Section 56lA of the Code in order to quash the proceeding of Special Tribunal Case No. 1617 of 1999 under Section 258 of the Special Powers Act, 1974 running against him taking the main ground that since the petitioner failed to pay the customs duty he is liable to be prosecuted for the violation of the provisions of the Customs Act and he should not be tried under the provisions of Special Powers Act. So, the continuation of the proceeding under Section 25B of the Special Powers Act, 1974 in the trial Court is nothing but the abuse of the process of the Court and the same is liable to be quashed for securing the ends of justice.
12. Since, none appears to support the Rule we have given our anxious consideration to the point raised by the accused petitioner in the application filed under Section 561A of the Code.
13. From the materials on record it appears that when the accused had entered into the passengers lounge he was interrogated by the customs authority as to whether he was possessing any gold bar or gold ornaments but he made a very negative answer but on search 30 gold bars were found in his possession which he was carrying attaching the same with his knee through scotch tape.
14. The Baggage Rules allow a person to bring certain goods into Bangladesh through air on payment of customs duty but from the materials on record it appears that the accused was not carrying the goods through his baggage rather he was carrying the same in a concealing manner and the authority on search recovered the same from his knee which is not a baggage rather he was carrying the same in a concealing manner and the authority on search recovered the same from his knee which is not a baggage at all. In order to avail the benefit of baggage Rules a person must carry his goods through baggage.
15. Section 25B of the Act provides that whoever brings any goods into Bangladesh evading payment of the customs duties he commits an offence punishable under Section 25B of the Act. So, in this particular case we find that the accused bringing the gold bars into Bangladesh evading the payment of customs duty had committed the offence punishable under Section 25B of the Act. Over and again the manner of bringing those gold bars by the accused is also very much significant in this case. So, we find it difficult to consider that the accused is not liable to be prosecuted under Section 25B of the Act.
16. The trial Court on due consideration the materials on record framed the charge and continued the trial. But it is surprising to us that after continuation of the proceeding for the last 7 years the accused moved this Court an obtained the present Rule.
17. In the case of Golam Sarwar Hiru VS State 13 MLR (AD) 103 = 14 BLC (AD) 26 it has been held by the Appellate Division that when trial has already begun and prosecution witnesses has been examined the quashment of a proceeding is not permissible. In this particular proceeding we find that the charge was framed on 1-2-2000 and till 17-4-2006 i.e. on the date of issuance of the Rule 6 witnesses were examined and the case was fixed for the examination of the accused under Section 342 of the Code for twice but each and every tune the accused could not be examined for the clevery step of the accused that he could not cross-examine the witnesses but whenever he was allowed to cross-examine the witnesses, he (accused) the accused was not diligent and serious to achieve the said goal. The petitioner ought to have moved this Court immediately after framing charge but he awaiting for the last 7 years in the trial Court all on a sudden when the case became Court all on a sudden when the case became very matured for pronouncement of judgment moved this Court in order to frustrate the trial as a whole. So, we find no merit in the Rule.
18. In the result, the Rule is discharged. The trial Court is directed to dispose of the case within 6 (six) months from the date of receipt of this judgment without giving any adjournment to any party. The stay order passed in this Rule is hereby re-called. ‘
Let a copy of this judgment and order be sent to the concerned Court with the lower Court’s record.
