High Court Division
(Criminal Miscellaneous Jurisdiction)
Md Miftah Uddin
Choudhury J
Soumendra
Sarker J
Shahadat Hossain (Md.)………..
……………Petitioner
vs
State and another………….
…………..Opposite-Parties
Judgment
September 13th, 2012.
Money Laundering Protirodh Ain (VIII of 2009)
Section 4(2)
The law relates to Money Laundering does not provide any provision to make investigation by the police in case of any offence committed under the Act, rather the Anti-Corruption Commission is authorized to make such investigation. . ….. (12)
Code of Criminal Procedure (V of 1898) Section 561A
Money Laundering Protirodh Ain (VIII of 2009) Sections 2(Ta) and 4(2)
This sort of interference is nothing but illegal harassment amounts to high handedness of the police and creation of anarchy amongst the passengers travelling from one city to another city within the country and apparently an attempt of the police personnel to make themselves illegally benefited ……………..(12)
Nasiruddin Mahmud vs Momtazuddin Ahmed, 36 DLR (AD) 14; Abdul Quader Chowdhury vs State, 28 DLR (AD) 38; Manik (Md) @ Md Akkash Khan (Manik) vs State, 2 BLC 418 and Sunil Kumar vs Messer’s Escorts Yamaha Motors Ltd., AIR 2000 (SC) 27 ref.
Belayet Hussain, Advocate-For the Petitioner.
Md Habibullah, Advocate-For the Anti-Corruption
Commission, Dhaka as Opposite-Party No.2.
Md Shohrowardi, Deputy Attorney-General, with Md Ishaque Momin, Assistant Attorney-General
Israt Jahan, Assistant Attorney-General-For the Opposite- Party.
Judgment
Md Miftah Uddin Choudhury J: This Rule was issued calling upon the opposite party to show cause as to why the proceeding of GR Case No. 249 of 2009 arising out of Narshingdi Police Station Case No. 30 dated 11-4-2009 under Section 4(2) of the Money Laundering Protirodh Ain, 2009, now pending in the Court of Chief Judicial Magistrate, Narshingdi should not be quashed, and or such other or further order or orders as to this Court may seem fit and proper should not be passed.
2. It is stated that, the petitioner is a citizen of Bangladesh hails from a respectable family of Sylhet city, a reputed businessman, a member of Sylhet Chamber of Commerce and Industry, owner of two big shops in Sylhet city named Furniture Mahal and Jabir Metal wherein invested huge amount of money. Alongwith the application for quashment the petitioner annexed his Membership Certificate issued by the Sylhet Chamber of Commerce and Industry, and copies of his Trade Licences issued by Sylhet City Corporation. On 13-4-2009 at eight he started from Dhaka for Sylhet by a bus under management of renowned transport company named “Green Line Paribahan”. On the highway at 2-35 AM the police restrained the bus carrying him and started checking. In course of such checking police found Taka 47,45,600 (forty seven lakh forty five thousands and six hundreds) in his bag and compelled him to leave the bus and took him to the police camp at Madhobdi. Thereafter, the police seized the said money and other goods contained in his bag and forwarded him to Court, on 5-4-2009 showing him as arrested by making General Diary being Madhobdi Inspection Centre General Diary No. 148 dated 05-4-2009 under section 54 of the Code of Criminal Procedure and took him on remand. Thereafter on 11-4-2009 an FIR being Madhobdi Police Station Case No.30 dated 11-4-2009 was lodged against him and he was again taken on remand for further 5(five) days. After such remand he was sent to custody and Sub-Inspector KM Azizul Haque was entrusted for investigation. Thereafter by order dated 3-6-2009 passed in Criminal Miscellaneous Case No. 385 of 2009, learned Sessions Judge, Narshingdi enlarged him on bail. After obtaining bail he moved this Court under Section 561A of the Code of Criminal Procedure and obtained the instant Rule.
3. In the FIR lodged against him that it is alleged that on 4-4-2009 the informant ASI Poritosh Chandra Sarker along with some constables of Madhobdi Inspection Centre on the basis of Madhobdi Inspection Centre General Diary No.133 dated 4-4-2009 while had been checking the vehicles running through the area under Madhobdi Inspection Centre from 18-00 PM to 6-00 AM of the next day on Dhaka-Sylhet highway in the night at 2-35 hours stopped the bus being numbered Dhaka Metro-Ba-14-2787 managed by “Green Line Paribahan”. During checking of the luggage they became suspicious about a black coloured bag and made query about its owner, but none of the passengers claimed its ownership and the guide (Supervisor) of the bus after checking tickets and luggage tags said that the said bag belonged to the passenger sitting on Seat No.B4. Thereafter, in one stage the petitioner, the passenger of that seat named Md Shahadat Hossain, son of Fazlul Karim and Shahanara, of 27/B Naya Sarak, Police Station Kotwali, District-Sylhet identified the said bag as of him. On query, he said that the said bag contained Taka 47,45,600 (forty seven lakh forty five thousands and six hundreds) but could not show any document in support of that amount, he claimed himself as a man dealing with hundi business. In presence of witness named Parvez Ahmed, of Village-Paschim Burulia PS Joydebpur, District-Gazipur Supervisor of the said bus, Md Salim of Jatrabari, Dhaka, Ripon Ahmed, of Pagla Bazar, Dakkhin Sunamgonj, at present-22/ A, Rajar Gali, Daroga Gate, Sylhet and in presence of Mr Kazi Md. Hasan, Executive Magistrate, Narshingdi seized the money along with the ticket, bag, one genji, lungi, chador, pant and mobile set from him. In the said seizure list the said Executive Magistrate and the said witnesses put their signatures. The said accused person said that the amount of money carried by him is related to hundi business, he took the same from Dhaka for handing over to a person of Sylhet. Subsequently, regarding that money in front of various media including print and electronic, and in front of the learned Magistrate and other High Officials he admits that the said money is related to hundy business. His such information was circulated by various media. He further informed that a person in Green Line counter at Arambagh, Dhaka gave him the said money contained in the bag with direction to hand over the same to another person in Green Line counter at Supanighat, Sylhet. He knows those persons, but do not know their names and addresses. Thereafter he was arrested by making Madhobdi Inspection Centre General Diary No. 148 dated 5-4-2009 under Section 54 of the Code of Criminal Procedure and produced before the Court. To find out the clue by making interrogation Sub-inspector KM Azizul Islam, in-charge of Madhobdi Inspection Centre prayed for 10 (ten) days police remand but the Court allowed (five) days. During the period of remand while he was in custody of Narshingdi Model Police Station the Officer-in-Charge of the police station as well as the investigation officer asked him so many questions. In such situation, it is apparent that the accused committed offence under section 4(2) of the Money Laundering Protirodh A in, 2009, and hence the case.
4. In the application for quashment the Anti-Corruption Commission has been added as opposite party No.2.by making an application and ultimately to contest the Rule the commission filed an affidavit-in-opposition.
5. Mr Belayet Hussain, learned Advocate appearing for the petitioner submits that carrying money of any amount from Dhaka to Sylhet by any citizen of Bangladesh is not an offence and there is no prohibition or any prescribed Rule in respect of any amount of money, so the police arrested the petitioner from the bus by which he had been travelling from Dhaka to Sylhet without any reason. The petitioner was arrested on 5-4-2009 under section 54 of the Code of Criminal Procedure, taken on police remand for 5 (five) days, and thereafter on 11-4-2009 the FIR was lodged under Money Laundering Protirodh Ain, but the said Act does not provide any law to initiate any case by the police as it made in the instant case. He referred the definition of Money Laundering as provided in Section 2 (Ta) of the said Act and also mentioned the sections 9 and 12 of the said Act.
6. In section 2(Ta), the Money Laundering was define as follows:
(U) gvwbjÛvwis A_©-
(A) m¤ú”³ Aciva msNU‡bi gva¨‡g cÖvwß A_© ev m¤úwËi A‰ea Drm †Mvcb ev Avovj Kwievi D‡Ïk¨ Dnvi n¯ÍvšÍi, iƒcvšÍi, we‡`‡k †cÖiY ev we‡`k nB‡Z evsjv‡`‡k †cÖiY ev Avbqb Kiv ev ˆea I A‰ea Dcv‡q AwR©Z A_© ev m¤úwË we‡`‡k cvPvi|
(Av) †Kvb Avw_©K †jb‡`b Giƒcfv‡e m¤úbœ Kiv ev m¤úbœ Kwievi †Póv Kiv hvnv‡Z GB Aa¨v‡`‡ki Aaxb Dnv wi‡c©vU Kwievi cª‡qvRb nB‡e bv|
(B) Giƒc †Kvb Kvh© Kiv hvnvi Øviv D³iƒc A_© ev m¤úwËi A‰ea Drm †Mvcb ev Avovj Kiv nq ev Giƒc Kvh©m¤úv`‡bi †Póv Kiv ev Abyiƒc Kvh©m¤úv`‡b ¯^Áv‡b mnvqZv ev hohš¿ Kiv|t
7. Section 9 of the said Act provides the procedures of investigation and trial of such offence which are as follows:
9| Aciv‡ai Z`šÍ I wePvit (1) GB AvB‡bi Aaxb Acivamg~n `yb©xwZ `gb Kwgkb AvBb, 2004 (2004 m‡bi 5bs AvBb) Gi Aaxb Zdwmjf~³ Aciva M‡Y¨ `yb©xwZ `gb Kwgkb ev Kwgkb nB‡Z Z`y‡Ï‡k¨ ÿgZvcÖvß †Kvb Kg©KZ©v KZ…K Z`šÍ‡hvM¨ nB‡e|
(2) GB AvB‡bi Aaxb Aciva mg~n Criminal Law Amendment Act, 1958 (Act XL of 1958) Gi Section 3 Gi Aaxb wbhy³ †¯úkvj RR KZ…©K wePvh© nB‡e|
(3) GB AvB‡bi Aaxb Acivamg~‡ni Z`šÍ, wePvi I mswkøó Ab¨vb¨ wel‡q GB AvB‡bi weavbvejxi mwnZ we‡iv‡ai †ÿ‡Î, `ybx©wZ `gb Kwgkb AvBb, 2004 Ges Criminal Law Amedment Act, 1958 Gi weavbvejx cÖvavb¨ cvB‡e|Ó
8. Section 12 of the Said Act provides that: Ò`yb©xwZ `gb Kwgk‡bi Aby‡gv`b Acwinvh©Zv t (1) †dŠR`vix Kvh©wewa ev AvcvZZt ejer Ab¨ †Kvb AvBb hvnv wKQzB _vKzK bv †Kb, `ybx©wZ `gb Kwgkb KZ©”K †Kvb AvBb cÖ‡qvMKvix ms¯’v‡K cÖ`Ë Aby‡gv`b ev `ybx©wZ `gb Kwgk‡bi mivmwi Av‡e`b e¨wZ‡i‡K †Kvb Av`vjZ GB AvB‡bi Aaxb †Kvb Aciva wePviv_© Avg‡j MÖnY (cognizance) Kwi‡eb bv|
(2) GB AvB‡bi Aaxb †Kvb Aciv‡ai Z`šÍ mgvß nBevi ci Z`šÍKvix Kg©KZ©v Av`vj‡Z cÖwZ‡e`b `vwLj Kwievi c~‡e© Kwgk‡bi c~e©vby‡gv`b MªnY Kwi‡eb Ges Kwgkb KZ©”K cÖ`Ë Aby‡gv`b c‡Îi GKwU Kwc cÖwZ‡e`‡bi mwnZ Av`vj‡Z `vwLj Kwi‡eb|
9. By referring the aforesaid provisions of the law Mr Hussain submits that any case under Money Laundering Protirodh Ain, 2009 can be initiated by the Anti-Corruption Commission but not by the ordinary police as it made in the instant case. In the instant case the FIR does not disclose any offence under the definition of Money Laundering Protirodh Ain or under any law of the land. The petitioner as a citizen of Bangladesh had the right to move from one city to another city with any amount of money, but on his way from Dhaka to Sylhet the police on deep night with evil intention arrested him and took him from the bus to the police camp and created pressure upon him to give the money to them without any reason, but being refused arrested him without any reason under Section 54 of the Code of Criminal Procedure and took him on remand, made torture, and thereafter lodged the FIR with such allegation which does not disclose any offence, rather finding no offence or no cause to make any allegation lodged the instant FIR mentioning the law which is not at all applicable in the instant case. As per Mr Hussain, this sort of attempt by the police is nothing but harassment and in the cases like the instant one whore the FIR does not disclose any offence this Court under section 561A of the Code of Criminal Procedure can interfere even before submission of any charge-sheet or taking cognizance by the Court. In support, he has cited the decisions of this Court in the cases of, Nasiruddin Mahmud vs Momtazuddin Ahmed reported in 36 DLR (AD) 14, Abdul Quader Chowdhury vs The State, reported in 28 DLR (AD) 38, Manik (Md) @ Md Akkash Khan (Manik) vs State, 2 BLC 418, Sunil Kumar vs Messer’s Escorts Yamaha Motors Ltd., reported in AIR 2000 (SC) 27.
10. Mr Md Habibullah learned Advocate appearing for the opposite party No.2 (the Anti-Corruption Commission) submits that this application is not maintainable, he contended that as per Section 12 of the Money Laundering Protirodh Ain, 2009 any order passed by the Court is appealable the Commission has already took initiative to make investigation of the instant case, hence the Rule is liable to be discharged.
11. Mr Md Shohrowardi, learned Deputy Attorney-General, appearing for the State submits that he has got instruction that the investigation of the case has already been completed but due to existing stay order of this Court no charge sheet could be submitted. As such, the stay order may be vacated and Rule may be discharged to allow the investigation agency to submit the charge-sheet, after submission of charge-sheet the petitioner may come with the application for quashment since apparently the FIR does not disclose any offence. Learned Deputy Attorney-General also can not claim that the FIR disclosed any offence rather he admits that carrying of any amount of money from one city to another city of the country is not an offence and our law does not provide any limitation about the amount of money carrying personally by any citizen.
12. We have gone through the relevant law as well as the FIR and the decisions cited above. On perusal of the FIR it appears that it does not disclose any offence and there is nothing to take cognizance against the petitioner rather it is his right to carry money or any goods not forbidden by law from one place to any place within the country and the police has got no right to interfere with his such unfettered right. This sort of interference is nothing but illegal harassment amounts to high handedness of the police and creation of anarchy amongst the passengers travelling from one city to another city within the country and apparently an attempt of the police personnel to make themselves illegally benefited. We find no reason for the police to restrain and check the bus on the highway at dead night as it made in the instant case. We find that from that bus except money nothing was recovered by the police from anybody else. No contraband item was recovered from the bus by which the petitioner was going to Sylhet. Arrest of the petitioner by the police appears to us as an illegal act of them which appears as an illegal attempt to realize some money from the passengers by creating pressure upon them and by making torture. We find no reason of granting remand as it granted in the instant case. The law relates to Money Laundering as mentioned above does not provide any provision to make investigation by the police in case of any offence committed under the said Act, rather the Anti-Corruption Commission is authorized to make such investigation. The petitioner did not prefer any appeal against any order of any court rather he filed the application and obtained the instant rule for quashment under Section 561A of the Code of Criminal Procedure. The High Court Division has got the inherent power to pass any order to prevent abuse of the process of Court or to secure ends of Justice. So the contention of Mr Habibullah is irrelevant.
13. In the instant case we have already observed that the FIR lodged by the informant does not disclose any offence, hence the instant case against the petitioner is nothing but harassment to the petitioner through the abuse of process of Court. Though no charge-sheet, has yet been submitted and no cognizance was taken by any Court but on reading the decisions cited above we find no barrier, to quash the instant proceeding pending for no offence committed by the petitioner.
14. Accordingly, this Rule is hereby made absolute and the proceeding of GR No. 249 of 2009, arising out of Narshingdi Police Station Case No.30 dated 11-4-2009 under section 4(2) of the Money Laundering Protirodh Ain, 2009, now pending in the Court of Chief Judicial Magistrate, Narshingdi, is hereby quashed. The learned Chief Judicial Magistrate, Narshingdi is hereby directed to pass necessary order to ensure return of the money, bag arid other goods seized by the police from the petitioner to him within 1 (one) month from the date of receipt of this order and to report such return to this Court within next 7 (Seven) days.
15. The copy of this judgment shall be transmitted to the Inspector General of Police to take necessary action to stop such harassment.
