High Court Division :
(Criminal Miscellaneous Jurisdiction)
AKM Abdul Hakim J
SM Mozibur Rahman J
July 12th, 2017
Rafiqul Islam (Md) ............Petitioner
Special Powers Act (XIV of 1974)
Since no complaint was made before the Sessions Judge by competent officer under the law, the special tribunal had no jurisdiction to try this case under Section 258 of the Act. ...... (18)
Hasnat Quiyum, Advocate-For the Petitioner.
Md Harun-ar-Rashid DAG with Shah Abdul Hatem AAG with MA Kamrul Hasan Khan AAG and Md Khairul Ahmed, AAG-For the State.
AKM Abdul Hakim J : This rule was issued on an application under Section 561A of the Code of Criminal Procedure calling upon the opposite party to show cause as to why the proceedings of Special Tribunal Case No.4 of 2006 arising out of Manikgonj Police Station Case No. 20 dated 26-6-2005 corresponding to GR No. 135 of 2005 under Section 25B of the Special Powers Act, 1974, now pending in the Court of learned Judge of Special Tribunal No.2, Manikgonj 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 relevant facts for the purpose of the disposal of the rule may be briefly states as follows:
The informant Md Akmol Hossain (Army) RAB-4, Paikpara, Mirpur, Dhaka along with recovered a black colour touchstone statue and also arrested accused Nos. (1) Md A. Salam son of Md A. Sattar, (2) Md Suruj son of late Nazimuddin, (3) Md Abul Kalam Azad son of Md Niamat AIi, (4) Md Rafiqul Islam son of A Rahman Molla, (5) Md Ahsanullah son of Md Sanaullah, (6) Sree Palash son of Sree Subash Das, (7) Md Saiful Islam alias Shamim son of late Sohrabuddin Khan, (8) Md Abbas Ali son of Rustom Ali, (9) Mojibur Rahman son of late Mesheruddin, (10) Sree Subash Chandra Das son of late Monindra Chandra Das on 26-6-2005 appeared before Manikgonj Police Station and lodged ejahar with the Officer-in-Charge stating inter alia that it came to know on the basis of secret information that the above mentioned arrested accuseds were the active members of smugglers of antiquities goods including touchstone statues and also it was noticed that they tried to send touchstone statute out of this country. The detective branch of RAB for ascertaining the matter, the informant along with DAD Md Zakir Hossain, Habildar Md A. Baten BDR, ASI Mizanur Rahman (Police), Corporal Md Nazmul Haque (Biman), Corporal Masud Alam (Biman), Soldier Md A Rahman (Army), Constable Md Moshiur Rahman (Police), Constable Md Abul Ansar (Police), Oldier Md Kamal Hossain on normal dress by showing themselves as purchasers on the basis of a General Diary No. 2542 dated 25-6-2005 of RAB-4, Paikpara, Mirpur went to the house of Tanvir Hossain son of Masum Khan of village-Porra at Manikganj where accuseds A Salam and Suruj were present. It may be mentioned that earlier it was settled with accused Salam through mobile phone that they will purchase the statue by paying taka one crore ten lacs where they will pay in cash only 6 lacs and the rest will be paid through bank draft. The accuseds Abul Kalam Azad, Rafiqul Islam and Ahsanullah will receive the above cash amount from the house of Abul Kalam where accuseds Palash and Saiful Islam Shamim will stay at Prime Bank, Kawran Bazar Branch for receiving bank draft. According to the plan, the another team of the informant, headed by Habildar A Baten along with Soldier Md A Rahman, Constable Md Shah Alam, Constable Md Abul Ansar met with accuseds Abul Kalam Azad, Rafiqul Islam, Ahsanullah at the house of accused Abul Kalam Azad. At the time of talking, accuseds Suruj and Salam brought the statue from the house. After ascertaining the same as original touchstone, the informant along with force arrested those accuseds. Thereafter, the informant prepared seizure list in presence of witnesses Kazi Habibur Rahman, Fazlul Karim Mollick, Village Porra, who put their signatures. In the meantime the informant informed the matter to Habildar A Baten through phone who with force arrested the accuseds Abul Kalam Azad, Rafiqul Islam, Ahsan Ullah. After getting the statue, informed the matter to Corporal Masud who along with his force arrested Palash and Saiful. On asking, A Salam and Suruj disclosed the name of 3 others accused Subash, Abbas and Mujibor who where waiting in front of Manikgonj Court where the informant along with force arrested them and thus the accuseds committed offence under Section 25B of the Special Powers Act, 1974. The above touchstone was examined by a jwellery shop. The above ejahar recorded s Manikgonj Police Station Case No. 2 dated 26-6-2005 under Section 258 of the Special Powers Act, 1974.
3. After investigation, police submitted charge-sheet on 30-11-2005 under Section 258 of the Special Powers Act. The learned Judge of the Senior Special Tribunal, Manikgonj received the case record on 31-1-2006 and same was registered as Special Tribunal Case No. 4 of 2006. Subsequently, on 6-3-2006, the accused-petitioner filed an application under Section 265(C) of the Code of Criminal Procedure. Finally, charge was framed against the accused-petitioner and 9 (nine) others under Section 25B of the Special Powers Act, 1974 on 2-5-2006 and transferred the case to the court of Special Tribunal No.2 Manikgonj for trial.
4. Being aggrieved by and dissatisfied with the said proceedings, the petitioner moved this court by filing an application under Section 561A of the Code of Criminal Procedure and obtained the present Rule.
5. It appears that two other accused-petitioner of this case also preferred a Criminal Miscellaneous Case being No. 7404 of 2006 before this court and their lordships were pleased to issue a Rule along with an order of stay dated 25-5-2006 which still pending for disposal.
6. Mr Hasnat Quiyum, the learned Advocate appearing on behalf of the accused-petitioner submits that the first information report and other materials on record does not disclosed any offence of smuggling which may come under Section 25B of the Special Powers Act. He further submits that the proceeding against the accused petitioner under Section 25B of the Special Powers Act and trial of the case of the Special Tribunal without jurisdiction in view of the provision as laid down Section 23(1) of the Antiquities Act, 1968. He finally submits that the learned Judge of the Special Tribunal has no jurisdiction to try offences since the complaint is not made by an officer empowered by Government as such taking cognizance of the offence, framing of charge is an abuse of the processes of the court and same is liable to be quashed for ends of justice.
7. On the other hand, Mr Harun ar-Rashid, the Deputy Attorney-General opposes the Rule and submits that the First Information Report clearly disclosed the offence under Section 25B of the Special Powers Act.
8. We have heard the submission of the learned Advocate for the petitioner and counter submission of the learned Deputy Attorney-General, perused the application under Section 56lA and relevant Annexures annexed thereto .
9. It appears that on plain reading of the First Information Report it is found that one touchstone statue of god and goddess was kept in the custody of the accused for the purpose of selling those outside Bangladesh. There is no allegation that the statue was smuggled into Bangladesh from any other country by evading payment of customs duties and taxes. It is a question of interpretation of Section 25B as to whether mere possession of antiquities constitutes the offence of smuggling defined in Section 25B.
10. To evaluate and appreciate the contradictory contentions and interpretations as to the applicability of the Antiquities Act and the Special Powers Act in the instant case, it is necessary to refer to certain provision of the Antiquities Act, 1968 to consolidate and amend the law relating to the preservation and protection of antiquities.
11. Section 28 of the Act deals with jurisdiction to try offences as follows:
"No court shall take cognizance of an offence punishable under this act except upon a complaint in writing made by an officer generally or specially empowered in this behalf by the Central Government and no court inferior to that of a Sessions Judge shall try any such offence."
12. Although short and concise the Antiquities Act is a self contained, full and complete enactment with elaborate provisions not only for the preservation and protection of antiquities but also for violation and contravention arising out of and in relation to the antiquities imposing sentence of imprisonment or fine or both.
13. Section 25B sub-section 1 clause (a) of the Special Powers Act has made it an offence 'to take out of Bangladesh jute, gold or silver bullion, manufactures of gold or silver, currency, articles of good, drugs, imported goods or any 0ther goods without specifically mentioning and spelling out "Antiquities" which as we have noticed has been taken care of by the Antiquities Act of 1968.
14. The Antiquities Act is still on the statute book intact. It has not been repealed nor any of its Section has been omitted, nor incorporated in the schedule to the. Special Powers Act nor the offences specified under any section particularly Sections 24 and 23 of the Antiquities Act have been included in the body of the Special Powers Act, 1974.
15. Having regard to the discussion made above we are satisfied the terms "or any other goods" used in Section 25 sub-section B clause (1)(a) of the Special Powers Act neither include nor mean antiquity because offences relating to antiquities are not included either in the body or in the Schedule of the Special Powers Act, 1974.
16. We are thus unable to accept the contention of the learned Deputy Attorney-General that offences relating to antiquities are covered under section 2SB of the Special Powers Act.
17. It further appears that the trial has been held by the Special Tribunal has no jurisdiction to try offences since the complaint is not made by an officer empowered by Government and therefore the case should be liable to be quashed.
18. It also appears that the possession of the statue may be an offence under sub-Section 2 of Section 23 of Antiquities Act,. 1968 for which a different procedure has been laid down in the Antiquities Act, 1968. But since no complaint was made before the Sessions Judge by competent officer under the taw, the Special Tribunal had no jurisdiction to try this case under Section 25B of the Special Powers Act.
19. Having regard to the facts and circumstances of the case and relevant provision of Special Powers Act, 1974 and Antiquities Act, 1968 the decisions cited above, we are of the opinion that the continuation of the impugned proceeding is nothing but an abuse of the process of the court same is hereby quashed.
20. In the result, the Rule succeeds.
21. Accordingly, the Rule is made absolute.
The proceeding of Special Tribunal Case No. 04 of 2006 arising out of Manikgonj Police Station Case No. 20 dated 20-6-2005 corresponding to GR Case No. 135 of 2005 under section 25B of the Special Powers Act, 1974, now pending in the Court of Special Tribunal Case No.2, Manikgonj are quashed.
22. Prima facie it appears from the facts and circumstances of the case that there are ingredients of offence punishable under the Antiquities Act, 1968. In that view of the matter, the authorized officer empowered by the said Act may initiate the criminal proceeding against the accused-person.
23. The Antiquities which is confiscated in the present case shall be made over to the Director of Archaeology, Government of People's Republic of Bangladesh for custody, preservation and protection.