Joinder
of offences-Joinder of scheduled and non-scheduled offences-Whether the trial
was vitiated by such joinder-If a non-scheduled offence is included in the
trial of a scheduled offence the trial does not necessarily become void or
without jurisdiction but a question may be raised as to whether the accused was
prejudiced by such joinder and in a particular case there may be necessity to
set aside such a trial and direct a trial afresh.
Per Shahabuddin Ahmed C.J (agreeing): Smuggling particularly of gold has been defined in the Special Powers Act and this definition is exactly the same as that of smuggling under section 156(8) of the Customs Act. The offence is one and same. Therefore, there is no question of joinder or misjoinder of charges. Though it has been made punishable under both the laws, but to try this offence exclusive jurisdiction has been given only to the Tribunal under the Special Powers Act, and as such, jurisdiction of an ordinary court, such as a Magistrate, to try the offence under ordinary law stands ousted. The respondent was rightly charged by the Tribunal under section 25B of the said Act and after trial he was rightly convicted under section 25B of the Act. The addition of the words "read with section 156(8)" in the charge is superfluous and totally unnecessary. This addition has not affected the Tribunal's jurisdiction to try the offence. State vs MM Rafiqul Hyder 45 DLR (AD) 13.
