Special Powers Act [XIV of 1974]
Section 2 (f)-The writ of habeas corpus would be issued if the order of detention is prima-facie illegal.
The Appellate Division held that the de- tention will be illegal if there is no law supporting the order of detention or if the detention is under the law, which is un- constitutional or the detention is under a valid law but the provisions established by law has not been followed. Bangladesh and others:
The State: -Vs. Human Quader Chowd- hury: A.S.F. Rahman: Md. Chand Mia Chand Mia: (Criminal) 10 ALR (AD) 305-310
Section 2(f), (iii), (iv), (v), (vi), (vii) and (viii) -The basic principle for making an order of detention is that a person is involved in prejudicial acts which are such nature that his movement as a free citizen like any other person is prejudi- cial to the interest of the State.
The Appellate Division held that the District Magistrate or Additional District Magistrate can detain a person if he is sa- tisfied that such person is doing doing or involved in any of the prejudicial acts within the meaning of section 2(f), (iii), (iv), (v), (vi), (vii) and (viii), for a period of 30 days with a view to preventing him from doing such prejudicial acts. The government may also detain any person if it is satisfied that such person is required to preventing him from doing any y of the prejudicial acts enume- rated in clauses (i)-(viii). The government has also power to remove any person from Bangladesh if his acts are prejudicial to the interest of the State, if he is not a citizen of Bangladesh. Bangladesh and others:
The State: -Vs.- Human Quader Chowd- hury: A.S.F. Rahman: Md. Chand Mia Chand Mia: (Criminal) 10 ALR (AD) 305-310
Section 2(f)
Power of Preventive detention
Held; Thus in spite of pendency of a criminal case over the selfsame allegations as have been detailed in the grounds of detention against the detenu and those allegations having the effect of trafficking criminals out of the Country or passing out information out of the country or spreading the communal disturbance or disturbing communal harmony etc. and thereby creating an impression, apprehension or reasonable suspicion of likelihood of repetition of the alleged offence in the mind of the detaining authority that the detune may indulge in activities prejudicing the security of Bangladesh or maintenance of public order and the maintenance law and order of the Country etc. and such activity or activities being prima facie of serious in nature the authority has the satisfaction requiring the detune to be dealt with an order of detention for preventing him from indulging in prejudicial activities contemplated under section 2(f) of the Special Powers Act. Mrs. Arati Debi Vs. Govt, of Bangladesh & Ors 12 BLT (AD) 205
Section 2(f)
Criticizing the Government do not come within the mischief of prejudicial act as well
Order of Detention —The High Court Division upon hearing the parties found that the order of detention has been made without application of mind and upon colorable exercise of power and that there is no nexus between the grounds and the purpose of the detention made the Rule absolute on the finding that: “In consideration of the materials produced and the submissions of the learned Counsels of both the sides, we are of the view that the allegations made in the grounds do not come within the mischief of prejudicial act as defined in section 2(f) of the Special Powers Act, 1974. Admittedly, there is no other allegation neither in the grounds served vide Annexure-I nor in the affidavit-in-opposition submitted by the respondent Nos. I and 5 except those as stated there in the memo of grounds. Memo making of G.D. entry as contained in the memo of grounds. Mere making of G.D. entry as contained in the memo of grounds and describing him as terrorist, miscreant, bomber etc. are not enough to detain a citizen of the country in custody curtailing his civil liberties. We also find that there is no specific case mentioned in the grounds nor about his involvement in alleges supply of M- 16 Rifle. Even if there has been any specific case filed against the detenu subsequent to his arrest he will face legal consequence in the said case. Delivering of speeches, making of political statements, criticizing the Government and its activities and attending political meetings of the opposition political parties do not came within the mischief of prejudicial act as well.” —Held In view of the above, we do not find any substance in the submission of the learned Deputy Attorney General. The petition is dismissed. Govt. of Bangladesh Vs. Professor Apu Ukil 16 BLT (AD)126
Sections 2(f) and 8
Burden of proof in matters of detention
The burden of proof to show that the order of detention is lawful lies on the detaining authority. The detaining authority making return to the rule is to place all relevant facts before the Court. Where the respondents do not file any return, the Court cannot satisfy itself as to the justification of detention.
In the absence of any return by the respondents, the appellant’s contention that the grounds were served on the detenu beyond the statutory period prescribed in section 8 of the Special Powers Act and that the detenu was deprived of his right to make an effective representation before the advisory board remain unchallenged. The Court drew an inference against the respondents and held the order of detention illegal and without lawful authority. Md Shameem Vs. Government of Bangladesh and others, 15BLD(AD) 138
Section 2(f)
Defines prejudicial acts—Section 3(l)(a)- Order of preventive detention can only be made when any of the grounds as defined under section 2(f) exists and not otherwise—
Liberty of movement is an important fundamental right of a citizen guaranteed under the Constitution which can not be curtailed except in accordance with law. When there is no ground that a person is about to engage himself in prejudicial acts which may endanger public order and public safety the Government can not make preventive order to be kept him in detention. No person can be detained on the ground that some other persons are likely to endanger public safety and maintenance of public order. Satisfaction of the Government as to the grounds must be based on genuine materials and must not be subjective satisfaction. Executive action in relation to preventive detention is not immune from judicial review by the Supreme Court. When the order of detention does not conform strictly to the requirements of law it is liable to be struck down. Mustafizur Rahman vs. Bangladesh represented by the Secretary, Ministry of Home Affairs-3, MLR (1998). (AD) 169,
Section 3-If it is manifest from the writ petition itself that the cause or manner of deten- tion stands adequately explained and justified on the face of it, the respondents need not file an affidavit-in-opposition and may support the detention orally relying on the petition itself. Nasima Begum vs Bangladesh. 49 DLR (AD) 102.
Section 3-Preventive detention-There can be no question of the detaining authority being under any obligation to act judicially or even quasi-judicially in such matter. Bangladesh vs Dr Dhiman Chowdhury 47 DLR (AD) 52.
Section 3(1)-Satisfaction for detention-A valid order under section 3(1) must show that the Government was satisfied that it was necessary to prevent the person from doing any prejudicial act as defined in section 2(f). It is no part of the requirement of law that in the grounds also the satisfaction of the Government with reference to prejudicial act or acts as in the detention order has to be recited once again. Bangladesh vs Dr Dhiman Chowdhury 47 DLR (AD) 52.
Sections 3(1) & 8-The purpose of detention appearing in the 'grounds' and in the order of detention shows a lack of nexus between the two which means the authority himself was not certain what prejudicial act was in fact likely to be committed by the detenu. Dr Dhiman Chowdhury vs State 47 DLR 212. [Reversed by the decision 47 DLR (AD) 52.
Section 3(1)(a)- Custody on the plea of conviction-Where a prisoner is in custody on the basis of an order of conviction the onus of the res- pondent is discharged as soon as the return relating to the appellant's custody shows that there is an order of conviction justifying the custody. But the conviction is to be placed before the court for its satisfaction whether the irregularity in it can be overlooked. The warrant of commitment issued by one not authorised under the law can hardly prove the conviction. Nasrin Kader Siddiqui vs Bangladesh 44 DLR (AD) 16.
Section 3(1)(a)-Where allegations are of serious nature the detaining authority may consi- der them, and despite pendency of a criminal case, can make an order of detention if it is satisfied that the detenu is to be prevented from indulging in prejudicial activities. Habiba Mahmud vs. Bangladesh 45 DLR (AD) 89.
Section 3(1)(a)
The law does not authorise the government to detain a person for maintaining public safety and public order. Rather the authority is given to the Government if it is satisfied that it is necessary to prevent a person from doing any prejudicial act. Mostafizur Rahman Vs. Ministry of Home Affairs 6 BLT (AD)-216
Section 3(2)
Relying on the case, 45 DLR (AD) 89, the High Court Division held that in spite of the pendency of a criminal case the detaining authority may detain a decent if it is satisfied that the detent is to be prevented from indulging in prejudicial activities Petition is dismissed. Md. Shah Alam Khan vs. Govt of Bangladesh& Ors. 4 BLT (AD)-229
Section 3(l)(a)—
Preventive detention on ground of prejudical activities—
Preventive detention can be given for prejudicial activities of the detenu. But no such detention can be given to the detenu for the prejudicial activities of others. In that view, the detention of former President H.M. Ershad was declared illegal and passed without any lawful authority. Review of the judgment sought for, long after fifteen years having found groundless has been rejected by the apex court. Bangladesh represented by the Secretary, Ministry of Home Affairs and another Vs. Mostafizur Rahman 12 MLR (2007) (AD) 316.
Section 3(2)
Grounds of detention—
It is obligatory on the part of the detaining authority to show by affidavit-in opposition that the detenu is not held in custody without lawful authority or in unlawful manner except when the cause or manner is adequately explained in the writ petition in which case the respondent can reply on the materials on record to justify the detention or continued detention otherwise the order of dentention will fall for lack of cause shown. Nasima Begum Vs. Government o Bangladesh-----1, MLR (1996) (AD) 129.
Section 3
The Code of Criminal Procedure, 1898
Sections 167(1)/(2) & 54 r/w
The Special Powers Act, 1974
Section 3
Guide lines for the Law Enforcement Agencies–
(i) A member law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum.
(ii) A member law enforcement officer who arrests a person must intimate to a nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12(twelve) hours of such arrest notifying the time and place of arrest and the place in custody.
(iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcing officer to arrest the person or made the complaint along with his address and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and the particulars of the law enforcing officer in whose custody the arrestee is staying.
(iv)Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the law enforcing officer’s custody or in the judicial custody under section 167(2) of the Code.
(v) No law enforcing officer shall arrest a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Powers Act, 1974.
(vi) A law enforcing officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.
(vii) If the law enforcing officer find, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor.
(viii) If the person is not arrested from his residence or place of business, the law enforcing officer shall inform the nearest relation of the person in writing within 12 (twelve) hours of bringing the arrestee in the police station.
(ix) The law enforcing officer shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation.
(x) When any person is produced before the nearest Magistrate under section 61 of the Code, the law enforcing officer shall state in his forwarding letter under section 167(1) of the Code as to why the investigation cannot be completed within twenty four hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit copy of the relevant entries in the case diary B.P.Form 38 to the Magistrate. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]
Section 3
Code of Criminal Procedure, 1898
Section 54 and 167:
Special Powers Act, 1974
Section 3:
Guide lines for the Law Enforcement Agencies:
(i) A member law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum.
(ii) A member law enforcement officer who arrests a person must intimate to a nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12(twelve) hours of such arrest notifying the time and place of arrest and the place in custody.
(iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcing officer to arrest the person or made the complaint along with his address and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and the particulars of the law enforcing officer in whose custody the arrestee is staying.
(iv) Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the law enforcing officer’s custody or in the judicial custody under section 167(2) of the Code.
(v) No law enforcing officer shall arrest a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Powers Act, 1974.
(vi) A law enforcing officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.
(vii) If the law enforcing officer find, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor.
(viii) If the person is not arrested from his residence or place of business, the law enforcing officer shall inform the nearest relation of the person in writing within 12 (twelve) hours of bringing the arrestee in the police station.
(ix) The law enforcing officer shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation.
(x) When any person is produced before the nearest Magistrate under section 61 of the Code, the law enforcing officer shall state in his forwarding letter under section 167(1) of the Code as to why the investigation cannot be completed within twenty four hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit copy of the relevant entries in the case diary B.P.Form 38 to the Magistrate.
Guidelines to the Magistrates, Judges and Tribunals having power to take cognizance of an offence:
(a) If a person is produced by the law enforcing agency with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per section 167(2) of the Code, the Magistrate or the Court, Tribunal, as the case may be, shall release him in accordance with section 169 of the Code on taking a bond from him.
(b) If a law enforcing officer seeks an arrested person to be shown arrested in a particular case, who is already in custody, such Magistrate or Judge or Tribunal shall not allow such prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case and if that the prayer for shown arrested is not well founded and baseless, he shall reject the prayer.
(c) On the fulfillment of the above conditions, if the investigation of the case cannot be concluded within 15 days of the detention of the arrested person as required under section 167(2) and if the case is exclusively triable by a court of Sessions or Tribunal, the Magistrate may send such accused person on remand under section 344 of the Code for a term not exceeding 15 days at a time.
(d) If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter and the case diary that the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in such custody as he deems fit and proper, until legislative measure is taken as mentioned above.
(e) The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report disclose that the arrest has been made for the purpose of putting the arrestee in the preventive detention.
(f) It shall be the duty of the Magistrate/Tribunal, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused person under section 167 of the Code.
(g) If the Magistrate has reason to believe that any member of law enforcing agency or any officer who has legal authority to commit a person in confinement has acted contrary to law the Magistrate shall proceed against such officer under section 220 of the Penal Code.
(h) Whenever a law enforcing officer takes an accused person in his custody on remand, it is his responsibility to produce such accused person in court upon expiry of the period of remand and if it is found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct for the examination of the victim by a medical board, and in the event of burial of the victim, he shall direct exhumation of the dead body for fresh medical examination by a medical board, and if the report of the board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable under section 15 of Hefajate Mrittu (Nibaran) Ain, 2013 against such officer and the officer in-charge of the respective police station or commanding officer of such officer in whose custody the death of the accused person took place.
(i) If there are materials or information to a Magistrate that a person has been subjected to ‘Nirjatan’ or died in custody within the meaning of section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013, shall refer the victim to the nearest doctor in case of ‘Nirjatan’ and to a medical board in case of death for ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the offence suo-moto under section 190(1)(c) of the Code without awaiting the filing of a case under sections 4 and 5 and proceed in accordance with law. …Bangladesh & ors Vs. BLAST & ors, (Civil), 8 SCOB [2016] AD 1
Section 7(b)
A proceeding under section 7(b) cannot be taken independently of an order passed under section 3(1)(a) of the Special Powers Act. It is an order which follows from non- execution of an order passed under section 3(1) (a). It is therefore a consequential order and not an independent offence. If the main offence falls through for being void ab initio the consequential proceedings also fall through. Govt of Bangladesh Vs. Anisul Islam Mahmood & Anr 6 BLT (AD)-19
Section 8
Allegations as to character- Considered with the background thus stick, however emphatically the appellant or the detenu may deny it., but short of the background the allegations effective rebuttal in any representation against the order of detention and consequently the continued detention of the detenu is illegal and unwarranted by law. Nasima Begum Vs. The Govt. Peoples Republic Of Bangladesh 4 BLT (AD)-93
Section 8
Grounds being served on the detenu beyond the statutory period prescribed in section 8 of the Special Powers Act., 1974 and the detenu thus being deprived of his right to make an effective representation before the Advisory Board, the detenu is detained without lawful authority. Md. Shameem Vs. Govt. of Bangladesh & Ors. 3 BLT (AD)-119
Section 8
Considered with the background thus given the allegations of character will stick, however emphatically the appellant or the detenu may deny it, but shorn of the background the allegations as to character are incapable of any effective rebuttal in any representation against the order of detention and consequently the continued detention of the detenu is illegal and unwarranted by law. Nasima Begum vs Government of the People's Republic of Bangladesh and others 1 BLC (AD) 18.
Section 8-'Grounds' must include facts as well. Grounds are not only necessary to enable the defence to make representation-they are the starting points both for Advisory Board and the High Court Division for discharging their obligations.
If the detenu asks for further particulars the Government may refuse to disclose any more facts on the ground of public interest. Section 8 of the Act requires that all grounds are to be given to the detenu and under the proviso to that section no ground can be withheld and only those facts may be disclosed whose disclosure is considered not to be against the public interest. Habiba Mahmud vs Bangladesh 45 DLR (AD) 89.
Section 8-The criminal cases relied upon as a background information about the detenu's prejudicial activities having ended in final report, the background is wiped out from the grounds of detention. Nasima Begum vs Bangladesh 49 DLR (AD) 102.
Section 8- Grounds for detention must be specific to enable the detenu to make an effective representation before the Advisory Board. Serajul Islam vs State 49 DLR 209.
Section 8- Considered with the background the allegations of character will stick, but shorn of the background the allegations as to character are incapable of any effective rebuttal in any repre- sentation against the order of detention. Nasima Begum vs Bangladesh 49 DLR (AD) 102.
Section 8-The relevant portion of the incriminating report or the facts disclosed therein having not been brought to the knowledge of the detenu, the grounds of his detention based on the report suffer from illegality. Dr Dhiman Chow- dhury vs State 47 DLR 212. [Reversed by the decision 47 DLR (AD) 52].
Section 8- Of several grounds of detention, if some are good and some bad, the detention order as a whole fails, because it cannot be ascertained which grounds led to the satisfaction of the detaining authority that the detenu was likely to commit "prejudicial act." Dr Dhiman Chowdhury vs State 47 DLR 212. [Reversed by the decision 47 DLR (AD) 52].
Section 8-To make a dissection of the "grounds" which was a composite piece and then to analyse them in isolation finding fault with each dissected part was a fundamental mistake. Bangladesh vs Dr Dhiman Chowdhury 47 DLR (AD) 52.
Section 8- In the absence of any return by the respondents, the contention that the grounds of detention were served on the detenu beyond statutory period and that he was deprived of the right to make an effective representation before the authority remain unchallenged. In this view, the detenu is being detained without lawful autho- rity. Shameen vs Bangladesh 47 DLR (AD) 109.
Section 8-The criminal cases relied upon as a background information about the detenu's prejudicial activities having ended in final report, the background is wiped out from the grounds of detention. Nasima Begum vs Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs 49 DLR (AD) 102.
Section 8- Considered with the background the allegations of character will stick, but shorn of the background the allegations as to character are incapable of any effective rebuttal in any repre- sentation against the order of detention. Nasima Begum vs Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs 49 DLR (AD) 102.
Section 25A-Mere physical posses- sion of the counterfeit notes is not an offence punishable under section 25A of the Act but the intention as it transpires from the FIR, facts, circumstances on record and the other evidence it has become clear to us that criminal proceeding cannot be quashed at this stage of hearing because it needs evidence to be recorded by the court during the course of trial to establish the intention of keeping huge quantity of counterfeit note in the apartment. Abdul Wahed Gaffar vs State, 68 DLR (AD) 218
Sections 25B and 29
So the Tribunal has the power to pass necessary order for disposal of the property seized during investigation or alamots in a case under the Act, 1974 invoking the aid of section 517 of the Code of Criminal Procedure.
The Appellate Division observed that in the Act, 1974, there is no provision as to how the property seized in connection with a case under the Act, 1974 or alamots of a case under the Act, 1974, shall be disposed of in case of conclusion of a trial or in a case which ends with the acceptance of a final report and discharge of the accused. However, section 29 of the Act, 1974 has provided that the provisions of the Code, so far as they are not inconsistent with the provisions of the Act, shall apply to the proceedings of the Special Tribunals, and such Special Tribunals shall have all the powers conferred by the Code as a Court of Sessions exercising original jurisdiction. It may further be stated that the Act, 1974 has provided the Tribunals with the power to pass necessary orders in case of confiscation of the property at the time of disposal of the case either in the form of acquittal or conviction, but it has not provided the Tribunals with any power to deal with any seized property or alamots after the disposal of the case. That being the position of the Act, 1974, the Tribunals cannot be left without any power to deal with such matter and so the legislature advisedly incorporated section 29 in the Act, 1974 as discussed hereinabove. So the Tribunal has the power to pass necessary order for disposal of the property seized during investigation or alamots in a case under the Act, 1974 invoking the aid of section 517 of the Code and in the instant case, the seized articles were definitely seized as it appeared to the law enforcing agencies that an offence appeared to have been committed because of the possession of the articles by accused-Ram Krisha Nath as contemplated in section 517 of the Code. Here, as found earlier in the first case, the police submitted final report and the Tribunal having accepted the final report discharged accused-Ram Krishna Nath from the case and in the second case, though charge sheet was submitted by the Police, the proceedings were quashed by the High Court Division on the clear finding that the allegations made in the FIR even taken to be true did not constitute any offence under section 25B of the Act, 1974 or under section 13 of the Ain, 2002 or under any law of the land and that the charge sheet submitted by the police accusing Ram Krishna Nath was malicious, calculated to victimize and harass him. That being the admitted factual and legal position, accused late Ram Krishna Nath was entitled to get return of the articles seized from him and the Tribunal was obliged to pass necessary order in that respect in exercise of its power under section 517 of the Code. Parul Nath and others Vs. The State (Criminal) 21 ALR (AD) 116-128
Section 25B(2)
Customs Act, 1969 [IV of 1969]
Sections 156 (89) It is a common phenomenon that independent witnesses rarely support the evidence of recovery of smuggled goods in their presence. This is often due to the proximity of the residence of the witnesses with the residence of the accused. Nevertheless, in the present case Appellate Division finds from the evidence of P.W. 3 that he clearly sated in his examination-in-chief that the Customs Inspector seized 31 pieces of sharees in his presence, and he identified his signature in the seizure list. The Appellate Division notes from the seizure list that the seized items bore writing in Hindi which clearly indicates that the items were manufactured in India. In view of the evidence and materials on record the Appellate Division satisfied that there was no illegality in the conviction of the petitioner. Md. Tanjimul Islam Vs. The State 5 ALR (AD)2015(1) 148
Sections 25B(1), 25D
High Court Division rightly found that the acts or omission in the name of physical verification alleged to have been done by the accused-petitioner thereby allowed the other accused persons to use gate No.5 instead of using gate No.4 in releasing the alleged imported goods in breach of law indulging them to commit an offence of smuggling punishable under Section 25B(1) of the Special Powers Act, 1974 and thus abetted the commission of the aforesaid offence making him punishable under Section 25D of the Special Powers Act, this is not certainly an act in the discharge of his official duty and as such no previous sanction of the Government in taking cognizance of the offence by the Court is required. Kazi Md. Abdul Basit -Vs-The State 1 ALR (AD) 160
Section 25B (2) -Neither in the FIR nor in the evidence of P.W.1 or in the evi- dence of other witnesses, there is any alle- gation that the petitioner has kept or carried one bottle of phensedyl for the purpose of sale. It is the consistent case that the phen- sedyl bottle was recovered from his posses- sion while the petitioner was approaching towards Dupchanchia. Only possession of contraband goods does not constitute an offence of smuggling within the meaning of section 25B (2). It is only if any person keeps in his possession for the purpose of sale of the contraband goods the bringing of which is prohibited by law, an offence of the second category of smuggling will be attracted.
এফ.আই.আর-এর মধ্যে কিংবা P.W.-1 প্রদত্ত সাক্ষ্যের মধ্যে কিংবা অন্যান্য স্বাক্ষীদের সাক্ষ্যে এমন কোন অভিযোগ পাওয়া যায়নি যাতে করে প্রমাণ হয় যে, আবেদনকারী বিক্রয়ের উদ্দেশ্যে এক বোতল ফেনসিডিল রেখেছিল কিংবা বিক্রয়ের উদ্দেশ্যে বহন করেছিল বরং সবাই বলেছে যে, আবেদনকারী দুপচানচিয়ার (Dup- chanchia) দিকে যখন অগ্রসর হচ্ছিল তখনই তার দখল থেকে ফেনসিডিলের বোতলটি উদ্ধার করা হয়। ২৫বি (২) ধারামোতাবেক নিষিদ্ধ দ্রব্যের কেবল দখলে থাকলেই তদ্দ্বারা চোরাকারবারের অপরাধ সংঘটিত হয় না। কেবল মাত্র একজন লোক বিক্রয়ের উদ্দেশ্যে যদি নিষিদ্ধ দ্রব্য দখলে রাখে সেই উপাদানের আমদানি আইনে নিষিদ্ধ, তবেই কেবল চোরাকারবারের দ্বিতীয় পর্যায়ের অপরাধ সংঘঠিত হতে পারে। Md. Akram -Vs. The State 7 ALR (AD)
1
Section 25D
The Explosive substances Act
Sections 3/6 r/w
The Special Powers Act
Section 25D r/w
The Penal Code
Sections 57, 302/109
Abetment of the offence– We are satisfied that accused respondent Amjad Ali @ Md. Hossain @ Babu has been rightly found guilty by the special tribunal as well as by the learned Sessions Judge for abetment of the offence. However, since he did not directly participate either in the explosion of bomb or in the murder, the learned Sessions Judge is not justified in awarding him the death sentences in both the charges. As per our sentencing rules which provide that the abettor should not be equated with the principal offender so far as regards awarding the sentence although there is no legal bar to award the same sentence. We convert the conviction of the accused respondent Mohammad Hossain to one under sections 3/6 of the Explosive substances Act read with section 25D of the Special Powers Act and sentence him to imprisonment for life. We also award him sentence of imprisonment for life under sections 302/109 of the Penal Code. It should be borne in mind that imprisonment for life within the meaning of section 57 of the Penal Code means imprisonment for the whole of the remaining period of the convicted person's natural life. ...State =VS= Amjad Ali @ Md Hossain @ Babu, [10 LM (AD) 408]
Section 25B(1) and 25D
Reducing the sentence on compassionate ground—
When the accused frankly confessed their guilt and made clean breast of their offence from the very beginning and never tried to beat the law and always begged mercy of the Court, although the High Court Division rightly, exercised its discretion in reducing the sentence of imprisonment for life to 14 years Rigorous imprisonment, yet the Appellate Division being impressed by the Sad plight of the two1fidreigrier' cdrivictmppellarits in alien with different life style, food habit and language in complete mcomtriuBicado, is pleased to further reduce their sentence to 7 years following the doctrine to administer justice tempered with mercy. Further It is held that punishrnent of the abettor cannot be higher than that of the principal accused and accordingly the sentence of convict appellant Ashrafuddin Sekander is also reduced to seven years rigorous imprisonment. Ashrafuddin Sekander (Major Reid) and others vs. The State 3,MLR(1998) (AD) 164.
Section 25B (2)
Neither in the FIR nor in the evidence of P.W.1 or in the evidence of other witnesses, there is any allegation that the petitioner has kept or carried one bottle of phensedyl for the purpose of sale. It is the consistent case that the phensedyl bottle was recovered from his possession while the petitioner was approaching towards Dupchanchia. Only possession of contraband goods does not constitute an offence of smuggling within the meaning of section 25B (2). It is only if any person keeps in his possession for the purpose of sale of the contraband goods the bringing of which is prohibited by law, an offence of the second category of smuggling will be attracted. .....Md. Akram =VS= The State, (Criminal), 2016-[1 LM (AD) 581]
Section 25B
The Code of Criminal Procedure, 1898
Section 561-A
The Special Powers Act 1974
Section 25B
Criminal proceeding quash– It is settled principle that a criminal proceeding can not be quashed on the basis of defence materials which are still not part of the materials for the prosecution– It is well settled that a criminal proceeding is liable to be quashed only if the facts alleged in first information report or complaint petition even if admitted, do not constitute any criminal offence, or the proceeding is otherwise barred by any law. .....Ruhul Amin(Md.) =VS= The State, (Criminal), 2022(1) [12 LM (AD) 391]
Section 25C(d)- The Drug Control Ordi- nance is an additional forum for trying drug offences. Taking of cognizance and framing of charge by the Tribunal under the Special Powers Act in respect of offences relating to possession of spurious medicine, are not illegal and the proceedings thereof are not liable to be quashed. Ordinance No. VIII of 1982 has been promul- gated not with a view to excluding all other trials on the same offence but as an additional forum for trying drug offences. If the same offence can be tried by a Special Tribunal under the Special Powers Act it cannot be said that the accused- petitioner has an exclusive right to be tried by a Drug Court only. As on the petitioner's own showing he has been charged only under section 25C(d) of the Special Powers Act by the Senior Special Tribunal, we do not find any illegality in the proceedings. Ashraf Ali @ Asraf Ali vs State 49 DLR (AD) 107.
Section 26
It is well settled that if a non-schedule offence is included in the trial of a schedule offence the trial does not necessarily become void or without jurisdiction. As the evidence of the witnesses have been elaborately recorded by the Tribunal, no 'prejudice has been caused to the appellants by the Tribunal during trial. Aminul Islam alias Ranga and others vs State 5 BLC (AD) 179.
Section 27(1)
It is well settled that for taking cognizance of any offence under the Special Powers Act the precondition is that there must be a report in writing by a police officer not below the rank of a Sub-Inspector. The expression used in sub section (1) of Section 27 of the Special powers Act is mandatory in nature. This Division in the case of Siraj Miah Vs. Bangladesh and another reported in 32 DLR(AD) 34 had held that cognizance of an offence under the special Powers Act by a Special Tribunal is possible only on the submission of a written report by a police officer not below the rank of Sub-Inspector. In the present case cognizance was taken against these two appellants on the basis of a 'Narazi' petition which is on the very face illegal and agreeing with the said decision of this Division we hold that the learned Special Tribunal committed illegality and wrong by taking cognizance against these two appellants in he manner as aforesaid. Lt. Shafiqul Islam @ Shafiqul & Anr. Vs. The State. 9 BLT (AD)-199
Section 27 Sub-section (6A)
Absconding accused- upon receipt of the case records on 7-7-92, the Senior Special Tribunal at once on the same day labeled the appellant as an absconder without fixing a date for his appearance and without directing the sureties to produce the appellant. Without passing such an order the senior Special Tribunal could not have treated the appellant as an absconding accused under sub- section (6A) of Section-27, because on absent person should not be too readily assumed to be an absconder without fixing a date for his appearance and without directing his sureties to produce him. Neser Ahmed Vs. Govt. of Bangladesh 5 BLT (AD)-231
Section 27(6) and 27(6A)
In case of non-appearance of an accused in course of his trial after his release on bail the procedure as laid down in Sub-section (6) has got no application. In such clear indication of law we are of the view that there was no necessity to adopt to the procedure mentioned in Sub-section (6) of Section 27 in the instant case, inasmuch as the accused petitioner was allowed bail during trial and thereafter he remained absent. Mojibur Rahman @ Babu Vs. Deputy Commissioner and Ors 16 BLT (AD)185
Section 27
While considering the police report (FRT) the Special Tribunal heard the learned Advocates of the parties and on perusal of the record and case diary took cognizance, as above, after observing that a prima facie case was made out by the prosecution but the Tribunal could not agree with the opinion of the IO and took cognizance on the basis of the materials on record. Bikish Miah vs State 3 BLC (AD) 182.
Section 27(6A)-Under section 27(6A) of the Special Powers Act, the accused once released on bail and subsequently absconding there is no necessity for issuing further notice upon him as claimed on behalf of the petitioner and, in such view of the matter, the trial Court committed no illegality in proceeding with the case in the absence of the petitioner. Abu Taleb vs State 59 DLR (AD) 93.
Section 29-Applicability of the Code to proceedings before Special Tribunals: The Act provides that the provisions of the Code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act. Section 339C is intended for expeditious trial; the special statute is intended for "more speedy trial." If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law-makers. Kamruzzaman vs State 42 DLR (AD) 219.
Section 30-In the state of evidence on record the materials recovered from the appellant do not attract the mischief of the Arms Act and the alleged offence could not have been taken cognizance of. As such, the whole trial and the order of conviction and sentence were without jurisdiction. Nesar Ahmed vs Bangladesh 49 DLR (AD) 111.
Section 30-An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence.
Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman vs State 51 DLR (AD) 33.
Section 30
Conviction under Section 342 of the Penal code
Jurisdiction of the Special Tribunal-The Special Tribunal had only jurisdiction to try cases as enumerated in the schedule of the Special Powers Act and not beyond that. An offence under Section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence. Hence, the learned Judges of the High Court Division acted wrongly and without jurisdiction in convicting the appellants under Section- 342 of the Penal Code when the same is not triable by the Special Tribunal at all. Abdur Rahman & Ors. Vs. The State 7 BLT (AD)-225
Section 30
read with
Penal Code, 1860(XLV of 1860)
Section—342
The Special Tribunal had only jurisdiction to try cases as enumerated in the schedule of Special Powers Act and not beyond that. An offence under section 342 of the Penal Code is not included in the schedule of the Act and cannot be basis of conviction as the same is a non schedule offence. Hence the High Court Division acted wrongly and without jurisdiction in convicting the appellants under section 342 of the Penal Code when the same is not triable by the Special Tribunal at all. The alteration of conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman and others Vs The State, 19BLD(AD)4
Section 30
Provision of appeal—Alteration of sentence into one of non-schedule offence- not permissible—
Section 30 of the Special Powers Act, 1974 provides for appeal against the judgment and .order of the Special Tribunal. In an appeal under section 30, the High Court Division can not alter the conviction and sentence passed by Special Tribunal under section 376 into one under section 342 of the Penal Code which is not triable by the Special Tribunal under the Special Powers Act. Abdur Rahman and others. The State—4. MLR (1999) (AD)25.
Section 32-The High Court Division summarily rejected the appellants prayer for bail on an erroneous view of section 32 of the Special Powers Act which does not provide for absolute bar on bail. Under section 32 even when the prosecution opposes the prayer for bail the court can release an accused on bail when it is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence alleged. Madar Chandra Basu vs State 44 DLR (AD) 151.
Section 32
Long delay in holding trial provides a good ground for bail
The appellant has been in custody since 3.5.1992 but no charge has yet been framed against the accused. The prosecution could not show any cogent reason for not holding the trial as yet although charge-sheet was submitted on 5.11.1993 against the appellant and 8 others, without any fault on the part of the appellant. Other accused persons have been granted bail by the Special Tribunal. This protracted delay in holding the trial provides a good ground for granting bail to the appellant. Nurul Amin alias Bada Vs. The State, 16BLD(AD)200
Section 32(C)
Bail to convict in appeal cannot be allowed without hearing the prosecution—
In an appeal against the conviction and sentence of 10 years rigorous imprisonment and fine of Taka 5000/-for offence under Explosive Substance Act, 1908 the High Court Division cannot grant bail to the convict appellant without hearing the prosecution and without the finding that the convict is not guilty of the offence. The apex court setaside the order of bail of the convict appellant passed by the High Court Division as being one illegal. The State Vs. Mahibur Rahman Mariik and another 11 MLR (2006) (AD) 230.
Section 32
As the appellant has been in custody since 3-5-92 without any trial, no charge has yet been framed, the trial is being delayed without any fault on the part of the appellant and the other co-accused persons have been enjoying the privilege of bail given by the Special Tribunal, the High Court Division clearly failed to apply their judicial mind in dismissing the appeal for bail summarily when the appellant was entitled to be released on bail. Nurul Amin @ Bada vs State 1 BLC (AD) 115.
