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High Court Division

Criminal Appellate Jurisdiction

Md Anwarul Haque J

Lokman Hossain @ Md

Lokman Ali (Md)ttttt..Convicted-Appellat-Petitioner

vs

StatetttRespondent

Judgment

May 14th, 2003

Special Powers Act (XIV of 1974)

Section 25C(1) (a)

Only an adulterated article cannot bring the adulterator within the scope of section 25(1) (a) of the Act unless the same is proved to be "noxious" as food or drink. This view comports best with reason, commonsense, realities, the tenor of the provisions considering prescribed punishment, purpose and scheme of the Act.

Keeping this view in mind, I am to say that the phrase "so as to make such article noxious as food or drink" is to be read conjunctively with the first word "adulterates" as occurring in section 25C(1)(a) of the Special Powers Act. So, unless the alleged adulterated food or drink becomes "noxious" as food or drink it would not come within the mischief of section 25C(1) (a) of the Special Powers Act. In fact, the word 'noxious" means injurious to public health or unfit for human consumption or unwholesome. It must be shown that the accused sold or exposed for sale an article which was to his knowledge "noxious" as food or drinkttt.(15 and 16).

Habibur Rahman alias Alam vs State 47 DLR 323; Nurul Islam vs State 1988 BLD 106; Nizam Hazari vs State reported in 53 DLR 475 ref.

Md Ayenuddin for Sk Akhtarul Islam, Advocate For the Convicted-Appellant-Petitioner.

Fahima Nasrin, Assistant Attorney-General-for the State.

Judgment

This Appeal under section 30 of the Special Powers Act, 1974 (Act XIV of 1974) is directed against the judgment and order dated 12-7-94 passed by the learned Judge of the Special Tribunal & Assistant Sessions Judge, Rajshahi in Special Tribunal Case No. 397 of 1993 'where the accused appellant has been found guilty of the offence punishable under section 25C(1)(a) of the 'Special Powers Act, 1974 and sentenced to suffer rigorous imprisonment for one year with fine of Taka 1000 in default to suffer 3 (three) months' rigorous imprisonment more.

2. The prosecution case, in short, is as follows:

On the basis of a secret information, informant, PW 1 Sub-Inspector Solaiman Ali along with other police constables carried out a raid on 3-9-93 in the Oil-Mill of the accused-appellant at Kathal Baria Morh under Rajpara PS of the District 'Rajshahi in order to seize the adulterated mustard oil, kept for the purpose of sale with an intention to have higher profit by way of deceptive means. Thereafter, informant instantly seized 20 litres of mustard oil, kept in black dirty container and 2 litres of sesame oil, kept in another red old container in presence of the local witnesses PW 2 Barjahan and one Rabiul Haque under the seizure list Exhibit 6. Then the informant lodged the first information report Exhibit I whereupon the Rajpara PS Case 4(9)93 was recorded by the then officer-in-charge PW 4 who made it over to the informant for investigation.

3. Being entrusted to investigate into the case the investigating officer 'PW 6 recorded the statement of other PWs under section 161 of the Code of Criminal Procedure and sent the seized articles for chemical examination. Ultimately, he submitted charge-sheet against the accused-appellant to stand trial for committing the offence punishable under section 25C of the Special Powers Act, 1974.

4. During the course of trial accusation was so made under section 25(C)(l)(a) of the Special Powers Act, 1974 by the judge of the Tribunal where the accused-appellant pleaded not guilty and claimed to be tried.

5. In support of the case, prosecution has examined as many as 6 witnesses including Chemical Examiner PW 4 Md Abdul Awal.

6. On the other hand, accused-appellant has examined none. The defence case, as it transpires from the trend of examination-in-cross and suggestions put to the PWs, is, that he has been falsely 'implicated in this case at the instance of his local enemies.

7. Considering the evidence including the report of the Chemical Examiner Exhibit 3, the learned Judge of the Tribunal has found the accused-appellant guilty of the offence punishable under section 25C(1)(a) of the Special Powers Act. Accordingly, accused-appellant was convicted under the said section and sentenced to undergo rigorous imprisonment for one year with fine of Taka 1000 in default 3(three) months rigorous imprisonment more.

8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence the convicted-accused has preferred this appeal.

9. Mr Akhtarul Islam, the learned Advocate, appearing on behalf of the appellant, has tried to impress upon me that this is a case of no evidence and thereby the learned judge of the Special

Tribunal has committed an error in convicting the accused-appellant under section 25C(l)(a) of the Special Powers Act. The learned Advocate further submits that none of the local witnesses namely. PW 12, has proved the factum of seizure of the alleged adulterated mustard oil from the possession of the accused and, as such, the search and seizure of alamat not being in accordance with the provisions of section 103 of the Code of Criminal Procedure, 1898, the learned Judge of the Special Tribunal should have left all these alamats including chemical examination report Exhibit 3 out of consideration. In support 'of his contention, the learned Advocate for the appellant has referred the decisions of the case ,of Habibur Rahman alias Alam vs State, reported in 47 DLR 323, Moreover, it is also argued that the accusation so made against the appellant does not at all carry any requirement of such offence, punishable under section 25C( 1 )(a) of the Special Powers Act.

10. On the other hand, Fahima Nasrin, the learned Assistant Attorney-General. submits that where the chemical examination report Exhibit 3 has proved the case of the prosecution in respect of adulterated mustard oil recovered from the Oil Mill of the accused, kept for the purpose of sale; the order of conviction and sentence, passed by the Tribunal is to be sustained. The learned Assistant Attorney-General further submits that the informant being a police officer has rightly seized the articles like adulterated edible oil which is "noxious" as food and his statement is sufficient enough to prove the case of the prosecution when admittedly accused-appellant had oil mill for the purpose of production of edible oil. The local seizure list witnesses are always in favour of the accused persons in our social perspective, as such, the decision, given in red container from the Oil Mill of the accused-appellant but none of the seizure list witnesses has come forward to prove it. However, the following chemical examination report has also brought the existence of Soybean oil which was not at all seized from the Oil Mill of the accused appellant separately:

Òcvwó cvwóK cv‡Î `yBwU hvnv K¨vUvj‡M ÔKÕ I ÔLÕ Øviv wPwüZ h_vµ‡g 210 wgt wjt Ges 200 wgt wjt cwigvY ev`vgx is‡qi Zij c`v_© wQj|Ó

djvdj

ÔKÕ wPwüZ cvwóK iwZ ev`vgx is‡qi Zij c`v_© †mvqvweb †Zj, wZj †Zj Ges mwilvi †Z‡ji wgkªb|

ÔLÕ wPwüZ cvwó‡Ki cv‡Îi Zij c`v_©| wZj †Zj Bnv‡`i ivmvqwbK we‡kl‡bi djvdj wbgœi“ct

ÔKÕ ÔLÕ

Abygvb (GwmW †fby)t 118 116

Av‡qvwWb †fby 115 111

we, Avi 613 61

K Ges L wPwüZ cvwóK cvÎ `yBwU‡Z iwZ c`v‡_© Ag„‡Z¡i cwigvY †ekx nIqvi Lv`¨ wnmv‡e Bnv‡`i e¨envi A¯^v¯’Ki|Ó

The cases of Nurul Islam vs State reported in 1988 BLD 106 and in Nizam Hazari vs State reported in 53 DLR 475 are to be relied upon where their Lordships have found the testimony of the police officer reliable one when local seizure witnesses are found to be partisan.

11. On the face of the submission, let us have a look over the provisions of section 25C(I)(a) of the Special Powers Act which runs as follows:

Section 25C-Penalty for adulteration of, or sale of, adulterated food or drink, drugs or cosmetics-(1) whoever

"(a) adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink or knowing it to be likely that the same will be sold as food or drink; or

(b) * * * * *

12. The above provisions of law clearly speaks that adulterated articles so far as to make such articles "noxious" as food or drink can only be brought under this section otherwise, mere adulteration of all articles will not come within the mischief of this section.

13. In the instant case, prosecution has advanced to prove with the help of seizure list Exhibit G that informant Sub-Inspector Solaiman Ali, PW 3 seized 20 litres of mustard oil, kept in a dirty black container and 2 litres of sesame oil, kept in an old red container

14. Regard being had to the aforesaid features of the evidence including chemical examiner's report Exhibit 3 the learned Advocate has fairly submitted that the evidence on record would not warrant the impugned order of conviction and the sentence though it would have been proved that the adulterated mustard oil was recovered from the Oil Mill of the accused as mere adulteration for the purpose of business profit does not attract the penal provisions as occurring in section 25C(1)(a) of the Special Powers Act unless the following requirements are proved.

i) Such adulteration rendered it "noxious" as food or drink.

ii) Accused at the time of adulteration intended to sell such article as food or drink; or knew it to be likely that such article would be sold as food or drinks.

It is pertinent to take a note of this submission of the learned Advocate for the accused-appellant because the main evidence on which the prosecution has banked is that of PW 3, Sub-Inspector Md Solaiman Ali, informant of this case and of PW 5, the chemical examiner who has prepared report. Exhibit 3 where the seized alleged adulterated articles has been shown more 'insignificant acidic than that of pure one, Moreover, none of the prosecution witnesses including the informant Sub Inspector Solaiman PW: 1 has taken any pain to prove that the accused kept the alleged adulterated mustard-oil for the purpose of sale which was "noxious" as food or drink.

15. In view of the ingredients of section 25C(1)(a) of the Special Powers Act, already' quoted, it is clear that only an adulterated article cannot bring the adulterator within the scope of section 25(1)(a) of the said Act unless the same is proved to be "noxious" as food or drink, I would also prefer this view as it comports best with reason, commonsense, realities, the tenor of the provisions considering prescribed punishment of death and main purpose and scheme of the Act.

16. Keeping this view in mind, I am to say that the phrase "so as to make such article noxious as food or drink" is to be read conjunctively with the first word "adulterates" as occurring in section 25C(1)(a) of the Special Powers Act: So, unless the, "alleged adulterated food or drink becomes "noxious" as food or drink it would not come within the mischief of section 25C(l)(a) of the Special Powers Act. In fact, the word "noxious" means injurious to public health or unfit for human consumption or unwholesome.

It must be shown that the accused sold or exposed for sale an article which was to his knowledge "noxious" as food or drink. The seized edible oil may not be adulterated but somewhat rancid by lapse of time as because it was kept in a dirty container as admitted by the prosecution.

Moreover, the seized mustardoil, kept in container "Ka" mentioned in the report Exhibit 3 may not by itself be rendered "noxious" by being mixed with sesame or soybean oil. The mere sale of adulterated article of food as pure and unadulterated is not an offence under this Section.

17. Moreover, the chemical examination report Exhibit 3 also does not carry the minimum standard of purity or acidity which may be considered unfit for human consumption or unhygienic. The comparative study shown in the report Exhibit 3 also does not go to identify the seized article as "noxious" one as required under section 25C(1)(a) of the Special Powers Act.

18. On a reading of the judgment of the Special Tribunal it does not appear that the learned. judge has, at all, considered this aspect of law and, as such, he has illegally found the accused-appellant guilty of the offence punishable under section 25C(1)(a) of the Special Powers Act, 1974.

19. In the result, the appeal succeeds. The impugned order of conviction and sentence is set aside and the accused-appellant is acquitted of the charge levelled against him under section 25C(l)(a) of the Special Powers Act, 1974. The accused appellant and his sureties are discharged from their bail bonds.

Sent down the LCR along with a copy of the judgment expeditiously.

APPELLATE DIVISION (Civil)

Mohammad Fazlul Karim-J

Md. Tafazzul Islam-J.

Amirul Kabir Chowdhury-J.

CIVIL PETITION FOR LEAVE TO

APPEAL No. 429 of 2005

(From the judgment and order dated 04.12.2004 passed by the High Court Division. in Civil Revision No.1261 of 2000.)

Md. Sirajul Haq

…………..Petitioner.

Vs.

Md. Abdul Halim and another

………t.. Respondent.

For the Petitioner: Mr. Farooq Ahmed, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

For Respondent

No.1

Mr. N. I. Bhuiyan, Advocate-on- Record. Not represented.

Respondent No.2 :

Judgment: March 18, 2007

Preluises Rent Control Act, 1991 Section 18-Eviction of tenant on ground of default in payment of rent-Sale of possession by tenant is not recognised in law-Notice u/s 106 TP. Act upon Sub-tenant is not necessary. Decree passed by the High Court Division is upheld by the apex court.

There is no dispute that the defendant No.1 Sree Shyamal Kumar Paul was the tenant of the plaintiff-respondent No.1. The claim of that present petitioner (defendant 2) is that he purchased possession from the defendant No.1 and on the basis of such claim he contested the Suit. It may be mentioned that the defendant No.1. admitted tenant of the plaintiff did not contest the suit ……………(Para 13)

Be that as it may, notwithstanding the practice, even if any, prevalent in the town of Mymensingh allowing sale of possession by a tenant in favour of any person, the law does not recognize any such sale of possession and the vendee thus does not acquire any valid right as a Tenant…………… (Para 15)

In such view of the matter, we are of the clear opinion that no notice under Section 106 of the Transfer of Property Act is required to be given to such unauthorised person occupying any premises who is loosely regarden as sub-tenant …………(para 15)

In the instant suit the High Court Division found that the defendant-petitioner cannot be regarded as a tenant under the plaintiff and that the tenant defaulted in payment of rent with effect from May 1996 and as such was liable to be evicted and hence correctly decreed the suit.

………………. (Para 16)

The learned Single Judge of the High Court Division paid due consideration to the fact and circumstances and arrived at the decision in accordance with law and thus reversed the judgement of the trial Court and decreed the suit legally……… (Para 17)

JUDGMENT

AMIRUL KABlR CHOWDHURY-J:

Defendant petitioner Md. Sirajul Haq in this petition seeks leave to appeal against the judgment und order dated 04.12.2004 passed by the High Court Division in Civil Revision No.1261 of 2000 making the Rule absolute reversing the judgment and decree dated 30.01.2000 passed by the learned Senior Assistant Judge, Sadar, Mymensingh in Suit No.1 of 1998.

2. The respondent No.1 as plaintiff instituted above suit stating, inter-alia, that the suit shop was let out to the father of the defendant No.1 on monthly rental basis and on his death the defendant' petitioner became a tenant at will who started doing his business in the suit premises paying monthly rent at the rate of Tk. 2,000/- and he paid rent upto April 1996 but thereafter defaulted in payment of rent with effect from May 1996 and thus rendered himself liable to be evicted and that the plaintiff respondent issued notice under Section 106 of the Transfer of Property Act upon the defendant and so the relationship between the plintiff and the defendant as landlord and tenant was terminated and that the plaintiff came to learn that the defendant sub-let the premises in favour of the defendant No.2 illegally.

3. Be that as it may, the defendant failed to vacate the premises in spite of notice under Section 106 of the Transfer of Property Act. Hence was the suit.

4. The suit was contested by the defendant No. 2 who got himself impleaded in the suit as the defendant No 2 filing application under Order 1, Rule 10, Code of Civil Procedure.

5. The aforesaid defend No 2 also filed a written statement stating, inter-alia, that he was not a sub-tenant but according to trade practice at Mymensingh town possession of rented premises could be made over on payment of lump sum amount and the defendant No.2 was thus a purchaser of possession, of the suit premises and thus became tenant of the premises and that no notice was issued upon him terminating the tenancy and the there was no cause of action for the suit and the suit was liable to be dismissed.

6. The trial Court recorded evidence of parties and dismissed the suit.

7. The High Court Division by the impugned judgment and order reversed the aforesaid judgment and decreed the suit.

8. Hence is this petition.

9. In support of the petition Mr. Farooq Ahmed, learned Counsel submits, inter-alia that the High Cruet Division committed error in failing to consider that the defendant No. 1 Sree Shyamal Kumar Paul sold the possession of the suit premises to the defendant No.2 on 05.05.1993 and there was no 'notice upon him under Section 106 of the Transfer of Property Act· and so the trial Court correctly dismissed the suit.

10. He further submits that in the absence of notice under Section 106 of the Transfer of Property Act upon the defendant No.2 the present suit ought to have been dismissed.

11. He lastly submits that in Mymensingh town the possession of shop premises is allowed to be sold and the vendee purchasing possession of the premises become legal tenant of the landlord and in the instant case the defendant No.2 to the knowledge of the plaintiff purchased possession from the defendant No 1 and as such became a tenant and is thus entitled to protection under Section 18 of the Premises Rent Control Act.

12. We have considered the submissions and perused materials on record.

13. There is no dispute that the defendant No.1 Sree Shyamal Kumar Paul was the tenant of the plaintiff-respondent No.1. The claim of the present petitioner (defendant 2) is that the purchased possession from the defendant No. 1 and on the basis of such claim he contested the suit. It may be mentioned that the defendant No 1, admitted tenant of the plaintiff did not contest the suit.

14. Be that as it may, notwithstanding the practice, even if any, prevalent in the town of Mymensingh allowing sale of possession by a tenant in favour of any person, the law does not recognize any such sale of possession and the vendee thus does not acquire any valid right as a tenant.

15. In such view of the matter, we are of the clear opinion that no notice under Section 106 of the Transfer of Property Act is required to be given to such unauthorised person occupying any premises who is loosely regarded as sub-tenant.

16. In the instant suit the High Court Division found that the defendant-petitioner cannot be regarded as a tenant under the plaintiff and that the tenant defaulted in payment of rent with effect from May 1996 and as such was liable to be evicted and hence correctly decreed the suit.

17. The learned Single Judge of the high Court Division paid due consideration to the facts and circumstances and arrived at the decision in accordance with law and thus reversed the judgment of the trial Court and decreed the suit legally.

18. In view of the discussion made above, we do not find any merit in this petition.

The petition is dismissed.