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Confiscation of vessel with penalty held illegal

Appellate Division

Present

Md. Ruhul Amin J

M. M. Ruhul Amin J

Md. Tafazzul Islam J

The Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Finance, Internal Resources Division, Segunbagicha, Dhaka and another. t.Appellants.

-Vs-

Horong Woei Industrial Co. Pte. Ltd. & another t.Respondents.

Judgment

20th June 2005

Declaring that confiscation of the vessel as well as imposing of penalty on the writ petitioners and each of the members of the crews are illegal and without lawful authorityt..(1)

Accordingly, since it was established that the containers were full of the offensive goods when the vessel sailed from Singapore and when it is also an admitted fact that the vessel came to Chittagong Port straight from Singapore Port without calling at any other port before arnvmg at Chittagong Port, the Customs Authority very reasonably concluded that the offending goods were unloaded within the territory of Bangladesh (9)

A.H.M. Mushfiqur Rahman, Deputy! Attorney General, instructed by B. I

Hossain, Advocate-an-Record. .. :

For the Appellants.

Respondents

Ex- Parte.

JUDGMENT

Md. Tafazzul Islam J: This appeal by leave is directed against the judgment and : order dated 28.7.1993 passed by a Division Bench of the High Court:

Division in Writ Petition No. 316 of 1988 making the Rule absolute declaring that: confiscation of the vessel as well as imposing of penalty on the writ petitioners and each of the members of the crew are illegal and without lawful authority.

2. The respondent No.1 filed the above writ petition stating, inter alia, that M.V. :

HOENG LEE, a sea going vessel, carried merchandise from Singapore to Chittagong on several occasions and in its: voyage from Singapore to Chittagong the above vessel' after discharging imported goods at Chittagong Port loaded the cargo for export and then applied to the customs authority, Chittagong for clearance but then notice dated 9.6.1987 was issued by the Collector of Customs, Chittagong directing the respondents to show cause why the above vessel should not be confiscated and penalty should not be imposed on the Captain and other crews of the above vessel for carrying contraband goods in Bangladesh by smuggling; the respondents submitted reply dated 11.6.1987 denying the allegations made in the said notice and asserted that no consignment was ever loaded in four containers as alleged and the said containers were carried by the vessel in empty condition and loaded at Chittagong in empty condition and that although at one stage certain consignments were loaded in these four containers at Singapore but those had to be off loaded due to stability problem of the ship and in support of the above assertion respondent submitted an Inward Declaration which was issued on 14.6.1987 and a letter of Singapore Port in Authority dated 9.6.1987 wherein it was certified that the said four containers sailed for Bangladesh in the vessel in empty condition Subsequently Collector of Customs.

3. Chittagong passed an adjudication : order on 7.7.1987 finding that the respondents had smuggled contraband goods into Bangladesh and accordingly confiscated the vessel and imposed fine; the respondents then preferred an appeal before the Board of Revenue who by order dated 13.10.1987 set aside the order of the Collector of Customs; the Government filed revision and after hearing by order dated 6.1.1988 the order of Collector of Customs Chittagong was restored. The respondent No.1 then moved the High Court Division and after hearing the High Court Division made the Rule absolute : and restored the order passed by the Board of Revenue holding that the order dated 7.7.1987 passed by the Government confiscating the vessel imposing fine was illegal and without jurisdiction.

4. The learned Counsel appearing for the : appellants submits that the High Court Division having found that the vessel in question sailed from Singapore with consignments in four containers of the vessel erred in law in making the Rule absolute, inasmuch as the ship owner failed to give any satisfactory explanation as to where and under what circumstances the goods contained in four containers were offloaded specially when the vessel arrived Bangladesh direct from Singapore not having stopped at any other port of any other country and that under such circumstances there cannot be any doubt that the ship carried the contraband goods to Bangladesh in the four containers and the: fact that the ship in question carried contraband goods having been proved beyond all reasonable doubt by the papers submitted by the appellants being Annexure A- and B to the supplementary affidavit-in opposition filed by the appellants the High Court Division erred in law in making the Rule absolute.

5. As it appears the High Court Division : after referring to the contents of Annexures-A, A(i) and B of the supplementary affidavit in-opposition found as follows: "From the above it appears that: the Collector of Customs mainly depended on the enclosure to the letter as at Annexure- A (1) to the supplementary-affidavit-in-opposition of the respondent No. I.

6. Mr. Hossain has attacked this enclosure to the Annexure-A(i) contending that this could not be believed as substantive evidence in order to come to the conclusion about the truth or otherwise of the contents thereof in preference to the inward : declaration and the letter issued by the: Singapore Port Authority as at Annexure-C and C(i) to the writ petition.

7. We are unable to accept this contention of Mr. Hossain. It appears that a very responsible diplomat attached to the High Commission for Bangladesh in Singapore asserted by contacting the Port of Singapore Authority that when the offending vessel sailed from Singapore the four containers were loaded with 710 ctns ; Cigarettes in Container No. FLXU 5000467, 700 ctrs cigarettes and 23 pkgs : textiles in Container No. UPCU 5012487, 290 ctns cigarettes and '300' ctns whisky : in Container No.FLXU 5000153 and 90 ctns garment and sheets in Container No. FLUX 5000662. We have no reason to think that the High Commission for Bangladesh in Singapore sent this note to the Ministry of Foreign Affairs without asserting with extreme certainty that the four containers were loaded with the above goods when the vessel sailed from Singapore for Bangladesh in November, 1986 and, particularly so, since this note was subsequently confirmed by the Ministry of Foreign Affairs by another note dated 2nd July, 1987 as at Annexure B to the affidavit-in-opposition filed by the respondent No.1, Although in Annexure- B the particulars of goods in the four containers were not mentioned, the Ministry of Foreign Affairs of the Republic of Singapore confirmed that "the containers were loaded when the vessel Horng Lee left Singapore.

8. We, therefore, find that there were sufficent materials to concluded that the four containers were loaded with the above offensive goods when the offending ship M. V. HORNG LEE sailed from Singpore for Bangladesh and with the above findings of the Collector of Customs, this Court cannot interfere.

9. Accordingly, since it was established that the containers were full of the offensive goods when the vessel sailed from Singapore and when it is also an admitted fact that the vessel came to Chittagong Port straight from Singapore Port without calling at any other port before arriving at Chittagong Port, the customs authority very reasonably concluded that the offending goods were unloaded within the territory of Bangladesh.

10. Accordingly, the appeal is allowed and the impugned judgment and order dated 28.7.1993 passed by the High Court Division in Writ Petition No. 316 of 1988 is set aside. There is no order as to costs.

Suit for declaration of title, recovery of possession

Mohammad Fazlul Karim-J.

Md. Joynul Abedin-J.

CIVIL PETITION FOR LEAVE TO APPEAL NO. 1356 OF 2005.

(From the judgment and order dated the 22nd March, 2005 passed by the High Court Division in Civil Revision No. 530 of 2001).

Panchalipara Ebtedaya Madrassa, represented by Secretary Rustom Ali tt.. Defendant-Petitioner

Vs.

Abdul Kader t.Plaintiff-Respondent.

For the Petitioner : Mr. Nurul Islam Bhuiyan, Advocate-on-Record.

For the Respondent : Mr. Kazi Siddiqur .

Rahman, Advocate-on-Re

Specific Relief Act, 1877-

Section 42- Suit for declaration of title and recovery of possession-

Deed of transfer alleged to have been executed by a minor the registration of which was refused by the Sub-Registrar on ground of the minority-of the executant is no document in the eye of law on the basis of which the defendant did not acquire any right, title and interest. The trial Court dismissed the suit while the appellate Court below decreed the suit and the High Court Division upheld the decision of the lower appellate Court. The Appellate Division having found no error in the decision of the High Court Division upheld the same and dismissed the leave petition.

It is on the record that the defendant petitioner Madrasha claimed the land on a deed executed by the plaintiff, Abdul Kader along with his uncle, Sirajuddin but the plaintiff denied the fact. On perusal of the Exhibit-'Ka' it appears that the plaintiff was a minor at the time of execution of the said deed for which the sub-registrar refused 'to register that deed. As such the same cannot be a deed in the eye of law and it has no value in the eye of law. So, the defendant could not claim that he has acquired any right, title and

possession in the suit land ttt..(Para 6)

JUDGMENT

MOHAMMAD FAZLUL KARIM-J: This application under Article 103 of the Constitution of the 'People's Republic of Bangladesh' is directed against the judgment and order dated 22.03.2005 passed by the High Court Division in Civil Revision No.530 of 2001 discharging the Rule arising out of the judgment and decree dated 0l.10.2000 passed by the Subordinate Judge, 1st Court, Kishorgonj in Other Class Appeal No. 154 of 1999 reversing those of the Assistant Judge, Katiadi, Kishorgonj in Other Class, Suit No.66 of 1997 dismissing , the Suit.

2. The facts in the revisional application in Civil Revision No.530 of 2001 are, inter-alia, that the plaintiff-responder1t instituted Other Class Suit No.66 of 1997 in the Court of the Assistant Judge, Katiadi for declaration of. title and recovery of khas possession.

3. The plaintiff's case, in short, is that 0.08 acres of land of Plot No. 1069 of C.S. Khatian No. 1287 originally belonged to Kalu Sheikh and Owed Ali in equal share. Kalu Sheikh transferred his 0.04 acres of land to Nawab Ali Munshi, the father of the plaintiff and Sirajuddin by deed of Hebabil-Ewaj dated 18:03.1942. Nawab Ali died leaving behind the plaintiff as the only son, Sirajuddin transferred his share in favour of Abdul Majid, Secretary of Madrassa by the deed of gift dated 18.11.1959. At that time plaintiff was minor and consequently the execution of deed of gift and its registration were refused in respect of share of the plaintiff on the ground of his minority. The plaintiff has been possessing his 0.02 acres of land and rented to the different persons by erecting shops on it; during the pendency of the suit he was, however, dispossessed from the suit land.

4. The suit was contested by the defendant contending inter-alia, that 0.08 (eight) acres of land of the suit Plot No. 1069 belonged to Kalu Sheikh who transferred the same in favour of his son-Nawab Ali and Serajuddin by the deed of Heba-bil-Ewaj dated 18.03.1942. Nawab Ali died leaving behind plaintiff as the only son; Serajuddin who transferred 0.04 acres of land in favour of Madrassa by registered deed dated 18.11.1959 in favour of Abdul Majid representing the Madrassa as Secretary. Possession of the suit land was delivered in favour of the Madrassa and the Madrassa has been possessing the same for more then 12 years by erecting shops thereon and thereby the defendant has acquired right and title over the suit land by way of adverse possession also.

5. Mr. Nurul Islam Bhuiyan, learned Advocate-an-Record, appearing for the defendant-petitioner submits that the High Court Division based its findings on surmise, conjectures' and extraneous circumstances for which the findings are liable to be struck down; that the High Court Division committed a grave error of law occasioning failure of justice in not holding to the effect that the appellate Court below on misreading and on misinterpretation of the evidence on record allowed the appeal and decreed .the Suit being failed to appreciate the evidences on record in its proper perspective and came to an erroneous finding; that the Appellate Court below reversed the judgment and decree of the trial Court without reversing the findings of the trial Court and came to wrong finding resulting in an error in decision occasioning failure of justice; that the High Court Division utterly failed to take into consideration that the appellate Court failed to appreciate that the plaintiff failed to prove his possession over the suit land and that the plaintiff failed to prove his dispossession from the suit land during pendency of the Suit; that the High Court Division committed error of law occasioning failure of justice' in not considering the fact that the appellate Court below utterly failed to notice that the claim of the defendant Madrassa is that the plaintiff along with his uncle Sirajuddin executed a deed of gift in favour of the Madrassa and the defendant has acquired right, title and interest on the disputed land on the basis of the said deed and also by way of adverse possession for over 12 years; that the High Court 'Division failed to detect that the lower appellate Court seriously lost sight of the clear and categorical finding of the trial Court to the effect Dc‡iv³ Av‡jvPbv I ch©v‡jvPbv †_‡K cÖZxqgvb nq †h, bvwjkx f~wg‡Z weev`x gv`ªvmv 40 ermi a‡i Av‡Q Ges eZ©gv‡b wewfbœ †jvKR‡bi wbKU fvov w`‡q fvov/K…Z A_© w`‡q gv`ªvmvi Pzb KvR Ki‡Q †h‡n‡Zz weev`x gv`ªvmv 40 ermi †fvM `L‡j Av‡Q, †m‡nZz cÖZxqgvb nq †h, bvwjkx f'wg‡Z weev`x gv`ªvmvi ¯^Z¡ `Lj Av‡Q Ges ev`x‡K †e`Lj K‡iwb| ZvB bvwjkx f~wg‡Z ev`xi †Kvb ¯^Z¡ bvB wKsev `Lj wQj bv| myZivs 3/4 bs wePvh¨© welq ev`xc‡i cÖwZKz‡j wb®úwË Kiv †Mj|Ó

6. It is on the record that the defendant petitioner Madrasha claimed the land on a deed executed by the plaintiff, Abdul Kader along with his uncle, 5irajuddin but the plaintiff denied the fact. On perusal of the Exhibit-'Ka' it appears that the plaintiff was a minor at the time of execution of the said deed for which the sub-registrar refused to register that deed. As such the same cannot be a deed in the eye of law and it has no value in the eye of law. So, the defendant could not claim that he has acquired any right, title and possession in the suit land.

7. In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners.

8. Accordingly, the application is dismissed.

Death sentence on basis of circumstantial evidence

APPELLATE DIVISION

(Criminal)

Md Ruhul Amin CJ

MM Ruhul Amin J

Md Joynul Abedin J

Md Abdul Matin J

Judgment January 3rd, 2008

Mukter Hossain Khan (Md) .. t..Appellant

vs

Statettttt..Respondent

Evidence Act (1 of 1872)

Section 106

In the absence of cogent evidence as to the presence of the condemned-petitioner in the occurrence house with his family, the condemned-petitioner cannot be taken to be liable to prove the fact as to how his wife and 3 (three) year old daughter met their death. t.. (7)

ABM Bayezid, Advocate-For the Appellant.

A Raut, Deputy Attorney-General-For the State-Respondent,

Judgment

Md Joynul Abedin J: This appeal by leave is directed against the judgment and order dated 5-5-2004 passed by the High Court Division in Death Reference Case No. 9 of 2002 referred by the learned Sessions Judge, Manikgonj for confirmation of death sentence of the petitioner and Jail Appeal No.128 of 2002 filed by the petitioner from Manikgonj jail, which were heard and disposed of together by the High Court Division accepting the death reference and dismissing the aforesaid jail appeal affirming the conviction and capital sentence awarded under section 302 of the Penal Code.

2. The short fact is, that on 18-7-1995 one Monowara Begum (PW 6) lodged information with Ghior Police Station that a body of a female child was floating on the water in a nearby bamboo bush on the eastern side of her house. Since the dead body was decomposed she could not recognise the same. The age of the child was approximately 3 years. One Mukter Hossain used to reside in her house with his wife and daughter. 'He left the house on 13-7-1995 and before leaving said Mukter Hossain told some neighbours that he shifted his wife and daughter to his relative's house in the morning. The informant and the neighbours suspected that the dead body was that of the daughter of the condemned prisoner Mukter Hossain. On the basis of the written application initially an UD Case No. 14 of 1995 was registered with the Ghior Police Station. Sub-Inspector Zaminur Rahman visited the place of occurrence, prepared the inquest report of the dead body and seized 3 bricks tied with the dead body. In the meantime, he got information that another dead body of a woman was found in front of the house of Manowara Begum (PW 6), which was floating on the water. He took photograph of the dead body of the woman and prepared the inquest report. The hair and skin on the head were rooted, teeth were broken and her abdomen was tom. There was injury on the private organ of the dead body. He sent both the dead bodies to the morgue for autopsy and after having received the postmortem report lodged the FIR on 28-8-1995 and Ghior Police Station Case No.10 of 1967 dated 29-8-1995 was started.

3. The police after investigation submitted charge sheet against the condemned-prisoner Mukter Hossain under sections 302/201 of the Penal Code and on receipt of the case record, the trial Court framed charge under the aforesaid sections of the Penal Code but the same could not be read over to the condemned-prisoner due to his abscondence. The condemned-prisoner was however, examined under section 342 of the Code of Criminal Procedure, as he was in the meanwhile taken into custody, to which he pleaded innocence and demanded trial.

4. The learned Sessions Judge, Manikganj, upon hearing the parties, found the condemned prisoner guilty under section 302 of the Penal Code and sentenced him to death by his judgment and order dated 30-3-2002 and made a reference to the High Court Division for confirmation of the sentence of death. The condemned-petitioner also preferred the Jail Appeal No. 128 of 2002 against the conviction and sentence and the High Court Division accepted the reference and confirmed the sentence of death by the impugned judgment by dismissing the appeal.

5. Leave was granted to consider the contentions that the trial Court convicted and sentenced the condemned-petitioner to death on the basis of circumstantial evidence and the High Court Division confirmed the same on the same ground although the circumstantial evidence was not so irresistible, cogent and fonnidable as not to admit any hypothesis of innocence of the condemned-petitioner and the prosecution could not also prove any motive on the part of the condemned-petitioner to kill his wife and a 3(three) year old baby daughter and also that the impugned judgment was based on non-consideration and misreading of evidence on record.

6. It is argued by the learned Advocate for the petitioner that the prosecution has not been able to prove beyond reasonable doubt on the basis of the circumstantial evidence on record that the petitioner committed the murder of his wife and a 3 (three) year old female child. It is further contended that the prosecution has also failed to prove by the evidence on record that the petitioner was present at the house at or about the time of the occurrence; rather PW II Bhabesh Shikder, a next-door neighbour, by his evidence in cross-examination proved that the petitioner was not seen in the occurrence house from before the date of occurrence. The relevant portion of his evidence in cross-examination rcads as under:

tt†h w`b NUbv Zvi Av‡M †_‡K †gv³vi‡K ‡`wLwb g‡bvqvi evox‡Z|Ó

7. We have heard the learned Advocate and perused the connected papers including the impugned judgment. We find from the evidence and materials on record that the prosecution could not prove beyond reasonable doubt that the condemned petitioner was with his family in the occurrence house at or about the time of occurrence. In the absence of evidence as to the presence of the condemned-petitioner in the occurrence house with his family the condemned-petitioner cannot be taken to be liable to prove the fact as to how his wife and 3 (three) year old daughter met their death by invoking section 106 of the Evidence Act. The onus of proof that it was the condemned petitioner and none else who killed his wife and daughter was all along on the prosecution and it never shifted on the condemned petitioner in the absence of any proof beyond reasonable doubt that he was present in the occurrence house when the occurrence took place. It is all the more difficult for the prosecution to press section 106 into service when the petitioner was also prosecuted for the murder of his baby daughter at the same time. We therefore, find good deal of force in the points argued by the learned Advocate for the petitioner.

The appeal is accordingly allowed.