Present:

Mr. Justice Borhanuddin

and

Mr. Justice Md. Ruhul Quddus

Criminal Appeal No. 2759 of 2008 Brindaban Mondal and another

…  Appellants

-Versus-

The State

…  Respondent

Mr. M.A. Muntakim, Advocate

…  for the appellants

Mr. A.B.M. Mahbub, A.A.G.

…  for the respondent

Judgment on 16.5.2011

Md. Ruhul Quddus, J:

This appeal under section 30 of the Special Powers Act, 1974 is directed against order dated 20.4.2008 passed by the Special Tribunal No.3, Satkhira in Special Tribunal Case No.129 of 2007 rejecting an application for discharge filed by the appellants under section 265C of the Code of Criminal Procedure and framing charge against them under section 25C (b) of the Special Powers Act.

Facts relevant for disposal of the appeal, in brief, are that the informant  Md.  Kowsar  Ali,  a  Sub-Inspector  of  police  produced  the arrested appellant No.1 with ninety bags of fertilizer to Patkelghata police station, Satkhira on 7.2.2007 and lodged an ejahar against the appellants bringing allegation of storing adulterated fertilizer for the purpose of sale. The said  ejahar gave rise to Patkelghata Police Station Case No.7 dated 7.2.2007 under section 25C (b) of the Special Powers Act. The police, after investigation submitted a charge sheet on 24.3.2007 against the appellants under the said section of law.

The case after being ready for trial, was sent to the Special Tribunal No.1, Satkhira, wherein it was numbered as Special Tribunal Case No.129 of 2007 and therefrom it was transferred to the Special Tribunal No.3, Satkhira for disposal. The appellants filed an application under section 265C of the Code of Criminal Procedure for their discharge from the case. The learned Judge of the Tribunal heard the application, but without disposing of the same, framed charge against them under section 25C (b) of the Special Powers Act by his order dated 20.4.2008. The appellants filed the instant criminal appeal against the said order of framing charge and subsequently obtained an order staying all further proceedings of the case.

Mr. M. A. Muntakim, learned Advocate appearing for the appellants, submits at the very outset that the offence as alleged in the ejahar and charge sheet does not come within the mischief of section 25C of the Special Powers Act. This section deals with the offences relating to adulteration of food, drink, drugs and cosmetics. There is a separate law, namely, mvi e¨ve¯nvcbv AvBb, 2006 to deal with offences relating to fertilizer. The mvi e¨ve¯nvcbv AvBb, 2006 (hereinafter referred to ‘the Ain’) being a subsequent special law is only applicable in the present case and the Special Tribunal constituted under the Special Powers Act has got no jurisdiction to try an offence relating to fertilizer.

Mr. A. B. M. Mahbub, the learned Assistant Attorney General appearing for the State finds it difficult to oppose the contention of the learned Advocate for the appellants, however, he submits that the Special Tribunal having no jurisdiction to try the offence, the case may be sent to a Court of competent jurisdiction.

We have examined the law including section 25C (b) of the Special Powers Act providing punishment for adulteration of food or drink, which runs as follows:

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

(a)                          ...

(b)                          sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink; or

(c)                          ....

(d)                          ....

(e)                          ....

shall be punishable with death, or with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to fine.”

From a plain reading of the above quoted law, it appears that

there is no scope to try an offence relating to fertilizer under section

25C (b) of the Special Powers Act. There is no other provision in the

said Act to try an offence relating to fertilizer. On the other hand,

section 17 of the  mvi e¨e¯’vcbv AvBb, 2006 provides the definition of

adulterated fertilizer and prescribes punishment for production, import,

storing, preservation, sale, marketing and distribution of the same,

while section 21 of the said Ain provides the forum, where any offence

relating to fertilizer would be tried. Sections 17 and 21 of the Ain are

quoted below:

“17| ‡fRvj (Adulteration) |Ñ(1) †Kvb e¨w³ †Kvb †fRvj mvi Drcv b, Avg vbx, ¸ vgRvZ, msi¶Y, weµq, wecYb ev weZiY Kwi‡Z cvwi‡e bv|

(2)            wbg¥ewY©Z Kvi‡Y †Kvb mvi †fRvj ewjqv MY¨ nB‡e, h_vtÑ

(K)            wewb‡ ©k ewnf~©Z †Kvb mvi;

(L)             cix¶vMvi KZ©„c¶ KZ©„K cÖ Ë mvi we‡k−lY mvwU©wd‡KU Abyhvqx hw  mv‡i ¶wZKviK c v‡_©i Dcw¯’wZ GB cwigvY _v‡K hvnv †j‡e‡j ewY©Z wb‡ ©kbv Abymv‡i e¨envi Kiv nB‡j gvwU, Dw™¢ , cÖvYx I cwi‡e‡ki Rb¨ ¶wZKi nB‡e;

(M)          hw mv‡ii e¨enviwewa‡Z D³ mv‡ii AcKvwiZv m¤ú‡K© ch©vß mZK©Zvg~jK weeiY †j‡e‡j ewY©Z bv _v‡K;

(N)            hw †j‡e‡j ewY©Z ivmvqwbK MVb (Composition) A‡c¶v wbg¥v‡bi Dcv v‡b

A_ev Ab¨ †Kvb Dcv‡q mvi cÖ¯—yZ Kiv nq; Ges

(O)             hw mv‡i cÖ‡qvRbxq Dcv vb e¨ZxZ Abvek¨K ev cwi‡ek ~lYKvix ev ¶wZKi

†Kvb c v_© _v‡K|

(3)            †Kvb e¨w³ Dc-aviv (1) Gi weavb jsNb Kwi‡j Dnv GB AvB‡bi Aaxb Aciva wnmv‡e MY¨ nB‡e Ges D³ Aciv‡ai Rb¨ D³ e¨w³ yB ermi ch©š— mkªg Kviv Û ev Ab~aŸ© yB j¶ UvKv A_© Û ev Dfq ‡Û wÛZ nB‡eb|

“21| wePvi|-(1) †dŠR vix Kvh©wewa‡Z hvnv wKQyB _vKzK bv †Kb, GB AvB‡bi Aaxb Acivamg~n ¯’vbxq Awa‡¶Îm¤úbœ cÖ_g †kªYxi g¨vwR‡÷ªU wKsev, cÖ‡hvR¨ †¶‡Î, †g‡UªvcwjUb g¨vwR‡÷ªU KZ©„K wePvh© nB‡e|

(2)  †dŠR vix Kvh©wewa‡Z hvnv wKQyB _vKzK bv †Kb, GB AvB‡bi Aaxb †Kvb c _Ö g †kªYxi g¨vwR‡÷ªU wKsev, c ‡Ö hvR¨ †¶‡Î, †g‡UªvcwjUb g¨vwR‡÷ªU † vlx mve¨¯Í †Kvb e¨w³‡K mswk−ó Aciv‡ai Rb¨ GB AvB‡b Aby‡gvw Z †h †Kvb Û Av‡ivc Kwi‡Z cvwi‡eb|

(3)  Penal Code, 1860 (XLV of 1860) Gi section 21 G msÁvwqZ †Kvb

Public Servant ev K…wl m¤cÖmviY Awa ߇ii mswk−ó Dc-cwiPvjK ev cwi k©K ev

K…wl m¤cÖmviY Awa ߇ii gnvcwiPvjK KZ©„K ¶gZvcÖvß †Kvb Kg©KZ©v Aciva eY©bvc~e©K wjwLZ Av‡e b vwLj bv Kwi‡j GB AvB‡bi Aax‡b Û‡hvM¨ †Kvb Aciva Av vjZ Avg‡j

MÖnY Kwi‡e bv|

(4)   GB AvB‡bi Aaxb †Kvb Aciv‡ai mwnZ Ab¨ †Kvb AvB‡bi Aaxb †Kvb Aciva

hy³fv‡e msNwUZ nB‡j GB AvB‡bi Aaxb wePvh© Aciv‡ai wePvi GLwZqvim¤úbœ cÖ_g

†kªYxi g¨vwR‡÷ªU Av vjZ wKsev, cÖ‡hvR¨ †¶‡Î, †g‡UªvcwjUb g¨vwR‡÷ªU Av vj‡Z AbywôZ nB‡e Ges Ab¨ AvB‡bi Aaxb msNwUZ Aciv‡ai wePvi GLwZqvim¤úbœ Ab¨ †Kvb Av vjZ

ev UªvBeybv‡j AbywôZ nB‡e|”

In the present case, the appellants are accused for storing adulterated fertilizer for the purpose of sale, which comes within the mischief of section 17 of the Ain. In view of the clear provision of law, we hold that a Special Tribunal constituted under the Special Powers

Act has got no jurisdiction to try an offence relating to fertilizer. The present case is triable by the Chief Judicial Magistrate, or any Judicial Magistrate of Satkhira under the provisions of the mvi e¨e¯’vcbv AvBbÕ 2006.

For the reasons stated above, we find substance in submissions of the learned Advocate for the appellants and are inclined to allow this appeal with necessary direction to send the case to be tried in a Court of competent jurisdiction.

In the result, the appeal is allowed. The impugned order dated 20.4.2008 passed by the Special Tribunal No.3, Satkhira in Special Tribunal Case No.129 of 2007 arising out of Patkelghata Police Station Case No.7 dated 7.2.2007 corresponding to G.R. Case No. 35 of 2007 is hereby set aside. The stay passed at the time of admission of the appeal is vacated.

The learned Judge, Special Tribunal No.3, Satkhira is directed to send back the case to the learned Sessions Judge, Satkhira so that he send it to the Chief Judicial Magistrate of Satkhira to proceed with the case in accordance with law.

Communicate a copy of this judgment to the learned Sessions Judge, Satkhira with a copy to the Special Tribunal No.3, Satkhira.  

Borhanuddin, J:

I agree.