High Court Division :
(Criminal Miscellaneous Jurisdiction)
Zubayer Rahman Chowdhury J
Md Abu Zafor Siddique J
Faizur Rahman (Md) ……………Petition
vs
State ……..
…..Opposite-Party
Judgment
March 13th, 2014
Code of Criminal Procedure (V of 1898)
Section 561A
Penal Code (XLV of 1860)
Section 272
Special Powers Act (XIV of 1974)
Section 25C(a)
Mere mixing wheat with bran by itself cannot constitute any adulteration of any food being otherwise noxious and when the accused person had no direct personal involvement in mixing of wheat with bran, the mischief of Section 272 of the Code and Section 25C(a) of the Act cannot be attracted. …………….(22)
MV Joshi vs MU Shimpi, AIR 1961(SC) 1494 and Md Nazrul Islam vs State, 1983 BLD 65 ref.
Md Ashadullah with Nasima Akhter, Advocates-For the Petitioner.
Md Fazlur Rahman Khan, DAG with Md Mahmud Morshed AAG-For the State.
Judgment
Zubayer Rahman Chowdhury J : By this application under Section 561 A of the Code of Criminal Procedure, the petitioner seeks to quash the proceedings of Special Tribunal Case No.217 of 2004 under Section 25C(b) of the Special Powers Act, 1974, arising out of Rupgonj Police Station Case No. 04 dated 10-11-1993 corresponding to GR Case No. 119 of 1993 pending in the Court of Special Tribunal No.7, Narayangonj.
2. At the time of issuance of the Rule on 23-10-2005, all further proceedings of the aforesaid case was stayed for a period of 3 (three) months.
3. Subsequently, by orders of different dates, the period of stay was extended time to time. Lastly, by order dated 4-1-2009, the order of stay was extended till disposal of the Rule.
4. Briefly stated, relevant facts necessary for disposal of the Rule are that the petitioner, an Engineer, was serving as Project Engineer in Northern Refinery (Edible) Limited, Narayangonj, having been appointed on 29-10-1990.
5. An FIR was lodged on 9-11-1993 by one Md Nasir Uddin, Inspector of Police, Criminal Investigation Department, Dhaka alleging inter alia that the informant, along with some other official, visited the factory of Northern Refinery (Edible) Limited, Narayangonj on 7-9-1993. During the inspection, they collected samples and sent the same to the Chief Chemical Engineer, Mohakhali for examination who, later, submitted his report dated 12-10-1993 with the following observation:
“????? ?????? ???? ??, ??????? ?????? ????? ??????? ???? ????? ???? ??? ???? ??????? ??? ??????? ????”
6. Subsequently, on the basis of the said FIR, Rupgonj Police Station Case No.04 dated 10-11-1993 was registered under Section 25C(b) of the Special Powers Act, 1974 against five persons including the petitioner.
7. On 12-9-2004, the petitioner and the other co-accused persons filed an application under Section 241A of the Code of Criminal Procedure before the learned Judge of the Special Tribunal, Narayangonj for discharging them from the case on the ground stated in the said application.
8. Upon hearing the parties, the learned Judge of the Special Tribunal rejected the said application by order dated 17-4-2005 and fixed 2-7-2005 for hearing the charge.
9. In the premises noted above, the petitioner moved this Court and obtained the instant Rule along with an order of stay, as noted at the outset.
10. Mr Md Ashadullah, the learned Advocate appears with Mrs. Nasima Akhter, Advocate on behalf of the petitioner, while Mr Md Fazlur Rahman Khan, the learned Deputy Attorney-General and Mr Md Yousuf Mahmud Morshed, the learned Assistant Attorney-General appear on behalf of the State.
1 l. Mr Md Ashadullah, the learned Advocate appearing in support of the Rule has placed the instant application together with the connected documents. Referring to the provision of Section 25C(b) of the Special Powers Act, 1974, Mr Md Ashadullah contends that the section prescribes punishment for selling or offering to sell any food or article which is unfit for human consumption, knowing the same to be so. However, Mr Ashadullah contends that the operative part of the section relates to “selling” or “offering to sell”. Referring to the FIR and charge sheet, the learned Advocate contends that nowhere within the four corners of the F.I.R. and the chargesheet is there any allegation to the effect that the petitioner was involved in the process of selling or had offered to sell the alleged noxious food to the public. Mr Ashadullah submits that the petitioner is an Engineer and is responsible for the maintenance of the machineries of the oil refinery. He is therefore neither involved in the manufacturing process nor with the marketing of the product itself.
12. Referring to the word “adulteration”, the’ learned Advocate submits that the word “adulteration” has neither been defined in the Penal Code nor in the Special Powers Act, 1974.
13. Mr Ashadullah further submits that the finding of the Chief Chemical Engineer indicates that the seized oil contains moisture above the permissible level. Elaborating his submission, the learned Advocate contends that moisture is a natural product which is present in the environment. It is a natural process over which a person ordinarily does not have any cantrol since it is regulated by the weather conditions.
14. Mr Ashadullah contends that even if the seized oil is found to be unfit for human consumption, then an offence, if any, shall come within the ambit and scope of the Pure Food Ordinance, 1959. Referring to the provisions of the aforesaid Ordinance, Mr Ashadullah submits that the Ordinance is a self contained Act, regulating the quality and condition of the food products that are consumed by the public at large. According to Mr Ashadullah, even if the prosecution’s case is taken to be correct, that by itself cannot bring the petitioner within the ambit and scope of the section under which he has been charged.
15. According to the learned Advocate, any case which is covered by the said Ordinance would not be amenable under the jurisdiction of the Special Powers Act, 1974.
16. Mr Md Fazlur Rahman Khan, the learned Deputy Attorney General appearing with Mr Md Yousuf Mahmud Morshed, the learned Assistant Attorney General in opposition to the Rule, submits that the petitioner, being the Project Engineer, was responsible for the overall process of manufacturing and production in the said plant. Mr Khan submits that since a prima facie case appears to have been made out against the petitioner, no interference is called for and the Rule is liable to be discharged.
17. For a proper understanding of the issues before us, let us now refer to Section 25C(b) of the Special Powers Act, 1974 which read as under:
“25C-Penalty for adulteration of, or sale of adulterated food, drink, drugs or cosmetics-(l) Whoever-
(a) ………….
(b) sells, or offers or expose 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 [imprisonment for life], or with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to fine.”
18. From a plain reading of the section, quoted above, it appears that the section prescribes punishment for the act of “selling” or “offering or exposing to sell” any food product which has become noxious. However, nowhere within the four corners 01 the FIR or the deposition of the witnesses has it been suggested that the petitioner himself was involved with the actual process of selling the product produced by Mill. It is true that the petitioner was serving in the said Mill, but his job description clearly suggests that he was only involved with the functions and maintenance of the machineries of the factory and not with anything else. There is no evidence on record to suggest that he was involved with the process of selling the product in question.
19. Let us now refer to the decision cited at the Bar.
20. In the case of MV Joshi vs MU Shimpi reported in AIR 1961 (SC) 1494, the Court held:
“when it is said that all penal statutes are to be construed strictly it only means that the Court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. To put it in other words, the rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute. It has also been held that in construing a penal statute it is a cardinal principle that in case of doubt, the construction favourable to the subject should be preferred.”
21. In the case of Mohammad Nazrul Islam vs State, reported in 1983 BLD 65, the Court held:
“Section 272 Penal Code says that whoever adulterates any article of food so as to make such article noxious as food intending to sell such article as food or knowing it to be likely that the same will be sold as toad shall be punished. Section 25C(a) of the Special Powers Act also provides similar language in respect of penalty for adulteration of food.
22. In the foregoing circumstances it clearly appears that apart from the fact that mere mixing wheat with bran by itself cannot constitute any adulteration of any food being otherwise noxious and that when the accused person had no direct personal involvement in mixing of wheat with bran, the mischief of Section 272 of the Penal Code and section 25C(a) of the Special Powers Act cannot be attracted in the present case as disclosed in the FIR of the Police. It can be safely held that the FIR of the Police in the instant case does not disclose or constitute any offence under Section 272 of the Penal Code and Section 25C(a) of the Special Powers Act.”
23. During the course of his submission, Md Ashadullah his produced the original certificate issued by the Bangladesh Technical Education Board, Dhaka showing that the petitioner Md Faizur Rahman has obtained Diploma in Engineering (Mechanical Technology) in 1985.
24. Be that as it may, having regard to the facts and circumstances of the case and in due deference to the decisions cited above, we are inclined to hold that the instant Rule merits positive consideration.
25. In the result, the Rule is made absolute.
26. The proceeding of Special Tribunal Case No.217 of 2004 under Section 25C(b) of the Special Powers Act, 1974 arising out of Rupgonj Police Station Case No.4 dated 10-11-1993 corresponding to GR Case No. ‘119 of 1993 pending in the Court of Special Tribunal No.7, Narayangonj is hereby quashed, so far as it relates to the petitioner only.
27. The petitioner Md Faizur Rahman is discharged from his bail bond. The office is directed to communicate the order at once.
(Criminal Miscellaneous Jurisdiction)
Zubayer Rahman Chowdhury J
Md Abu Zafor Siddique J
Faizur Rahman (Md) ……………Petition
vs
State ……..
…..Opposite-Party
Judgment
March 13th, 2014
Code of Criminal Procedure (V of 1898)
Section 561A
Penal Code (XLV of 1860)
Section 272
Special Powers Act (XIV of 1974)
Section 25C(a)
Mere mixing wheat with bran by itself cannot constitute any adulteration of any food being otherwise noxious and when the accused person had no direct personal involvement in mixing of wheat with bran, the mischief of Section 272 of the Code and Section 25C(a) of the Act cannot be attracted. …………….(22)
MV Joshi vs MU Shimpi, AIR 1961(SC) 1494 and Md Nazrul Islam vs State, 1983 BLD 65 ref.
Md Ashadullah with Nasima Akhter, Advocates-For the Petitioner.
Md Fazlur Rahman Khan, DAG with Md Mahmud Morshed AAG-For the State.
Judgment
Zubayer Rahman Chowdhury J : By this application under Section 561 A of the Code of Criminal Procedure, the petitioner seeks to quash the proceedings of Special Tribunal Case No.217 of 2004 under Section 25C(b) of the Special Powers Act, 1974, arising out of Rupgonj Police Station Case No. 04 dated 10-11-1993 corresponding to GR Case No. 119 of 1993 pending in the Court of Special Tribunal No.7, Narayangonj.
2. At the time of issuance of the Rule on 23-10-2005, all further proceedings of the aforesaid case was stayed for a period of 3 (three) months.
3. Subsequently, by orders of different dates, the period of stay was extended time to time. Lastly, by order dated 4-1-2009, the order of stay was extended till disposal of the Rule.
4. Briefly stated, relevant facts necessary for disposal of the Rule are that the petitioner, an Engineer, was serving as Project Engineer in Northern Refinery (Edible) Limited, Narayangonj, having been appointed on 29-10-1990.
5. An FIR was lodged on 9-11-1993 by one Md Nasir Uddin, Inspector of Police, Criminal Investigation Department, Dhaka alleging inter alia that the informant, along with some other official, visited the factory of Northern Refinery (Edible) Limited, Narayangonj on 7-9-1993. During the inspection, they collected samples and sent the same to the Chief Chemical Engineer, Mohakhali for examination who, later, submitted his report dated 12-10-1993 with the following observation:
“????? ?????? ???? ??, ??????? ?????? ????? ??????? ???? ????? ???? ??? ???? ??????? ??? ??????? ????”
6. Subsequently, on the basis of the said FIR, Rupgonj Police Station Case No.04 dated 10-11-1993 was registered under Section 25C(b) of the Special Powers Act, 1974 against five persons including the petitioner.
7. On 12-9-2004, the petitioner and the other co-accused persons filed an application under Section 241A of the Code of Criminal Procedure before the learned Judge of the Special Tribunal, Narayangonj for discharging them from the case on the ground stated in the said application.
8. Upon hearing the parties, the learned Judge of the Special Tribunal rejected the said application by order dated 17-4-2005 and fixed 2-7-2005 for hearing the charge.
9. In the premises noted above, the petitioner moved this Court and obtained the instant Rule along with an order of stay, as noted at the outset.
10. Mr Md Ashadullah, the learned Advocate appears with Mrs. Nasima Akhter, Advocate on behalf of the petitioner, while Mr Md Fazlur Rahman Khan, the learned Deputy Attorney-General and Mr Md Yousuf Mahmud Morshed, the learned Assistant Attorney-General appear on behalf of the State.
1 l. Mr Md Ashadullah, the learned Advocate appearing in support of the Rule has placed the instant application together with the connected documents. Referring to the provision of Section 25C(b) of the Special Powers Act, 1974, Mr Md Ashadullah contends that the section prescribes punishment for selling or offering to sell any food or article which is unfit for human consumption, knowing the same to be so. However, Mr Ashadullah contends that the operative part of the section relates to “selling” or “offering to sell”. Referring to the FIR and charge sheet, the learned Advocate contends that nowhere within the four corners of the F.I.R. and the chargesheet is there any allegation to the effect that the petitioner was involved in the process of selling or had offered to sell the alleged noxious food to the public. Mr Ashadullah submits that the petitioner is an Engineer and is responsible for the maintenance of the machineries of the oil refinery. He is therefore neither involved in the manufacturing process nor with the marketing of the product itself.
12. Referring to the word “adulteration”, the’ learned Advocate submits that the word “adulteration” has neither been defined in the Penal Code nor in the Special Powers Act, 1974.
13. Mr Ashadullah further submits that the finding of the Chief Chemical Engineer indicates that the seized oil contains moisture above the permissible level. Elaborating his submission, the learned Advocate contends that moisture is a natural product which is present in the environment. It is a natural process over which a person ordinarily does not have any cantrol since it is regulated by the weather conditions.
14. Mr Ashadullah contends that even if the seized oil is found to be unfit for human consumption, then an offence, if any, shall come within the ambit and scope of the Pure Food Ordinance, 1959. Referring to the provisions of the aforesaid Ordinance, Mr Ashadullah submits that the Ordinance is a self contained Act, regulating the quality and condition of the food products that are consumed by the public at large. According to Mr Ashadullah, even if the prosecution’s case is taken to be correct, that by itself cannot bring the petitioner within the ambit and scope of the section under which he has been charged.
15. According to the learned Advocate, any case which is covered by the said Ordinance would not be amenable under the jurisdiction of the Special Powers Act, 1974.
16. Mr Md Fazlur Rahman Khan, the learned Deputy Attorney General appearing with Mr Md Yousuf Mahmud Morshed, the learned Assistant Attorney General in opposition to the Rule, submits that the petitioner, being the Project Engineer, was responsible for the overall process of manufacturing and production in the said plant. Mr Khan submits that since a prima facie case appears to have been made out against the petitioner, no interference is called for and the Rule is liable to be discharged.
17. For a proper understanding of the issues before us, let us now refer to Section 25C(b) of the Special Powers Act, 1974 which read as under:
“25C-Penalty for adulteration of, or sale of adulterated food, drink, drugs or cosmetics-(l) Whoever-
(a) ………….
(b) sells, or offers or expose 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 [imprisonment for life], or with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to fine.”
18. From a plain reading of the section, quoted above, it appears that the section prescribes punishment for the act of “selling” or “offering or exposing to sell” any food product which has become noxious. However, nowhere within the four corners 01 the FIR or the deposition of the witnesses has it been suggested that the petitioner himself was involved with the actual process of selling the product produced by Mill. It is true that the petitioner was serving in the said Mill, but his job description clearly suggests that he was only involved with the functions and maintenance of the machineries of the factory and not with anything else. There is no evidence on record to suggest that he was involved with the process of selling the product in question.
19. Let us now refer to the decision cited at the Bar.
20. In the case of MV Joshi vs MU Shimpi reported in AIR 1961 (SC) 1494, the Court held:
“when it is said that all penal statutes are to be construed strictly it only means that the Court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. To put it in other words, the rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute. It has also been held that in construing a penal statute it is a cardinal principle that in case of doubt, the construction favourable to the subject should be preferred.”
21. In the case of Mohammad Nazrul Islam vs State, reported in 1983 BLD 65, the Court held:
“Section 272 Penal Code says that whoever adulterates any article of food so as to make such article noxious as food intending to sell such article as food or knowing it to be likely that the same will be sold as toad shall be punished. Section 25C(a) of the Special Powers Act also provides similar language in respect of penalty for adulteration of food.
22. In the foregoing circumstances it clearly appears that apart from the fact that mere mixing wheat with bran by itself cannot constitute any adulteration of any food being otherwise noxious and that when the accused person had no direct personal involvement in mixing of wheat with bran, the mischief of Section 272 of the Penal Code and section 25C(a) of the Special Powers Act cannot be attracted in the present case as disclosed in the FIR of the Police. It can be safely held that the FIR of the Police in the instant case does not disclose or constitute any offence under Section 272 of the Penal Code and Section 25C(a) of the Special Powers Act.”
23. During the course of his submission, Md Ashadullah his produced the original certificate issued by the Bangladesh Technical Education Board, Dhaka showing that the petitioner Md Faizur Rahman has obtained Diploma in Engineering (Mechanical Technology) in 1985.
24. Be that as it may, having regard to the facts and circumstances of the case and in due deference to the decisions cited above, we are inclined to hold that the instant Rule merits positive consideration.
25. In the result, the Rule is made absolute.
26. The proceeding of Special Tribunal Case No.217 of 2004 under Section 25C(b) of the Special Powers Act, 1974 arising out of Rupgonj Police Station Case No.4 dated 10-11-1993 corresponding to GR Case No. ‘119 of 1993 pending in the Court of Special Tribunal No.7, Narayangonj is hereby quashed, so far as it relates to the petitioner only.
27. The petitioner Md Faizur Rahman is discharged from his bail bond. The office is directed to communicate the order at once.