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Criminal Appeal No. 117 of 1960, decided on 30th January 1961.

Foreign Exchange Regulation Act (VII of 1947), Ss. 23‑A (6) & 12(1)

‑Declaration furnished at one place and failure to repatriate money at another place‑Together constitute offence‑Triable by Court having jurisdiction over any of two places‑Criminal Pro cedure Code (V of 1898), S. 182.

State Bank of Pakistan, Dacca v. Bimal Kanta Shar and another Cr. A. No. 105 of 1960 (unreported) fol.

Maksumul Hakim for Appellant.

Nemo for the Accused.

This appeal under section 23‑A (6) of the Foreign Exchange Regulation Act arises out of an order dated the 12th December, 1959, whereby Mr. F. Ahmad, Additional Sessions Judge, functioning as a Tribunal under the aforesaid Act, discharged the accused, viz. Dina Bandhu Sarkar, in Tribunal Case No. 27 of 1958. It appears that the accused opposite‑parties were prosecuted under section 23 of the aforesaid Act on a complaint filed on behalf of the State Bank of Pakistan on 13‑9‑58 alleging inter alia that the two opposite‑parties failed to repatriate the sale proceeds of fresh fish exported to India through the land Customs Station, Basantapur, Khulna, although they had duly declared in the prescribed form to do so through the National Bank of Pakistan, Chittagong. Order for issue of warrant of arrest with bail against the accused was passed on that very day, i.e. OD 13‑9‑58. The necessary processes appear also to have issued in due course but remained abortive till 25‑4‑59 when issue of fresh warrant of arrest appears to have been prayed for and ordered.

It was thereafter that on 23‑5‑59 one of the accused, i.e. Dina Bandhu Sarker, since discharged appeared. The other accused, i.e., Radha Ballav Halder, however, remained untraced, wherefor on 28‑7‑59 his case was split up and the case as against the appearing accused Dina Bandhu only was ordered .to be proceeded with. The relevant order runs thus: ‑

"Accused No. 1 Radha Ballav Halder is not produced. Order of attachment returned unexecuted reporting that the abscond ing accused No. 1 has no assets as his father is living. Case of accused No. 1 be split up and filed.

Let the case be proceeded with regarding the other accused."

2. Thus the cases of the two accused were separated and the one with respect to the appearing accused Dina Bandhu was proceeded with. Even thereafter no less than three more adjourn ments covering a period of over 3 months appear to have been gone through before the trial could commence on 2‑11‑59. On that date 4 P. Ws. were examined and after examination of another on the following day, charge was framed under section 23 of the Foreign Exchange Regulation Act for alleged contravention of the provisions of section 12 ibid. The case was then adjourned to 12‑12‑59 for cross‑examination and for examination of further P. Ws. if any. On this date the defence, however raised objection regarding the jurisdiction of the Tribunal, Khulna, on the conten tion that since the sale proceeds involved were to be, repatriated through the National Bank of Pakistan, Chittagong, the case was triable before the Tribunal at Chittagong and that the Tribunal at Khulna had no jurisdiction to try the same. It was thereon that the learned Tribunal passed his order complained of which runs as follows: ‑

"12‑12‑59. The accused is present. The defence lawyer files a petition raising objection on the point of jurisdiction. Heard both sides.

It appears that the accused was to repatriate the sale proceeds to Pakistan through the National Bank of Pakistan, in Chittagong, and this was agreed upon by him in the I. R. P. form. This position is not also disputed on the side of the prosecution. The export is not the offence and the offence is the non‑repatriation of the sale proceeds. This Court at Khulna has, therefore, no jurisdiction of a Tribunal in Chittagong. Since the accused has raised objection to the jurisdiction of this Court, the entire proceedings taken up here against this accused have become a nullity from start to finish, and the mere fact that a charge under section 23 of the For eign Exchange Regulation Act has already been framed makes no difference and the trial is not completed yet.

The accused Dinabandhu Sarker is accordingly discharged, and his bail bond is cancelled".

3. The present appeal is directed against the legality of the above order but before I proceed to consider the same, I feel constrained to observe that it is indeed difficult to follow or appreciate why the other accused, i.e., Radha Ballav Halder, has been dragged in here as an opposite‑party (O. P. No. 1), and why again an order was later secured that the appeal shall "proceed for the present against opposite‑party No. 2 as prayed for on behalf of the complainant." As already made clear, his case having been split up he was not present in the trial nor did the order of discharge passed herein concerning him in any way. The accused discharged by the said order was Dina Bandhu alone. It is rather strange that the prosecution has been labouring under the wrong impression that both the accused have been discharged, as is shown by the fact that in the memorandum of appeal it has been expressly stated all throughout that the learned Tribunal has discharged the "accused persons". However, I treat Radha Ballav Halder as not being a party to this appeal.

4. Mr. Maksumul Hakim, counsel, has appeared on behalf of the appellant. The only contention urged by the learned counsel is that the offence, alleged, being the contravention of the declaration enjoined under section 12 of subsection (1) of the Foreign Exchange Regulation Act, and the declaration having been made to the authority concerned at Basantapur within the Sessions Division of Khulna, the case was legally triable by a Tribunal at Khulna inspite of the fact that the proceeds were to be repatriated through the National Bank of Pakistan, Chittagong. He further contends that because of this provision in the declara tion, a Tribunal at Chittagong also might be competent to hold the trial but that cannot oust the jurisdiction vested in the Tribunal at Khulna, or in other words, the trial may be held as much as at Khulna as at Chittagong.

5. It appears that the same point was raised in another case decided by this Court in Criminal Appeal No. 105 of 1960 (State Bank of Pakistan, Dacca v. Bimal Kanta Shar and another). The facts of that case are exactly on all fours with those in the present case. Therein the view taken by me was as follows: ‑

"In my opinion, the offence, of which the two respondents stand accused, is not non‑repatriation of the Foreign exchange by itself but non‑repatriation thereof, as declared i.e., through the nominated authorised dealer and within the prescribed period, and is thus related to, and not independent of, the declaration made before the Land Customs Officer at Basantapur. As a matter of fact it is the breach of the declaration furnished at Basantapur within Khulna and failure to repatriate the money through a Bank at Chittagong' i.e., an act done at one place and an omission occurring at another, that together constitute the offence alleged. Under section 182 of the Code of Criminal Procedure where an offence consists of‑ several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. Therefore, the accused in this case may in my opinion, be prosecuted and tried by the Tribunal at Khulna as much as the Tribunal at Chittagong."

The above view, therefore, holds good in the present instance also.

It follows that the order of the learned Tribunal discharging the accused in question is not supportable in law,

6. In the result, the appeal is allowed, the impugned order of the learned Tribunal discharging the accused, viz. Dina Bandhu Sarkar is set aside and the said accused is directed to be re arrested and tried according to the law. The trial may proceed from the stage in which the proceeding was, when the accused was discharged, provided the same Judge is still there to continue the trial. If so moved, it will be for the learned Tribunal to decide the question of granting bail or otherwise in exercise of his jurisdiction:

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