A.K. REAZUL KARIM Vs. STATE

JUDGEMENT

(1.) I have gone through the judgments of Badrul Haider Chowdhury, J. and also those of Shahabuddin Ahmed and Chowdhury A.T.M. Masud JJ. and agree with the reasonings as well as the conclusion reached by Badrul Haider Chowdhury J. Without duplicating the lines of arguments in his judgment adopted by him, I would like only to add a few words on the question of conflicting claims as to jurisdiction of the two important departments of the Government, the Customs and Anti-Corruption, to investigate any offences punishable under section 156 of the Customs Act. As one of the major revenue earning departments of the Government, the Customs Department has primarily been authorised by an Act of the legislature, namely, Customs Act, 1969 to deal with the import and export of goods into and from Bangladesh. Their authority to deal with offences and penalties is provided in the Table below section 156 of the Act. Elaborate provisions regulating the procedure relating to investigation of the offences are also provided in the Act. As these provisions have been noted in the judgment of Badrul Haider Chowdhury J, they need not be once more repeated here. From these provisions in the Customs Act, it is apparent that the legislature has conferred ample authority upon the Department of Customs to handle the clearance and delivery of goods both on their arrival to and departure from any port in Bangladesh as well as to deal with the offences mentioned in the Act which may have been committed by persons bringing such goods into or sending them out from Bangladesh. One of the primary duties of the Department of Customs in addition to checking in or checking out of such goods is as to imposition of duties on them, whenever necessary. On the other hand, the Bureau of Anti-Corruption which was set up under the Anti-Corruption Act, 1957 has been authorised under the Government Notification dated 23.8.72 to inquire into and investigate the offences punishable under section 156 of the Customs Act, 1969. It appears that the Government by issuing this notification attempted to provide the Bureau with the power of enquiry into and investigating offences committed in the course of import and export of goods into and from Bangladesh. Apparently the provision in clause (4) of the Notification would seem to have conferred concurrent jurisdiction on the Bureau of Anti-Corruption to enquire into and investigate customs offences as mentioned therein.

(2.) To me, it seems that though the conferment of jurisdiction on the Bureau of Anti-Corruption may ordinarily appear to be concurrent with that of the Customs Department there is, for all theoretical and practical purposes, a fine line of demarcation between the exercises of jurisdiction by these two departments in the matters mentioned above. It can surely be said and it is undoubtedly right to say so that the Bureau of Anti-Corruption was empowered to carry on an enquiry into and investigate Customs offences along with the Department of Customs. The question is, can it, therefore be conceded and does it, therefore, follow from the conferment of such power upon the Bureau of Anti-Corruption that such powers has led to the ouster of jurisdiction of the Customs department to exercise the same power which has been conferred upon it by the Customs Act. The answer must be in the negative for the simple reason that had the legislature contemplated such ouster of jurisdiction of the Customs department upon making similar claim by the Bureau of Anti-Corruption there should have been express provisions in the Customs Act itself. In the absence of any such express provisions would it be assumed that the provisions of Clause (4) in the Government Notification dated 24,8.72 has led to such ouster. Moreover, when it is a well-established principle of law that no subordinate legislation can nullify the express provisions of an Act of the legislature though they may be in conflict with such notification. Had it been the intention of the legislature, while enacting the Customs Act, to oust the jurisdiction of the Customs Department, it would have done so in clear words.

(3.) The point, therefore, remains how the two departments are to act when offence under the Customs Act has been committed. I have no doubt in my mind and I think, I would not be wrong to say that the Bureau of Anti-Corruption can come in to hold an enquiry into and investigate any offence under the Customs Act when similar enquiry and investigation has either been completed as contemplated by the Act or when no such enquiry and investigation has at all been undertaken by the Customs Authority. The former begins when the latter has ended or did not at all start and the time for holding the enquiry has expired. The time for such enquiry and investigation under the Customs Act being still open to the Customs officers, any claim by the Bureau of Anti-Corruption to start an enquiry and investigation before they are undertaken by the Department of Customs would not only lead to chaos and confusion but such premature attempt at enquiry and investigation would lead to the frustration of the legislature's aims and objects as mentioned above. If that was the intention of the legislature, this should have been expressly provided in the Customs Act itself. By a process of interpretations the scope of the provisions in the Government notification cannot be widened. This Court expresses its inability to enlarge the power of enquiry and investigation by the Bureau of Anti-Corruption so as to enable it to start such inquiry and investigation even prior to one by the Customs department. Whenever there is any scope for possible conflict in exercising the respective powers of more than one authority similarly empowered, areas of operation require strict delimitation between them. What is the object of the Customs Act? It relates to levy and collection of Customs-duties and provides for other allied matters. To achieve this object certain powers and functions have been conferred upon the customs officials. Since the levy and collection of duties of customs are considered to be of paramount importance, sections 5 and 7 of the Act have provided for entrustment of functions of the Customs officers to officers of any other Government department which can be done by a notification of the Board of Revenue and also for assistance to customs officers by officers of Excise, Police and Civil Armed Forces so they may discharge well their functions conferred upon by this Act.