Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 3256 of 2017

Md. Reazul Islam ........Convict-appellant.

-Versus-

The State

                         .....Respondent. None appears

.....For the appellant. Ms. Shahida Khatoon, D.A.G with

Ms. Sabina Perven, A.A.G with

Ms. Kohenoor Akter, A.A.G.

                  .... For the respondent.

Heard on 31.07.2024 and Judgment on 01.08.2024

Sheikh Abdul Awal, J:

This  Criminal Appeal  at  the instance  of convict appellant,  Md.  Reazul  Islam  is  directed  against  the judgment  and  order  of  conviction and  sentence dated 15.03.2017  passed  by  the  learned  Judge,  Special Tribunal No.4, Thakurgaon in Special Tribunal Case No. 75  of  2012  arising  out  of  G.R  No.  224  of  2008(T) corresponding to Thakurgaon Police Station Case No. 21 dated 23.03.2012 convicting the accused-appellant under section  25B(2)  of  the  Special  Powers  Act,  1974  and sentencing  him  thereunder  to  suffer  rigorous

imprisonment for a period of 3(three) years and to pay a fine of Taka 5,000/- (five thousand) in default to suffer imprisonment for 03(three) months more.

The  prosecution  case,  in  brief,  is  that  one,  S.I. Shamol Chandra Barman as informant on 23.03.2012 at about  21:45  hours  lodged  an  Ejahar  with  Thakugaon Police Station against the accused appellant and another stating,  inter-alia,  that  while  the  informant  and  other police forces were on special duty as per G.D. No. 1080 dated 23.03.2012 got a information that UP chairman, member and others caught hold of 2 accused persons with phensidyls and accordingly police team  rushed there and took control over the accused appellant and another and on search,  recovered 6 bottles phensidyl syrup from accused Reazul and 3 bottles phensidyl from another accused Md. Abdullah (Abdul), who disclosed that they used to bring phensidyls from India by way of smuggling   for  the  purpose  of  sale.  Thereafter,  the informant  party  seized  those  phensidyls  by  preparing seizure list in presence of the witnesses.

Upon  the  aforesaid  First  Information  Report, Thakurgaon  Police  Station  Case  No.  21  dated 23.03.2012 under section 25 B(2) of the Special Powers Act, 1974 was started.

Police after completion of investigation submitted charge sheet No. 139 dated 24.06.2012 under section 25 B(2)  of  the  Special  Powers  Act,  1974  against  the accused-appellant and another.

Thereafter, in usual course the case record was sent to  the  Court  of  learned  Sessions  Judge  and  Special Tribunal  No.1,  Thakurgaon,  wherein  the  case  was registered  as  Special  Tribunal  Case  No.  75  of  2012. Subsequently,  the  case  was  transmitted  before  the learned Special Tribunal No.4, Thakugaon for disposal before whom the accused appellant and another were put on trial to answer a charge under section 25B (2) of the Special Powers Act, 1974 to which the accused persons pleaded not guilty and claimed to be tried stating that they have been falsely implicated in this case.

At the trial, the prosecution side has examined as many as 8(eight) witnesses to prove its case, while the defence examined none.

The defence case as it appears from the trend of   cross-examination  of  the  prosecution  witnesses  and examination of the accused-appellant under section 342 of  the  Code  of  Criminal  Procedure  that  the  accused- appellant is innocent, who has been falsely implicated in the case. The defence declined to adduce any witness.

On conclusion of trial the learned Judge, Special Tribunal No.4, Thakurgaon by the impugned judgment and order dated 15.03.2017 found the accused appellant and another guilty under section 25B(2) of the Special Powers  Act,  1974  and  sentenced  them  thereunder  to suffer  rigorous  imprisonment  for  a  period  of 3(three) years and to pay a fine of Taka 5,000/- (five thousand) in default  to  suffer  imprisonment  for  3  (three)  months more.

Being  aggrieved  by  the  aforesaid  impugned judgment  and  order  of  conviction and  sentence dated 15.03.2017, the accused-appellant preferred this criminal appeal.

No  one  found  present  to  press  the  appeal  on repeated calls despite of fact that this criminal appeal has been  appearing  in  the  list  with  name  of  the  learned Advocate for the appellant for hearing for a number of days.

In  view  of  the  fact  that  this  petty  old  criminal appeal arising out of 3 years sentence,  I am inclined to dispose of it on merit on the basis of the evidence and materials on record.

Ms.  Shahida  Khatoon,  the  learned  Deputy Attorney-General supports the impugned judgment and order  of  conviction  and  sentence  dated  15.03.2017,  which was according to her just, correct and proper.

Having heard  the  learned  Deputy   Attorney General  and  having gone  through  the  materials  on record, the only question that calls for our consideration in this appeal is whether the trial Court committed any error  in  finding the  accused-appellant  guilty  of  the offence under section 25B(2) of the Special Powers Act, 1974.

On  scrutiny  of  the  record,  it  appears  that  the prosecution to prove the charge under section 25-B(2) of the  Special  Powers  Act,  1974  against  the  accused- appellant  and  another  examined  in  all  08  (eight) witnesses out of whom PW-1, Shamol Chandra Barman, informant of the case stated in his deposition that on 23.03.2012 while the informant and other police forces were on special duty got a secret information that local people caught hold of 2 accused persons with phensidyl near Palli Biddyut Bazar and thereafter, the informant party rushed there and found those accused persons and then police arrested the accused persons and on search recovered  6  bottles  of  phensidyl  syrup  from the pant pocket of accused Reazul (appellant) and 3 bottles of phensidyl  from  another  accused  Md.  Abdulla  and

thereafter, police seized those phensidyls by preparing seizure list in presence of the witnesses. This witness proved the ejahar and his signature thereon as “Ext.-1, 1(Ka), Seizure list and his signature thereon as “Ext.-2, 2(Ka)”. This witness identified the seized phensidyl as material “Ext.-II”. This witness in his cross-examination stated  that-  “

”     PW-2,  constable

Liton,  PW-3,  constable  Abdul  Khatirul  Islam,  PW-4, constable  Ataur  Rahman,  all  these  witnesses  are members of the raiding party, who as eye witnesses gave evidence in support of the prosecution case and made similar  statements  like  PW-1. PW-5,  Md.  Abdul Hannan,  Chairman,  Rahimanpur  Union  Parishad,  who stated in his evidence that- “

”   This

witness proved the seizure list and his signature thereon as  “Ext.-2,  2/2”.  This  witness  also  stated  that  during recovery of 6+3=9 bottles of phensidyl he was present in the place of occurrence. PW-6, Md. Hazimuddin and PW- 7, Md. Ikramul Haque, both of them are local seizure list

witnesses, who testified in one voice that 6+3 =9 bottles of phensidyl were recovered from the accused appellant and another.

PW-8,  Sub  Inspector,  Md.  Abu  Rayhan investigated  the  case.  This  witness  stated  in  his deposition that during investigation he prepared sketch map, index and proved the same as “Ext. Nos. 3, 3/1, 4 and  4/1  respectively”.  This  witness  also  stated  that during  investigation  he  examined  the  witnesses under section 161 of the Code of Civil Procedure and after completion  of  investigation  submitted  charge  sheet against the accused-appellant and another being charge sheet No.139 dated 24.06.2012 and proved the charge sheet and his signature thereon as “Ext.-5 &5/1”

On an analysis of the above quoted evidence, it appears  that  PW-5,  PW-6,  PW-7  stated  in  their respective evidence that local people apprehended the accused-appellant and another with phensidyls. All these witnesses  proved  the  seizure  list  and  their  signature thereon.  PW-1,  PW-2,  PW-3  and  PW-4  are  police personnel, who stated in their respective evidence that on hearing  about  the  incident  they  went  to  the  place  of occurrence  and  arrested  the  accused  appellant  and another  and  thereafter  they  prepared  seizure  list  in presence of the witnesses.

On a close perusal on record, it appears that none of the witnesses stated any single word that the accused persons  brought  those  seized  phensedyl by  way  of smuggling from India for the purpose of sale. On a query from  the  Court  the  learned  Deputy  Attorney  General admits that there has been no chemical examination of the phensedyl in question. It is thus difficult to believe that alleged seized  phensedyl  were actually contraband in nature or the same were brought into Bangladesh from India by way of smuggling.

In the case of Raju Ahmed and others Vs. The State reported in 7 MLR 112, it has been held as follows:

“There has been no chemical examination of the phensedyl in question which is serious lacuna on the part of the prosecution whose duty it was to establish that the seized goods are contraband goods.”

In the case of Nannu Mia alias Habibur Rahman Vs. The State reported in 55 DLR7, it has been held as follows:

“Before convicting the appellant the court must give  findings  that  the  phensedyl   in  question found in his possession was a contraband item

smuggled into Bangladesh for sale”.

In the case of Md. Akram vs. the State reported in1LM (AD) 581, it has been held as follows:

Normally this Division does not interfere with the judgment of the High Court Division on appeal if it is found that the judgment is based on proper appreciation of the evidence. It cannot reassess the evidence afresh as a court of appeal to  examine  whether  or  not  the  High  Court Division has properly appreciated the evidence while believing the recovery of the contraband goods  from  the  possession  of  the  petitioner. Learned counsel appearing for the petitioner is also conscious on the question of finding of fact and  does  not  argue  that  the  prosecution  has failed to prove the recovery beyond reasonable doubt. He however argues that on the admitted facts no offence discloses against the petitioner at all and therefore, of the High Court Division has erred in law in maintaining the conviction petitioner. In this connection the learned counsel has  drawn  our  attention  to  the  evidence  on record and section 25B (2) of the Special Powers Act, 1974.

 Sub-section (2) of section 25B reads thus: "Whoever sells, or offers or displays for sale, or keeps in his possession or under his control for the purpose of sale, any goods the bringing of which into Bangladesh is prohibited by or under any  law  for  the  time  being  in  force  shall  be punishable with imprisonment for a term which may extend to seven years and shall not be less than one year, and shall also be liable to fine."

This  sub-section  lays  down  the constituents of the constitution of an offence of second  degree  smuggling  and  its  sentence.  It provides that if any person is found (i) in selling or  (ii)  offering  or displaying  for sale,  or  (iii) keeps in his possession or under his control for the purpose of sale, any goods the bringing of which  into  Bangladesh  prohibited  by  law,  he will be guilty of the offence. Now taking these three conditions in mind, it is to be examined

whether  any  of  these  preconditions  has  been proved by the prosecution against the petitioner. The first two conditions are not attracted in this case since it is not the prosecution case that the petitioner  was  selling  or  offering  for  sale  or displays for sale of a bottle of phensedyl. He was found  in  possession  of  a  bottle  of  phensedyl which he was carrying on his way by driving a motorbike. Therefore, he may be charged with for violating the last subject to the condition that he has kept it in his possession or has carried it for the purpose Of sale. Neither in the FIR nor in the evidence of P.W.1 or in the evidence of other witnesses,  there  is  any  allegation  that  the petitioner  has  kept  or  carried  one  bottle  of phensedyl  for  the  purpose  of  sale.  It  is  the consistent  case  that  the  phensedyl  bottle  was recovered  from  his  possession  while  the petitioner  was  approaching  towards Dupchanchia.  Only  possession  of  contraband goods  does  not  constitute  an  offence  of smuggling within the meaning of section 25B (2).  It  is  only  if  any  person  keeps  in  his possession  for  the  purpose  of  sale  of  the contraband  goods  the  bringing  of  which  is prohibited  by  law,  an  offence  of  the  second category of smuggling will be attracted.

From a plain reading of the above quoted decisions of our Apex Court, it appears that only possession of contraband  goods  does  not  constitute  an  offence  of smuggling within the meaning of section 25B (2) of the Special Powers Act, 1974,

As, I have already indicated that in this case the prosecution  could  not  produce  any  evidence  oral  or documentary to show that the convict-appellant brought those phensidyl syrups from India by way of smuggling and kept the same under his possession and control for the  purpose  of  sale.  Therefore,  I  find  no  difficulty whatever  in  holding  that  the  impugned  judgment and order of conviction and sentence does not deserve to be sustained.

In the facts and circumstances of the case and the evidence on record, it must be held that the prosecution failed to prove the charge of smuggling against accused, Md.  Reazul  Islam  beyond  reasonable  doubts. Consequently the appeal succeeds.

In  the  result,  the  appeal  is  allowed  and  the impugned  judgment  and  order  of  conviction  and sentence passed by the learned Judge, Special Tribunal No.4, Thakurgaon in Special Tribunal Case No. 75 of 2012  arising  out  of  G.R  No.  224  of  2012  (T) corresponding to Thakurgaon Police Station Case No. 21 dated 23.03.2012 against convict-appellant, Md. Reazul Islam  is  set-aside  and  he  is  acquitted  of  the  charge levelled against him.

Accused appellant, Md. Reazul Islam is discharged from his bail bonds.

Send down the lower Court records at once.