Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 3481 of 2017

Md. Jony Sheikh

................Convict-Appellant. -Versus-

The State.

    .....Respondent. Mr. Md. Mahabubur Rahman, Advocate

                                         ........For the Convict 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 08.07.2024, 10.07.2024 and Judgment on 14.07.2024

Sheikh Abdul Awal, J:

This  Criminal  Appeal at the instance  of convict appellant,  Md.  Jony  Sheikh  is  directed  against  the judgment  and  order  of  conviction and  sentence dated 28.02.2017 passed by the learned Additional Sessions Judge, 1st Court, Faridpur in Sessions Case No. 363 of 2012 arising out of G.R No. 525 of 2011 corresponding to Kotwali Police Station Case No. 07 dated 07.12.2011

convicting  the  accused-appellant  under  table  3(ka)  to section 19(1) of the Madok Drabya Niyantran Ain, 1990 and  sentencing  him  thereunder  to  suffer  rigorous imprisonment for a period of 2(two) years and to pay a fine of Taka 2,000/- (two thousand) in default to suffer simple imprisonment for a further period of 02 (two) months.

The  prosecution  case,  in  brief,  is  that  one  Md. Zakiruzzaman, Sub Inspector, Madok Drabya Niyantran Adhidaptar,  Faridpur  as  informant  on  07.12.2011  at about 19.13 hours lodged an Ejahar with Kotwali Police Station,  Faripur  against  the  accused  appellant  and  2 others stating, inter-alia, that on 07.12.2011 while the informant  along  with  other  forces  of  Madok  Drabya Niyantran  Adhidaptar  and  RAB  was  on  special  duty under Kotwali Police Station got a secret information as to drugs dealing and thereafter at 12 noon they rushed near  to  the  Guhlaksmipur  Basti when  sensing  the presence of law and enforcing agencies accused Nos. 2&3  somehow  managed  to  escape  leaving their phensidyls kept in synthetic bags and a mobile phone. Thereafter,  the  informant  party  seized  those  synthetic bags and recovered 15+12= 27 bottles of phensidyl kept inside those bags and also apprehended accused No.1, Jony  Sheikh  (appellant)  and recovered  8  bottles  of phensidyl syrup from him kept in his hand  bag. In this way  the  informant  party  recovered  35  bottles  of phensidyl  syrup  and  thereafter,  the  informant  party seized  those  phensidyls  by  preparing  seizure  list  in presence of the witnesses.

Upon  the  aforesaid  First  Information  Report, Kotwali Police Station Case No. 07 dated 07.12.2011 under  table  3(kha)  of  section  19(1)/25  of  the  Madok Drabya  Niyantran  Ain,  1990  was  started  against  the accused-appellant and 2 others.

Thereafter, as per direction of the higher authority, the informant Md. Zakiruzzaman, Sub Inspector, Madok Drabya Niyantran  Adhidaptar himself  investigated the case,  who  during  investigation  visited  the  place  of occurrence, prepared sketch-map and index, examined the witnesses under section 161 of the Code of Criminal Procedure and obtained chemical examination report and after completion of investigation submitted charge sheet against the accused-appellant and 2 others, vide charge sheet  No.  24  dated  31.01.2012  under  table  3(kha)  of section 19(1)/25 of the Madok Drabya Niyantran Ain, 1990.

Thereafter, the case record was sent to the court of learned  Sessions  Judge,  Faridpur,  wherein  it  was registered as Sessions Case No. 363 of 2012 which was subsequently  transmitted to the Court  of  the learned Additional  Sessions  Judge,  1st  Court,  Faridpur  for disposal in which the accused appellant and others were put on trial to answer a charge under table 3(kha) of section 19(1)/25 of the Madok Drabya Niyantran Ain, 1990 to which the accused appellant and others pleaded not guilty and prayed to be tried stating that they have been falsely implicated in this case.

At the trial, the prosecution side examined as many as 06 (six) witnesses to prove its case, while the defence examined  none.  The  defence  case,  from  the  trend  of cross-examination  of  the  prosecution  witnesses  and examination of the accused-appellant and others under section 342 of the Code of Criminal Procedure appeared to be that the accused-appellant and other accused were innocent and they have been falsely implicated in the case.  

On  conclusion  of  trial,  the  learned  Additional Sessions  Judge,  1st  Court,  Faridpur  by  the  impugned

judgment  and  order  dated  28.02.2017  convicted  the accused-appellant under table 3(ka) to section 19(1) of the Madok Drabya Niyantran Ain, 1990 and sentenced him  thereunder  to  suffer  rigorous  imprisonment  for  a period of 2(two) years and to pay a fine of Taka 2,000/-

(two thousand) in default to suffer simple imprisonment for 02(two) months more while acquitted 2 other accused from the charge levelled against them.

Being  aggrieved  by  the  aforesaid  impugned judgment  and  order  of  conviction and  sentence dated 28.02.2017, the convict-appellant preferred this criminal appeal.

Mr.  Md.  Mahabubur  Rahman,  the  learned Advocate appearing on behalf of the convict-appellant in the course of his argument takes me through the F.I.R, charge sheet, deposition of witnesses and other materials on record including the impugned judgment and order of conviction  and  sentence  and  then  submits  that  the convict-appellant  is  innocent,  who  has  been  made scapegoat  in  this case, in-fact,  the  seized  phensidyls were  not recovered from him. The learned Advocate further submits that in this case 2 seizure list witnesses namely, PW-4 and PW-5 in their evidence stated nothing as to recovery of phensidyls from the possession and control of the accused appellant, which creates a serious doubt as to involvement of the appellant with the alleged crime  although  the  trial  Court  without  applying  its judicial mind into the facts and circumstances of the case from a correct angle mechanically came to conclusion that  the  accused-appellant  guilty  under  table  3(ka) of section 19(1) of the Madok Drabya Niyantran Ain, 1990 and  sentenced  him  thereunder  to  suffer  rigorous imprisonment for a period of 2(two) years and to pay a fine of Taka 2,000/- (two thousand) in default to suffer simple imprisonment for 02(two) months more.

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

Having heard the learned Advocate and the learned Deputy Attorney General and having gone through the materials on record including impugned judgment and order of conviction and sentence, the only question that calls  for  my  consideration  in  this  appeal  is  whether the trial  Court  committed  any  error  in  finding the accused-appellant  guilty  of  the  offence  under Section under table 3(ka) to section 19(1) of the Madok Drabya Niyantran Ain, 1990.

On perusal of the record, it appears that in this case to prove the charge against the accused appellant as to recovery of phensidyls, the prosecution examined in all 6 witnesses out of whom PW-1, Md. Akbar Ali, Madok Drabya Niyantran Adhidaptar, Sadar Circle stated in his deposition that on 07.12.2011 at 12:00 noon under the leadership of Inspector Zakiruzzaman they rushed to the place of occurrence and apprehended accused No.1 and recovered 8 bottles of phensidyl from synthetic bag kept in his right hand while recovered 15 and 12 bottles of phensidyls from the synthetic bags of accused No.2. Md. Monwar Hossain Mona and accused No.3 Md. Shakil Sheikh. This witness also stated that the informant party seized  those  phensidyls  by  preparing  seizure  list  in presence of the witnesses and also single out 3 bottles of phensidyl from 3 bags for chemical examination. This witness in his cross-examination stated that- “

”    PW-2,

Inspector  Zakiruzzaman,  informant  as  well  as Investigating officer of the case stated in his evidence that on 07.12.2011 at 12:00 noon the informant party on the basis of a secret information apprehended accused No. 1, Jony Skhikh, while 2 other accused somehow managed to escape leaving their phensidyls kept in their bags and on  search recovered 8 bottles of phensidyl from him kept in a synthetic bag and also recovered 15 and 12 bottles of phensidyl of the accused Nos. 2 and 3 kept in bags and thereafter, the informant party seized those phensidyl by preparing seizure list in presence of

the witnesses and also single out 3 bottles of phensidyl from  3  bags  for  chemical  examination.  This  witness proved the F.I.R and his signature thereon as “Ext.-1 and 1/1, seizure list and his signature thereon as “Ext.-2 and 2/1” also proved the seized phensidyls as “material Ext.- I series” and Mobile set as “material Ext.-II series”. This witness  in  his  cross-examination  stated  that-  “

”   This witness in his

cross-examination  also  stated  that-  “ ”

PW-3, Md. Yunus Ali, Sipahi, Madok Drabya Niyantran

Adhidaptar deposed in support of the prosecution case.

PW-4, Md. Abul Kalam Azad stated nothing against the

accused-appellant. This witness in his cross-examination

also stated that- “

” PW-5, M.A.

Mannan, seizure list witness, who was declared hostile by the prosecution.

PW-6,  Zakiruzzaman,  Inspector,  Madak  Drabya Niantran Adhidaptar, informant as well as Investigating Officer  of  the  case,  who  stated  in  his  evidence  that during  investigation  he  examined  the  witnesses under section 161 of the Code of Criminal Procedure, sent 3 bottles  of  seized  phensidyl  for  chemical  examination

report and accordingly obtained chemical examination report and after completion of investigation found prima- facie case against the accused persons and accordingly submitted charge sheet against the accused-appellant and 2  others,  vide  charge  sheet  No.  24  dated  31.01.2012 under  table  3(kha)  of  section  19(1)/25  of  the  Madok Drabya Niyantran Ain, 1990. This witness proved the sketch-map, index and his signature thereon as “Ext.-3 and 3/1, chemical examination report as “Ext.-4” and also proved material exhibits.

On  scrutiny  of  the  above  quoted  evidence,  it appears that prosecution witnesses namely, PW-1, PW-2, PW-3  and  PW-6  are  members  of  law  and  enforcing agencies,  who  in  their  respective  evidence  stated that only accused appellant was apprehended from the place of occurrence and 2 others somehow managed to escape from  the  place  of  occurrence.  It  further  appears  that independent  seizure  list  witness  PW-4  stated  nothing against  the  accused-appellant  and  another  seizure  list witness  namely  PW-5  was  declared  hostile  by  the prosecution. It further appears that the learned trial Judge acquitted 2 other accused persons namely, Md. Monwar Hossain  Mona  and  Skhakil  Sheikh,  who  somehow managed to escape leaving their phensidyls kept in bags. In a case of this nature since the local witnesses namely,

PW-4  and  PW-5  stated  nothing  as  to  recovery  of phensidyls  from  the  possession  and  control  of  the accused-appellant,  it  is  difficult  to  hold  that  alleged seized  phensidyls  were  actually  recovered  from  the actual control and possession of the accused-appellant.

In view of the attending facts and circumstances of the case and the evidence on record, I am constrained to hold that the prosecution has failed to prove the charge against accused appellant beyond any reasonable doubts. The learned trial Judge failed to properly to evaluate the evidence  on  record  as  adduced  before  the  trial  court thereby reaching a wrong decision, which occasioned a miscarriage of justice. In the facts and circumstances of the case and the evidence on record, it must be held that the  prosecution  failed  to  prove  charge  under  section under  table  3(kha)  of  section  19(1)/25  of  the  Madok Drabya Niyantran Ain, 1990 against accused Md. Jony Sheikh  beyond  reasonable  doubts.  Consequently  the appeal succeeds.

In  the  result,  the  appeal  is  allowed  and  the impugned order of conviction and sentence passed by the learned Additional Sessions Judge, 1st Court, Faridpur in Sessions Case No. 363 of 2012 arising out of G.R No. 525  of  2011  corresponding  to  Kotwali  Police  Station Case No. 7 dated 07.12.2011 against accused appellant, Md. Jony Sheikh is set aside and he is acquitted of the charge levelled against him.

Accused appellant Md. Jony Sheikh is discharged from his bail bonds.

Send down the lower Court records at once.