Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 4772 of 2018

     Md. Moshiur Rahman and another

.............Convict-appellants. -Versus-

                       The State

                                                             .....Respondent.

                       Mr. Md. Nazmul Hussain for

                       Mr. Rashedul haque, Advocate

       .....For the convict- appellants.

                        Ms. Shahida Khatoon, D.A.G with

                        Ms. Sabina Perven, A.A.G with

     Ms. Kohenoor Akter, A.A.G.

                   .... For the respondent.

    Heard and Judgment on 20.02.2024. Sheikh Abdul Awal, J:

This Criminal Appeal at the instance of convict appellant Nos.1. Md. Moshiur Rahman and 2. Md. Moin Uddin is directed against the judgment and order of conviction and sentence dated 18.04.2018 passed by the learned Judge, Special Tribunal No. 2, Thakurgaon in Special Tribunal Case No. 191 of 2013 arising out of G.R. No. 281 of 2013 (Thakurgaon) corresponding to Thakurgaon Sadar Police Station Case No. 21 dated 15.04.2013 convicting the appellants   under Section 25B(2) of the Special Powers Act, 1974 and sentencing

them thereunder to suffer rigorous imprisonment for a period of 05(five) years and to pay fine of Tk. 3,000/ (three thousand) in default to suffer simple imprisonment for 3(three) months more each.

 The prosecution case, in short, is that one, Ranju Ahmed, S.I. D.B. Thakurgaon as informant on 15.04.2013 at about 22:45 hours lodged an Ejahar with Thakurgaon Sadar Police Station against the convict appellants stating, inter-alia, that while informant along with other police forces were on special duty as per G.D. No. 102 dated 15.04.2013 for recovery of drugs and then the informant party at 20.15 hours got a secret information that two  accused persons were bringing drugs by Motorcycle and thereafter, informant party at about 20:35 hours apprehended the accused persons along with their Motorcycle and on search, recovered total 50 bottles of Indian made Phensedyl syrups, which valued at Tk. 25,000/-(twenty five thousand). Thereafter police seized those Phensedyls by preparing seizure list in presence of local witnesses.

Upon the aforesaid First Information Report, Thakurgaon Sadar Police Station Case No. 21 dated 15.04.2013 under Section 25B(2) of the Special Powers Act, 1974  was started against the accused appellants

Police after completion of usual investigation submitted charge sheet No. 175 dated 30.05.2013 under Section 25B(2) of the Special Powers Act, 1974 against the accused-appellants. Ultimately, the accused appellants were put on trial before the learned Judge, Special Tribunal No. 2, Thakurgaon in Special Tribunal Case No. 191 of 2013 in which the accused-appellants pleaded not guilty and claimed to be tried stating that they have been falsely implicated in the case.

At the trial, the prosecution examined in all 8(eight) witnesses and also exhibited some documents 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- appellants under section 342 of the Code of Criminal Procedure appeared to be that the accused-appellants were innocent and they have been falsely implicated in the case.

On conclusion of trial, the learned Judge, Special Tribunal No. 2, Thakurgaon by the impugned judgment and order dated 18.04.2018 found the accused-appellants guilty under Section 25B(2) of the Special Powers Act, 1974 and sentenced them thereunder to suffer rigorous imprisonment for a period of 05(five) years and to pay fine of Tk. 3,000/ (three thousand) in default to suffer simple imprisonment for 3(three) months more each.

Being aggrieved by the aforesaid impugned judgment and order of conviction and sentence dated 18.04.2018, the accused-appellants preferred this criminal appeal.

 Mr.  Md. Nazmul Hussain,  the learned Advocate appearing for the convict appellants submits that in this case prosecution side examined in all 8 witnesses out of which only seizure list witnesses namely PW-5 was declared hostile and rest police witnesses inconsistently deposed before the trial court as to recovery of the phensedyls in question  although the learned Judge, Special Tribunal No. 2, Thakurgaon without properly considering the evidence and materials on record most illegally found the accused appellants guilty for the offence under Section 25B(2) of the Special Powers Act, 1974 and sentenced them thereunder to suffer rigorous imprisonment for a period of 05(five) years and to pay fine of Tk. 3,000/ (three thousand) in default to suffer simple imprisonment for 3(three) months more each which is liable to be set-aside.

Ms. Kohenoor Akter, the learned Assistant Attorney General, on the other hand, supports the impugned judgment and order of conviction, which was according to her just, correct and proper. She submits that in this case prosecution examined in all 8 witnesses out of which PW-5 declared hostile and rest police witnesses in one voice testified that accused appellants were apprehended along with 50 bottles of Indian made Phensedyl syrups.

Having heard the learned counsel for the parties and having gone through the materials on record, the only question that calls for my  consideration in this appeal is whether the learned tribunal judge committed any error in finding the accused-appellants guilty of the offence under Section 25B(2) of the Special Powers Act, 1974.

On scrutiny of the record, it that appears that one, Ranju Ahmed, S.I. D.B. Thakurgaon as informant on 15.04.2013 at about 22:45 hours lodged an Ejahar with Thakurgaon Sadar Police Station against the convict appellants stating, inter-alia, that the  informant along with other police personnel  on the basis of a secret information apprehended the accused persons along with their Motorcycle and on search, recovered total 50 bottles of Indian made Phensedyl syrups, which valued at Tk. 25,000/-(twenty five thousand). Thereafter, police

seized those Phensedyls by preparing seizure list in presence of local witnesses. Police after completion of investigation submitted charge sheet under Section

25B(2) of the Special Powers Act, 1974 against the

accused appellants. It further appears that at the time of

trial the prosecution examined in all 8 witnesses out of

which PW-1, Ranju Ahmed, stated in his deposition that

on the basis of a secret information the informant along

with other police forces apprehended the accused appellants from near about Raju rice mill at about 20:35

hours along with their motorcycle and on such recovered

total 50 bottles of phensedyl which kept in a Ghani bag

and police prepared seizure list in presence of witnesses.

This witness proved the seizure list as exhibit-1 and his signature thereon as exhibit-1/1. This witness also

proved the FIR as exhibit-2 and his signature thereon as

exhibit 2/1 and also identified the accused appellants on

doc. This witness also identified the seized phensedyls in

Court as material exhibit. PW-2, Constable, Md. Shofiullah Mahmud and PW-3, constable, Md. Riazul

Islam, both of them in their respective testimony corroborated the evidence of PW-1 in respect of all material particulars. PW-4, constable, Md. Jashim

Uddin, was tendered. PW-5, Md. Nazrul Islam, stated in

his deposition that-“NUbvi ZvwiL g‡b bvB| cªvq 02 eQi Av‡Mi

NUbv| NUbv nwibvevqbcyi w`wNWv½x †fvjvi nvU †gvo n‡Z 100 MR cwð‡g cvuKv iv¯—vq NUbv| 02 Rb‡K †`wL, cywjk Rã ZvwjKv cª¯—yZ K‡ib| Avwg †¯^”Qvq ¯^v¶i Kwi| GBwU Avgvi ¯^v¶i| cª`k©bx-1/3” This witness in his cross-examination stated that-“mv`v KvM‡R ¯^v¶i †`b| NUbv Rvwbbv|” PW-6, Mohammad Nur

Islam, stated in his deposition that- “15/4/13Bs Zvwi‡L ivZ 20.35 Uvq NUbv| nwibvivqb cyi w`wN Wvs½x †gŠRv¯n †fvjvi nvU †gvo n‡Z Abygvb 100 MR cwð‡g cvKv iv¯—vi Dci NUbv| 02 Rb Avmvgx gUi mvB‡K‡j K‡i Avm‡Z wQj| ZLb cywjk Zv‡`i‡K AvUK K‡i Ges Zv‡`i wbKU 50 †evZj †dwÝwWj D×vi K‡ib| †gvevBj cvb cywjk| Avmvgx؇qi bvg †gvt gwkDi I gvBbDwÏb| Zviv W‡K Av‡Q| wPwb Zv‡`i‡K| (mbv³) mv¶x‡`i m¤§y‡L cywjk Rã ZvwjKv ˆZix K‡ib Ges

¯^v¶i †bb| A`¨ Av`vj‡Z RãK…Z †dwÝwWj Av‡Q|” PW-7, S.I.

Md. Abdul Malek, investigating officer, who in his deposition stated that during investigation he examined

the witnesses under section 161 of the Code of the Criminal Procedure. This witness identified the accused persons on doc. PW-8, Md. Ranju Ahmed, 2nd Investigating Officer, who deposed that during investigation he examined the witnesses under section

161 of the Code of Criminal Procedure and visited the

place of occurrence. This witness also stated that sketch

map prepared by earlier investigating officer, he submitted charge sheet against the accused appellants

being charge sheet No. 175 dated 30.05.2013 under

Section 25B(2) of the Special Powers Act, 1974. The defence cross-examined the PWs but failed to find out any contradictions in the evidence of PWs.

On an analysis of the above quoted evidence, it appears that all the police witnesses including local witness namely PW-6 in their respective evidence categorically stated that accused appellants were apprehended on 15.04.2013 and police on search, recovered total 50 bottles phensedyl syrups from the exclusive position of the accused persons. It further appears that the learned Judge, Special Tribunal No. 2, Thakurgaon on due consideration of the entire evidence and materials on record found the accused appellants guilty under Section 25B (2) of the Special Powers Act, 1974 and sentenced them thereunder to suffer rigorous imprisonment for a period of 05(five) years and to pay fine of Tk. 3,000/ (three thousand) in default to suffer simple imprisonment for 3(three) months more each.

It is found that public witness namely PW-5 was declared hostile by the prosecution although it appears from his evidence that he deposed the manner of occurrence as stated above. In the facts and circumstances, I find no reason to discard the evidence of police witnesses. The evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case.

On scrutiny of the evidence on record, it is found that PW-1, PW-2, PW-3, PW-6, PW-7, PW-8 who were eye witness of the occurrence, they  proved the prosecution case as to the time, place and manner of occurrence and thus the prosecution proved the guilt of the accused appellants beyond reasonable doubt.

On a close perusal of the impugned judgment, I find no flaw in the reasonings of the learned Judge, Special Tribunal No.2, Thakurgaon or any ground to assail the same. Impugned judgment and order of conviction appears to be well founded in law and fact.

However, considering all the aspects of the case as revealed from the materials on record particularly the fact that the convict appellants have already faced the agony of the protracted prosecution and suffered mental harassment for a long period and also having suffered their sentence to some extent (pre and post trial), I think, ends of justice will be met, if their sentence is reduced to the period of 1 (one) year in place of 5(five) years.

In the result, the appeal is dismissed. The period of sentence of the convict appellants is reduced to the period of 1 year in place of 5 (five) years. Sentence of fine is maintained.

The convict-appellant Nos. 1. Md. Moshiur Rahman and 2. Md. Moin Uddin are directed to surrender their bail bond within 3 (three) months from today to suffer their sentence in accordance with law, failing which the trial Court shall take necessary steps against the convict-appellant Nos. 1. Md. Moshiur Rahman and 2. Md. Moin Uddin to their secure arrest.

Send down the lower Court records at once.