Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 4891 of 2018

Sree Biman Kumar Saha

        ........Convict-appellant. -Versus-

The State                             

.....Respondent.

Mr. Tonoy Kumar Saha, Advocate

.....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 11.07.2024, 14.07.2024, 15.07.2024 and Judgment on 24.07.2024

Sheikh Abdul Awal, J:

This  Criminal  Appeal at the instance  of convict appellant, Sree Biman Kumar Saha is directed against the judgment and order of conviction and sentence dated 20.03.2018 passed by the learned Additional Sessions Judge, 1st Court, Naogaon in Sessions Case No. 713 of 2015 arising out of G.R No. 61 of 2015 corresponding to Mohadevpur  Police  Station  Case  No.  20  dated 21.03.2015 convicting the accused-appellant under table

9(Kha)  of  section  19(1)  of  the  Madak  Drobbya Niyontron Ain, 1990 and sentencing him thereunder to suffer  rigorous  imprisonment  for  a  period  of  5(five) years and to pay a fine of Taka 1,000/- (one thousand) in default to suffer rigorous imprisonment for a period 01 (one) month more.

The  prosecution  case,  in  brief,  is  that  one,  Md. Lalbur  Rahman,  Sub-Inspector,  Mohadevpur  Police Station, Naogaon as informant on 21.03.2015 at about 22:10 hours lodged an Ejahar with Mohadevpur Police Station against the accused appellant under table 9(Kha) of section 19(1) of the Madak Drobbya Niyontron Ain, 1990 stating, inter-alia, that according to G.D. entry No. 773  dated  21.03.2015  while  the  informant  and  other police forces were on duty as to anti drugs activities got a secret information as to selling yaba tablets in-front of a  grocery  shop  at  Gopinathpur  village  under Mohadevpur Police Station and thereafter, the informant party rushed there and at night 21:10 hours apprehended the accused-appellant and on search, recovered total 125 yaba tablets from his jeans pant pocket weighing 13.80 grams,  which  valued  at  Tk.  25,000/=  (twenty  five thousand)  and  thereafter,  the  informant  party  seized those yaba tablets by preparing seizure list in presence of local witnesses.

Upon  the  aforesaid  First  Information  Report, Mohadevpur  Police  Station  Case  No.  20  dated 21.03.2015 under table 9(Kha) of section 19(1) of the Madak Drobbya Niyontron Ain, 1990 was started.

Police  after  completion  of  usual  investigation submitted  charge  sheet  against  the  accused-appellant being charge sheet No. 65 dated 12.04.2015 under table 9(Kha)  of  section  19(1)  of  the  Madak  Drobbya Niyontron Ain, 1990.

Thereafter, in usual course the case record was sent to  the  Court  of  learned  Sessions  Judge,  Naogaon, wherein it was registered as Sessions Case No. 713 of 2015 which was subsequently transmitted to the Court of learned Additional Sessions Judge, 1st Court, Naogaon for disposal. Ultimately, the accused-appellant was put on trial before the learned Additional Sessions Judge, Naogaon  to  answer  a  charge  under  table  9(Kha)  to section  19(1)  of  the  Madak  Drobbya  Niyontron  Ain, 1990 to which the accused-appellant pleaded not guilty and claimed to be tried stating that he has been falsely implicated in this case.

At the trial the prosecution side has examined in all 09(nine) 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 under section 342 of the Code of Criminal Procedure appeared to be that the  accused-appellant  was  innocent  and  he  has  been falsely implicated in the case. The defence declined to adduce any evidence.

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

judgment and order dated 20.03.2018 found the accused- appellant guilty under table 9(Kha) of section 19(1) of the Madak Drobbya Niyontron Ain, 1990 and sentenced him  thereunder  to  suffer  rigorous  imprisonment  for  a period of 5(five) years and to pay a fine of Tk. 1,000/- (one  thousand)  in  default  to  suffer  imprisonment  for 01(one) month more.

Being  aggrieved  by  the  aforesaid  impugned judgment  and  order  of  conviction and  sentence dated 20.03.2018, the accused-appellant preferred this criminal appeal.  

Mr.  Tonoy  Kumar  Saha,  the  learned  Advocate appearing for 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  20.03.2018  and  then  submits that  the  convict-appellant  is  innocent,  who  has  been made scapegoat in this case, in-fact, no occurrence took place at all. He adds that in this case the prosecution side examined  in  all  9  witnesses  out  of  whom   public witnesses namely, PW-1 and PW-3 were declared hostile by the prosecution and PW-4 & 5 were tendered, rest police witnesses  namely, PW-2, PW-6, PW-7, PW-8 and PW-9 were inconsistently deposed before the trial Court as to recovery of yaba tablets from the possession and control of the accused-appellant although the trial Court below without appreciating the case from a correct angle mechanically passed the impugned judgment and order  of  conviction  and  sentence  against  the  convict appellant, which is liable to be set-aside. Finally, the learned Advocate relying on the decision reported in 5 MLR 170, 45 DLR (AD) 13, 5 BLC 514 submits that in this case public witnesses namely PWs. 1,3,4,5 stated nothing  as  to  recovery  of  yaba  tablets  from  the possession of the accused appellant, no persons living around  the  place  of  occurrence  was examined  as possession  witness  to  prove  recovery  and  seizure  of articles from the place of occurrence as required under section 103 of the Code of Criminal Procedure which

rendering the recovery of incriminating articles doubtful and the same cannot form the basis of conviction.

Ms.  Kohenoor  Akter,  the  learned  Assistant Attorney-General,  on  the  other  hand,  supports  the impugned  judgment  and  order  of  conviction  and sentence, which was according to her just, correct and proper. She submits that in this case police witnesses namely, PW-2, PW-6, PW-7, PW-8 and PW-9 stated in one voice that the accused appellant was apprehended along  with  125  yaba  tablets  and   in  this  case  the chemical examiner submitted a report  (Ext.-4) stating that after thorough examination he found ingredients of methamphetamine/ drugs in the seized yaba tablets and thus, the learned Additional Sessions Judge, 1st Court, Naogaon justly found that the accused-appellant guilty under  table  9(Kha)  of  section  19(1)  of  the  Madak Drobbya Niyontron Ain, 1990.

Having heard the learned Advocate and the learned Assistant Attorney General, perused the memo of appeal, the First Information Report, charge sheet, deposition of witnesses and other materials on record including the impugned  judgment  and  order  of  conviction  and sentence dated 20.03.2018, 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  table  9(Kha)  of section  19(1)  of  the  Madak  Drobbya  Niyontron  Ain, 1990.

On  scrutiny  of  the  record,  it  appears  that  the prosecution to prove its case examined in all 9 (nine) witnesses out of whom public witnesses namely, PW-1 and PW-3 were declared hostile, PW-4 and PW-5 were tendered. PW-2,  Md.  Lablur  Rahman,  S.I., informant, stated in his deposition that on 21.03.2015 while he and other police forces were on special duty at 20:50 hours got a secret information that  a man is  selling yaba tablets  in-front  of  a  shop  at  Gopinathpur  bazaar  and thereafter, the informant party rushed there and at night 21:15  hours  apprehended  the  accused  and  on  search recovered  total  125  yaba  tablets  from  his  jeans  pant pocket. This witness also stated that  police prepared seizure list in presence of the witnesses and obtained signature  of the witnesses  on the seizure  list and the informant also put his signature on the seizure list. PW- 6, PW-7 and PW-8 all are police witnesses, who stated in their respective evidence that the accused-appellant was arrested on 21.03.2015 and police seized 125 yaba tablets  from  him.  PW-9,  Md.  Anisur  Rahman,  Sub Inspector  investigated  the  case,  who  stated  in  his evidence  that  during  investigation  he  examined  the witnesses  under section  161 of  the  Code  of  Criminal Procedure,  obtained  chemical  examination  report  and after completion of investigation having found prima- facie case against the accused (appellant) and submitted charge sheet under table 9(kha) of section 19(1)/25 of the Madok Drabya Niyantran Ain, 1990.

On an analysis of the evidence of PWs, it appears that in this case neutral public witnesses namely, PW-1, PW-3, PW-4, PW-5 stated nothing against the accused- appellant  as  to  recovery  of  yaba  tables  from  the possession of the accused-appellant. It further appears that PW-2, informant of the case deposed the F.I.R. case in details and rest police witnesses namely, PW-6, PW-7 and PW-8 stated the prosecution case as to recovery of yaba  tablets  against  the  accused-appellant  in  a  very slipshod  manner  and  PW-9,  Investigating  Officer submitted charge sheet against the accused-appellant.

In this case it appears that informant PW-2, Md. Lablur Rahman, S.I, on receipt of a secret infuriation rushed to the place of occurrence along with other police forces   and  thus  the  search  was  prearranged  and preplanned one. But it was not made in presence of two respectable persons of the locality, even not in presence of  the  neighbouring  persons.  One  of  the  seizure  list witnesses namely, PW-1 and PW-3 were declared hostile who did not support search, recovery and seizure in their presence. Thus it is evident that search was not made in accordance with section 103 of the Code of Criminal Procedure  though  there  was  ample  scope  of  making search complying with the mandatory provision of that section. It is held in the cases of Moklesur Rahman and another vs State, 1994 BLD 126, Habibur Rahman vs State, 47 DLR 323 1995 BLD 129, Julfikar Ali @ Kazal vs State, 1995 BLD 570 = 47 DLR 603, Jewel vs State, 5 MLR 1705 BLC 248 and Harun Bepari (Md) vs State 5 MLR  3955  BLC  501  that  search  and  seizure  of incriminating  articles  without  strictly  complying  with requirement  of  section  103  of  the  Code  of  Criminal Procedure cannot be held legal. This principle of law is applicable in the instant case.

As discussed above, there are so many limps and doubts about  the  existence  of  the  facts  as  well  as circumstance. In that light, it creates a doubt in the case of  the  prosecution  about  the  accused  appellant  being involved  in  the  alleged  crime.  It  is  trite  law  that  if any benefit of doubt arises,  then  the benefit should  be given to accused. In that view of the matter, the trial Court  ought  to  have  acquitted  the  accused  by  giving the benefit of doubt. In that light, the judgment of the trial Court is to be interfered with.

In  the  result,  the  appeal  is  allowed  and  the impugned order of conviction and sentence passed by the  learned  Additional  Sessions  Judge,  1st  Court, Naogaon in Sessions Case No. 713 of 2015 arising out of G.R  No.  61  of  2015  corresponding  to  Mohadevpur Police  Station  Case  No.  20  dated  21.03.2015  against accused appellant, Sree Biman Kumar Saha is set-aside and he is acquitted of the charge levelled against him.

Accused  appellant,  Sree  Biman  Kumar  Saha  is discharged from his bail bonds.

Send down the lower Court records at once.