IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION) Present:

Mr. Justice Mustafa Zaman Islam

And

Mr. Justice Md. Aminul Islam

Criminal Appeal No. 7572 of 2022 Md. Kamal Ahammed and another

....convict-appellants.   -Versus-

The State

... opposite party.

Mr. Mohammad Mostafezur Rahaman Miah, Advocate

........For the convict-appellant.

Mr. Sarowar Hossain Bappi, DAG with Mr. Mohammad Shah Newaj, A.A.G with Mr. Anisur Rahman, A.A.G

…...For the State.

Heard  On  15.10.2023  and Judgment On: 22.02.2024.

Mustafa Zaman Islam. J

This appeal has been preferred against the judgment and

order of conviction and sentence dated 23.03.2022 passed by the  learned  Joint  Sessions  Judge,  1st  Court,  Cox's Bazar in Sessions Case No.584 of 2018 arising out of Teknaf Police Station Case No.19 dated 24.09.2017 corresponding to G.R. Case No.732 of 2017 convicting the appellants under Table 9(Kha) of section 19(1) of the Madok Drabbya Niyontron Ain, 1990 and sentencing them to suffer rigorous imprisonment for

10(ten) years and also to pay a fine of Tk. 10,000/-in default to suffer simple imprisonment for 03(three) months more.

The Prosecution case in short is that one S.I. Habilder Md. Lutfor Rahman, as informant lodged an FIR with the Teknaf Model Police Station against the appellants alleging inter alia that on 23.09.2017 the informant along with his accompanying forces were a patrol duty on Naff River and at one stage, the informant found that a boat crossed the border of  the  Myanmar  and  entered  into  Bangladesh though  Naff  River  and  anchored  the  boat  to  the Ghat and 02 persons unloaded 02 Bags from the boat. Thereafter, the informant rushed to the spot and then the accused are tried to escape from the spot and then the informant arrested with the help of  others  forces.  Subsequently,  the  informant recovered 4,35,805 pieces of yaba Tablet from the appellants. The informant seized the alamots and prepared a seizure list and hence this case.

After completion of the investigation, the police submitted  charge  sheet  being  No.  960  dated 12.12.2017 against the accused persons including the  convict  appellant  under  section  19(1)  table 9(Kha) of the Madok Drabbya Niyontron Ain, 1990 (Amended  -2004)  and  the  case  record  was transferred in the court of learned Joint Sessions Judge,  1st  Court,  cox’s  Bazar  and  registered  the same as Sessions Case No. 584 of 2018 and on 14.01.2019.

The  learned  Joint  Sessions  Judge  framed charge  on  12.12.2017  under  Table  9(Kha) of section 19(1) of the Madok Drabbya Niyontron Ain, 1990 and read over to the accused petitioners while they pleaded not guilty and claimed to be tried.

The  prosecution  examined  as  many  as  6 witnesses out of 10 witnesses in support of its case while the defence examined none.

After  conclusion  of  trial,  the  learned  Joint Sessions Judge, Cox’s Bazar perusing the record considering  the  material  points  of  the  evidence convicted the convict appellants under Table 9(Kha) of section 19(1) of the Madok /Drabbya Niyontron Ain, 1990 and sentencing them to suffer rigorous imprisonment for 10(ten) years and also to pay fine of Tk. 10000/- and in default to suffer rigorous imprisonment  for  3(three)  months  more  by  the judgment  and  order  of  conviction  and  sentence dated 23.03.2022 in Sessions Case No. 584 of 2018.

Aggrieved  by  his  conviction,  appellants  preferred  this appeal  against  the  judgment  and  sentence  dated  23.03.2022 before this Division.

Mr. Mohammad Mostafezur Rahaman Miah, the learned Advocate appearing for the convict appellants submits that all

the  witnesses  are  police  personnel  and  there  are  no  public witnesses  and  the  prosecution  failed  to  prove  the  case  by producing any neutral and impartial witnesses and as such the judgment and order of conviction is liable to be set aside. More

so, That the investigating officer sent some alamots for justifying the same by Chemical Examiner and the Chemical Examiner issued a report wherein stated that "

     ।" but it is not

clear that how many percentage of the 'Amphetamine' contents the said alamots so without determining the percentage/volume the chemical Report is defective. It should be mentioned here that the 'purity' of narcotics, not the 'mixture' or 'substance' of narcotics as a whole is the determining factor for the purpose of sentencing under the Act, 2018. In support his contention Md. Miah returned some decisions reported decision is 18BLD 250, 2BLC (AD) 1, 19 BLC 514, 21 BLT 101 and unreported in

Criminal  Revision  No.  1651  of  2017  Judgment  date 08.11.2020) and as such the impugned judgment and order is liable to be set aside.

He submits that as per FIR the Yaba recovered from 02 persons but the informant did not mark the same as accused No.1 and 2 for the sample collection is defective [Ref: 72 DLR (2020)-229] and as such the impugned judgment and order is liable to be set aside. He submits that the chemical examiner was not produced as witness and the prosecution has examined as  many  as  6  out  of  10  charge  sheeted  witnesses  and  it presumes that if the prosecution produced the rest 4 witnesses before the trial court they would not support the prosecution case and so the convict-appellant will get the benefit of under section 114(Ga) of the Evidence Act and hence the judgment and order of conviction is liable to be set aside. He add that the deposition of witnesses are discrepancies and controversial and the prosecution failed to prove the case by neutral and public witnesses; moreover the seizure list witnesses disclosed that the alamot were not present at the time of recovering the articles and hence the judgment and order of conviction is liable to be set aside.

Mr. Sarowar Hossain Bappi, the learned Deputy Attorney General  appearing  for  the  state  support  the  conviction  and sentence  of  the  appellants  and  submits  that  trial  court  after considering the evidence on record the appellants have been rightly  convicted  under  section  19(1)  Table  9(Kha)  of  the Madok  Drabbya  Niyontron  Ain,  1990  (amended-2004)  and sentenced thereunder, on proper appreciation of the facts and circumstance of the case.

In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions. Let us now weigh and sift the evidence on record

as adduced by the prosecution to prove the charge against the convict appellants.

P.w. 1, Nayek Subeder Md. Lutfor Rahaman, deposed that on 23/09/2017, he was working as BGB Cox's Bazar along with his fellow BGB members in nature park area under Teknaf police station on the edge of Naff River on the basis of secret information during duty at 3.20 pm. Convicts are Md. Kamal and  Md.  Elias  and  we  searched  the  2  sacks  with  the  said accused and recovered a total of 435805 pieces yaba tablets from the 2 sacks. Accused have 1 mobile phone.

This  statement  is  mine.  Ex:  1,  this  is  his  signature. Ex.1/1, this is the seizure list, Ex.2, this is his signature on the seizure list. Ex. 2/1.

P.W.  2  Sepay  Md.  Baten  Mia,  deposed  that  on 23.09.2017 he was working as BGB Cox’s Bazar, on the basis of secret information, under the leadership of Nayek Subeder Md. Lutfar Rahman, on duty in Teknaf Naff River Nature Park area, at 3.20 pm, the said boat came to the place from the Myanmar side, 2 people came from the boat with 2 sacks on their heads and arrested them with sacks. Accused Md. Kamal Ahmed's bag was searched and 2,18,000 pieces of Yaba tablets

were found and 2,17,805 pieces of Yaba tablets were found in the bag of the other accused Md. Eliyas, which were seized. He was a witness in the seizure list.

 P.W.3 Md.  Mizanur  Rahman  has  been  declared Tendered by the prosecution.

P.W. 4, Md. Delwar Hossain, deposed that on 23.09.17, while attached at 2BGB Damdamiya BGB Teknaf, Cox's Bazar, he became a member of the Petrol- team led by Habildar Md. Lutfar Rahman and during duty on the same date and night around 3.20 o’clock. a hand –operated boat Crossed the Zero line from Myanmar and entered the border of Bangladesh and came towards the ghat along the nature park. When, we got there, the boat came to the ghat along the nature park and took the 2 sacks from the boat to the bank and took them on their head.  Then,  2,18,000  pieces  of  yaba  in  1090  packets  from accused Md. Kamal Ahmad and accused Elias 2,17,805 pieces of yaba in 1090 packets of blue color in bag were found from accused Md. Elias. Besides, 1 (one) symphony mobile phone was recovered from the accused. As there were no local people at the spot, informant Habildar Lutfar Rahman prepared the

seizure list in the presence of 2 members of the patrol team, took the signatures of the witnesses and signed it themselves.

In his cross examination, he stated that it is not true that no yeaba was found with the accused. It is not true that the yeaba are found in the abandoned boat in the river. It is not true that the accused Kamal and accused Elias were detained in illegal way while coming to Bangladesh as a refuge.  

P.W. 5. Sujon Rajbonsi, Sepay, deposed that he was a member  of  the  patrol  party  led  by  informant  Md.  Lutfar Rahman while working at 2 BGB Damdamia, BGB Teknaf, Cox’s Bazar on 23.09.2017 on the same date at 3.20 (night) along the Natural Park, a hand operated boat from Myanmar to the  Zero  line  of  Naff  River  .  After  crossing  the  border  of Bangladesh and coming to the ghat along with Natural park, we continue to follow up. Two people come out from the boat with 2(two) sacks on their head. Searching the presence of the petrol party, they tried to flee away but arrest the accused Md. Kamal and accused Md. Elias. After searching them , the informant party recovered 2,18000 pieces of yeaba from accused Kamal and 2,17,805 pieces of yeaba tablets recovered from accused Elias.

In his cross examination, it is not true that the accused Kamal and his family came from Myanmar to Bangladesh but he arrested illegally as a refugee.

P.W. 6, Md. Main Uddin Khan, inspector as investigating officer who deposed in his examination in chief that he was attached to the Teknaf Police Station as officer-in-charge at the time  of  occurrence.  He  lodged  the  FIR  and  took  up  the investigation  of  the  case,  visited  the  place  of  occurrence, prepared  sketch  map  of the  place  of occurrence  along  with index.  He  also  examined  the  witnesses  and  recorded  their statements under section 161 of the Code of Criminal procedure and he collected the report for Chemical examination as 10 pieces  of  yeaba  sample  from  seized  article.  The  Chemical examination report found the substance of amphetamine in the seized  article.  The  investigating  officer  after  concluded  the investigation  submitted  charge-sheet  against  the  convict- appellants.

The learned Joint Sessions Judge, on sifting the evidence on record has held that the prosecution has been able to prove that informant Md. Lutfor Rahman, Habilder, during duty on 23.09.2017 at night around 3.20, a hand operated boat crossed the Zero line from Myanmar to Bangladesh border and came towords the ghat of nature park at Taknef and they found that two accused took 2 sacks from the boat to the bank with their head. Senscing the presence of the patrol party, the accused tried to flee away but failed and arrested them after searching, the informant party recovered the alleged yeaba tablets from the accused Md. Kamal Ahmed and Md. Elias. Pws 1-2 and 4-6 who are the companion forces of the informant have deposed corroborating the informant on material facts regarding time, place and manner of occurrence and recovery of the seized article from the possession of the convict-appellants. During cross examination the evidence of their of these pws could not be shaken on the vital points regarding time, place and manner of occurrence.

There is nothing to show for which the evidence of the pws as referred to above, may be disbelieved or made impeachable.

Considering all the above aspects of the matter we find no substance  in  this  appeal,  as  such  conviction  is  upheld  with modification  of  sentence.  The  convict  appellants  have  been languishing in jail custody since 23.09.2017 for about 6(six) years.      

It appears from the evidence on record that trial court found the appellants guilty of the offence punishable under Table 9 Kha of sections 19(1) of the Madak Drabbay Niyantran Ain, 1990.

In view of the discussion made above and the facts and circumstances of the case and also the legal position we are of the opinion that the prosecution has been able to prove the case beyond all reasonable doubt against the appellants. Therefore, the conviction passed by the Joint Sessions Judge, 1st Court, Cox’s  Bazar  in  sessions  case  No.  584  of  2018  is  hereby maintained, but the sentence is reduced from 10 (ten) years to sentence already undergone and the fine of tk. 10,000/- (ten thousand) is maintained.

In the result the appeal is dismissed with above modification

of sentence.

The convict appellants namely 01.Md. Kamal Ahammed, son of late Sirajul Mostafa and 02. Md. Elias, son of Boshed Ali be released forthwith is not connected with any other cases.

Send down the lower court’s record at once.

(Mustafa Zaman Islam, J:) Md. Aminul Islam, J:

I agree.