12.02.2024  Mr. Md. Abdul Alim Miah with

Mr. Md. Motiar Rahman, Advocates

                                    ----For the Convict-Appellant-Petitioner Mr. S.M. Asraful Hoque, D.A.G with

Ms. Fatema Rashid, A.A.G

Mr. Md. Shafiquzzaman, A.A.G. and

Mr. Md. Akber Hossain, A.A.G  

--------For the State

This  is  an  application  for  bail  of convict  appellant  petitioner  Md.  Mahfuzur Rahman.

The petitioner along with 5 (five) others was convicted under Table 9(kha) appended to section 19(1) and 25 of the Madak Drabya Niyontran Ain, 1990 and sentenced to suffer rigorous imprisonment for 15 (fifteen) years with a fine of Tk-100,000/- (one lac) in Sessions Case No.402 of 2020. Six (6) others were convicted under the same section of law and  sentenced  to  suffer  10  (ten)  years rigorous  imprisonment  with  fine  of  Tk- 50,000/- each while another was convicted under the same section of law and sentenced to suffer 5(five0 years rigorous imprisonment with a fine of Tk-5000/-.

The learned advocate for the petitioner submits that the petitioner was arrested by the police on 21.06.2015 and since then he is in prison and has already served out about 9(nine) years of his sentence out of  15 years.

He then submits that in the present case the statement of the informant is totally contradictory  with  the  deposition  of  the manager  of  filling  station,  alleged  eye- witness. Most of the witnesses are members of law  enforcing  agency  and  thus  interested person and some are hearsay witness. On plain reading  of  the  statement  and  cross- examination of the witnesses it is crystal clear  that  the  prosecution  made  false, doubtful and contradictory statements so far as it relates to appellant petitioner. The prosecution witness made self-contradictory statement  and  statements  contradictory  to each other on material point of the case. The statements of the witnesses itself prove that the appellant petitioner is not guilty of the charge of recovery of yaba from his custody.

He further submits that the occurrence took place on 20.06.2015 at 11.10 hours and F.I.R. was lodged on 21.06.2015 at 10.05 hours after arresting the petitioner and then he was sent to the Court from police station on 22.06.2015 which is apparent that the appellant had been kept in police custody more than 24 hours without having any order of the magistrate which is clear violation of the constitution as well as the Code of Criminal Procedure.

The learned advocate next submits that the  appellant-petitioner  was  taken  all together  14  days  of  remand  and  as  a consequence  of  that  he  made  confessional statement implicating himself as a carrier of recovered Madok, Yaba which was not true and voluntary  at  all  but  the  Court’s  below without considering that aspect convicted him illegally. The prosecution could not prove the  case  against  the  convict  petitioner beyond reasonable doubt and there is every chance of success in the instant appeal. The

petitioner is not a habitual offender and previous record of the appellant is nil.

The learned advocate finally submits that there are as many as 6 criminal appeals from the same judgments pending before this Court and those appeals are not ready for hearing for which the present appeal cannot be heard within a reasonable time. 4 (four) convict appellants have already been enlarged on bail by various Division Benches of this Court.

On the other hand the learned Deputy Attorney  General  vehemently  opposes  the prayer  for  bail.  He  submits  that  the appellant petitioner made confession and the convict who have been enlarged on bail are not  of  the  same  footing  of  the  present convict appellant petitioner.

We have heard the submissions of learned Advocates of both the parties, perused the FIR,  charge  sheet,  testimony  of  the witnesses,  impugned  judgment  and  other connected documents on record wherefrom it transpires that the occurrence took place on 20.06.2015  and  the  FIR  was  lodged  on 21.06.2015  and  since  then  the  convict appellant petitioner is in jail for more than 8(eight) years 7(seven) months. It is also uncertain when the hearing of the appeal would be concluded as 6 more appeals are pending out of the same judgment.

Considering the duration of suffering in prison and facts and circumstance of the case, we find substance in the contentions of the  learned  Advocate.  Therefore,  we  are inclined to enlarge the appellant petitioner on bail. Accordingly, the prayer for bail in

the aforesaid criminal appeal is allowed.

Pending hearing of the appeal let the convict-appellant-petitioner  Md.  Mahfuzur Rahman, son of Md. Jamshed Miah be enlarged on ad-interim bail for a period of 06(six) months from date on furnishing bail bond subject to satisfaction of the trial court i,e  Additional  Sessions  Judge,  1st  Court, Feni.  

Communicate the order at once.

                   [ Ashish Ranjan Das, J ]

                  [ Md. Riaz Uddin Khan, J ]