IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION) Present

Mr. Justice Ashish Ranjan Das

And

Mr. Justice Md. Riaz Uddin Khan

Criminal Miscellaneous Case No. 15390 of 2019

In the matter of:

An application under Section 561A of the Code of Criminal Procedure

In the matter of:

Shikha Begum

...Convict- Petitioner Versus

The State

...Opposite Party Mr. Md. Earul Islam, Advocate

...For the Petitioner Mr. S.M. Asraful Hoque, D.A.G

...For the State

 Heard on: 05.12.2023

 Judgment on:11.12.2023

Ashish Ranjan Das, J:

Upon an application under section 561-A of the Code of Criminal Procedure (for short the Code) rule was issued in the following terms:

“Let a Rule be issued calling upon the opposite party to show cause as to why the judgment and order of  conviction dated 26.09.2018  passed   by  the   5th

Special  Tribunal,  Narayanganj  in  Special  Tribunal Case No.470 of 2006 arising out of Siddhirganj Police Station Case No.30 dated 09.06.2006 corresponding to G.R. No.272 of 2006 under section 25-B of the Special Powers Act,1974 and convicting the convict- petitioner under section 25-B(2) of the Special Powers Act,1974  and  sentencing him  to  suffer  rigorous imprisonment  for  03(three)  years  and   a  fine  of Tk.10,000/-(ten  thousand),  in default  to  rigorous imprisonment for a period of 02(two) months more should not be quashed and/ or pass such other or further order or orders as to this court may seem fit and proper.”

We have heard the learned Advocate for the petitioner and the learned Deputy Attorney General, who opposed in the Rule.

Short  facts  relevant  for  the  purpose  that  could  be gathered from the file are that  Sub- Inspector  Md. Nazrul Islam attached  to  Siddirganj  police  station,  Narayanganj accompanied by forces on 09.06.2006 at about 17.45 P.M while on Simrail Truck Stand he saw this petitioner woman getting down from a bus and  upon search 10 bottles of Indian  smuggled Phensidile could be recovered from her possession in presence of the witnesses present there. The alamat was seized under a list and accordingly Siddhirgonj Police  Station  Case  No.30  dated  09.06.2006  attracting section 25B of the Special Powers Act,1974 was recorded.

After investigation charge sheet was accordingly filed. In order to bring the charge home the prosecution produced as many  as 5  witnesses.  Though  they  were  not  cross- examined as the sole accused was absconding. But at end of trial before delivery of judgment having been enlarged on bail the sole accused remained fugitive and the judgment was pronounced in absentia. The learned trial court, 5th Special Tribunal,  Narayanganj  found  the  petitioner  guilty  of  the charge and sentenced her to suffer 3(three) years rigorous imprisonment coupled with a fine of Tk. 10,000/-.

 As the petitioner was absent and could not prefer an appeal within the prescribed time she brought this application under section 561-A of the Code. The informant along with his recovery forces pressed the charge of recovery of the  alamat from the petitioner.

Now  the  learned  advocate  for  the   petitioner vigorously argued that it was admitted by the investigation officer that no sample of alamat was produced before the tribunal, nor it was chemically examined to mean that those 10 bottles were contained contraband drug. On this issue, however the learned Deputy Attorney General had nothing to say.

 The allegation is that 10 bottles of Indian smuggled drug phensedyl were recovered from the petitioner but the investigation officer frankly admitted that the alamat was not produced before the court and particularly it was not chemically examine in order to conclude that  the bottles contained  contraband drug and those were of Indian origin.

Thus, for the purpose we are of the view that the above omission failed to prove the prosecution case, there was no evidence in  trial to conclude that the alamat was of  Indian origin containing contraband drug, phensedyl.

Thus, we find  merit in the submission in the rule and the same is therefore made absolute.

In the result, the Rule is made absolute.

The judgment and order of conviction and sentence

dated 26.09.2018 passed by the 5th Special Tribunal,

Narayanganj  in  Special  Tribunal  Case  No.470  of  2006 arising out of Siddhirganj Police Station Case No. 30 dated 09.06.2006 under section 25-B of the Special Powers Act, 1974 corresponding to G.R. No.272 of 2006 convicting the petitioner  under section 25-B(2) of the Special Powers Act,1974 and sentencing her to suffer rigorous imprisonment for 3(three) years coupled with a fine of Tk. 10,000/-, in default to suffer 2(two) months more is hereby set aside and quashed.

The petitioner Shikha Begum stands acquitted and of course discharged of her bail bond.

Send down the lower court’s record along with a copy of this judgment at once.

Md. Riaz Uddin Khan, J:

I agree.

Bashar,B.O.