Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 3692 of 2014

Md. Sumon

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

-Versus-

The State

                         .....Respondent.

Ms. Nargis Tanjima, 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 24.07.2024, 25.07.2024 and Judgment on 25.07.2024

Sheikh Abdul Awal, J:

This  Criminal Appeal  at  the instance  of convict appellant, Md. Sumon is directed against the judgment and order of conviction and sentence dated 03.06.2014 passed by the learned Judge, Jananirapatta Bighnakari Aparadh Damon Tribunal and Special Tribunal, Rajshahi in Special Tribunal Case No. 07 of 2013 arising out of G.R No. 217/2012 (Charghat) corresponding to Charghat

Police Station Case No. 08 dated 06.08.2012 convicting the  accused-appellant  under  section  25B(2)  of  the Special Powers Act, 1974 and sentencing him thereunder to suffer rigorous imprisonment for a period of 1(one) year and to pay a fine of Taka 2,000/- (two thousand) in default  to  suffer  rigorous  imprisonment for  01(one) month more.

The prosecution case, in brief, is that one, Utpal Sarker,  A.S.I,  Charghat  police  station,  Rajshahi  as informant on 06.08.2012 at about 16:15 hours lodged an Ejahar with Charghat Police Station against the accused appellant stating, inter-alia, that while the informant was on duty under charghat police station as per GD entry No. 268 dated 06.08.2012 for executing warrant of arrest got a secret information that a person is carrying Indian made  Phensidyl  for  the  purpose of  sale  at  Eskabadol Moor, village Shibpur under Charghat police station and thereafter, the informant and other police forces rushed there  and  found  2  persons  were  coming  through  a motorcycle towards them and then the informant party gave signal to stop the motorcycle, while the rider of motorcycle and another tried to run away leaving their motorcycle  and  ultimately  the  informant  party apprehended them on chase and thereafter, on search recovered 4+4= 8 bottles of phensidyl syrup from the left

and right side pockets of the pant of accused No.1 Md. Sumon and thereafter, the informant party seized those phensidyls by preparing seizure list in presence of the witnesses.

Upon  the  aforesaid  First  Information  Report, Charghat Police Station Case No. 08 dated 06.08.2012 under section 25 B (1) (B)(2) of the Special Powers Act, 1974 was started.

Police after completion of investigation submitted charge sheet No. 258 dated 20.10.2012 under section 25 B(1)(B)(2) of the Special Powers Act, 1974 against the accused-appellant and another.

Thereafter, the case record was sent to the Court of learned  Sessions  Judge  and  Special  Tribunal  No.1, Rajshahi,  wherein  the  case  was  registered  as  Special Tribunal Case No. 7 of 2013. Subsequently, the case was transmitted  before  the  learned  Judge,  Jananirapatta Bighnakari  Aparadh  Daman  Tribunal  and  Special Tribunal,  Rajshahi  for  disposal  before  whom   the accused  appellant  and  another  were  put  on  trial  to answer a charge under section 25B (2) of the Special Powers  Act,  1974  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 as many as 6(six) witnesses to prove its case, while the defence examined none.

The defence case as it appears 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  that  the  accused- appellant is innocent, who has been falsely implicated in the case. The defence declined to adduce any witness.

On  conclusion  of  trial  the  learned  Judge, Jananirapatta Bighnakari Aparadh Daman Tribunal and Special Tribunal, Rajshahi by the impugned judgment and order dated 03.06.2014 found the accused appellant guilty under section 25B(2) of the Special Powers Act, 1974 and sentenced him thereunder to suffer rigorous imprisonment for a period of 1(one) year and to pay a fine of Taka 2,000/- (two thousand) in default to suffer simple  imprisonment  for  01  (one)  month  more  while acquitted  another  accused  from  the  charge  levelled against him.

Being  aggrieved  by  the  aforesaid  impugned judgment  and  order  of  conviction and  sentence dated 03.06.2014, the accused-appellant preferred this criminal appeal.  

Ms.  Nargis  Tanjima,  the  learned  Advocate appearing for the convict-appellant in the course of her argument  takes  me  through  the  F.I.R,  deposition  of witnesses and other materials on record including the impugned judgment and then submits that the convict- appellant is innocent, who has been made scapegoat in this case, in-fact, no phensidyl was recovered from the direct possession and control of the convict-appellant. She further submits that in this case the prosecution to prove the allegation as to recovery of 4+4= 8 bottles of Indian  phensidyl  examined  in  all  6  witnesses  out  of which independent seizure list witnesses namely, PW-2 and PW-3  stated  nothing  as  to  recovery  of phensidyl syrups from the possession and control of the convict- appellant  and  rest  police  witnesses  inconsistently deposed  before  the  trial  Court  as  to  recovery  of phensidyl  syrups  from  the  possession  of  the  convict- appellant. She adds that the seized phensidyls was not examined by the chemical examiner and thus it is thus difficult to believe that the alleged seized goods were actually contraband in nature. She further submits that to prove the charge under section 25B (2) of the Special Powers Act, 1974, it is the duty of the prosecution to prove that the seized articles are recovered  from the exclusive  possession  of  the  accused  and  those  were contraband goods and the accused kept the same for the purpose  of  sale  although  in  this  case  the  prosecution side having failed to prove that the appellant brought those phensidyl syrups from India by way of smuggling and kept the same for the purpose of sale and as such, the impugned judgment and order of conviction under section 25B (2) of the Special Powers Act, 1974 cannot be sustained in law.

Ms.  Kohenoor  Akter,  the  learned  Assistant Attorney-General,  on  the  other  hand,  supports  the impugned  judgment  and  order  of  conviction  and sentence dated 03.06.2014,  which was according to her just, correct and proper. She submits that in this case the prosecution  has  been  successfully  proved  that contraband Indian phensidyl syrups were recovered from the  possession  and  control  of  the  accused  appellant beyond reasonable doubts. She further submits that in the  facts  and  circumstances  of  the  case  the  learned tribunal  judge  justly  found  that  the  accused-appellant guilty under section 25B(2) of the Special Powers Act, 1974 and sentenced him thereunder to suffer rigorous imprisonment for a period of 1(one) year and to pay a fine of Taka 2,000/- (two thousand) in default to suffer simple imprisonment for 01(one) month more.

Having heard  the  learned  counsel  for  the parties and  having gone  through  the  materials  on  record,  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 section 25B(2) of the Special Powers Act, 1974.

On  scrutiny  of  the  record,  it  appears  that  the prosecution  to  prove  its  case  examined  in  all  06(six) witnesses  out  of  whom  PW-1,  informant  of  the  case stated in his deposition that on 06.08.2012 while he and other police forces were on special duty for executing warrant  of  arrest   got  a  secret  information  that  the accused persons are carrying phensidyls for the purpose of  sale  and  thereafter  they  rushed  to  village  Shibpur under  Charghat  police  station  and  apprehended  the accused persons and on search recovered total 8 bottles Indian  phensidyl  from  the  accused  Sumon  (appellant) and thereafter police prepared seizure list in presence of the witnesses. This witness proved the seizure list and his signature thereon as “Ext.- 1, 1/1”, Ejahar and his signature thereon as “Ext.-2, 2/1”, seized phensidyl as “material Ext.-I series”. This witness also identified the accused on dock. The defence cross-examined PW- 1 but failed to find out any contradiction in the evidence of PW- 1. PW-2, Shamsul Haque, seizure list witness stated

nothing  against  the  accused-appellant.  This  witness simply  stated  that  police  obtained  his  signature  on  a blank paper. He identified the same as “Ext.-1/2”. This witness  in  his  cross-examination  stated  that-  “ ”. PW-3,  Md.  Hashem  Ali also a seizure list witness. This witness stated nothing against the  accused-appellant,  who  simply   stated  that  police obtained his signature on a blank paper. He identified the  same  as  “Ext.-1/3”.  PW-4,  Constable  Md.  Anisur Rahman and PW-5, A.S.I. Kawser Ali both of them are members of the raiding party,  who gave evidence in support  of  the  prosecution  case  and  made  similar statements  as  like  PW-1. PW-6,  Sub  Inspector  Md. Shahinur Alam investigated the case. This witness stated in  his  deposition  that  he  examined  the  witness under section 161 of the Code of Criminal Procedure, prepared sketch map, index map and proved the same as “Ext. Nos. 3, 3/1, 4, 1/4” and after completion of investigation submitted charge sheet against the accused-appellant and

another.

On an analysis of the above quoted evidence, it appears that  seizure  list  witnesses  namely,  PW-2 and PW-3  stated  nothing  against  the  accused-appellant. Besides,  there  is  nothing  on  record  to  suggest  that prosecution side having examined the seized phensidyls for the purpose of a report whether it was contraband or not.  It  is  thus  difficult  to  believe  that  alleged  seized phensydils were actually contraband in nature or the same were  brought  into  Bangladesh  from  India  by  way  of smuggling.

In the case of Raju Ahmed and others Vs. The State reported in 7 MLR 112, it has been held as follows:

“There has been no chemical examination of the phensydil in question which is serious lacuna on the part of the prosecution whose duty it was to establish that the seized goods are contraband goods.”

In the case of Nannu Mia alias Habibur Rahman Vs. The State reported in 55 DLR7, it has been held as follows:

“Before convicting the appellant the court must give  findings  that  the  phensydil  in  question found in his possession was a contraband item

smuggled into Bangladesh for sale”.

In the case of Md. Akram vs. the State reported in1LM (AD) 581, it has been held as follows:

Normally  this  Division  does  not interfere with the judgment of the High Court Division  on  appeal  if  it  is  found  that  the judgment is based on proper appreciation of the evidence. It cannot reassess the evidence afresh  as  a  court  of  appeal  to  examine whether or not the High Court Division has

properly  appreciated  the  evidence  while believing  the  recovery  of  the  contraband goods from the possession of the petitioner. Learned counsel appearing for the petitioner is also conscious on the question of finding of fact and does not argue that the prosecution has  failed  to  prove  the  recovery  beyond reasonable doubt. He however argues that on the  admitted  facts  no  offence  discloses against the petitioner at all and therefore, of the High Court Division has erred in law in maintaining the conviction petitioner. In this connection the learned counsel has drawn our attention  to  the  evidence  on  record  and section 25B (2) of the Special Powers Act, 1974.

 Sub-section  (2)  of  section  25B  reads thus:

"Whoever sells, or offers or displays for sale, or keeps in his possession or under his control for  the  purpose  of  sale,  any  goods  the bringing  of  which  into  Bangladesh  is prohibited by or under any law for the time being  in  force  shall  be  punishable  with imprisonment for a term which may extend to seven years and shall not be less than one year, and shall also be liable to fine."

This  sub-section  lays  down  the constituents of the constitution of an offence of second degree smuggling and its sentence. It provides that if any person is found (i) in selling or (ii) offering or displaying for sale, or (iii) keeps in his possession or under his control for the purpose of sale, any goods the bringing of which into Bangladesh prohibited by law, he will be guilty of the offence. Now taking these three conditions in mind, it is to be  examined  whether  any  of  these preconditions  has  been  proved  by  the prosecution against  the petitioner.  The first two conditions are not attracted in this case since it is not the prosecution case that the petitioner was selling or offering for sale or displays for sale of a bottle of phensedyl. He was  found  in  possession  of  a  bottle  of phensedyl which he was carrying on his way by driving a motorbike. Therefore, he may be charged with for violating the last subject to the  condition  that  he  has  kept  it  in  his possession or has carried it for the purpose Of sale. Neither in the FIR nor in the evidence of P.W.1 or in the evidence of other witnesses, there is any allegation that the petitioner has kept or carried one bottle of phensedyl for the purpose of sale. It is the consistent case that the phensedyl bottle was recovered from his possession  while  the  petitioner  was approaching  towards  Dupchanchia.  Only possession  of  contraband  goods  does  not constitute an offence of smuggling within the meaning of section 25B (2). It is only if any person  keeps  in  his  possession  for  the purpose of sale of the contraband goods the bringing of which is prohibited by law, an offence of the second category of smuggling will be attracted.

From a plain reading of the above quoted decision of our Apex Court, it appears that only possession of contraband  goods  does  not  constitute  an  offence  of smuggling within the meaning of section 25B (2) of the Special Powers Act, 1974,

As I have already indicated that in this case the prosecution  could  not  produce  any  evidence  oral  or documentary to show that the convict-appellant brought those phensidyl syrups from India by way of smuggling and kept the same under his possession and control for the  purpose  of  sale.  Therefore,  I  find  no  difficulty whatever  in  holding  that  the  impugned  judgment and order of conviction and sentence does not deserve to be sustained.

In the facts and circumstances of the case and the evidence on record, it must be held that the prosecution failed to prove the charge of smuggling against accused, Md. Sumon beyond reasonable doubts. Consequently the appeal succeeds.

In  the  result,  the  appeal  is  allowed  and  the impugned  judgment  and  order  of  conviction  and sentence  passed  by  the  learned  Judge,  Jananirapatta Bighnakari  Aparadh  Daman  Tribunal  and  Special Tribunal, Rajshahi in Special Tribunal Case No. 7 of 2013 arising out of G.R No. 217 of 2012 (Charghat) corresponding to Charghat Police Station Case No. 08 dated 06.08.2012 against convict-appellant, Md. Sumon is set-aside and he is acquitted of the charge levelled against him.

Accused appellant, Md. Sumon is discharged from his bail bonds.

Send down the lower Court records at once.