Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 6842 of 2014

Md. Mominul Islam @ Himel ................Convict-Appellant.

-Versus-

The State.

.....Respondent.

Mr.  Md.  Saiful  Islam  Khandker, Advocate

.....For the Convict 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 10.06.2024, 04.07.2024, 09.07.2024 and Judgment on 10.07.2024.

Sheikh Abdul Awal, J:

This  Criminal Appeal  at  the instance  of convict appellant,  Md.  Mominul  Islam  @  Himel  is  directed against  the  judgment  and  order  of  conviction  and sentence dated 30.09.2014 passed by the learned Special Sessions Judge and Druto Bichar Tribunal No.2, Dhaka in Special Sessions Case No. 102 of 2013 arising out of

G.R  No. 416  of 2013  corresponding  to  Palton Police Station  Case  No.  04  dated  01.09.2013  convicting  the accused-appellant under table 3(ka) to section 19(1) and 19(4) of the Madok Drabya Niyantran Ain, 1990 and sentencing  him  thereunder  to  suffer  rigorous imprisonment for a period of 3(three) years and to pay a fine of Taka 5,000/- (five thousand) in default to suffer rigorous imprisonment for 03(three) months more and also convicting another accused namely, Nasrin Akter under  table  7(ka)  to  section  19(1)  and  19(4)  of  the Madok Drabya Niyantran Ain, 1990 and sentencing her thereunder to suffer rigorous imprisonment for a period of 1(one) year and to pay a fine of Taka 1,000/- (one thousand) in default to suffer rigorous imprisonment for 01(one) month more.

The  prosecution  case,  in  brief,  is  that  one,  Md. Nazrul Islam, Sub-Inspector, D.B (South), DMP, Dhaka as informant on 01.09.2013 at about 23:30 hours lodged an Ejahar with Palton Police Station against the accused- appellant,  Md.  Mominul  Islam  @  Himel  and  another stating,  inter-alia,  that as  per  G.D.  No.  032  dated 01.09.2013 while the informant and other police forces were on special duty under Palton, Motijhel and Bijoy Nagar  Moor  at  about  22:05  hours  got  a  secret information that the accused persons are dealing liquid

phensidyl and Ganja in-front of Superstar Engineering Workshop,  Culvert  Road  under  Palton  Model  police station and then the informant party rushed there and at that point of time sensing the presence of police the accused  persons  tried  to  escape but  the  police apprehended them in presence of witnesses and on query accused, Md. Mominul @ Himel brought 5 litres liquid phensidyl from a bag kept in his right hand and another accused, Nasrin Akter brought out 2 Kg Ganja from a cement bag kept in her right hand in presence of the witnesses and thereafter, the informant party seized those phensidyls  and  Ganja  by  preparing  seizure  list  in presence of the witnesses.

Upon  the  aforesaid  First  Information  Report, Palton  Model  Police  Station  Case  No.  04  dated 01.09.2013 under table 3(kha) and 7(ka) of section 19(1) of the Madok Drabya Niyantran Ain, 1990 was started against the convict-appellant and another.

Police, after completion of investigation, submitted charge sheet against the accused-appellant and another under section 3(kha) and 7(ka) of section 19(1) of the Madok Drabya Niyantran Ain, 1990 and the case was then sent to learned Special Sessions Judge and Druto Bichar Tribunal No.2, Dhaka for trial and in the trial the prosecution  examined  7 witnesses  and  the  defence examined 4 witnesses. The defence case appeared to be that  the  accused-appellant  and  another  accused  were innocent and they have been falsely implicated in the case.

On conclusion of trial, the learned Special Sessions Judge and Druto Bichar Tribunal No.2, Dhaka by the impugned judgment and order dated 30.09.2014 found the accused-appellant guilty under table 3(Ka) of section 19(1) and 19(4) of the Madak Drobbya Niyontron Ain, 1990 and sentenced him thereunder to suffer rigorous imprisonment for a period of 3(three) years and to pay a fine of Taka 5,000/- (five thousand) in default to suffer rigorous imprisonment for 03(three) months more and also convicting another accused namely, Nasrin Akter under  table  7(ka)  to  section  19(1)  and  19(4)  of  the Madok Drabya Niyantran Ain, 1990 and sentencing her thereunder to suffer rigorous imprisonment for a period of 1(one) year and to pay a fine of Taka 1,000/- (one thousand) in default to suffer rigorous imprisonment for 01(one) month more.

Being  aggrieved  by  the  aforesaid  impugned judgment  and  order  of  conviction and  sentence dated 30.09.2014 the present accused-appellant preferred this criminal appeal.  

Mr.  Md.  Saiful  Islam  Khandker,  the  learned Advocate appearing on behalf of the convict-appellant submits  that  the  accused  appellant  is  out  and  out innocent, who has been made scapegoat in this case, in- fact  no  incriminating  drugs  were  recovered  from  the exclusive  possession  and  control  of  the  accused- appellant. He further submits that in this case the legal requirement  of  section  103  of  the  Code  of  Criminal Procedure  was  not  complied  despite  of  fact  that  the informant party got secret information and accordingly rushed to the place of occurrence and apprehended the accused-appellant  and  no  one  of  the  alleged  place of occurrence was motioned in the seizure list as witness and thus,  it can safely be said that no search and seizure was made in accordance with law. The learned Advocate further  submits  that  the  defence  witnesses  in  their respective evidence categorically stated that the accused- appellant and another were apprehended from Bhuighar, Narayangonj,  that  is,  far  away  from  the  place  of occurrence  being  Culvert  road  under  Paltan  Police Station  although  the  learned  Judge  of  the  trial  Court below without considering all these aspects of the case as well as the defence case most illegally held that the accused-appellant guilty of the offence under table 3(ka) of section 19(1)/19(4) of the Madok Drabya Niyantran Ain,  1990  and  sentenced  him  thereunder  to  suffer rigorous imprisonment for a period of 3(three) years and to pay a fine of Taka 5,000/- (five thousand) in default to suffer rigorous imprisonment for a period of 03(three) months more. Finally, the learned Advocate submits that in  the  facts  and  circumstances  of  the  case  and  the evidence on record, it must be held that the prosecution failed  to  prove  charge  of  carrying  and  possessing contraband  liquid  phensidyl  against  the  accused appellant beyond reasonable doubts.

Ms.  Shahida  Khatoon,  the  learned  Deputy Attorney-General appearing for the State, 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 7 witnesses were examined and all of them categorically testified  that  the  accused  appellant  and  another  were apprehended with liquid phensidyl and they proved the time,  place  and  manner  of  occurrence.  Finally,  the learned Deputy Attorney General submits that the plea as canvassed by the defence by adducing 4 DWs that the accused-appellant and another were apprehended from Bhuighar, Fatulla, Narayangonj and subsequently they were falsely implicated in this case showing place of occurrence  Culvert road under Paltan Police Station at the instance of their business enemies which does not find any support from the prosecution case or the same fails  to  gather  anything  as  to  the  credibility  of  the prosecution  witnesses   on  the  matter  to  which  they testified and thus   the appeal is liable to be dismissed.

Having heard the Advocate and the learned Deputy Attorney General and having gone through the materials on  record  including  the  impugned  judgment,  first information report, charge sheet, deposition of witnesses and other materials on record, the only question that calls for  my  consideration  in  this  appeal  is  whether the learned trial Judge committed any error in finding the accused-appellant guilty of the offence under table 3(ka) of section 19(1)/19(4) of the Madok Drabya Niyantran Ain, 1990.

On scrutiny of the record, it appears that in this case police got secret information as to drug deals and thereafter, they rushed to the place of occurrence and apprehended  the  accused-appellant  and  another  with liquid  phensidyl  and  Ganja  and  thereafter,   police prepared seizure list in presence of the witnesses, police after completion of investigation having found prima- facie  case  and  accordingly,  submitted  charge  sheet against  the  convict-appellant  and  another.  It  further appears that at the trial the prosecution side examined in all 7 witnesses out of which, PW-1, Sub Inspector Md. Nazrul  Islam,  informant  of  the  case  stated  in  his deposition that on 01.09.2013 at night as per G.D. entry No. 32 dated 01.09.2013 while the informant and other police were on special duty under Paltan police station got a secret informant as to drugs and accordingly they rushed to Culvert road in front of Superstar Engineering Workshop and arrested the accused Md. Mominul Islam @  Himel  (appellant)  and  another  Nasrin  Akter  in presence of witnesses and on search, recovered 5 litres liquid phensidyl from accused Himel and also recovered 2  Kgs.  Ganja  from  another  accused Nasrin kept in a cement  bag.  Thereafter,  police  seized  phensidyl  and Ganja by preparing seizure list in presence of witnesses. This witness also stated that on a query, the accused appellant disclosed that they brought it from border area for selling. This witness proved the seizure list as “Ext.- 1”,  and  his  signature  thereon  as  “Ext.-1/1”,  F.I.R  as “Ext.-2”  and  his  signature  thereon  as  “Ext.-2/1”  and seized alamats as material “Ext.-I&II”. This witness also identified the accused on dock. This witness in his cross examination  stated  that-  “

”        PW-2,  A.S.I.  Sohel

Mahmood,  member  of  the  raiding  party,  PW-3,

Constable Md.  Lokman, also   member of the raiding party,  PW-4,  Constable  Ismail,  also member  of  the raiding  party,  PW-5,  Constable  Golam  Sarwar,  also member of the raiding party, all these police witnesses gave evidence in support of the prosecution and made similar statements like P W-1  and they proved that liquid phensidyl and Ganja recovered from the accused appellant and another. Defence cross examined PWs but failed to find out any contradiction in the evidence of P Ws. PW-6, Md. Hanif, seizure list witness stated in his deposition that- “

”      Defence  cross-examined  this  witness  but

could not able to discover anything as to the credibility of this witness on the matter to which he testifies. PW-7, S.I. Md. Nazrul Islam, Investigating officer, who during investigation visited the place of occurrence, prepared

sketch-map, examined the witnesses under section 161 of the Cr.p.c. and obtained chemical examination report and exhibited the same as “Ext.-5”. This witness stated in his evidence that on completion of the investigation he found  a  prima  facie  case  and  accordingly  submitted charge sheet against the accused. In this case it is found that defence examined in all 4 witnesses as DWs. On going through the evidence of DWs, it appears that the defense side took a plea that the accused appellant and another are innocent, who have been falsely implicated in  this  case  out  of  business, their  business  enemies engineered  this  false   case  in  order  to  victimize  the accused persons.

On a close analysis of the above quoted evidence, it appears all the prosecution witnesses including PW-6, seizure  list  witness  were  present  at  the  place  of occurrence i.e. Culvert road under Paltan police station and police witnesses apprehended the accused-appellant and  another  and  on  search  recovered  5  litres  liquid phensidyl from the accused-appellant and 2 Kg. Ganja from another accused and thereafter, the informant party prepared seizure list in presence of witnesses. It further appears  that  the  chemical  examiner  submitted  report (Ext.-5) stating that- “

”

PW-1, informant, PW-2, PW-3, PW-4 and PW-5 all  are  members  of  the  raiding  party  who  were  eye witnesses of the occurrence by their testimony proved the  prosecution  case  and  corroborated  each  other  in support  of  the  prosecution  case  and  the  informant deposed  that  the  accused-appellant  illegally  brought contraband liquid phensidyl into Bangladesh from border area and he could not show any document in support of contraband goods and the prosecution witnesses proved that the accused-appellant kept in his possession 5 litres liquid phensidyl and failed to show any legal documents in  respect  of  those  phensidyl  and  all  the  prosecution witnesses namely, PW-1-7 proved the prosecution case as to time, place and manner of occurrence and thus the prosecution  proved  the  guilt  of  the  accused  appellant beyond reasonable doubts.

Besides, the plea was taken by the defence that the police after being influenced by business rival group of the appellant arrested the accused-appellant from village Bhuigar, Fatulla, Narayangonj ( near his residence) and thereafter, falsely implicated in this case of Culvert road in  front  of  Superstar  Workshop  under  Paltan  police station but could not able to establish anything as to the credibility  of  the  PWs  on  the  matter  to  which  they testified.

It is found that the trial Court below in the facts and circumstances of the case and on due consideration of the entire evidence and materials on record found the accused-appellant  guilty  under  table  3(Ka)  of  section 19(1)  of  the  Drobbya  Niyontron  Ain,  1990  and sentenced him thereunder as stated above. The learned trial Judge appears to have considered all the material aspects of the case and justly came to the conclusion that the accused-appellant guilty of the offence under table 3(ka) of section 19(1) of the Madok Drabya Niyantran Ain, 1990.

However,  considering  the  law,  facts  and circumstances  of  the  case  as  discussed  above, particularly the fact that the convict appellant has already suffered  his  sentence  to  some  extend  and  faced  the agony of the protracted prosecution and also suffered the mental harassment for a long period of more than one decade, I think that, the ends of justice, will be met in the facts and circumstances of the case if the sentence of fine of  the  accused-appellant  is  maintained  and  the substantive sentence is reduced to the period of 1 (one) year in place of 3 years, as prayed for.

Learned Deputy Attorney General has, of course, been able to defend this case on merits but practically has nothing to say insofar as to reduction of sentence.

Hence for all the reasons above, the sentence of fine  of  the  accused-appellant  is  maintained  and  the substantive  sentence of  appellant  under  table  3(ka)  to section 19(1) of the Madok Drabya Niyantran Ain, 1990 is reduced to the period of 1 (one) year in place of 3 years.

The  appeal  is,  accordingly,  dismissed  with modification of sentence in the above manner. Since the appeal is dismissed, the convict-appellant is directed to surrender his bail bond within 3 (three) months from today to suffer his rest sentence in accordance with law, failing which the Trial Court shall take necessary steps against  the  convict-appellant,  Md.  Mominul  Islam  @ Himel to secure arrest.

Send down the lower Courts’ records at once.