Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 2137 of 2015   Jasim.    

    .....Convict-appellant. -Versus-

                       The State.                         .....Respondent.

    Mr. Suruzzaman, 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.

                                                    Judgment on 30.07.2024.        Sheikh Abdul Awal, J:

This  criminal  appeal  at  the  instance  of  convict appellant, Jasim is directed against the impugned judgment and  order  of  conviction  and  sentence  dated  22.03.2015 passed  by  the  learned  Judge,  Special  Tribunal  No.  5, Cumilla, in Special Tribunal Case No. 311 of 2009 arising out of G.R. No. 142 of 2008 corresponding to Sadar Dakhin Police Station case No. 39 dated 14.08.2008 convicting the accused-appellant and 3 others under section 25B(2) of the Special Powers Act, 1974 and sentencing them thereunder to  suffer  rigorous  imprisonment  for  a  period  of  05(five) years and to pay a fine of Tk. 2,000/= (two thousand) in

default to suffer simple imprisonment for 02(two) months more.

The  prosecution  case,  in  short,  is  that  one,  Tapon Bagchi, A.S.I. as informant on 14.08.2008 at 14.45 hours lodged an Ejahar with Sadar South Police Station, Cumilla against the accused appellant, Jashim and 4 others stating, inter-alia,  that  on  14.08.2008  at  04.15  hours   while  the informant with other police forces were on duty as per G.D. No. 994 dated 20.04.2011 against drug dealing got a secret information  that  5/6  drug  pedlars  are  carrying  and possessing phensedyls near about Jashim Uddin’s home at village Noa, under Sadar South Police Station, Cumilla and then  the  informant  party  rushed  there  while  sensing  the presence of police accused persons tried to escape but the informant party somehow managed to arrest accused No. 1, Ershad and 2. Jamal Hossen and other 3 accused persons managed to escape from the place of occurrence leaving 6 cartons   and  thereafter,  police  recovered  150  bottles  of phensedyl from accused Ershad and Jamal Hossen kept in 3 cartons and 300 bottles of phensedyl from other leaving 6 cartons, total 450 bottles phensedyl, which valued at Tk. 25,000/-(twenty five thousand) in presence of witnesses. On interrogation  accused  persons  disclosed  the  name  of  the absconding  accused  are  being Md.  Selim  @  Dakter,  4, Saiful  and  5.  Jashim.  Police  seized  those  phensedyls  by preparing seizure list in presence of witness.

Upon  the  aforesaid  First  Information  Report,  Sadar Dakhin Police Station case No. 39 dated 14.08.2008 under section 25B of the Special Powers Act, 1974 was started against the accused appellant and 4 others.

 Police  after  completion  of  usual  investigation submitted charge sheet against the accused appellant and 4 others, vide charge sheet No. 558 dated 26.11.2008 under   section 25B of the Special Powers Act, 1974.

Ultimately, the accused appellant and others were put on trial before the learned Judge, Special Tribunal No. 5, Cumilla to answer a charge under section 25B( 2) of the Special Powers Act, 1974 to which the accused appellant and others pleaded not guilty and claimed to be tried stating that they have been falsely implicated in the case.

At the trial, the prosecution examined in all 06 (six) witnesses  to  prove  its  case,  while  the  defence  examined none.

On  conclusion  of  trial,  the  learned  Judge,  Special Tribunal  No.  5,  Cumilla  by  the  impugned  judgment  and order  dated  22.03.2015  found  the  accused  appellant  and others guilty under section 25B(2) of the Special Powers Act, 1974 and sentenced them thereunder to suffer rigorous imprisonment for a period of 05(five) years and to pay a fine of Tk. 2,000/= (two thousand) in default to suffer simple imprisonment for 02(two) months more each.

Aggrieved by the aforesaid impugned judgment and order  of  conviction  and  sentence  dated  22.03.2015,  the accused-appellant preferred this criminal appeal.  

 Mr. Suruzzaman, the learned Advocate appearing for the convict appellant in the course of argument takes me through the FIR, deposition of witnesses and other materials on record and then submits that accused appellant is out and out innocent, who has been made scapegoat the case, in fact, no incriminating phensedyls was recovered from the possession and control of the accused appellant. The learned Advocate next submits, it is on record that accused appellant was not arrested from the place of occurrence, who on knowing  about  the  case  voluntarily  surrendered  on 27.08.2009 and obtained bail and in this case prosecution examined in all 6 witnesses out of them no one testified any single word against the accused appellant, PW-4 and PW-5 were declared hostile by the prosecution and there has been no  chemical  examination  of  the  phensedyl   in  question which  is  serious  lacuna  on  the  part  of  the  prosecution although the learned tribunal judge without considering all these  vital  aspects  of  the  case  mechanically  found  the accused appellant guilty of the offence under section 25B(2) of the Special Powers Act, 1974, which occasioned a failure of justice.

Ms. Shahida Khatoon, the learned Deputy  Attorney General, on the other hand, supports the impugned judgment which was according to her just, correct and proper.

On  scrutiny  of  the  record,  it  appears  that  police arrested  the  accused  Ershad  and  Jamal  Hossen  on 14.08.2008 and seized total 9 cartons containing 450 bottles of phensedyl and it is on record that accused appellant was not  apprehended  from  the  place  of  occurrence,   who voluntarily surrendered in this case on 27.08.2009. In this case the prosecution to prove the charge examined as many as 6 witnesses out of whom seizure list witnesses namely PW-4  and  PW-5  were  declared  hostile  and  rest  police witnesses namely, PW-1 , PW-3 and PW-6 stated nothing as to recovery of phensedyl from the exclusive possession the accused appellant. PW-2, Tapon Bagchi, A.S.I. as informant of the case narrated the FIR case. Besides, in this case there has been no chemical examination of the phensedyls  in question  which  is  serious  lacuna  on  the  part  of  the prosecution. Therefore, it is difficult to believe that seized articles are actually contraband goods.

On a close perusal of the record, it appears that none of the witnesses stated any single word that the  accused persons  brought  those  seized  phensedyl   by  way  of smuggling  from  India  for the purpose  of  sale.  It  is  thus difficult  to  believe  that  alleged  seized  phensedyls   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 phensedyl 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  phensedyl   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 decisions 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. 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 under section  25B(2)  of  the  Special  Powers  Act,  1974  beyond reasonable doubt. Consequently the appeal succeeds.

In the result, the appeal is allowed and the impugned judgment  and  order  of  conviction  and  sentence  dated 22.03.2015 passed by the learned Judge, Special Tribunal No. 5, Cumilla, in Special Tribunal Case No. 311 of 2009 arising out of G.R. No. 142 of 2008 corresponding to Sadar Dakhin  Police  Station  case  No.  39  dated  14.08.2008 convicting the accused-appellant under section 25B (2) of the Special Powers Act, 1974 is set aside and he is acquitted of the charge levelled against him.

Accused appellant, Jasim is discharged from his bail bonds.

Send down the lower Court records at once.