Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 5937 of 2015

      Md. Samsuddin   

   .....Convict-appellant. -Versus-

                         The State.                         .....Respondent.

                         No one appears 

                                                  .....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 03.07.2024. Sheikh Abdul Awal, J:

This  criminal  appeal  at  the  instance  of  convict  appellant, Md. Samsuddin is directed against the impugned judgment  and  order  of  conviction  and  sentence  dated 02.08.2015 passed by the learned Additional Metropolitan Sessions Judge, Rajshahi in Metropolitan Sessions Case No. 700  of 2013 arising  out of MGR  case No. 210  of  2007 corresponding to Boyalia Police Station Case No. 16 dated 10.03.2007  convicting  the  accused-appellant  under  table 3(Ka) of section 19(1) of the Madok Drabya Neyontran Ain, 1990  and  sentencing  him  thereunder  to  suffer  rigorous imprisonment for a period of 3(three) years and to pay a fine

of Tk. 5,000/- (five thousand) in default to suffer rigorous imprisonment for 6 (six) months more.

The prosecution case, in brief, is that one, S.I. Md. Zahidur Rahman as informant on 10.03.2007 at about 21.30 hours  lodged  an  Ejahar  with Boyalia  Police  Station, Rajshahi  against the accused appellant stating, inter-alia, that on 10.03.2007 at about 19.45 as per secret information. the  informant  and  other  police  forces  rushed   to  S.A. Paribahan parcel service at Kumar Para under Boyalia Police Station and found a man sitting there with a carton and then the informant on suspicion arrested him and on interrogation he disclosed that he kept patali gur ( ) in the carton and the same will send to Dhaka and thereafter, informant party  out of suspicion opened that carton in presence of witnesses and found liquid phensedyls kept inside the patali gur ( ) by special method, which valued at Tk. 6,500/-(six  thousand  and  five  hundred).  Thereafter, informant party seized those phensedyls by preparing seizure list in presence of witnesses.

Upon the aforesaid First Information Report, Boyalia Police Station Case No. 16 dated 10.03.2007 under table 3(Ka) of section 19(1) of the Madok Drabya Neyontran Ain, 1990 was started against the accused appellant.

 Police  after  completion  of  usual  investigation submitted charge sheet  against the accused appellant, vide charge sheet No. 164 dated 30.04.2007 under table 3(Ka) of section 19(1) of the Madok Drabya Neyontran Ain, 1990 against the accused appellant.

Ultimately, the accused, Md. Samsuddin was put on trial  in  the  court  of  the  learned  Additional  Metropolitan Sessions Judge, Rajshahi to answer a charge under table 3(Ka) of section 19(1) of the Madok Drabya Neyontran Ain, 1990 to which the accused appellant pleaded not guilty and claimed to be tried stating that he has been falsely implicated in the case.

At the trial, the prosecution examined in all 5 (five) witnesses to prove its case while the defence examined none. The defence case, from the trend of cross-examination of the prosecution witnesses and examination of the accused under section 342 of the Code of Criminal Procedure appeared to be that the accused was innocent and he has been falsely implicated in the case

On  conclusion  of  trial,  the  learned  Additional Metropolitan  Sessions  Judge,  Rajshahi  by  the  impugned judgment  and  order  dated  02.08.2015  found  the  accused appellant guilty under table 3(Ka) of section 19(1) of the Madok  Drabya  Neyontran  Ain,  1990  and  sentenced  him thereunder to suffer rigorous imprisonment for a period of 3(three)  years  and  to  pay  a  fine  of  Tk.  5,000/-  (five thousand) in default to suffer rigorous imprisonment for 6 (six) months more.

Aggrieved by the aforesaid impugned judgment and order  of  conviction  and  sentence  dated  02.08.2015,  the accused-appellant preferred this criminal appeal.  

 No one appears for the convict appellant to press the appeal on repeated calls despite of fact that this matter has been appearing in the list for hearing with the name of the learned Advocate for the appellant days together.

In view of the fact that this petty old criminal Appeal arising  out  of  3(three)  years  sentence  has  been  dragging before this Court for more than 8 years, I am inclined to dispose of the same on merit.

On  scrutiny  of  the  record,  it  appears  that  the prosecution to prove its case examined in all 5 witnesses out of whom PW-1, S.I. Md. Zahidur Rahman as informant of the case stated in his deposition that on 10.03.2007 on the basis of a secret information the informant and other police forces went to S.A. Paribahan parcel service at Kumar Para under Boyalia Police Station and found a man sitting there with a carton when he and other police forces on suspicion arrested him and on interrogation, he disclosed that he kept patali gur ( ) in the carton and the same will send to Dhaka and thereafter, police team out of suspicion opened that carton in presence of witnesses and found 3 Litters of

liquid  phensedyl  kept  inside  the  pataligur  ( )  by

special method, which valued at Tk. 6,500/-(six thousand

and five hundred). Thereafter, he seized those phensedyls

by preparing seizure list in presence of witnesses. PW-2,

Mahbubur  Rahman,  Manager  of  the  S.A  Paribahan,

Rajshahi, stated in his deposition that” Avgvi mvg‡b KvU©yb wb‡

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cª ”  PW-3,  Monjur  Rahman,  Police  Inspector, simply stated in his deposition that he recorded the case and  proved  the  FIR  as  exhibit-3  and  his  signature thereon  as  exhibit  3/1.  PW-4,  Md.  Hafizur  Rahman, Constable, stated in his deposition that on 13.03.2007 he went to S.A. Paribahan with A.S.I. Akbar Ali and saw a carton and opened it and found liquid phensedyl kept in polythen bag insidepatali gur ( ) and then A.S.I. Akbar   seized  those  phensedyls  and  thereafter  S.I. Touhiduzzaman lodged the Ejahar. PW-5, Md. Nazrul Islam, employee of S.A. Paribahan, stated in his deposition that on 10.3.2007 at 7.45 p.m. police asked him to put his signature on the seizure list and accordingly put his signature on the seizure list and proved the same as exhibit-2/3. This witness also stated in his deposition that “

” This witness

stated in his cross-examination stated that “

”

On scrutiny of the above quoted evidence, it appears that  PW-1, S.I.  Md.  Zahidur  Rahman  stated  in  his deposition that he recovered liquid phensedyl kept in the carton  with  patali  gur   ( )  PW.2,  Mahbubur Rahman, manager  of  the  S.A.  Paribahan  stated  in  his deposition  that  at  the  time  of  booking  the carton  out  of suspicion he opened it and found liquid phensedyl kept with patali gur ( )and thereafter, he informed it to the local police station and then, police came and arrested the accused and seized those goods. PW-3, Monjur Rahman, Police Inspector, simply stated that he recorded the case. This witness stated nothing as to recovery of phensedyl from the possession of the accused appellant. PW-4, Md. Hafizur Rahman  ,constable,  stated  in  his  deposition  that  S.I. Touhiduzzaman lodged the FIR although it appears from the record that in this case S.I. Md. Zahidur Rahman, lodged the FIR. PW-5, Md. Nazrul Islam, employee of S.A. Paribahan, stated  nothing  as  to  recovery  of  phensedyls  from  the possession of the accused appellant. This witness stated that 32 bottles phensedyl and 3 litters liquid phensedyl found in a carton at S.A. Paribahan office. This witness stated in his cross-examination that there was an altercation in between manager and the accused and he also told the same to police. This witness also stated that he did not put his signature on the seized goods and he put his signature on seizure list as per direction of manager. This witness also stated in cross- examination that “ ” Moreover, in this case the prosecution having failed to examine a number of charge  sheeted  witnesses,  specially  some  of  the important including the investigating officer of the case without  any  reasonable  explanation,  which  calls  for  a presumption under section 114(g) of the Evidence Act to the effect that had they been examined in this case they would not have supported the prosecution case and the benefit of this defect will go to the accused appellants. Further, PW-1, PW-2, PW-3, and PW-4 all of them stated in their evidence that police found liquid phensedyl kept in

bags inside the patali gur (but PW-5  stated that 32 bottles phensedyl and 3 litters liquid phensedyl found in a carton at S.A. Paribahan office. This contradiction in the prosecution witnesses on material points also creates doubt as to recovery of seized phensedyls. PW-2 and PW-5 as staffs of the S.A. Paribahan Office, stated in their respective evidence that there was no name written over the carton which also creates doubt as to actual owner of that carton.

As discussed above, there are so many limps and gaps as well as doubts about the existence of the facts as well as circumstance. In that light, it creates a doubt in the case of the  prosecution  about  the  accused  being  involved  in  the alleged  crime.  It  is  trite  law  that  if any benefit of doubt arises, then the benefit should be given to accused. In that view of the matter, the trial Court ought to have acquitted the accused by giving the benefit of doubt. In  that  light,  the  judgment  of  the  trial  Court  is  to  be interfered with.

In the result, the appeal is allowed. The  impugned judgment  and  order  of  conviction  and  sentence  dated 02.08.2015 passed by the learned Additional Metropolitan Sessions Judge, Rajshahi in Metropolitan Sessions Case No. 700  of 2013 arising  out of MGR  case No. 210  of  2007 corresponding to Boyalia Police Station Case No. 16 dated 10.03.2007 against the accused appellant is set-aside  and accused appellant, Md. Samsuddin is acquitted of the charge levelled against him. 

Convict appellant, Md. Samsuddin is discharged from his bail bond.

Send down the lower Court records at once.