Fani Bhushan Debnath Vs. The State and another, 3 LNJ (2014) 602

Case No: Criminal Appeal No. 6986 of 2009

Judge: A. K. M. Asaduzzaman,

Court: High Court Division,,

Advocate: Mr. Khorshed Alam Khan,Mr. Yusuf Hossain Humayun,Mr. Md. Fazlul Huq ,,

Citation: 3 LNJ (2014) 602

Case Year: 2014

Appellant: Fani Bhushan Debnath

Respondent: The State and another

Subject: Corruption,Trap Case,

Delivery Date: 2011-08-10


HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Md. A. K. M. Asaduzzaman, J,
And
Md. Ashraful Kamal, J.

Judgment on
10.08.2011
  Fani Bhushan Debnath
... Appellant
-Versus-
The State and another
... Respondents
 
 
Anti Corruption Rules, 2007
Rule 16
There was no sanction to initiate a trap case which is a clear violation of main element as well as prerequisites scheme of law as formulated by the legislature under rule-16 of the Anti Corruption Commission Rules, 2007. Thus the case proceeded without sanction has vitiated the trial ab-initio. The impugned judgment awarded thereupon has got no legs to stand, which is liable to be set aside. . . .(14)
 
Prevention of Corruption Act (II of 1947)
Section 5(2)
Penal Code (XLV of 1860)
Section 161
Code of Criminal Procedure (V of 1898)
Section 103
It appears that only P.W. 4 and P.W. 1 have supported the prosecution case and none of the seizure list witnesses have supported the prosecution story, accordingly the alleged recovery of the money as said to be placed in the trap case was proved by any local independent witness, even not by the any member of the office wherefrom the alleged trap case was conducted. In the premises, we are inclined to accept the contention of the learned advocate for the petitioner to the effect that this is absolutely a case is no evidence and the prosecution has miserably failed to prove the alleged recovery of the money in a trap case. . . .(27)

Mr. Yousuf Hossain Humayun, Advocate
- - - For the appellant

Mr. Md. Khorshed Alam Khan with
Mr. Md. Fazlul Huq Advocate,
- - - For the respondent No. 2

Criminal Appeal No. 6986 of 2009
 
JUDGMENT
A.K.M. Asaduzzaman, J.
 
This appeal was preferred against the judgment and order dated 31.08.2009 passed by the learned Divisional Special Judge, Barishal in Special Case No. 15 of 2009 convicting and sentencing the appellant to suffer imprisonment for a term of 7 (seven) years under section 5(2) of Act II, 1947 and to suffer imprisonment for a further term of 3 (three) years under section 161 of the Penal Code.

Prosecution case, in short is that on receiving the information from Salauddin Mintu and Deputy Assistant Director Anti-Corruption Commission M. H. Rahmant Ullah laid a trap case on 18.09.2008 and recovered Tk. 15,000/- from the pocket of Fani Bushan Debnath paid by Salauddin Mintu. Accordingly after making the seizure list on the inventory recovered money, Kotwali Model P.S. Case No. 47 dated 18.09.2008 was started against the appellant.
The case was duly been investigated by the Assistant Director of the Anti Corruption Commission, who submitted a charge against the appellant under section 5(2) of Act II of 1947 read with section 161 of the Penal Code and the case was thereafter transmitted to the court of Divisional Special Judge, Barishal for trial and registered as Special Case No. 15 of 2009 wherein a charge was so framed under section 5(2) of the Act-II, of 1947 read with section 161 of the Penal Code which was read over to the accused person wherein he pleaded not guilty and claimed to be tried.

During trial the prosecution examined 11 witnesses and defence examined none.

Thereafter the appellant was examined under section 342 of the Code of Criminal Procedure, wherein he again claimed to be innocent.

On considering the evidences and hearing the parties the learned Divisional Special Judge, Barishal convicted the appellant and sentenced him as stated above.

Being aggrieved there against the appellant preferred the instant appeal.

Mr. Yousuf Hossian Humayun, the learned Advocate appearing for the appellant at the very out set submits that the trial was held on corum non judice because the instant trap case was initiated without prior approval of the authority of the Anti Corruption Commission, in view of the fact the trial was vitiated and the appellant is entitled to get benefit of doubt and an order of acquittal, He further submits that this is absolutely a case of no evidence since excepting the P.W. 4, there is no witness to corroborate the alleged recovery of money in order to prove the trap case, in view of the fact since the prosecution failed to prove the charge leveled against the appellant the impugned judgment is liable to set aside.

Mr. Md. Khorshed Alam Khan along with Mr. A.K.M. Fazlul Huq, the learned advocate appearing for the respondent No. 2 Anti Corruption Commission on drawing our attention to the sanction letter as exhibited in court as Ext. 2 submits that there was a sanction for institution of the trap case. Even then if there is no proper sanction before the initiation of the proceeding the trial can not be said to be vitiated since the law does not speak like that. In the premises the trial was hold properly and since the prosecution proved the charge leveled against the appellant by adducing sufficient evidence the impugned conviction as awarded after proper assessment of the evidence on record, the trial court committed no illegality, he finally prays for dismissal of the appeal.

Heard the learned advocate of both the sides and perused the L.C. Records and the impugned judgment.

According to the FIR, the case of the prosecution side is that one Salauddin Mintu (P.W. 10) on 19.08.2008 filed an application to the Deputy Assistant Director Anti Corruption Commission, Barishal for making an arrangement to apprehend the accused Engineer Fani Bhushan Debnath, while taking bribe for clearing a Bill due to him. He further made an allegation in the said application that by this time he has paid Tk. 40,000/- and further agreed to pay the demand of Tk. 15, 000/- to the appellant and he thus wants to initiate a trap case against him, in view of the said information a trap case was initiated by the Deputy Assistant Director, Anti Corruption Commission M. H. Rahmatullah and arrested the accused petitioner with Tk. 15,000/- as alleged to be recovered from him on 18.09.2008. While deposing in court as P.W. 1 the said M. H. Rahmatullah asserted that before initiating the impugned proceeding he obtained sanction later from the authority and he produced a sanction latter before the court which was exhibited in court as Ext. 2. It has been argued by the learned advocate for the appellant that the trap case was initiated without any sanction. Perusing the record we found that Ext. 2 is a sanction latter produced as alleged to be obtained prior to initiation of the impugned trap case. Now on perusal of the sanction latter (Ext. 2) it appears that the said sanction was given on an information, which was as follows:
ঠিকাদারী কাজের ১৭ লক্ষ টাকার বিল পরিশোধের মোট ৬১ হাজার টাকা উৎকোচ দাবীর প্রথম পর্যায়ে ৪৫ হাজার টাকা পরিশোধে উৎকোচ গ্রহনকালে আসামী ফনি ভূষন দেবনাথ আঞ্চলিক রক্ষণাবেক্ষণ প্রকৌশলী, আঞ্চলিক খাদ্য নিয়ন্ত্রক কার্য্যালয়, বরিশালকে হাতে নাতে ধরিয়ে দেওয়ার জন্য অভিযোগকারী লিখিতভাবে এজাহারকারীকে অভিহিত করেন|

Thus the sanction was given to a case of a fact as disclosed above is a different fact, not the fact of the instant case, trap case was initiated only on Tk. 15,000/- previous to that the informant paid Tk. 40,000/- thus perusal of the said sanction letter Ext. 2 we found that sanction was shown to have been accorded was not in conformity with the fact of the case as well as not in this case, in the premises the case was initiated absolutely without any prior sanction. Now it has been submitted by the learned advocate on behalf of the Anti-Corruption Commission that although it is presumed that no sanction was accorded but the trial could not be said to be vitiated since there is no provision like that in the Anti-Corruption Commission rules. In order to appreciate the said submission, now we like see the provision of rules 16 of the Anti Corruption Commission Rules, 2007 which runs as follows:

১৬। ফাঁদ মামলা (Trap case)।-(১) দূর্নীতি প্রতিরোধের নিমিত্তে আইনের তফসিলভুক্ত অপরাধের জড়িত কোন ব্যক্তি বা ব্যক্তিবর্গকে হাতে নাতে ধৃত করিবার উদ্দেশ্যে তদমেত্মর দায়িত্বপ্রাপ্ত কমিশনার এর অনুমোদনক্রমে তৎকর্তৃক ক্ষমতাপ্রাপ্ত কর্মকর্তা ফাঁদ মামলা (Trap case) প্রস্ত্তত করিতে বা পরিচালনা করিতে পারিবেন।
(২) ফাঁদ মামলা তদমত্ম কার্যক্রম কেবল তদমেত্ম ও দায়িত্ব প্রাপ্ত কমিশনার বা তদকর্তৃক ক্ষমতাপ্রাপ্ত কমিশনের পরিচালক পদমর্যদার নিমেণ নহেন এমন একজন কর্মকর্তা কর্তৃক সম্পন্ন করিতে হইবে।

On perusal of the aforesaid rules it appears that this is the intention of the legislature that before initiating a trap case a prior sanction from the officer authorized by the Anti Corruption Commission is must. The prior sanction to initiate a trap case is a prerequisites scheme which has been formulated with a view to preventing corruption for the purpose to catch hold red handed any person or persons connected with offences specified in the schedule of the Act, provides safety measures to the honest and innocent government official in the discharge of duty from harassment and victimization in the hands of unscrupulous elements and this being beneficial must be strictly observed and adhered to.

In the instant Case we have observed above that there was no sanction to initiate a trap case, Which is a clear violation of main element as well as prerequisites scheme of law as formulated by the legislature under rule-16 of the Anti Corruption Commission Rules 2007. Thus the case proceeded without sanction has vitiated the trial abinitio. The impugned judgment awarded thereupon has got no legs to stand, which is liable to be set aside.

Secondly it has been argued that this is absolutely a case of no evidence. To appreciate this argument now we like to see the evidences adduced by the prosecution side. Out of 11 P.W.s, P.W. 11 was the court witness and P.W. 1 M. H. Rahmat Ullah, who lodged the FIR as well as investigation officer of the case, who submitted the charge sheet in this case deposed in court as of FIR.

P.W. 2 Md. Delwar Hossain Molla office Assistant Cum Typist of the office of the Regional Controller of Food, Barishal as employee of the office and a seizure list witness proved his signature in the seizure list admitted in his cross-examined that আমি আসামীকে ঘুষ দিতে দেখিনাই|

P.W. 3. Tofazzal Hossain another seizure list witness, Who is the Assistant Cum Typist of the said office deposed as of P.W. 2 and in his cross-examination admitted that: আসামীকে কেহ ঘুষের টাকা দিয়েছে তা আমি দেখি নাই ও আসামীর কাছ থেকে জব্দকৃত টাকা উদ্ধার হতে আমি দেখি নাই- এসব সত্য|

P.W. 4 Abdullah Al Mamun A.S.I of police, member of the raiding party, who deposed as of P.W. 1.

P.W. 5 Constable Khalilur Rahman, another witness of the seizure list has deposed that in his presence some documents were seized from the office is a formal witness who has got no personal knowledge about the money recovered in the trap case.

P.W. 6 Samsul Huq, was declared hostile by the prosecution side since he did not support the prosecution case.

P.W. 7 Assistant Inspector of Anti Corruption Commission state in his deposition that in this presence inventory list was prepared on the money which was alleged to be placed a trap case so he has no personal knowledge of recovery of money in a trap case.

P.W. 8A. Mannan, R.M.O. of the office, a seizure list witness in his presence some documents was recovered from the office and has got to personal knowledge about the alleged recovery of money in a trap case.

P.W. 9 Advocate Zahidul Kabir Zahid, Councilor Ward No. 28, Barishal City Corporation, he proved his signature in the inventory list, who is not a witness of the trap case of recovery of the said money from the accused appellant.

P.W. 10 Md. Salauddin Mintu is the informant of the case on which the case was initiated.

P.W. 11 Md. A. Khaleque deposed in court as court witnesses, who is the father of the informant Md. Salauddin Mintu (P.W. 10) is hearsay witness and has got no personal knowledge of recovery of money of the said trap case.
These are the evidences adduced by the prosecution side.

Considering the aforesaid witnesses we found that only P.W. 4 and P.W. 1 have supported the prosecution case and none of the seizure list witnesses have supported the prosecution story, accordingly the alleged recovery of the money as said to be placed in the trap case was proved by any local independent witness, even not by the any member of the office wherefrom the alleged trap case was conducted, In the premises, we are inclined to accept the contention of the learned advocate for the petitioner to the effect that this is absolutely a case is no evidence and the prosecution has miserably failed to prove the alleged recovery of the money in a trap case.

In all views of the matter, we found that the appellant was convicted on mere surmises and conjecture and he is entitled to get benefit of doubt at least and the impugned judgment is liable to be set aside. We thus found merit in this appeal.

In the result the appeal is allowed and the judgment and order dated 31.08.2009 passed by the learned Divisional Special Judge, Barishal in Special Case No. 15 of 2009 is hereby set aside and the appellant is found not guilty of the charge leveled against him and he is hereby acquitted and he is discharged from his bail bond.

Send down the L.C. Records along with the judgment at once.

Ed.