Kader Vs. The State 2016 (2) LNJ 390

Case No: Criminal Appeal No. 3065 of 2003

Judge: Md. Nizamul Huq,

Court: High Court Division,,

Advocate: Mr. Kamal Uddin Ahmed,,

Citation: 2016 (2) LNJ 390

Case Year: 2016

Appellant: Kader

Respondent: The State

Subject: Criminal Law,

Delivery Date: 2015-11-26

Kader Vs. The State 2016 (2) LNJ 390
HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
Md. Nizamul Huq, J
 
Judgment on
26.11.2015
Kader
... Appellant
-Versus-
The State
. . . Respondent


Special Powers Act (XIV of 1974)

Section 25(B)
To prove a case of smuggling under Section 25 (B)(1) of the Special Powers Act the place of occurrence must be a border area. It is not safe to convict this accused appellant on the basis of the submission of the learned Deputy Attorney General that Bhairab has got linkage with the border areas. To prove a case of smuggling under Section 25(B)(1) of the Special Powers Act the place of occurrence must be a border area.           . . . (9)
Criminal Appeal No. 3065 of 2003

 


No one appears
… For the appellant
Mr. Kamal Uddin Ahmed, D.A.G.
. . . For the respondent

JUDGMENT

 

Md. Nizamul Huq, J:
         This appeal at the instance of the appellant has been filed against the judgment and order dated 27.06.2003 passed by the Special Tribunal No. 6, Kishorgonj, in Special Tribunal Case No. 14 of 1999, convicting the appellant under Section 25B of the Special Powers Act and sentencing him to suffer rigorous imprisonment for 04 (four) years and to pay a fine of taka 1,500/- (one thousand and five hundred) in default to suffer rigorous imprisonment for 04 (four) months more.
  1. The prosecution case in short is this that one Sree Bakul Bhushan Das of Bhairab G.R.P Thana Kishorgonj, lodged an eajahar on 19.06.1998 at 16.25 hours with the Bhairab Police Station on the allegation that on 19.06.1998 at about 16.45 hours the informant and his party while on patrol duty around the Bhairab Railway Platform found accused Kader and his movement was doubtful and as such he was apprehended with 28 bottle of Phensidyl wrapped in black clothes. He was caught red handed and there was another man with him who managed to escape. This case gave rise to Bhairab G.R.P case No. 10 dated 19.06.1998 and Police after investigation submitted charge sheet on 20.06.1998 against Kader Miah under Section 25B of the Special Powers Act.
  2. This case was then transferred to the Senior Special Tribunal and from there to the Special Tribunal No. 6, Kishoregonj and was numbered as Special Tribunal Case no. 14 of 1999. Charge under Section 25B of Special Powers Act was framed against the accused appellant. The prosecution examined 04 (four) witnesses in this case while the defecne examine none. After the examination of the witnesses was over, the accused could not be examined under Section 342 of the Code of Criminal Procedure because he was absconding at that time. Then the learned Judge vide judgment and order dated 27.06.2003 found the accused appellant guilty under Section 25B of the Special Powers Act and sentenced him as mentioned herein above. Against the said judgment and order of conviction and sentence, the appellant filed this appeal. After some time the appellant was enlarged on bail by this court and he is still continuing on that bail.
  3. No one appeared for the appellant in this appeal while it was taken up for hearing. The state has been represented by the learned Deputy Attorney General.  
  4. I have gone through the evidence on record, the annexures, the memorandum of appeal and other documents available in the records. It appears that the first information report was lodged under Section 156(8) of the Custom Act read with Section 25B of the Special Powers Act and the allegation was that the Indian Phensidyl have been brought illegally. It has been stated in the FIR that the accused appellant Kader along with another person were loitering in the Bhairab Railstation and they were challenged and at that time the said person ran away and the accused appellant was arrested and on querry he said that the name of the person who fled away is Shaheen and he had one bag made of black cloths which contains 28 bottles of Phensidyl Syrup and that was brought out and he admitted that this 02 (two) persons illegally brought them from India. He also admitted that they are smugglers and members of smugglers group. On this basis the case was lodged under section 156(8) of the Custom Act and section 25B of the Narcotic Control Act. Then the Police investigated the case and submitted charge sheet against accused Kader and in the charge sheet it was stated that the accused was caught with 28 bottles of Phensidyl which was kept in a bag of cloths and kept with the waist of him. The charge sheet was submitted against the accused appellant only and Shaheen was not sent up in the charge sheet but later on, Shaheen was also included by the Tribunal and charge was framed against both of them stating that the accused appellant was caught and on querry he brought out 20 bottles of Indian Phensidyl kept in a black bag with body of the accused appellant and he admitted that he and Shaheen illegally brought the same Phensidyl Syrup from India by smuggling and they have committed offence under section 156(8) of the Custom Act read with Section 25(B) of the Special Powers Act and the accused appellant claimed innocence to the charge. It is available in the judgment that before framing of charge the accused Shaheen was released from this case and wrongly the charge was framed against him showing him absconding as such in the judgment it has been considered that the said Shaheen was not an accused in this case.
  5. It appears that 04 (four) prosecution witnesses were examined in this case. Among them PW.1 Habilder 229 Sree Bakul Bhushan Das stated inter-alia that they recovered 28 bottles of Phensidyl from in a black bag surrounded in the body of the accused Kader. As Kader was not present in the court this witnesses was not cross-examined. Then PW.2 Khalilur Rahman stated inter-alia that the signature of him as available in the seizure list is his signature Phensidyl was recovered from the accused person and it was seized after preparing the seizure list and they took his signature there. This witnesses was also not cross-examined because of the absence of the accused appellant. Then PW.3 Abu Jamal a Police personal stated inter-alia that accused Kader was arrested with 28 bottles of Phensidyl. Upon perusal of the order sheet, I find that on that date also the accused was absent but in the paper book we find that he was cross-examined. Then PW. 4 Jahirul Hoque S.I, the investigating officer stated inter-alia that the accused appellant was arrested with 28 bottles of Phensidyl and that Phensidyl was recovered from in a black bag and surrounded by cloths fixed with his body and then the case was lodged. Then he investigated the case and submitted charge sheet under section 156(8) of the Customs Act and section 25(b) of the Special Powers Act. He visited the place of occurrence, prepared Sketch map with index, recorded the statements of witnesses under Section 161 of the code of Criminal Procedure and then submitted the charge sheet under Section 25B of the Special Powers Act. This witness was also not cross-examined as the accused appellant was absent. These are all the evidence available in this case.
  6. It appeared that the charge in this case has been framed under section 156(8) of the Custom Act read with Section 25B of the Special Powers Act. Although it is well settled proposition of law that the offence of Section 156(8) of the Custom Act has been brought into the Special Powers Act as an offence under Section 25B, and it is also well settled that in a case of smuggling, charge under Section 25B of the Special Powers Act is to be framed and it is triable by the Special Tribunal and no charge under Section 156(8) of the Custom Act can be framed because that is a case triable by the Magistrate. The very charge shows that the learned Judge did not apply his mind properly in framing the charge against the accused appellant. More over charge has been framed under section 25B of the Special Powers Act.
  7. Upon perusal of this section, we get two proposition of two offences, if goods are taken out of Bangladesh or brought into Bangladesh by any body by committing smuggling then he is liable to be punished which is a bigger punishment and if one is found to possess some goods which are contraband item in Bangladesh and it is kept for the purpose of sale then he is liable to be convicted with a lesser offence and explanation shows that if some goods are recovered from any bodies possession, the liability is shifted upon the accused to prove that the goods were not kept for the purpose of sale. Fact remains that there must be some evidence that it was for the purpose of sale. Now in this case upon perusal of the charge we get that at one time it has been stated in the charge that the accused has brought the goods from India by smuggling and if this is accepted then the case under section 25B(1) stands but immediately after that it has been stated in the charge that they have brought the goods into Bangladesh as has been stated that “অবৈধভাবে ভারতীয় ফেনসিডিল এনে বাংলাদেশে বিক্রয় করিয়া ১৫৬(৮) শুল্ক আইন ও ১৯৭৪ সনের বিশেষ ক্ষমতা আইনের ২৫(বি) ধারায় অপরাধ করিয়াছেন।চ that means the goods were brought from India and it has been already sold out and under Section 25B, charge has been framed. This charge is absolutely meaning less because in this case there is no allegation that the accused has sold the goods in question. As such this framing of charge stating that “বাংলাদেশে বিক্রয় করিয়া ২৫(বি) ধারায় অপরাধ করিয়াছেন।চ does not fit in the facts and circumstance of this case. The learned Judge might have been confused by section 25B with the facts of this case. He could not decide in which part the charge should be framed and as such he kept section 25B as the charge but that means no specific charge was framed against the accused appellant. If we consider FIR we see that it has been alleged that the accused admitted that he along with the other accused person had brought the Phensidyl in question from India that means if that the statement of the FIR is taken to be true then charge under Section 25(B)(1) stands and if it is taken that they have got the goods in question is recovered from his possession and they were brought for the purpose of sale then charge under section 25B(2) stands. Now we are to see what is the evidence available in this case and what sub-section is applicable or weather at all applicable.
  8. PW.1 in his evidence stated that they recovered 28 bottles of Phensidyl from Kader and no where it has been stated that Kader has admitted that it has been brought from India nor they were kept there for the purpose of sale although the onus shifted upon the defence to prove that this was not in their possession but in this case we are to see that the accused were absent in the court and no cross-examination was there as such there was no scope for the accused to prove their part of disproving the case that this was in their possession for the purpose of sale. For the absence of the accused, the prosecution can not be liable. It is clear that the accused has failed to bring his case in the records that this was not kept for the purpose of sale but even then the prosecution can not be relieved from their duty as law says that the possession must be for the purpose of sale, if any body wants to be convicted under section 25(B)2 of the Act. But not a single witnesses has stated this in their evidence. Even the investigating officer also did not state like this, without any evidence that the goods were in the possession of the accused appellant for the purpose of sale, I am of the view that it is not safe to convict the appellant for the charge of Section 25(B)2 of the Special Powers Act. Now the place of occurrence is at Bhairab which is not a border area. If we take it granted that the recovery of the goods have been proved by the prosecution that it was recovered from the possession of the accused appellant, then Section 25(B)(1) may be attracted but to convict a person under Section 25(B)(1) there must be some evidence that the place of occurrence is the border area or the place of occurrence must have link with the border area. Admittedly Bhairab is not a place of border area and the learned Deputy Attorney General strongly argued that it has got a link with the border area because Bhairab Trainstation has a direct linkage with Comilla Railstation or Akhaura Railstation and those are border areas and it is very possible for any accused person to bring those goods from India and by availing the train they can reach Bhairab and as such according to the learned Deputy Attorney General there is a link of the place occurrence that is Bhairab with the border area. This argument of the learned Deputy Attorney General has got substance but even then I am of the view that their mist be some evidence in this respect. No witnesses stated that the goods were brought from Comilla or Akhaura or by train to Bhairab. Not a single statement is available in any evidence. Without any evidence in this respect and even without any charge in this respect and without any statement in the FIR without mentioning this in the charge and without any evidence in the record of this case, I am of the view that it is not safe to convict this accused appellant on the basis of the submission of the learned Deputy Attorney General that Bhairab has got linkage with the border areas. Only one thing is clear that the goods were recovered from the possession of the accused appellant and the prosecution has been able to prove it. Now I have also given my anxious thought over the issue. I am also of the view that this part of the case has been established that the goods were recovered from the possession of the accused at Bhairab. Now I have already found that the charge was framed wrongly, the FIR does not state clearly, the charge also does not state and the Judge also might have been confused as to which sub-section of Section 25(B), the accused should be charged with. The learned Deputy Attorney General submitted that for all purpose this is a fit case for remand to the trial court to enable the prosecution to amend the charge and then proceed with this case. I have also given my anxious thought over this matter. This is a case of 1999 and the conviction was passed in 2003 today is 2015 and the accused was convicted for 04 (four) years rigorous imprisonment. Whether it will be proper to send the case for remand after along 12 years is a question to be seriously thought about. By this time many water has fallen from the river Padma. I am of the view that after 12 years it will not be proper to send the case for remand for fresh trial giving chance to the prosecution to amend their charge that means to fill up the lacuna of the prosecution. Considering this aspect, I can not agree with the learned Deputy Attorney General in this respect. In support of the fact that to prove a case of smuggling under  Section 25 (B) 1 of the Special Powers Act the place of occurrence must be a border area I can refer this decision in the case of Gopal Chandra Chakraborty -Vs- The State reported in 15 BLD page 224 wherein it has been held that;-
“when the accused  is  not  apprehended while smuggling goods from India to Bangladesh and he is not apprehended with the smuggled goods in the border areas, he cannot be held liable for smuggling punishable under Section 25B(1) of Special Powers Act.”
  1. After going through that decision I have found that in that case the court has changed the conviction and sentence from 25(B)(1) of the Special Powers Act to 25 (B)(2) but in the present case in question I do not get any support from the evidence on record to convict this accused appellant under section 25(B)(2) also. As such I am of the view that the prosecution has failed to prove the case against this accused appellant and he is entitled to get relief in this appeal.
  2. The appeal is thus allowed. The Judgment and order of conviction and sentence dated 27.06.2003 passed against the appellant in Special Tribunal Case No. 14 of 1999 of the Court of Special Tribunal No. 6 Kishoregonj is hereby set aside. He is released from the bail bond.
         Send down the lower case records to the trial court immediately.
Ed.