Md. Abu Hanif Patwary Vs. The State, 3 LNJ (2014) 5

Case No: Criminal Appeal No. 3346 of 2009

Judge: Md. Fazlur Rahman,

Court: High Court Division,,

Advocate: Bishmadeb Chakraborty,Mr. Nizamul Hoque Niam,Mr. A.K.M. Faiz,Ms. Shahana Perven,Mr. Faridul Alam Talukder,,

Citation: 3 LNJ (2014) 5

Case Year: 2014

Appellant: Md. Abu Hanif Patwary

Respondent: The State

Subject: Corruption,

Delivery Date: 2012-05-24


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Md. Fazlur Rahman, J.
And
Bhabani Prasad Singha, J.
 
Judgment on
24th May, 2012.
  Md. Abu Hanif Patwary
... Appellant.
Vs.
The State
.. Respondent
 
Constitution of Bangladesh, 1972
Article 35(1)
Anti-Corruption Commission Act (V of 2004)
Sections 26(1) (2) and 27(1)
Criminal Law Amendment Act ( XL of 1958)
Section 6 (1A)
The prosecution has failed to prove the offence under sections 26(2) and 27(1) of the Act of 2004 and hence the conviction is not sustainable. The alleged offence took place before 09.05.2004 but the appellant was convicted under sections 26(2) and 27(1) of the Act of 2004 which was not in force at the relevant time and it is hit by Article 35 (1) of the Constitution. No sanction was obtained before proceeding the appellant under section 6 (1A) of the Criminal Law Amendment Act, 1958. The conviction and sentence as imposed amounts to moral conviction, not sustainable in law.

No prosecution witnesses provided any statement proving the contents of the notice under section 26(1) of the said Act of 2004 and as such no case under section 26(2) of the said Act has been proved lawfully. For convicting a person under section 27(2) of the said Act the prosecution has to prove that the alleged assets were acquired beyond known sources of income of the accused and also that the alleged assets were acquired by illegal means. A part from that it is found that the case has been initiated for alleged commission of the offence for indefinite and unspecified period and appellant was convicted for alleged acquisition of the property acquired before 9th May, 2004 but the appellant has been convicted for alleged offence under section 26(2) and 27(1) of the said Act, 2004 which was not in force at the relevant time and it is hit by Article 35(1) of the Constitution and no appropriate sanction was obtained before proceeding him under section 6(1A) of the Criminal Law Amendment Act, 1958. We find that the Court convicted the appellant under section 27(1) of the said Act, 2004 without any legal evidence since the prosecution did not adduce any evidence showing that the money invested in acquisition of the property in question was at all earned by the appellant by any illegal means. . . .(10)
 
Mr. A.K.M. Faiz, with
Ms. Shahana Perven
---For the Convict-Appellant.

Mr. Bhishmadev Chakravorty, D.A.G.
With
Mr. Nizamul Hoque Nizam, A.A.G.
---For the State –Respondent.

Mr. Faridul Alam Talukder
---For Anti –Corruption Commission.

Criminal Appeal No. 3346 of 2009
 
JUDGMENT
Md. Fazlur Rahaman, J:
 
The instant appeal is directed against the Judgment and order of conviction and sentence dated 26.10.2008 passed by the Special Judge, Court No. 10, Dhaka in Special Case No. 13 of 2008 arising out of Metro Special Case No. 74 of 2008, Ramna Police Station Case No. 79 dated 24.12.2007 corresp-onding to A.G.R. 174 of 2007 convicting the appellant under section 26(2) of The Anti Corruption Commission Act, 2004 and senten-cing him to suffer rigorous imprisonment for 1(one) year and further convicting him under section 27(1) of the said Act and sentencing him to suffer rigorous imprisonment for 3 (three) year and to pay fine of Taka 50,000/= in default to suffer rigorous imprisonment for 6(six) months and confiscating his wealth worth of Tk. 3,60,000/- and Tk 25,400/- to the state.

The prosecution case, in brief, is that the wife of the convict-appellant received Notice being Memo. No. Dudak/ 222-2007/(Anu-2) 7143 dated 21.08.2007 issued by the Deputy Director, Anti-Corruption Commission  (hereinafter referred to as ACC), Purporting under Section 26(1) of the Anti Corruption Commission Act, 2004 to submit a statement of all immovable and movable properties owned and possessed in his name and in the name of his wife and other members of his family or any other name in his favour and the source of acquiring earning such property to the Secretary of ACC. It was alleged in the notice that the appellant acquired/earned property inconsistent with his legitimate and known source of earning. It was mentioned in the notice that if he fails to comply with the direction, his immovable and movable properties would be confiscated/ attached. Accordingly, wife of the appellant submitted statement of wealth and assets and the Anti-Corruption Commission duly accepted the same in time, thereafter, FIR was lodged on 24.12.2007 alleging, inter alia, that in pursuance of the Memo of ACC dated 21.9.2007 informant inquired into the allegation as well as the wealth of the appellant and found that he showed the value of the immovable property was at Tk. 65,000/- and movable of at Tk. 68,79,000/- and also showed the value of the immovable, property of his wife at Tk. 33,00,000/- and movable property at Tk. 13,87,639/- in total 54,40,539/-. After perusal of the statements informant found that the appellant and his wife, acquired wealth of Tk. 29,73,117/- disproportionate to their known source of income. It was further alleged in FIR that they concealed the fact of wealth of his wife worth of Tk. 2,61,311/-. Although value of the flat was mentioned at Tk. 3,20,000/- but that was much higher than the value mentioned and the cost relating to fittings of their flat, as per inspection of the engineer would be at Tk. 14,41,867/- which was not mentioned in the statement of wealth. They suppressed the facts of purchasing a plot located at Mirpur Worth of Tk. 8,40,000/-. During enquiry informant further found that the appellant invested Tk. 3,60,000/- for a plot under RAJUK located at Road No. 3 of section No. 17(A), Uttara, Dhaka and his wife suppressed the excess cost of the flat and the value of the land, Income Tax report showed that appellant and his wife mentioned the value of their assets at Tk. 54,02,756/-. In fact they have acquired wealth of Tk. 84,13,656/- and they made false statement in the Statement of wealth for Tk. 26,13,171/-. Thereby they acquired wealth of Tk. 29,73,117/- disproportionate to therein known source of income and hence they have committed offence under sections 26(2) and 27 of The Anti Corruption Commission Act, 2004, Rule 15 Gha (5) of the Emergency Power Rules, 2007 and section 109 of the Penal Code, Upon receipt of that ejhar Ramna Police Station Case No. 79 dated 24.12.2007 was started against the appellant and his wife under the above stated sections.

That after investigation, investigating officer submitted charge sheet against the appellant and his wife under sections 26(2)/27 of The Anti Corruption Commission Act, 2004, Rule 15 Gha (5) of the Emergency Power Rules, 2007 and section 109 of the Penal Code vide Charge Sheet No. 253 dated 01.06.2008. Having found a strong prima facie case the proceeding initiated against the wife of the appellant had been stayed by another Division Bench of this Court in exercise of its writ jurisdiction.

That after submission of charge sheet case record was transmitted to the Senior Special Judge, Dhaka for holding trial and on receipt of the same case was registered as Special Case No. 74 of 2008. Subsequently, it was transferred to the Special Judge, Court No. 10, Dhaka for holding trial and accordingly, case was re-numbered as Special Case No. 13 of 2008.

That Md. Abu Hanif Patwary was convicted and sentenced under sections 26(2) and 27(1) of the Anti Corruption Commission Act, 2004 and sentenced to suffer rigorous imprisonment for 1 (one) year and 3 (three) years respectively with fine of Tk. 50,000/- in default, to suffer rigorous imprisonment for 6 (six) months and confiscating his wealth worth of (Tk. 3,60,000/- and Tk. 25,400/= to The State) for concealment of wealth amounting to Tk. 3,85,000/- by the learned Special Judge, Court No. 10, Dhaka in Special Case No. 13 of 2008.

Being aggrieved by and dissatisfied with the said Judgment and order of conviction and sentence the convict-accused has preferred the instant criminal appeal.

Mr. A.K.M. Faiz, the learned Counsel for the accused-appellant submits that the learned Special Judge, Court No. 10, Dhaka passed the impugned judgment and order of conviction and sentence illegally, unlawfully and without jurisdiction, since the prosecution did not adduce and legal evidence proving that the appellant committed any offence under sections 26(2) and 27(1) of the Anti Corruption Act, 2004, neither did the document and evidence adduced by the prosecution prove the charge against the appellant. He further submits that the said case has been initiated for alleged commission of offence for indefinite and unspecified period, from the plain reading of the FIR, the charge sheet and the judgment and order it appears that the appellant was convicted for alleged acquisition of the property acquired before 9th May, 2004, but the appellant has been convicted for alleged offence under sections 26(2) and 27(1) of the said Act of 2004 which was not in force at the relevant time of the Commission of Act, i.e. before 9.5.2004 in violation of Article 35(1) of The Constitution and as such the conviction, sentence, fine and confiscation for alleged acquisition of property before 9th May 2004 being hit by Article 35(1) of the Constitution, the Same is liable to be set aside.

Mr. Bhishmadev Chakravorty, the learned Deputy Attorney General with Mr. Nizamul Hoque Nizam, the learned Assistant Attorney General, appearing on behalf of The State-Respondent and Mr. Faridul Alam Talukder, learned Advocate, representing the Anti Corruption Commission, Dhaka after placing before us the evidence and materials on record prays for dismissal of the appeal. They further submits that in view of the facts and circumstances of the case in hand and other materials on record the learned Special Judge, Dhaka rightly convicted and sentence the accused-person under the relevant law and in that view of the matter, the order of conviction and sentence should be maintained and the instant appeal be dismissed.

We have heard submissions of both the parties. Examined and assessed the entire evidence and materials on record. It is evident from the evidence on record that the entire assessment and calculation of the wealth statement submitted by the appellant by the ACC are based on assumption and appears quite faulty and not inconformity with proceeding and rules.

In further transpires that while convicting the appellant the trial court shifted the entire burden of proof upon the appellant requiring him to prove his income and exonerated the prosecution from discharging its role and required burden of proof. The trial court wrongly assumed that if a person holds huge amount of property then the enormity of property if so facto raises a presumption that the accused has acquired the said property beyond his known source of income and assumed that such enormity of property casts the onus upon the accused to prove the case otherwise but the trial court did not consider that section 27(2) of the said Act of 2004 clearly imposed and initial onus upon the prosecution from taking presumption as to the guilt of the appellant. Besides, no prosecution witnesses provided any statement proving the contents of the notice under section 26(1) of the said Act of 2004 and as such no case under section 26(2) of the said Act has been proved lawfully. For convicting a person under section 27(2) of the said Act the prosecution has to prove that the alleged assets were acquired beyond known sources of income of the accused and also that the alleged assets were acquired by illegal means. A part from that it is found that the case has been initiated for alleged commission of the offence for indefinite and unspecified period and appellant was convicted for alleged acquisition of the property acquired before 9th May, 2004 but the appellant has been convicted for alleged offence under section 26(2) and 27(1) of the said Act, 2004 which was not in force at the relevant time and it is hit by Article 35(1) of the Constitution and no appropriate sanction was obtained before proceeding him under section 6(1A) of the Criminal Law Amendment Act, 1958. We find that the Court convicted the appellant under section 27(1) of the said Act, 2004 without any legal evidence since the prosecution did not adduce any evidence showing that the money invested in acquisition of the property in question was at all earned by the appellant by any illegal means.

Upon a close scrutiny and assessment of the evidence and materials on record we are of the considered view that the allegations against the appellant have not been established conclusively by competent, tangible and acceptable legal evidence. The conviction and sentence as imposed upon the accused appellant amounts to moral conviction and as such, not sustainable in law.

We find substance in the appeal.

In the result, the appeal succeeds. Accordingly, the instant Criminal Appeal is allowed on contest.

The accused-appellant Md. Abu Hanif Patwary, son of Md. A. Jalil Patwary is found not guilty of the charge under sections 26(2) and 27(1) of the Anti-Corruption Act, 2004 and accordingly, acquitted thereof. The impugned judgment and order of conviction and sentence dated 26.10.2008 passed by the learned Special Judge, Court No. 10, Dhaka in Special Case No. 13 of 2008 is hereby set aside. The accused-appellant is discharged from his bail bond.

Send down the L.C.R along with a copy of this Judgment.

Ed.