Md. Dukhu Miah and another Vs. The State 4 LNJ (2015) 464

Case No: Jail Appeal No. 229 of 2008

Judge: Md. Ashraful Kamal,

Court: High Court Division,,

Citation: 4 LNJ (2015) 464

Case Year: 2015

Appellant: Md. Dukhu Miah and another

Respondent: The State

Subject: Plea of Guilt,

Delivery Date: 2011-11-15


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
A. K. M. Asaduzzaman, J.
And
Md. Ashraful Kamal, J.


Judgment on
15.11.2011
}
}
}
}
}
}
}
}
Md. Dukhu Miah. . .Appellant
-Versus-
The State. . . .Respondent
(In Crl. Jail Appeal No. 229 of 2008)
Md. Billal Hossain
. . . Appellant
-Versus-
The State. . . Respondent
(In Crl. Jail Appeal No. 230 of 2008)
 
Penal Code (XLV of 1806)
Code of Criminal Procedure (V of 1898)
Section 412
When an accused if plead guilty and is convicted on such plea is considered to have waived his right to appeal. He can challenge only as to the extent or legality of the sentence. The right to appeal for a convicted person would stand forfeited if the court accept the plea of guilty and convict him on such plea. . . . (12)

Code of Criminal Procedure (V of 1898)
Section 412
Essence of the section 412 of the Code of Criminal Procedure is that a plea of guilty by an accused person is tantamount to an waiver to his right to appeal against the conviction. . . . (13)

Narcotic Control Act (XX of 1990)
Section 19(1) and 1(Ka)
Code of Criminal Procedure (V of 1898)
Section 412
In the present case both the appellant had pleaded guilty in the commission of offence under section 19 (1) and 1 (Ka) of the Narcotics Control Act, 1990 and the Sessions Judge, Jamalpur has also accepted their plea of guilty and accordingly convicted them on such plea. Therefore, appellants have no right to present any appeal against the impugned judgment and order of conviction. . . . (14)
 
No one appears
 
Jail Appeal No. 229 of 2008 with Jail Appeal No. 230 of 2008

JUDGMENT
Md. Ashraful Kamal, J:

Appellants Md. Duhku Mia and Md. Billal Hossain have preferred Jail Appeal No. 229 of 2008 and Jail Appeal No. 230 of 2008 respectively against the judgment and order dated 8th January, 2008 passed by the Sessions Judge, Jamalpur in Sessions Case No. 315 of 2007 convicting them under section 19 (1) and 1(Ka) of the Narcotics Control Act, 1990 and sentencing them to suffer rigorous imprisonment for 2 (two) years and also to pay a fine of Tk. 200/- each in default to suffer rigorous imprisonment for 2(two) days more.

Brief facts, necessary for the disposal of the appeals are as follows;
On 19.11.2007 at about 13:25 hours Mukul Datta (Const. 545), D.B. Jamalpur lodged a First Information Report alleging, inter alia that on 19.11.2007 the informant along with const. Md. Shafiqul Islam, Md. Bazlur Rahman were on a  special operation in Jamalpur Pourashava Area. Then, they received a secret information that there was a trading of heroin in the area of Getpar Fishery Area under the Jamalpur Pourashava. Immediately they rushed to the place of occurrence and at about 11:45 hours they reached there. They caught accused Md. Dukhu Mia and Md. Billal Hossain red handed with heroin. Then police inspector Md. Enamul Haque came to the place of occurrence. Then, he searched the appellants and found 3 (three) puria of heroin from the pocket of the appellant Dukhu Mia and 2 (two) puria of heroin from the pocket of the appellant Billal Hossain. Thereafter, he prepared a seizure list in presence of the witnesses and also took their signatures therein.

After conclusion of the investigation, the police submitted a charge sheet against the appellants under section 19 (1) and 1(Ka) of the Narcotics Control Act, 1990 (as amended 2004) on 30.11.2007.

On 31.12.2007, the case record was transmitted to the Sessions Judge, Jamalpur for disposal, who on the same day took cognigence of the offence against the appellants under aforesaid provisions of the law. 

On 08.01.2008 both the appellants confessed the offence before the court. The Sessions Judge, Jamalpur on the basis of their plea of guilty convicted them under section 19(1) and 1 (Ka) of the Narcotics Control Act, 1990 and sentenced them as above.

Being aggrieved by the impugned Judgment and order dated 8th January, 2008 both the appellants preferred the above Jail appeals. 

A Division Bench of this court on 18.03.2008 admitted those appeals presented under section 420 of the Code of Criminal procedure and called for the records and also issued usual notices.

On 12.04.2011 of the concerned section having received the lower court records and made the appeals ready for hearing.

We have gone through the First Information Report, seizurelist, chemical examination report, charge sheet and the judgment and order dated 8th January, 2008.

The core question, before this court is whether a convicted person who was convicted on the basis of a plea of guilty has any right to appeal.

Section 412 of the Code of Criminal procedure runs as follows:-

“Notwithstanding anything hereinbefore where an accused person has pleaded guilty and has been convicted by a Court of Sessions or any Metropolitan Magistrate or Magistrate the first class on such plea, there shall be no appeal except as to the extent or legality of the sentence.”

From section 412 of the Code of Criminal procedure, it appears that when a accused if plead guilty and is convicted on such plea is considered to have waived his right to appeal. He can challenge only as to the extent or legality of the sentence. The right to appeal for a convicted person would stand forfeited if the court accept the plea of guilty and convict him on such plea.

Essence of the section 412 of the Code of Criminal Procedure is that a plea of guilty by an accused person is tantamount to an waiver to his right to appeal against the conviction.

In the present case both the appellant had pleaded guilty in the commission of offence under section 19 (1) and 1 (Ka) of the Narcotics Control Act, 1990 and  the Sessions Judge, Jamalpur has also accepted their plea of guilty and accordingly convicted them on such plea. Therefore, appellants have no right to present any appeal against the impugned judgment and order of conviction. In view of the said discussion and provision of law we are of opinion that this appeals should be dismissed.  

In the result, the both the Jail Appeals are dismissed. The impugned judgment and order dated 8th January, 2008 passed by the Sessions Judge, Jamalpur in Sessions Case No. 315 of 2007 convicting the appellants under section 19(1) and 1 (Ka) of the Narcotics Control Act, 1990 are hereby confirmed.

Communicate this order at once and send down the lower court records.  

Ed.