Most. Rubina Vs. The State, 2018(1) LNJ 350

Case No: Jail Appeal No. 202 of 2014

Judge: Abdur Rob, J.

Court: High Court Division,

Advocate: Mr. A.M. Md. Azizul Haque, Advocate, ,

Citation: 2018(1) LNJ 350

Case Year: 2017

Appellant: Most. Rubina

Respondent: The State

Subject: Special Powers Act

Delivery Date: 2018-06-07

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Abu Bakar Siddiquee, J

And

Abdur Rob, J.

Judgment on

21.08.2017

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Most. Rubina

. . .Appellant

-Versus-

The State

. . .Respondent

Special Powers Act (XIV of 1974)

Section 25B(2)

Evidence Act (I of 1872)

Section 45

It is clear from the observation of the learned judge of the Tribunal that the alamats, i.e. liquid Phensidyl which were recovered from the possession of the accused appellant were not examined by the chemical expert. We are of the view that the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and therefore, the same is liable to be set aside. The appellant is, thus, found not guilty of the charge framed against her.                           . . .(20 and 21)

Mr. A.M. Md. Azizul Haque, Advocate

. . . For the Appellant

JUDGMENT

Abdur Rob, J: This appeal is directed against the judgment and order of conviction and sentence dated 23.03.2014 passed by the learned Judge, Metropolitan Special Tribunal-2, Rajshahi in Metropolitan Special Tribunal Case No.723 of 2013 convicting the accused-appellant and another under section 25B(2) of the Special Powers Act, 1974 and sentencing them to suffer rigorous imprisonment for 5(five) years each and to pay a fine of Tk. 5,000/- (five thousand) each, in default, to suffer rigorous imprisonment for 06(six) months more. 

2.            The instant case has arisen out of a First Information Report, (shortly “FIR”) lodged on 26.12.2006 by one Md. Towhidul Islam with the Rajshahi G.R.P. Police Station alleging commission of offence under Section 25B of the Special Powers Act, 1974. The allegation as set out in the FIR, in short are that on 26.12.2006 while he along with his accompanied force were performing petrol duty in town area, based on a secret information he came to learn that two unknown women were carrying Indian prohibited phensidyl hiding with their bodies at old Rail Station, Rajshahi  for  the purpose of sale. Based on said information on the following day around 15.10 hours they went to the place of occurrence and after search by one Most. Saleha Begum 30 bottles of Indian prohibited phensidyl were recovered from the accused Sathi which was tied by plastic costep with her two legs  and 6 K.G. liquid Indian prohibited phensidyl in a black bag of cloth and 45 pieces of phensidyl bottle’s cork were recovered from the body of the accused Rubina. He seized the alamats and prepared a seizure list in presence of witnesses and he took the signature of witnesses in the seizure list. On asking, the accused-persons confessed that they had brought Indian prohibited Phensidyl illegal way and they had been selling the said phensidyl in different places of the country. On the basis of the aforesaid FIR Rajshahi G.R.P. Police Station Case No-2, dated 26.12.2006 was recorded.

3.            S.I. Harunur Rashid took up the case for investigation. During investigation he visited the place of occurrence and prepared sketch map thereof with index. He recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure (in short, the Code). The Investigating Officer after investigation having found prima facie case, submitted Rajshahi G.R.P. Police Station charge sheet No.03 dated 02.03.2007 against the accused-appellant and another under section 25B of the Special Powers Act, 1974.

4.            The learned Judge, Metropolitan Special Tribunal-2, Rajshahi framed charge against the accused-appellant and another under section 25B(2) of the Special Powers Act, 1974 which was read over to them to which they pleaded not guilty and claimed to be tried. 

5.            The prosecution examined 07 (seven) witnesses and defence examined none. On the closure of the evidence of the prosecution, the accused-appellant and another could not be examined under section 342 of the Code due to their absconsion.

6.            The learned Judge after trial found the accused-appellant and another guilty of the charge framed against them and sentenced them to suffer rigorous imprisonment for 5(five) years each and to pay a fine of Tk.5,000/- (five thousand) each, in default, to suffer rigorous imprisonment for a further period of 06(six) months more.

7.            Mr. A. M. Md. Azizul Haque, the learned Advocate appearing on behalf of the accused-appellant submits the accused-appellant is innocent and she was implicated in the instant case out of enmity. He further submits that Saleha Khatun who searched the body of the accused-appellant and recovered the alleged phensidyl was not examined as witness. The learned Advocate contends that the prosecution did not test the alleged liquid phensidyl by the chemical expart. So the prosecution miserably failed to prove the prosecution case against the appellant all shedow of doubt. He finally submits that the appeal may be allowed for ends of justice.

8.            P.W.1 Md. Towhidul Islam stated that on 26.12.2006 he was attached to RAB-5, Rajshahi at Railway Colony. On that date while he along with his force were performing petrol duty, based on a secret information he came to know that two women were staying for carrying Indian prohibited Phensidyl at old building passengers’ shed of Rajshahi Railway Station. Based on said information with permission of higher authority around 14.50 hours they went to the place of occurrence and saw two women and interrogated them and they confessed that there were prohibited Indian Phensidyl hidden with their bodies. After search the body of Sathi by one Saleha Khatun 30 bottles of Phensidyl were recovered from her possession and after search the body of Rubina 6 K.G. liquid Indian prohibited phensidyl in a bag of cloth and 45 pieces of phensidyl bottle’s cork were recovered from her possession. He seized the alamats and prepared a seizure list in presence of witnesses and he took the signature of the witnesses in the seizure list. They took the accused with alamats to the Police Station and lodged the FIR. He identified both the accused in the dock.

9.            P.W.2 Sanowar Hossain stated that on 26.12.2006 he was attached with RAB-5, Rajshahi. On the date of occurrence around 3:10 p.m. The occurrence took place at old building passengers’ shed, Rajshahi Railway. They went to place of occurrence under the leadership of D.A.D. Towhidul Islam. While they were on duty in Rajshahi town area, based on secret information they rushed to the spot. They encircled two women whose were carried prohibited Indian phensidyl at passengers’ shed and after interrogation they disclosed their names were Sathi and Rubina. DAD Shaheb searched body of the accused-persons by one Saleha. They recovered 30 bottles of Phensidyl from accused Sathi and 6 K.G. of liquid phensidyl and 45 pieces of cork were also recovered from accused Rubina in presence of witnesses. The seizure list was prepared in their presence. I.O. interrogated him. He identified both the accused in the dock.

10.        P.W.3 Towhidul Islam stated that the occurrence took place on 26.12.2006. At that time he was attached to RAB-5, Rajshahi of Railway Colony. The occurrence took place at behind of tea stall of old building passengers’ Shed, Rajshahi Railway Station. Around 15:10 hours of the following day under the leadership of D.A.D. Md. Towhidul Islam they 8(eight) persons went to place of occurrence. They saw two ladies, asked and challenged them, they confessed that they had prohibited phensidyl. After search by one Saleha they 30(thirty) bottles of Indian prohibited Phensidyl were recovered from the accused Sathi and 6 K.G. of liquid phensidyl and 45 pieces of cork were also recovered from the accused Rubina. The seizure list was prepared by the order of D.A.D. Shaheb in presence of two witnesses. He wrote the seizure list and took signature of witnesses. Thereafter, handed over the accused and alamats to the Police Station and lodged the FIR. He identified both the accused in the dock. 

11.        P.W.4 Md. Siddiqur Rahman was tendered by the prosecution and defence declined to cross-examine him.

12.        P.W.5 Md. Mazibur Rahman stated that the occurrence took place around two years before. It was took place around 3:00 p.m. at old building passengers’ shed of Rajshahi Railway Station. The RAB members told him to sign and he signed in the paper. He had a tea stall in the place of occurrence. He proved his signature.

13.        The prosecution declared him hostile and cross-examined him. In his cross-examination by the prosecution he stated that he did not know that on 26.12.2006 around 5:10 hours regarding recovery of phensidyl from the accused Rubina and Sathi and he did not know about 30(thirty) bottles of phensidyl were recovered from the accused Sathi and 6(six) K.G. liquid phensidyl were recovered from the accused Rubina. He denied prosecution suggestion that he deposed falsely influenced of the accused.

14.        P.W.6 Md. Mobarak Hossain stated that on 26.12.2006 while he was performing his duty under the leadership of the informant, the informant received a secret information that there was selling phensidyl at old building of Rajshahi Railway Station. Accordingly, they rushed to the spot and arrested both the accused. The informant 30(thirty) bottles of Indian prohibited Phensidyl were recovered from the accused Sathi and 6 K.G. of liquid phensidyl and 45 pieces of cork were also recovered from the accused Rubina. The Seizure List was prepared in presence of witnesses. Thereafter, they took the accused and alamats to the Police Station and lodged the FIR. He made his statement to the I.O. 

15.        P.W.7 Harunur Rashid stated that on 26.12.2006 he was attached to Rajshahi Railway Police Station as S.I. Officer-in-Charge received the FIR from the informant Towhidul Islam and recorded the case and handed over the same to him for investigation. During investigation he visited the place of occurrence and prepared the Seizure List, Index and Sketch Map. After investigation the Investigating Officer having found prima-facie case against the accused-persons, he submitted Charge Sheet No. 03 dated 02.03.2007. He proved the Sketch Map and Index. 

16.        We have perused all the evidence on record and it appears that the prosecution case against the accused-appellant that P.W.1 Md. Towhidul Islam in his evidenced deposed that on 26.12.2006 while he along with his force were performing petrol duty, in Rajshahi town area, the informant based on a secret information came to know that two unknown women were carrying Phensidyl at passengers’ shed of old building, Rajshahi Railway Station. According to said information at around 14.50 hours they rushed to the place of occurrence and after search the body of the accused-appellant 6 K.G. liquid phensidyl and 45 pieces of cork were recovered from her possession. They seized the said phensidyl as alamats in presence of witnesses and prepared the seizure list. His deposition was consistent with the FIR. P.Ws. 2, 3 and 6 in their evidences narrated the occurrence of this case. P.W. 7 Harunur Rashid in his evidence stated that after investigation he having found prima-facie case against the accused-appellant, submitted charge sheet against her under section 25B of the Special Powers Act, 1974.

17.        So, it appears from the statements of the prosecution witnesses that 6 K.G. liquid phensidyl and 45 corks of phensidyl bottle were recovered from the possession and control of the accused-appellant Most. Rubina on the date and at the place of occurrence. 

18.        And it appears from the observation of the judgment of the learned Judge of the Tribunal that,

Afl¢c­L Bp¡j£ l²¢he¡l ¢eLV qC­a EÜ¡lL«a ¢mL¥CX ®g¢¾p¢X­ml l¡p¡u¢eL fl£r¡ pÇfæ Ll¡ qu e¡Cz g­m a¡q¡l ¢eLV qC­a EÜ¡lL«a ­g¢¾p¢Xm 1974 p¡­ml ¢h­no rja¡ BC­el 25¢h(2) d¡l¡l BJa¡u f­s e¡z HC­r­œ a¡q¡l ¢hl²­Ü j¡cLâhÉ wbqš¿b BC­el Ad£­e Afl¡d Bj­m ®eJu¡ pj£¢Qe ¢Rmz k¡q¡ mJu¡ qu e¡Cz

19.        We have considered the impugned judgment and order, the deposition of the witnesses, the FIR, charge sheet, seizure list and other relevant papers minutely.

20.        On credibility count there are serious infirmities in the case. On perusal of the impugned judgment and order of conviction and sentence and those of the evidence and other materials on record, we find that the judgment under reference is not based on tangible legal and acceptable evidence, and, as such, a gross illegality has been committed by the learned Judge of the Special Tribunal in convicting the accused-appellant Rubina and awarding sentence stated herein before and consequently the conviction and sentence so imposed upon her calls for interference by this Court. It is clear from the observation of the learned Judge of the Tribunal that the alamats i.e. liquid Phensidyl which were recovered from the possession of the accused-appellant were not examined by the chemical expert.

21.        In view of the above discussion, we are of the view that the prosecution has failed to prove its case against the accused-appellant beyond reasonable doubt. The judgment and order of conviction and sentence dated 23.03.2014 passed by the learned Judge, Metropolitan Special Tribunal-2, Rajshahi so far as it relates to the appellant, therefore, is liable to be set aside. The appellant is, thus, found not guilty of the charge framed against her.

22.        For all the reasons as stated above, we find merit in this appeal.

23.        The appeal being Jail Appeal No. 202 of 2014 is accordingly allowed. The impugned judgment and order of conviction and sentence relating to the appellant is hereby set aside. The accused-appellant is released at once, if not wanted in connection with any other case.

24.        Send down the lower Court’s records along with a copy of this judgment at once.

Ed.



Jail Appeal No. 202 of 2014