High Court Division
(Criminal Appellate Jurisdiction)
Md Abu Zafor
Siddique J
Abdul Aziz (Md) and another
…………………Convict-Appellants
vs
State …………..Respondent
Judgment
January 1st, 2015
Code of Criminal Procedure (V of 1898)
Section 342
Examination of both the appellants under section 342 of the code has not been conducted in accordance with law as the incriminating evidence against each of the accused persons were not brought to their notice and the examination was conducted in a perfunctory manner. Therefore the appellants have been seriously prejudiced by such improper examination. . ….. (24)
Special Powers Act (XIV of 1974)
Section 25(B)
From the evidence on record, I do not find any special mark of identification on the seized goods to show that those were of Indian origin and that they were contraband goods. Moreover, the requirements of section 25B of the Act has not been fulfilled in the case as the place of occurrence was inside the territory of Bangladesh.
None appears-For the Appellants
Md Fazlur Rahman Khan, DAG-For the State.
Judgment
This appeal is directed against the judgment and order of conviction and sentence dated 3-6-1998 passed by the Additional Sessions Judge and Anti-Smuggling Tribunal, Rajshahi in Special Power Case No. 25 of 1997 arising out of Tanore Police Station Case No, 10 dated 25-5-1996 corresponding to GR No. 650/96 convicting the appellants under section 25B of the Special Powers Act. 1974 and sentencing them to suffer rigorous imprisonment for 2(two) years and to pay a fine of Taka 5,000, in default, to suffer rigorous imprisonment for 6(six) months more.
2. The informant Mr Mozammel Hoque, JCO lodged a First Information Report on 25-5-1996 with Tanore Police Station, Rajshahi against the convict-appellant under section 156(89) of the Custom Act read with section 25B of the Special Powers Act 1974.
3. Mr Tarun Kumar Mohuri, Inspector of Police and Investigating Officer of the case, visited the place of occurrence, prepared the sketch map along with index, examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure. Upon completion of investigation, having found prima-facie case, he submitted charge-sheet against both the appellants under section 25B of the Special Powers Act, 1974.
4. After submission of the charge-sheet, the case record was transmitted to the trial Court which took cognizance and framed charge against the appellants under section 25B or the Special Powers Act, 1974.
5. During the course of trial, the prosecution examined as many as 7(seven) witnesses, but none was examined from the defence.
6. From the trend of cross-examination of the PWs, the defence case appears to be that convict appellants are innocent and they have been falsely implicated with this case.
7. After conclusion of hearing and upon considering the evidence and materials on record, the trial Court convicted both the appellants in the manner already stated above.
8. Being aggrieved by and dissatisfied with the aforesaid impugned judgment and order of conviction and sentence on 3-6-1998, the convict appellants has preferred the instant appeal.
9. The appeal dates back to 1998, In the meantime, a period of 16 years have elapsed, but not a single step have been taken by or on behalf of the appellants for hearing and disposal of the appeal. Although the instant appeal has been appearing in the cause list of this Court with the name of the learned Advocate for the appellants, none appears on behalf of the appellants when the matter is taken up for hearing.
10. Mr Fazlur Rahman Khan, the learned Deputy Attorney-General appearing on behalf of the State, supported the impugned judgment and order passed by the learned Judge of the trial Court.
He submits that the prosecution has been able to prove the case beyond reasonable doubt by producing sufficient evidence and as such, the appeal is liable to be dismissed.
11. I have considered the argument advanced by the learned Deputy Attorney-General and perused the memorandum of appeal and the impugned judgment of the trial Court and evidence on record.
12. In the instant case, both the appellants were convicted under section 25B of the Special Power Act, 1974.
l3. Let me now refer to the relevant provision of law which reads as under:
“25B- Penalty for smuggling-(1) Whoever, in breach of any prohibition or restriction imposed by or under any law for the time being in force, or evading payment of customs duties or taxes leviable thereon under any law for the time being in force,
(a) takes out of Bangladesh jute, gold or silver bullion, manufactures of gold or silver, currency, articles of food, drugs, imported goods, or any other goods; or
(b) brings into Bangladesh any goods shall be punishable with death, or with (imprisonment for a term which may extend to fourteen years and shall not be less than two years), and shall also be liable to fine,”
14. From a plain reading of the section quoted above, it is apparent that in order to sustain a conviction under this section, the prosecution must prove that the goods in question were being “taken out” of Bangladesh or were being “brought into” Bangladesh.
15. However, on a scrutiny of the deposition of the prosecution witnesses, it appears that none of the witness deposed that the goods in question were either being taken out or being brought into Bangladesh. Rather, their deposition points to the contrary.
16. Let me now discuss the relevant evidence and other materials on record.
17. PW 1, the informant of the case, stated during the course of his deposition as under:
Ò†Mvcb m~‡Î msev` †c‡q PvcvB n‡Z AvMZ 1Uv UªvK _vgvB| D³ UªvKwU AvUK KiZt UªvK WªvBfvi I †njcvi‡K a…Z Kwi| Zjøvkx c~e©K †`wL Uªv‡K 8438-†KwR eyU, †Lmvix 619 †KwR, gymyix Wvj 119 †KwR me©‡gvU 107 e¯Ív D×vi Kwi I AvUK Kwi|Ó
In cross-examination he stated ÒeyU I †Qvjvi Wvj Avgv‡`i †`‡k cvIqv hvq| Avev` nq|Ó
18. 18. PW 2, a Member of the raiding party deposed as under:
ÒNUbv 25-5-96 Zvwi‡L Abygvb ivÎ 3-15 wgwb‡U| my‡e`vi †gvRv‡¤§j n‡Ki ms‡M Un‡j hvB Zv‡bvi Ry¤§vcvov GjvKvq| PvcvB n‡Z AvMZ 1U UªvK AvUK Kwi|Ó
In cross-examination he stated ÒAvgv‡`i †`‡k eyU gïi, †Lmvix Drcbœ nq I cvIqv hvq| e¯Ívi Mv‡q fviZxq †jLv wQj wKbv Rvwb bv|Ó
19. Moreover PW 6, a local disinterested witness, who had signed the seizure list as a witness, stated during his cross-examination as under: ÒAvwg NUbvi mgq wQjvg bv| Uªv‡K Wvj eyU wQj D³ wRwbl¸‡jv NUbv¯’‡j ˆZix nq| BDR Avgv‡K gvj †`Lvq bvB| BDR Avgv‡K mB Ki‡Z ewj‡j Avwg mB Kwi|Ó
(emphasis added)
20. It is therefore apparent from the deposition of prosecution witnesses, noted above, that the goods in question were not only seized well within the territory of Bangladesh, but the goods in question were also of local origin. In the absence of any disguising mark of feature, that cannot be taken to have been brought into Bangladesh from India.
21. It is also to be noted that out of the 7 witness adduced by the prosecution, PWs 1,2,4 and 7 are all official witnesses. Only PWs 5 and 6 are two local disinterested witnesses, who had signed the seizure list. However, both the PWs. 5 and 6 stated during their respective cross-examination that they had signed the seizure list on being directed by the BDR personnel without even seeing the seized goods in question.
22. From the evidence on record, I do not find any special mark of identification on the seized goods to show that those were of Indian origin. There is nothing on record to show that the seized articles were contraband goods. Moreover, the place of occurrence was inside the territory of Bangladesh.
23. It is apparent from the discussion made above that the requirements of section 25B of the Special Powers Act, 1974 has not been fulfilled in the instant case.
24. Furthermore, it appears that the examination of both the appellants under section 342 of the Code of Criminal Procedure has not been conducted in accordance with law. The incriminating evidence against each of the accused persons were not brought to their notice. The examination was conducted in a perfunctory manner. Therefore, in any view, the appellants have been seriously prejudiced by such improper examination.
25. Having regard to the facts and circumstances of the case and having considered the deposition of the prosecution witnesses and the relevant provision of law. I am of the view that prosecution had failed to prove the charge against the appellant beyond reasonable doubt.
26. Therefore, the impugned judgment and order of conviction and sentence dated 3-6-1998 cannot be sustained and the same is liable to set aside.
27. In the result, the appeal is allowed.
28. The impugned judgment and order of conviction and sentence dated 3-6-1998 passed by the learned Additional Sessions Judge and Anti-Smuggling Tribunal Judge, Rajshahi in Special Power Act Case No. 25 of 1997 arising out of Tanore Police Station Case No. 10 dated 25-5-1996 is hereby set aside.
29. The appellants 1) Md Abdul Aziz, son of Mohammad Ali, Village-Rajpara, PS Rajshahi Court, Thana-Rajpara, District-Rajshahi and 2) Md Abdur Razzak, son of Abdul Kashem, Village Ram Krishnapur, Thana-Lalpur, District-Natore, who are presently on bail, are discharged from their respective bail bonds.
The office is directed to communicate the order and send down the Lower Court Records at once.
