(From previous issue) :
27. On the other hand, in some cases, this can also act to the benefit of the accused person. Although a person may have been in possession of more than 25 grams of drug which would, no doubt, attract the higher sentence, but due to uncertainty about the actual quantity of drug that is seized or recovered, he is entitled to the benefit of doubt and, accordingly, awarded a lesser sentence under Table I (ka).
28. The prescribed punishment under Table 1 (kha) of Section 19(1) of the Ain is death or imprisonment for life. Therefore, an onerous duty is cast upon the law enforcement agencies as well as the investigating agencies to carry out a proper and detailed investigation, giving careful attention to the aspect of “measurement” of the quantum of drugs that is recovered/seized during any operation. Any lapse on their part is likely to occasion miscarriage of justice, either to the prosecution or to the accused.
29. When the drug enforcement team goes out on a combing operation for recovery of drugs, they should be equipped with a weighing scale to measure the exact quantum of drugs that may be recovered during such operation. This is very much important equipment necessary for the drug enforcement agency, just as a weapon, like rifle or revolver, is necessary for any member of the police force.
30. By the way, we would like to say that justice must be done of crime by awarding suitable punishment to the crime doer. We are constrained to observe that criminal justice system is not working in our country as it should. It is necessary to reform investigation process. The investigation hardly have professional orientation, they do not have modern tools. It is pertinent to note that impartial investigation is required to be dispensation of criminal justice. We do not intend to say anything more in this regard since matter is being dealt with separately.
31. In the above discussion, in our view that. the learned Additional Sessions Judge, 2nd Court has rightly held that the prosecution has proved its case against convict appellants beyond reasonable doubt. However, there is sufficient room for doubt about the actual quantum of heroin that was recovered. Admittedly, no scale was used to determine the actual quantum heroin that was seized from the four accused persons.
In that view, there remains some uncertainty about the actual quantum of heroin that was recovered from the accused persons resultantly, the benefit of doubt, should be accorded to the appellants.
32. Thus the ends of justice will be met if we have come to conclusion that the case will falls under the mischief of Section 1(ka) of the Table 19(1) of the Narcotics Control Act and maximum punishment of which is up to 10 years. It may be stated that records shows the convict-appellants were arrested on 28-3-2004 and since then they have been languishing in jail for 12 years.
33. In the facts and circumstance of the case, we are inclined to hold that conviction is liable to be altered from Section 19(1), Table 1 (Kha) to section 19(1), Table 1(Ka) of the said Ain. Hence the sentence may be awarded to them be reduced to the extend of 10 years which they have already undergone.
34. In the result, the appeal is dismissed with modification in respect of sentence. Convict appellants namely (I) Leon, son of Nondo Sarak and (2) Md Sabur, son of late Danu Miah be set at liberty forthwith if not wanted in connection with any other case.
Let a copy of this judgment along with LCRs be sent to the concerned court at once.
(Concluded)
27. On the other hand, in some cases, this can also act to the benefit of the accused person. Although a person may have been in possession of more than 25 grams of drug which would, no doubt, attract the higher sentence, but due to uncertainty about the actual quantity of drug that is seized or recovered, he is entitled to the benefit of doubt and, accordingly, awarded a lesser sentence under Table I (ka).
28. The prescribed punishment under Table 1 (kha) of Section 19(1) of the Ain is death or imprisonment for life. Therefore, an onerous duty is cast upon the law enforcement agencies as well as the investigating agencies to carry out a proper and detailed investigation, giving careful attention to the aspect of “measurement” of the quantum of drugs that is recovered/seized during any operation. Any lapse on their part is likely to occasion miscarriage of justice, either to the prosecution or to the accused.
29. When the drug enforcement team goes out on a combing operation for recovery of drugs, they should be equipped with a weighing scale to measure the exact quantum of drugs that may be recovered during such operation. This is very much important equipment necessary for the drug enforcement agency, just as a weapon, like rifle or revolver, is necessary for any member of the police force.
30. By the way, we would like to say that justice must be done of crime by awarding suitable punishment to the crime doer. We are constrained to observe that criminal justice system is not working in our country as it should. It is necessary to reform investigation process. The investigation hardly have professional orientation, they do not have modern tools. It is pertinent to note that impartial investigation is required to be dispensation of criminal justice. We do not intend to say anything more in this regard since matter is being dealt with separately.
31. In the above discussion, in our view that. the learned Additional Sessions Judge, 2nd Court has rightly held that the prosecution has proved its case against convict appellants beyond reasonable doubt. However, there is sufficient room for doubt about the actual quantum of heroin that was recovered. Admittedly, no scale was used to determine the actual quantum heroin that was seized from the four accused persons.
In that view, there remains some uncertainty about the actual quantum of heroin that was recovered from the accused persons resultantly, the benefit of doubt, should be accorded to the appellants.
32. Thus the ends of justice will be met if we have come to conclusion that the case will falls under the mischief of Section 1(ka) of the Table 19(1) of the Narcotics Control Act and maximum punishment of which is up to 10 years. It may be stated that records shows the convict-appellants were arrested on 28-3-2004 and since then they have been languishing in jail for 12 years.
33. In the facts and circumstance of the case, we are inclined to hold that conviction is liable to be altered from Section 19(1), Table 1 (Kha) to section 19(1), Table 1(Ka) of the said Ain. Hence the sentence may be awarded to them be reduced to the extend of 10 years which they have already undergone.
34. In the result, the appeal is dismissed with modification in respect of sentence. Convict appellants namely (I) Leon, son of Nondo Sarak and (2) Md Sabur, son of late Danu Miah be set at liberty forthwith if not wanted in connection with any other case.
Let a copy of this judgment along with LCRs be sent to the concerned court at once.
(Concluded)
