Dclip Kumar Shaha -Vs. - The State

Dclip Kumar Shaha (Petitioners) Vs. TheState (Respondent) [The Special Powers Act (I of 1974), Section 25 (B)(2).]

Appellate Division Cases

(Criminal)

JUDGES

J. R. Mudassir Husain C J

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Date of Judgment

25th February 2004

The Special Powers Act (I of 1974), Section 25 (B)(2).

  

The Code of Criminal Procedure (V of1898), Section 342. Non Payment of Taxes Duty.

Articles were seized and seizure list was prepared in his presence wherein he put his signature he also identified the accused-Petitioner in the dock and that another..the eye witnesses of the occurrence, by their testimony proved the prosecution case and corroborated each other in support of the prosecution case and the informant, P.W 1 deposed that the accused petitioners illegally smuggled contraband alachi into Bangladesh from India without payment of custom duties and taxes and the prosecution witnesses proved that the accused petitioner kept in his possession 42 Kg. Indian black alachi and failed to show any legal document in respect of those articles and all the prosecution witness namely P.Ws. 1-4 proved the prosecution case as to the time, place and manner of occurrence and thus the prosecution proved the suit of the accused petitioner beyond reasonable doubt and accordingly dismissed the appeal (6).

ADVOCATES

Mel. Nawub AH, Advocate-on-Record for the Petitioners.

Not Represented Respondent

JUDGMENT:

1. Md. Tafazzal Islam J:- Delay of 398 days is condoned.

2. This criminal petition for leave to appeal at the instance of the accused-petitioner is directed against the judgment and order dated 22.6.2002 passed by the High Court Division in Criminal Appeal No. 557 of 1997 dismissing the appeal arising out of judgment and order dated 24.3.1997 passed by the Special Tribunal No. 2 Bogra in Special Tribunal Case No. 70 of 1986 arising out of Bogra P. S. Case No. 10 (2) 96 dated 5.2.1996 convicting accused-petitioner under Section 25 (B)(2) of the Special Powers Act 1974 and sentencing him to suffer rigorous imprisonment for 1 (One) year and also to pay a fine of Tk. 500/-(five hundred) each and in fefault to suffer rigorous imprisonment for one moth more each.

3. The prosecution case, in short, is that the informant Ansiur Rahman, A Sub-Inspector of police D. B. Branch, Bogra, along with 2 constables on 5.2.1996 at about 13-35 P. M. went out to watch the movements of criminals of the town area and then they saw the accused-petitioner and another person sitting on a rickshaw with a jute bag in front a Amin Bakery at Raja Bazar and having suspected them the informant interrogated them and during interrogation they disclosed that there were black Indian alachi (Cardamon) in the bag. Then the bag was opened in presence of witnesses namely, Chan Mian, the rickshaw puller, Md. Aminur Rahman and Sri Protab Sarkar and black Indian alachi were found therein and then the above articles were seized in presence of the witnesses. The informant then lodged Bogra Police Station Case No. 10(2)96 dated 5.2.1996 and the police, after investigation, submitted charge sheet against the accused-petitioner and another under section 25(13)(2) of the Special Power Act and the case was then sent to the Special Tribunal No. 2 Bogra for trial and in the trial the prosecution examined 5 witnesses and the defence examined none. The defence case, from the trend of cross-examination of the prosecution witnesses and examination of the accused-petitioner under section 342 of the Code of Criminal Procedure appeared to be that the accused-petitioner and the other accused were innocent and they have been falsely implicated in the case.

4. The Special Tribunal No. 2, Bogra by judgment and order dated 24.3.1997 convicted the accused-petitioner and other accused under section 25B (2) of the Special Powers Act and sentenced them as stated earlier. The accused petitioner then filed Criminal Appeal No. 557 of 1997 and the High Court Division dismissed the appeal and upheld the above judgment and order passed by the Special Tribunal No. 2 Bogra.

5. Mr. Md. Nawab Ali. the learned Advocate-on-Record for the accused petitioner submits that this case was concocted by some interested persons and no black Indian alachi was found and the alleged alachi found in the bag is very much available in Bogra town and every shops of Bogra town sell such black alachi which the prosecution branded as black Indian alachi and further the alleged place of occurrence was far away from the Tndian border and as such it was not possible to bring illegal goods by the petitioner. Mr. Nawab Ali, next submits that the pertinent question as to whether the goods were contraband or not were not considered by the High Court Division and in that view of the matter the judgment and order passed by the High Court Division can not be sustained. Mr. Nawab Ali lastly submits that this case was heard by the High Court Division without considering that the filing lawyer of Criminal Appeal No. 557 of 1997 became Assistant Attorney General for Bangladesh and for this notice in Form No. 10 should have been issued as per provisions, but without issuing it, the case was heard with

non-appearance of the petitioner’s lawyer and so the points as stated above, could not be raised before the High Court Division.

6. As it appears the High Court Division found that the informant, Assistant Sub-inspector. Anisurc Rahman As P. W. 1 in his examination in Chef Stated that he and along with his force on 5.2.1996 at about 13-35 p. m. arrested the accused petitioner with a jute bag, containing contraband Indian alachi when they were sitting in rickshaw in front of Amin Bakory at Bazzar Road and he suspecting those 2 persons and searched the said bag and recovered 42 Kg. black Indian alachi worth TK. 7.000/- and then those alachi were seized in presence of witnesses and that the defence cross-examined P. W 1 but failed to find out any contradiction in the evidence of P. W 1 and further P. W. 2 Aminur Rahman, the proprietor of Amin Bakary, in examination-in-chief stated that one 15.2.1996 at about 1-30 P. M. the police personnel arrested the accused petitioner with a bag continuing 42 Kg. black Indian alachi worth of TK. 7,000/- and then those articles were seized and seizure list was prepared in his presence where in he put his signature marked as cxhibit-2/2 and he also identified the accused-Petitioner in the dock and that another seizure list witness Sri Protab Sarker P. W 3 also gave evidence in support of the prosecution and made similar statements like P. W 2 and he also proved that 42 Kg. Indian alachi kept in a bag was recovered from the accused petitioner who was going by a rickshaw in his presence and further, Chand Miah, rickshaw puller, P. W 4 also proved the prosecution case, and corroborated evidence of P. Ws. 1-3 and further A. S. I. Nuruzzaman as P. W 5 deposed that on completion of the investigation he found a prima facie case and accordingly submitted charge sheet against the accused petitioners and he produced the relevant documents as per requirement of law, which were marked as exhibits. The High Court Division on perusal of the evidence of the prosecution witness found that the P. W 1 informant, Anisur Rahman and P.W.2 Aminur Rahman P. W. 3 Protab Sarker and P. W 4 Suchi Mia, who were the eye witnesses of the occurrence, by their testimony proved the prosecution case and corroborated each other in support of the prosecution case and the informant, P.W 1 deposed that the accused petitioners illegally smuggled contraband alachi into Bangladesh from India without payment of custom duties and taxes and the prosecution witnesses proved that the accused petitioner kept in his possession 42 Kg. Indian black alachi and failed to show any legal document in ‘ respect of those articles and all the prosecution witness namely P.Ws. 1-4 proved the prosecution case as to the time, place and manner of occurrence and thus the prosecution

proved the guit of the accused petitioner beyond reasonable doubt and accordingly dismissed the appeal. Since the High Court Division in its judgment considered all the points as raised, the criminal petition is accordingly dismissed.

Source : III ADC (2006), 404.