ফৌজদারী : মাদক মামলা
HEADING OF JUDGMENT
District: Sylhet
In the Court of Druto Bichar Tribunal, Sylhet.
Present: Md. Shahadat Hossain Pramanik
Special Sessions Judge, Special Sessions Judge Court and Bicharok, Druto
Bichar Tribunal, Sylhet.
Sessions Case Number-470/2020
{Arising out of G.R case number 85/2020
(Goainghat)}.
Charge under section 36(1) table 10(ga)
of the Madak Drabbya Niyantran Ain, 2018.
Date of Delivery of Judgment: Thursday,
24th November, 2022.
The
state.............................................................................
Prosecution
Versus
Abul
Hussain……,............................................................
Accused
The case coming on for final hearing
on 10/10/2021; 21/11/2021; 27/03/2022; 01/06/2022; 12/06/2022 and 04/10/2022 in
presence of
1.
Mr. Md. Sorwar Ahmed Choudhury......
Special PP for the
Prosecution
AND
1.
Mr. Gias Uddin Chowdhury…………….
Advocate for the
accused
and having stood for consideration to
this day, the court delivered the following judgment:
JUDGMENT
The briefly
stated prosecution case is that on 06/03/2020
while working at RAB-9, Sylhet as Sub-Inspector the informant was engaged on petrol
duty with other officers and forces under the leadership of DAD Ahmed Ali at Jaintapur
Police Station area and while they were stating at Horipur Bazar at 16.10
O'clock their commander DAD Ahmed Ali got the secret information that some
people are gathering and staying behind the Bagher Shorok (Khagra) F.I.D.B
primary school under Goainghat Thana of Sylhet district for the trading of Yaba
tablets. DAD Ahmed Ali moved to the place of occurrence with the informant and
the accompanying forces and reaching to the place of occurrence at 16.30
O'clock, they detained a person with a red colour bag in his right hand while
he was trying to flee away feeling the presence of RAB. The body and the bag of
the accused was searched in presence of the witnesses as per law and 6750
pieces Yaba tablets measuring 675 grams was recovered and seized through
seizure list which was retained in 34 air tight poly packs amongst which 33
poly packs contained 200 pieces each and another poly pack contained 150 pieces.
The informant prepared and signed the seizure list at the place of occurrence and
took the signatures of the witnesses on the seizure list. On interrogation the
accused disclosed his name as Abul Hossain and admitted that he was staying
there with the seized alamat for sale. Then the team went to Goainghat Thana
with the accused and the alamat and the informant lodged the FIR against the
accused with Goainghat Thana in respect of the occurrence.
After
completion of the investigation, charge sheet was submitted against the accused
under section 36(1) table 10(ga) of the Madak Drabbya Niyantran Ain, 2018. Cognizance
of the offence under section 36(1) table 10(ga) of the Madak Drabbya Niyantran
Ain, 2018 was taken against the accused. The case became ready for trail and it
was sent to the learned Sessions Judge Court for trial. Subsequently this case has been sent to this Special Sessions Judge Court
for trial.
Charge was framed against the accused under
section 36(1) table 10(ga) of the Madak Drabbya Niyantran Ain, 2018. The charge so framed having been read over and explained to the accsued.
The accused pleaded not guilty and prayed for trial.
During examination under section 342 of the Code of Criminal Procedure, 1898 on 26/06/2022,
the accused claimed him to be innocent and denied to adduce any evidence, but
he wanted to submit some papers. Then on 21/07/2022 the court ordered to issue
process to the charge sheeted witness No.3 and on 04/10/2022 that witness was
examined as PW-8 and as the accused became absconded, the learned state defence
lawyer cross examined the witness. Then the record was taken for the examination
of the accused under section 342 of the Code of Criminal Procedure, 1898. As the
accused was absconded, it was not possible to examine him under section 342 of
the Code of Criminal Procedure.
The defence is plea of innocence. The
specific defence case as appears from the trend of cross examination is that no
Yaba tablet was recovered from the control and possession of the accused Abul
Hossain on the date, time and place of occurrence and the accused was not
detained from the place of occurrence and the informant has lodged false FIR
against the accused creating fake story and false alamat being influenced by
the enemies of the accused.
POINTS FOR DETERMINATION
Whether the prosecution has been able
to prove the charge under section 36(1) table 10(ga) of the Madak Drabbya
Niyantran Ain, 2018 against the accused.
FINDINGS AND DECISIONS
The
prosecution has examined 08 witnesses to prove the charge against the accused. The
learned advocate for the accused has cross examined the prosecution witnesses. Let’s discuss the statements of the
prosecution witnesses.
The informant S.I Shojol Kumar Dhor has stated in his examination in
chief as PW-
In
cross examination P.W-2 has stated that he is the informant of the case. They
were 7/8 persons in the petrol party. The place of occurrence is about 20/22
K.M far from Goainghat Thana. He could not memorize how many people were
present at the place of occurrence when they reached. DAD Ahmed Ali, ASI
Shajahan, ASI Mamunul, Lens Naik Jasim and Chan Mia, Constable Shoriful Islam, Sergeant
Jahangir Alom was with him. Sergeant Jahangir was the driver of the vehicle by
which they went to the place of occurrence. He could not memorize how many
local people were present at the time of detaining the accused. He could not
say the name of other present local persons accept the name of the local
persons mentioned in the seizure list. Before searching the body of the accused,
he searched his body by the witnesses as per rule. He has not mentioned the
name of other witnesses in the FIR in this regard accept the name of the seizure
list witnesses. He could not say the name of the union of the place of
occurrence and the name of the Chairman and Member also. He did not think necessary
to call the local Chairman or Member at the time of preparation of the seizure
list. He has denied the suggestions given by the learned advocate for the
accused as to that no Yaba tablet was recovered from the accused Abul Hossain
on date, time and place of occurrence or he was influenced by the enemies of
the accused or he has lodged false FIR against the accused being influenced by
the enemies of the accused.
PW-1
Joynal Abedin has stated in his examination in chief, in brief, that he drives auto rickshaw in Bagher Shorok area of Goainghat. On
6-3-2020 around 4:30 pm he was coming towards Haiyar bazar from Bagher Shorok
with passenger in auto rickshaw. When he came in front of F.I.D.B school ground,
5/6 RAB stopped him with signal. They informed him that they have detained a man
with some illegal goods. They asked him his name and address. They showed him a
packet and also the accused. RAB bring out the packet from his pocket. Then he
signed on a paper.
He has marked the seizure list as exhibit 1 and his signature on the seizure
list as exhibit 1/1. He has identified the accused on dock and has further
stated that he did not see to recover any goods from the accused.
The prosecution declared this
witness hostile and in cross examination by the prosecution P.W 1 has denied
the suggestions given by the learned Public Prosecutor as to that his house and
the house of the accused Abul Hossain is in the same village or RAB recovered
6750 pieces Yaba tablet which was retained in many packets in presence of him
from the control and possession of the accused or he signed the seizure list
after seeing the recovery and seize of that Yaba tablet or he has been
influenced by the relative of the accused as co-villagers or he gave false
evidence concealing the truth to save the accused being illegally influenced.
The learned Advocate for the
accused has cross declined this witness.
PW-3 DAD Ahmed Ali has stated in his
examination in chief, in brief, that on
In
cross examination P.W-3 has stated that the occurrence took place on
06/03/2020. The occurrence took place at 16.30 O'clock. He got the secret
information. They were total 8 in number conducted the operation. They went by
their government pickup. Sergeant Jahangir was the driver of the pickup. He
could say the name of his accompanying forces, he, S.I Sojol, S.I Mahmudul, S.I
Shajahan, Nayek Jasim, Nayek Chan Mia, Constable Ashraful Islam and driver. It
is true that he did not get any alamat being hidden or tied to the body of the
accused but from the bag which was in the hand of the accused. The bag was in
the right hand of the accused. There were 34 packets in one bag. The place of
occurrence is under Goainghat Upazila. It takes 20 minutes to go to Goainghat Thana
from the place of occurrence. He could not say the exact distance and
direction. The place of occurrence is paka road. There is a vacant field beside
the place of occurrence. He did see any house there. Apart from them the
surrounding people gathered at the time of occurrence. He could not remember
under which union the place of occurrence is situated. They did not call the
local Chairman and Member at the time of occurrence. The seizure list was
prepared at the place of occurrence. Joynal is one of those witnesses amongst
the local people who signed on the seizure list. He could not remember the
others name. But there were more witnesses. He has denied the suggestions given
by the learned advocate for the accused as to that the place of occurrence is
under Jaintapur Upazila or they did not go to the place of occurrence or they
did not recover any Madak from the place of occurrence or they did not detain
any person at the time of fleeing away or they have given false case creating
fake story and false alamat against the accused being influenced by the enemy
of the accused.
P.W-4
A.S.I Md. Mahmudul Hasan has stated in his examination in chief, in brief, that
on
In
cross examination P.W-4 has stated that he was on the spot with the petrol
party conducting the raid. They went under the leadership of DAD Ahmed Ali.
They were total 8 in number. The place of occurrence is Bagher Shorok (Khagra)
situated under Goainghat Upazila. The local 10/15 people gathered after their
reaching to the spot. He could not say their name. There are houses around the
place of occurrence. He could not say whether people from those houses came to
the place of occurrence. Information was not given to the local Chairman or
Member. The body of the detained accused was searched in the order of DAD Ahmed.
S.I Sojol Kumar Dhor searched him. Before that the body of S.I Sojol Kumar Dhor
was searched by the witness Joynal and Elias. But the body of all of them has
not been searched. The alamat was recovered from a bag which was in the right
hand of the accused but not from concealed to the body of the accused. He has
denied the suggestions given by the learned advocate for the accused as to that
they did not go to the place of occurrence or did not detain the accused from
the place of occurrence or did not recover any alamat from the possession of
the accused or false case has been lodged against the accused creating false
alamat being influenced by the enemy of the accused.
PW-5 Nayek Md. Joshim Uddin has been
tendered by the prosecution and cross declined by the accused.
PW-6 S.I Debjit Das, the investigating
officer of the case, has stated in his examination in chief, in brief, that on
07/03/2020 while working at Goainghat Thana, Sylhet as S.I. the
officer-in-charge appointed him the investigation officer of the case. Then he received
the accused Abul Hossain and seized alamat from the informant under his
custody. He perused the FIR and the seizure list and forwarded the accused to
the court after interrogation. He interrogated the informant and witnesses and
recorded their statements under section 161 of the Code of Criminal Procedure. He
visited the place of occurrence and prepared the sketch map and index. He sent
the sample collected from the seized alamat for chemical examination taking
permission from the court. Then he received the chemical examination report and
the report contains that amphetamine has been found in the sent sample. He
verified the address of the accused and found in correct. He investigated the
case expressly and secretly and discussed result of the investigation with his
higher authority and his higher authority agreed with the result of the
investigation. Then he submitted the Goainghat police station charge sheet No.
160 dated 10/06/2020 under section 36(1) of table 10(ga) of the Madak Drabbya
Niyantran Ain, 2018 as he found the primary truth of the offence described in
the FIR against the accused. He has marked the sketch map as exhibit 3 and his
signature thereon as exhibit 3/1; the index as exhibit 4 and his signature thereon
as exhibit 4/1 and the chemical examination report as exhibit 5.
In cross examination PW-6 has stated
that when the informant detained the accused, he was performing duty at Thana.
He went to the place of occurrence for four times for the purpose of
investigation. The place of occurrence is on the paka road of south side of
F.I.D.B primary school. There is road on the east side and west side of the
place of occurrence and land beside the road, agricultural land on the north
side beside the road, another road on the south side. There is no house
adjacent to the place of occurrence but a little far. He did not show those
houses in the sketch map because those are a little far. He tried to interrogate the people of those
houses but they did not agree. He could not memorize the name of those people.
The place of occurrence is under 5 No. Purbanigaon Union but now that is divided
into two unions. He did not interrogate the U.P Chairman and Member of the Union
Parishad concerned at the time of investigation. There is a school adjacent to
the place of occurrence. The school was closed at the time of occurrence. He
searched the chowkidar of that school but did not get him. He heard from the
accused at the time of investigation that the accused serves in a company in
Dhaka. But he did not get the authenticity of that claim. He got this
information on interrogation when the accused was in the custody of the Thana
hajot. He has denied the suggestions given by the learned advocate for the
accused as to that he did not get any authenticity of the involvement of the
accused with the occurrence at the time of investigation or the accused is not
the trader of Madak or he serves in the Jamuna company at Dhaka or he did not
investigate the case properly or there is no reason to sale Madak on the place
of occurrence described in the FIR or he did not get any information as to the
recovery of recovered Madak from the possession of the accused.
PW-07 A.S.I Md. Shahjahan Mia has stated in his examination in chief, in
brief, that on
In
cross examination P.W-7 has stated that he went to the place of occurrence as
the member of the raiding party. They were total 8 in numbers. They started to
the place of occurrence after getting the information while they were staying
at Horipur bazaar. He could not memorize the distance of place of occurrence
from Horipur bazaar. The place of occurrence is on the paka road of the south
side of F.I.D.B primary school. He could not say whether there is any house
nearby the school. 5/7 local people gathered at the time of occurrence amongst
them two are the seizure list witnesses. He could not say the name of others
except the witnesses. He does not know whether their in-charge gave information
to the local Chairman or Member at the time of occurrence. The goods were found
in red poly pack which was in the hand of the accused after searching his body.
Before searching the body of the accused their body was searched by the
witnesses. He has denied the suggestions given by the learned advocate for the
accused as to that he did not go to the place of occurrence at the time of
occurrence as he has stated in his examination in chief or the fact of the case
is fabricated or no Madak drobbya was recovered from the control and possession
of this accused or false case has been lodged against the accused by created
alamat being influenced by the enemy of the accused.
PW-08 Elias Ali has stated in his examination in chief, in
brief, that he knows the accused Abul Hossain and their residence is in the
same area. He could not memorize the date of occurrence. The occurrence took
place at 5.00 O'clock of March, 2020. He came out from his house hearing the
sound of the vehicle of RAB and saw the accused Abul Hossain sitting in the
vehicle of RAB. At that time RAB interrogated him and said him that they have
got illegal goods from the accused. RAB prepared the seizure list and took his
signature thereon. He has marked his signature on the seizure list as exhibit
1/4.
In cross examination by the State Defence
Lawyer PW-08 has stated that he did not see to recover any goods and he signed
on the seizure list as per the direction of RAB.
Let’s enter into the main discussions.
On perusal of the statements of the witnesses, it appears to the court that the
informant S.I Shojol Kumar Dhor has stated in his examination in chief as PW-2 that
on
The seizure list neutral public witness
Joynal Abedin has stated in his examination in chief as PW-1 that he drives auto rickshaw in Bagher Shorok area of Goainghat and
on 6-3-2020 around 4:30 pm he was coming towards Haiyar bazar from Bagha Shorok
with passenger in auto rickshaw and when he came in front of F.I.D.B school
ground, 5/6 RAB stopped him with signal and they informed him that they have
detained a man with some illegal goods. They showed him a packet and also the
accused and he signed on the seizure list. He has marked the seizure list as exhibit 1
and his signature on the seizure list as exhibit 1/1. Another seizure list
witness PW-08 Elias Ali has stated in his examination in chief that
he knows the accused Abul Hossain and their residence is in the same area. He
came out from his house hearing the sound of vehicle of RAB and saw the accused
Abul Hossain sitting in the vehicle of RAB. At that time RAB interrogated him
and said him that they have got illegal goods from the accused. RAB prepared
the seizure list and took his signature thereon. He has marked his signature on
the seizure list as exhibit 1/4.
Though
PW-1 has stated in his examination in chief that he did not see to recover any
goods from the accused and PW-8 has stated in his cross examination that he did
not see to recover any goods, PW-1 has admitted in his examination in chief
that RAB showed him a packet and
also the accused and he signed on the seizure list and PW-8 has admitted in his examination in
chief that he came out from his house hearing the sound of the vehicle of RAB
and saw the accused Abul Hossain sitting in the vehicle of RAB and at that time RAB said him that they have got
illegal goods from the accused. Both the witnesses have exhibit marked their signatures
on the seizure list. None of the seizure list witnesses has stated in their
evidence that that they did not see the accsued or did not see the alamat.
At the time of hearing of argument in this regard the
learned State Defence Lawyer argues that as the neutral seizure list witnesses
have not supported the fact of recovery of Madak from the possession of the
accsued, the accused cannot be convicted. On the other hand the learned Special
PP for the prosecution argues that none of the seizure list witnesses has denied
their signature on the seizure list and in our socio economic condition the
general people do not show interest to give evidence against the criminals and
many times they suppress the real facts at the time of giving evidence due to
fear or due to avoid enmity and to maintain the harmonious relation with the
accused in future. He again submits that the seizure list witness PW-8 has stated
in his evidence that he knows the accused and their residence is in the same
area. So, it can be presumed easily that he will not give evidence against the
accused. He further more argues that as the seizure list witnesses have
admitted their signature on the seizure list and they saw the accused and the
alamat at the place of occurrence, their statements as to not seeing the
recovery of the Madak from the possession of the accused is not believable. It
appears to the court that the arguments advanced by the learned Special PP for
the prosecution have substance. Moreover another seizure list witness PW-07 A.S.I Md. Shahjahan Mia has
supported the allegation against the accused in his evidence.
The learned State Defence Lawyer again
argues that the accused can be convicted relying on the evidence of police
witnesses or departmental witnesses in absence of neutral public witness. On
the other hand the learned Special PP for the prosecution argues that police
personnel cannot be disbelieved mere on the ground that they are police and if
the accused fails to find out any information convenient for him by cross
examining the witnesses, the order of conviction and sentence can be passed on
the basis of their evidence. The prosecution has examined 08 witnesses
including the informant and the investigation officer to prove the charge
against the accused but the learned advocate for the accused has failed to find
out any information convenient for the accused by cross examining the witnesses.
Moreover in the case of Tuta Pramanik vs State reported in 59 DLR 492 Para 22
Honourable High Court held that “it is settled by the several decisions that
even if the independent witnesses and the seizure list witnesses do not support
the prosecution case conviction can be given relying only upon the evidence of
Police witness if it inspires confidence or worthy of credit. Mahmudul Islam
alias Raton vs State 53 DLR (AD) 1, Kashem vs State 54 DLR 212, Billal Miah vs
State 9 MLR 429, Mushfiqul Islam vs State 52 DLR 593, Tariqul Islam vs State
2001 BLD 140= 6 BLC 134, Abdur Razzaque 51 DLR 83, Kamruzzaman vs Babul Shikder
47 DLR 416, Babul vs State 5 MLR 377 and 1988 BLD 106 echoed on the same
point.” As the learned advocate for the accused has failed to find out any
information convenient for the accused by cross examining the prosecution
witnesses and contradictory nothing is found in the statements of the
witnesses, their evidence inspires the confidence of the court. Therefore it
appears to the court that the argument advanced by the learned state defence
lawyer has no substance and the argument advanced by the learned Special PP for
the prosecution has substance.
The
learned advocate for the accused has given suggestions to the prosecution
witnesses as to that RAB has filed false case against the accsued creating fake
story and false alamat being influenced by the enemies of the accused. The prosecution
witnesses have denied the suggestions. It is the settled
principle of criminal justice that the prosecution is to prove its own case and
burden of proof does not lie upon the accused. But when the defence takes any
specific plea, burden of proof lies to the accused to prove that plea. Here in
the present case the accused has taken the plea that RAB has filed false case
against the accused being influenced by the enemy of the accused. The
prosecution side denies the claim of the accused. But the accused has not taken
any step to prove the plea. No previous enmity of the accused is also found
with any RAB members. Considering all these things, it appears to the court
that the defence plea is not sustainable. Rather he has become absconded after getting bail which also bears the
sign of guilty mind of the accused.
On
scrutiny of the statements of cross examination of the witnesses it appears to
the court the witnesses have given same information regarding the place of
occurrence, time of occurrence, date of occurrence and the amount of recovered
Madak and they have clearly stated in their cross examination that the Yaba
tablets were recovered from the a bag which was in the hand of the accused. It
is also evident that those recovered Yaba tablets retained in 34 air tight poly packs amongst which 33 poly packs contained
200 pieces each and another poly pack contained 150 pieces. The witnesses have identified the accused on
dock also. Contradictory nothing is found in the statements of cross
examination of the witnesses. The prosecution has been able to prove that 6750
pieces Yaba tablet measuring 675 grams were recovered from the possession
of the accused on the date, place and time of occurrence.
Taking into consideration the entire
gamut of evidence on record, the attendant circumstances and the defence
version, this court finds reasons to hold the view that the prosecution has
been able to bring home the charge leveled against the accused Abul Hossain
under section 36(1) table 10(ga) of the Madak Drabba Niyantran Ain, 2018 beyond
all reasonable shadow of doubt. Therefore the accused Abul Hossain is found
guilty under section 36(1) table 10(ga) of the Madak Drabba Niyantran Ain, 2018
for violating the provision of section 9(1)(kha) and he is liable to be
convicted. As per PC&PR there is no criminal record against the accsued. Considering
the amount of recovered Madak and the PC&PR of the accused, the court is
inclined to impose imprisonment for life to the accused instead of death
sentence.
Hence ordered
that the accused Abul Hossain; Son of
Abdul Kadir, Village-Latu, Thana-Goainghat, District-Sylhet be convicted under section
36(1) table 10(ga) of the Madak Drabba Niyantran Ain, 2018 and be sentenced to
suffer imprisonment for life and also to pay fine of ten
thousand taka in default to suffer
simple imprisonment for a further term of six months.
The conviction and sentence of the
accused shall be carried out from the date of his arrest or surrender. The
total period for which the accused was in the custody in connection with this
case prior to this conviction be deducted from the above term of imprisonment.
The seized alamat Yaba tablets be
confiscated to state and be destroyed in accordance with law subject
to any appeal filed by the accused. Office is directed to send a copy of the operative portion together
with a copy of the seizure list to the malkhana officer concerned for
information and necessary action.
Office is also directed
to forward a copy of the findings and sentence to the learned Chief Judicial Magistrate,
Sylhet and to the learned District Magistrate, Sylhet as per the provision of
section 373 of the Code of Criminal Procedure, 1898. Issue warrant of commitment accordingly.
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