High Court Division :
(Criminal Appellate Jurisdiction)
Abu Bakar Siddiquee J
Mustafa Zaman Islam J
Leon and another. .
January 26th, 2017
Narcotics Control Act (XX of 1990)
Sections 19(1) Table 1(Kha) and 19 Table 4
In a case where any drug is recovered and/or seized during any operation by the law-enforcement agencies, the determination of the quantum of the drug so recovered or seized is imperative. Unless the quantum of the drug is measured and determined by a proper and acceptable method i.e., by weighing with a conventional scale or an electronic scale, the statement with regard to the quantum of drug so seized or recovered would merely be based on an approximation, which is not only improper, but grossly prejudicial to the interest of the person charged with the offence. ..............(26)
Sultana Fouzia Yesmin, Advocate-For the Convict Appellant.
Md Monirujjaman Rubel, DAG with Kazi Bazlur Rashid, AAG with Delwara Begum (Bela), AAG-For the State.
Mustafa Zaman Islam J : This criminal appeal is directed against the Judgment and order of conviction and sentence dated 31-3-2010 passed by the learned Additional Sessions Judge, 2nd Court, Gazipur in Sessions Case No. 217 of 2004 arising out of Tongi Police Station case No. 21 dated 24-4-2004 corresponding to GR No. 147 of 2004 under Section 19(1) table 1 (Kha) and 19 Table-4 of Narcotics Control Act, and sentencing them to suffer rigorous imprisonment for life and also to pay a fine of Taka 10,000 in default to suffer rigorous imprisonment for 6 (six) months more.
2. The facts leading to conviction, in short. are that one Md Monirul Islam as informant lodged an FIR with Tongi Police Station under District Gazipur on 28-3-2004 stating inter alia that upon receiving secret information, the police force led by Sub-Inspector Monirul Islam of DB Gazipur went to the house located at house No. 12/2, Modhumita Road, Tongi. The informant posed as a buyer of heroin and went to flat located at second floor of the aforesaid building where he found 4 (four) persons present in a room including convict-petitioners. The informant entered into a discussion with the four unknown persons with regard to purchase of heroin. At one stage of discussion, the four persons brought out a black coloured hand bag and from inside the said bag, they took out a chocolate coloured heroin packet with a polythene cover. At that time the informant, however, to send a signal to the other members of the said raiding party who were lying in wait outside and upon receiving the said signal, they rushed to the incident place and arrested the said four persons and recovered the packet in question from their possession. On quarry, they admitted that they were dealers of heroin and the same packet contained 1 kg of heroin. The informant party prepared a seizure list in the presence of witnesses. Moreover, the said packet was opened and 0.20 gram of heroin were taken as sample and it was sent to the Chief Chemical examiner. Dhaka for Chemical examination. On the basis of the said report FIR was lodged.
3. The police took up investigation of the case, visited the place of occurrence and prepared the sketch map and index. Upon conclusion of investigation, chargesheet was filed against the four accused persons under Section 19, Table 1 (Kha) of the Madak Drabya Niontron Ain, 1990 (briefly, the Ain). To prove these charges, the prosecution examined 6 (six) witnesses altogether, out of the aforesaid 6 (six) witnesses, Constable Mir Ashraf Ali (PW 1), SI Monirul Islam (PW 2), Babul Mia (PW 3) seizure list witnesses, Md Akter Hossain (PW 4), Mir Raqubal Haque, SI (PW 5) and Shahjahan Ali, Constable (PW 6).
4. During trial, the learned Additional Sessions Judge, 2nd Court and Special Tribunal, 3rd Court, Gazipur framed charge against 4 (four) accused persons including convict-appellants under Section 19(1) (kha) and 19( 4) of the Narcotics control act, 1990 which was read over them to which their pleaded not guilty and claimed to be tired.
5. Upon conclusion of recording of evidence, the accused persons including convict appellants facing trial were examined under section 342 of the Code of Criminal Procedure. However, the learned Additional Sessions Judge, 2nd court, Gazipur found the appellants guilty and convicted and sentenced them in the manner noted at the outset.
6. Being aggrieved, the convict-appellants preferred the instant Criminal appeal before this High Court Division and other two co-convict filed another appeal being No. 3267 of 2010 before this Division and after hearing, this appeal disposed of by the Judgment and order dated 19-5-2011.
7. Ms. Sultana Fouzin Yesmin, the learned Advocate, appears for the convict-appellants Leon and Md Sobur, while Md Monirujjaman Rubel, the Deputy Attorney-General with Mr Kazi Bazlur Rashid, Assistant Attorney-General, appears on behalf of the State.
8. Ms. Sultana Fouzin Yesmin, the learned Advocate for the appellants at the very outset submits that the impugned judgment and order of conviction and sentence is liable to be set aside in view of the discrepancies that appears on the face of the record. Elaborating her submission, she submits that in the FIR, the GD number has been mentioned as 200, but in the chemical examination report, which has been marked as Exhibit 5, the GD number has been mentioned as 204, both the same dates. Ms. Sultana further submits that although about 20 grams of the heroin was taken in a sealed plastic container and sent to the Chemical examiner, the report indicates that the Chemical Examiner received the sample weighing 7.3610 grams. Placing considerable reliance upon these particular aspects of the case, she submits that as the GD number 200 does not correspond to the GD number appearing in the report of the chemical examiner, the said report does not relate to the heroin that was seized from the appellants. Ms. Sultana also submits that the trial court failed to consider that the quantity of heroin in question is ascertained by a report by a chemical examiner the conviction under Section 19(1) of table 1(kha) of Narcotics control Act, 1990 is not sustainable in law and, as such, it is liable to be set aside. She further submits that the Chemical Examiner, who conducted the Chemical Examine was neither examined as witness and therefore, the said report has not been proved in accordance with law.
Lastly, she submits that co-convicts filed another appeal and after hearing the parties by the said impugned Judgment and order allowed the appeal in-part that is conviction is upheld but sentence with modification as such considering the same the appellants may be benefited.
9. Mr Md Moniruzzaman Rubel, the learned Deputy Attorney-General appearing for the state, on the other hand opposes and submits that the Chemical Examiner did not examine in the dock but non examination of the same is not fatal to the prosecution case in view of the provision of Section 510 of the code of Criminal Procedure, He submits that since the quantum of heroin that was sent for Chemical Examination was based upon approximation, it was not fatal to the prosecution case, moreover, when admittedly, the said sample was collected in a sealed container in presence of the Magistrate and subsequently, it was received in the same condition, as is evident from the said report. Lastly, he submits that the instant Judgment and order of conviction does not warrant any interference by this court and therefore, the appeal is liable to be dismissed.
10. For proper disposal of the appeal, it will be profitable to examine the evidence on record.
11. PW 1, Mir Ashraf Ali, a police constable deposed that on 28-3-2004, he accompanied Sl Monirul Islam and went to a house located at Modhumita Road, Tongi. He further deposed that the SI posed as a buyer and entered the house and after 10/15 minutes, he sent a signal and they entered the said house and recovered a bag containing 1 (one) Kg of heroin. He further deposed that four persons were arrested and the heroin was seized in presence of witnesses who signed the seizure list.
12. On recall, PW 1 further stated that SI Monirul Islam seized 1 Kg heroin on 28-3-2004
13. PW2 SI Monirul Islam deposed that on 28-3-2004, being instructed by the OC of BD, Gazipur, he proceeded along with a police force, He further deposed that posing as a buyer of heroin, he went to the second floor of the house and had a discussion with four persons who brought out a chocolate coloured packet from inside a black bag. At that stage, he gave a signal and the other members of his raiding party reached therein and with their help, accused Sattar, Lion, Sabur and Belal were arrested and they sized the packet.
14. PW 3 Babul Mia is a seizure list witness, he deposed that he could not recollect the date of occurrence, but the time was 1-30 pm-2-00 pm, He further deposed that he was sitting at the tea shop when some police personnel came to him in civil dress and told him about the recovery of heroin. He identified the seizure list and his signature as Exhibit-2, 2/2. He further stated that he did not know the accused persons.
15. PW 4 Md Akter Hossain has been declared hostile.
16. PW5 Mir Raqubul Haque S.I deposed that he took up the investigation. visited the place of occurrence prepared the sketch map and index and also recoded the statement of witnesses, He identified the sized goods in Court as Exhibit-Ka.
17. PW 6 Shahzahan Ali, a constable, who was a member of the raiding party corroborated the prosecution witnesses as to the time, place and manner of occurrence.
18. These are all the evidence that is on record.
19. It appear; from the evidence on record that upon receiving secret news from reliable source, the informant along with force, raided a house at Tongi and arrested four persons including the presents appellants and recovered a pocket contain -------------grams, was taken from the said packet in presenceof a Magistrate, 1st class and it was sent in a sealed container to the Chemical Examiner, who opined that the said substance did contain heroin which runs as follows:-
“প্লাস্টিকের কোটায় ৭.৩৬১০ গ্রাম সাদা বর্ণের গুড়া পদার্থ রক্ষিত ছিল। প্লাস্টিকের কৌটায় রক্ষিত সাদা বর্ণের গুড়া পদার্থে হেরোইন পাওয়া গিয়াছে|
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20. However, there appears to be some discrepancy with regard to the quantum of heroin that was sent for chemical examination. PW 2 SI Monirul Islam stated that about 20 grams of heroin was sent to the chemical examiner for examination and no coloured mentioned in the same but after examination found white coloured substance as such seized heroin might be different.
21. Although the prosecution examined 6 witnesses the two local witnesses, namely PW 3 and PW4, who were also the seizure list witnesses, did not support the case. Nevertheless, the other four prosecution witnesses, who are police personnel, deposed in a uniform manner as to the time, place and manner of recovery of heroin from the four accused persons.
22. There appears to be some discrepancy with regard to the quantity of heroin that was sent, being 20 grams, and the amount that was received by the Chemical Examiner, being 7.3610 grams. However, the learned DAG submits that the quantum of heroin that was sent for chemical examination was not measured on any scale, but was merely based on approximation. According to the learned DAG, the Chemical Examiner's report stated that the substance was received in a sealed condition in a container and it was found to be heroin. Since the sample, which was sent for chemical examination was found in a sealed condition by the Chemical Examiner, mere discrepancy as to quantity so sent will not confer any benefit to the accused persons.
23. With a view to arriving at a correct decision, we are to mention the unreported decision in the case of Belal @ Belal driver vs The State in Criminal Appeal No. 3267 of 2010 wherein observed that:-
"In the unreported case of Md Fazlu Sheikh vs The State (Criminal Appeal No. 3542 of 2004), to which one of us was party, this particular aspect regarding the quantum of heroin that was recovered was considered in details with reference to the relevant provisions of law.
24. In that case, certain amount of heroin, being approximately 35 grams, was recovered from the home of the appellants when both of them were absent. In that case, it was held:
"Clause 1 (Ka) of the table under Section19(1) of the Ain read as follow:
“(ক) মাদক দ্রব্যের পরিমান অনুর্ধ্ব ২৫ গ্রাম হইলে অন্যূন ২ বৎসর এবং অনুর্ধ্ব ১০ বছর কারাদন্ড।”
25. From a plain reading of the aforesaid two provisions, it is apparent that the punishment for an offence under Section 19(1) depends upon the quantum of drug that is recovered or seized in any particular case. In other words, where the quantity exceed 25 grams, it attracts either the capital sentence or a sentence of imprisonment for life. On the other hand, where the quantum in question is less than 25 grams; the punishment varies from a minimum of 2 years to a maximum of 10 years imprisonment.
26. It is therefore obvious that in a case where any drug is recovered and/or seized during any operation by the law-enforcement agencies, the determination of the quantum of the drug so recovered or seized is imperative. Unless the quantum of the said drug is measured and determined by a proper and acceptable method i.e., by weighing with a conventional scale or an electronic scale, the statement with regard to the quantum of drug so seized or recovered would merely be based on an approximation, which is not only improper, but grossly prejudicial to the interest of the person charged with the offence.
(To be continued)
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.