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Liability of Possessing Contraband Drugs

Prosecution must prove exclusive attachment of the accused

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14th-Dec-2019       
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High Court Division :
(Criminal Miscellaneous Jurisdiction)
Sheikh Abdul Awal J
Bhishmadev Chakrabortty J
Atiqullah Bahar (Md) alias Sohel……………...Accused-Petitioner
                   Vs
State……………Opposite-Party
Judgment
April 16th, 2019
Code of Criminal Procedure (V of 1898)
Section 498
The proposition of law is by now well settled that to substantiate with the liability of possessing contraband drugs or articles the prosecution must prove the exclusive possession of the accused over the contraband drugs or articles or goods in question and in this case there being nothing on record to show that the seized Khat was recovered from the possession and control of the accused petitioner. We are inclined to exercise our discretion in granting bail to the accused-petitioner…….(16 & 17)
Md Aminul Islam, Advocate-For the Accused Petitioner.
Rona Naharin, DAG with Yesmin Begum Bithi DAG with
Sanda Ghosh, AAG-For the State.
Judgment
Sheikh Abdul Awal J : This Rule was issued calling upon the opposite party to show cause as to why the accused-petitioner should not be enlarged on bail in Paltan Model Police Station Case No. 17 dated 10-9-2018 corresponding to GR No. 428 of 2018 under Section 19(1)5, table 9(1)/9(2) of the Narcotics Control Act, 1990 now pending in the Court of the learned Chief Metropolitan Magistrate, Dhaka and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. The brief fact relevant for disposal of this Rule is that one, Md Abdur Razzak Khan, Police Inspector of Organized Crime (Homicidal Squad), Bangladesh Police, CID, Dhaka as informant on 10-9-2018 at 14.05 hours lodged an Ejahar with Paltan Model Police Station, Dhaka stating, inter-alia, that on 9-9-2018 when the informant along with his police team were on special duty in Gulistan area they got a secret information that Khat was imported in Bangladesh from Ethiopia in the name of Green Tea and the same is to be smuggled in Europe, America and Australia by putting the level of Green Tea and such huge consignment has been brought in the department of GPO through International Airport and on getting the said information they went to the foreign branch of GPO and seized those parcels received on several dates and thereafter, the informant party under the supervising of the assistant revenue officer of GPO searched total 96 cartoons which were imported under the names of Asia Enterprise, Smith Badal Hong Kitch, Sanayangl Criste Place and 17 individual persons having difference addresses and recovered total 1586.36 kgs, of Khat worth of Taka 2,37,95,400 and thereafter, prepared seizure list in presence of witnesses.
3. Upon the aforesaid first information report Paltan Model Police Station Case No.17 dated 10-9-2018 was started against the present accused-petitioner under table 9(1)/9(2) of Section 19(1)5 of the Narcotics Control Act, 1990 against the accused petitioners and others.
4. In the course of investigation police arrested the accused petitioner on 29-9-2018 and forwarded him to the Court of the learned Chief Metropolitan Magistrate, Dhaka with a prayer for 7 days remand. Ultimately, 1 day police remand was allowed and after completion of 1 day police remand the accused-petitioner was forwarded to the Court of the learned Chief Judicial Magistrate with the remand report praying to keep him in jail hajot.
5. The accused-petitioner after moving both the Courts below unsuccessfully for bail has come before this Court and obtained the present Rule and an ad-interim order of bail on 14-1-2019.
6. In this backdrop the State, opposite party preferred Criminal Petition for Leave to Appeal No. 212 of 2019 against the said order of ad-interim bail dated 14-1-2019 before the Hon'ble Appellate Division and after hearing their Lordships were pleased to stay the said order of ad-interim bail dated 14-1-2019 with a direction to hear and dispose of the Rule by the High Court Division expeditiously.
7. Police after completion of the investigation submitted charge sheet against 11 accused-persons including the accused-petitioner on 28-2-2019 under Section 19(1)5, table 9(1)/9(2) of the Narcotics Control Act, 1990.
8. Mr Md Aminul Islam, the learned Advocate appearing for the accused-petitioner at the very outset takes us through the supplementary affidavit dated 14-1-2019 and the relevant law together with the FIR and charge sheet and then submits that Khat has been included as a narcotics item as classified in "Kha" schedule of the Narcotics Control Act, 2018 and, it is apparent from the "Kha schedule" that Khat (LvZ) has been included as a narcotics item as classified in "Kha" of the 1st schedule of the Narcotics Control Act, 2018 and the said Khat is similar to cannabis/Ganja or any kind of herbal cannabis which is not a serious drug like heroin, cocaine, opium, yaba tablet, phensedyl etc. and it is on record that alleged recovery was not made from the exclusive possession and control of the accused-petitioner. He further submits that as per FIR 1 (one) cartoon of Khat measuring 9 kgs. (actual weight) of Khat allegedly to have been given booking in the name and address of the accused-petitioner and the alleged Khat was not recovered from any kind of possession and control of the accused-petitioner rather somebody else gave booking of 9 kgs. Khat by using the name and address of the accused-petitioner, who is innocent and committed no offence as alleged in the FIR and maximum sentence for such type of offence is 5 years. Finally, the learned Advocate submits that the accused-petitioner by profession is a professor of a Private University, Uttara, who has been suffering in jail hajot for near about 6 months, the petitioner was quite ignorant about the matter as to who sent the alleged Khat from Ethiopia to Bangladesh in his name and address and other 19 accused persons, 5 co-accused standing on the same footing have already been enlarged on bail by a Division Bench of this Court and the accused petitioner standing on the better footing is entitled be released on bail.
9. Ms Rona Naharin (Anne), the learned Deputy Attorney-General appearing for the State, on the other hand, opposes the prayer for bail.
10. We have heard the learned Advocate and the learned Deputy Attorney-General and perused the application for bail along with other materials on record including the order of the Appellate Division of Bangladesh Supreme passed in Criminal Petition for Leave to Appeal. No. 212 of 2019 on 4th March, 2019.
11. On scrutiny of the record, it appears that no incriminating Khat or madok was recovered from the direct possession and control of the accused-petitioner, only the mailing address of the accused-petitioner has been used. It further appears that the incriminating Khat falls within the category of "Kha" schedule of the new Ain namely, Madok Drabbya Niyantran Ain, 2018.
12. The relevant provisions of law are required to be referred to for having a better view of the dispute in question.
(খ) শ্রেণীর মাদক দ্রব্য
১। গাঁজা গাছ কিংবা উহার শাখা প্রশাখা, পাতা ও ফুল । ভাং গাছ কিংবা উহার শাখা প্রশাখা, পাতা ও ফুল । গাঁজা, ভাং, সিদ্ধি গাঁজা অথবা ভাং সহযোগে প্র¯'তকৃত এইরূপে কোন দ্রব্য যাহা নেশা অথবা আসক্তি স"ষ্টিতে সক্ষম ।
২। নেশার উৎসরূপে ব্যবহৃত হইতে পারে কিংবা আসক্তি স"ষ্টিতে সক্ষম যে কোন উদ্ভিদ (ক শ্রেণীতে উল্লিখিত উদ্ভিদ ব্যতীত) এবং উহাদের শাখা প্রশাখা, পাতা, ফল, ফুল, বীজ কিংবা নির্জাস যাহা নেশা ও আসক্তি স"ষ্টিতে সক্ষম (যেমন-খাত, ইত্যাদি)
৩। ইথাইল অ্যালকোহল (ইথানল), অ্যাবসলিউট অ্যালকোহল, রেকটিফাইড স্পিরিট, ০.৫ এর অধিক অ্যালকোহল, সহযোগে প্র¯'তকৃত যে কোন তরল পদার্থ অথবা ঔষধ (যাহা আসক্তি স"ষ্টিতে সক্ষম এবং যাহা নেশার উপকরণ হিসাবে পান করা হইতেছে অথবা হইতে পারে), ওয়াইন, বিয়ার, ওয়াশ (জাওয়া), চোলাইমদ যে কোন ধরনের মদ, কিংবা নেশা স"ষ্টিকারী ০.৫% এর অধিক অ্যালকোহলযুক্ত যে কোন দ্রব্য ।
13.    In this connection Section 36, table 20 of the new Ain namely Madok Drabbya Niyantran Ain, 2018 reads as follows:
প্রথম তপশিলের খ শ্রেণীর ২নং ক্রমিকভুক্ত যে কোন মাদকদ্রব্য সম্পর্কে ধারা ৯ এর উপ-ধারা (১) এর দফা (ক) অথবা এর (খ) লঙ্ঘন ।
(ক) মাদকদ্রব্যর পরিমাণ অনুর্ধ্ব ১ কেজি অথবা লিটার হইলে অন্যুন ১ বৎসর, অনুর্ধ্ব ৩ বৎসর কারাদন্ড এবং অর্থদন্ড; (খ) মাদকদ্রব্যর পরিমাণ ১ কেজি অথবা লিটারের উর্ধ্বে এবং অনুর্ধ্ব ৫ কেজি হইলে অন্যুন ৩ বৎসর, অনুর্ধ্ব ৭ বৎসর, কারাদন্ড এবং অর্থদন্ড;(গ) মাদকদ্রব্যর পরিমাণ ৫ কেজি অথবা লিটারের উর্ধ্বে হইলে অন্যুন ৭ বৎসর, অনুর্ধ্ব  ১০ বৎসর,  কারাদন্ড এবং অর্থদন্ড;
14. From the above, it appears that sentence for the offence of carrying and possessing Khat more than 5 kgs. is 7 years to 10 years
15. As we have already noticed that in this case no Khat or incriminating drug was recovered from the possession and control of the accused-petitioner, who has been languishing in jail hajot for more than 6 months without trial, 5 (five) co-accused standing on the same footing have already been enlarged on bail by a Division Bench of this Court, the case is still lying in the learned Chief Metropolitan Magistrate, Dhaka, it is uncertain when the trial will commence.
16. The proposition of law is by now well settled that to substantiate with the liability of possessing contraband drugs or articles the prosecution must prove the exclusive possession of the accused over the contraband drugs or articles or goods in question and in this case there being nothing on record to show that the seized Khat was recovered from the possession and control of the accused petitioner.
17. In the premises aforesaid, we are inclined to exercise our discretion in granting bail to the accused-petitioner.
18. The Rule is therefore made absolute. Let the accused-petitioner, Md Atiqullah Baher alias Sohel, son of Sheikh Md Nurul Haque be released on bail on furnishing a bail bond to the satisfaction of the learned Chief Metropolitan Magistrate, Dhaka.
However, in case of misuse of the privilege of bail, the Court concerned is at liberty to cancel the bail at any stage of the case, whatsoever.

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