Criminal Appeal No. 31 of 2001
High Court Division, Md. Abdur Rashid J, Siddiqur Rahman Miah J, March 12th, 2003.
Appeal against the judgement was presented under section 410 of CRPC where the accused had been convicted according to section 19 (1), table 3(খ) of ‘Narcotics Act 1990’ and sentenced life time imprisonment. The case established that a harsh law claiming life must be simple, flawless and easily understandable for the public and should come with proper legislation. Without proper provision of law the prosecution has got no right to prosecute and harass a citizen, which ultimately happened in the case of ‘Badal Kumar Paul vs State’.
Facts of the case:
On 5-11-97 in Taherpur, Jessore, the accused and the co accused was arrested for carrying a bag full of 250 bottles each containing 100 ml of phensidyle in five paper cartoon weighing 25 litres and 72 pieces of Indian woollen mufflers. The Inspector Sheik Abdur Razzaque and his team including ASI Abdul Hannan, constable Mohiuddin, constable Harun- or-Rashid seized the article in presence of witness, Nowsher Ali and Raju Ahmed. Among the witnesses Nowsher Ali is co accused with the appellant Badal Kumar.
In the trial after scrutinizing the evidence given by the investigating officer and examination of the witness the court stated that, on the charge of possessing contraband narcotics according to section 19 (1) item no. 3(খ) of ‘Narcotics Act 1990’ the accused Badal Kumar Paul was sentenced to lifetime imprisonment and co accused Nowshar Ali was found not guilty and acquitted. Badal Kumar then filled appeal against the judgement on High Court.
Before the High Court, MR. Shamsul Haque, Advocate on behalf of the appellant submitted that the prosecution failed to prove the possession beyond reasonable doubt and also submitted that possession of phensidyle did not violate any law. He cited the case Nannu Miah vs State[1], where the accused got a verdict of acquittal on that point that phensidyle was not tested to be contraband and used for medicine.
On the other hand, The Attorney General on behalf of the State, MR. Sheik Abdul Awal tried to bring phensidyle on the class of narcotics enlisted on the Act by saying so it contained the derivatives of codeine which is contraband under Act. He cited the case State vs Miss Eliadah Maccord[2] where it is stated if one of the units of the seized thing was proved containing contraband components that whole of seized thing must be treated as contraband for punishment.
Judgement:
After scrutinizing the case the court finds that the case in hand is different and made a decision on that. There is presence of chlorpheniramine maleate and codeine phosphate in the liquid on the bottle without mentioning the amount but these two components are found in United States pharmacopoeia and British pharmacopoeia as medicine. Further ‘ Drug Control Ordinance, 1982’ has not included any such provision regarding contraband and moreover in our country these components are used as cough suppressant in indication of dry or painful cough, diarrhoeas, pain.
In absence of law declaring phensidyle contraband presence of chlorpheniramine meleate and codeine phosphate will not make it contraband as a schedule narcotic. Therefore carrying and possessing phensidyle is not punishable offence and the appellant Badal Kumar is acquitted of all charges and the appeal is allowed.
Significance and Analysis:
Ignorance of law is no defence. But the court held the opinion that law which have harsh punishment must be made understandable for the people on the street. Not only in case of laws relating to narcotics, but all laws which have ambiguous provision must be reformed as precise, clean, flawless and understandable. Otherwise the laws will turn into instruments of harassment. In this case Badal Kumar was harassed by law where the prosecution has no right to harass any citizen. But most importantly this case showcased the massive loopholes prevalent in the drug laws of our country. Following case was tried under ‘ The Narcotic Act 1990 ‘ but at present a new Act is being drafted named Narcotics Control Act, 2018 with tough and new moves aimed at stooping narcotics, specially the yaba and shisha in the country. It has provision of death penalty for producing and processing more than 200 gm. of yaba pills or the same amount of ingredient.[3] It is also supposed to provide strict provisions for detaining drug kingpins and formation of Narcotic Control Advisory Commiittee (NCAC). If Narcotics related cases are analysed of a particular time, similar scenario we will find that 48.2% cases in total results in conviction, in 51.8% cases the accused gets the verdict of acquittal and most of the cases gets dismissed for improper FIR, charge sheet, inappropriate witnesses, securing bail easily, weak investigation and lack of knowledge of the law enforcing officers.[4] Mobile Court on this regard has had a better rate of success. The existent Narcotics Act has loopholes, which the drafted one must have to take in consideration. The list of narcotics and Yaba must be made exhausted in the new one. On the other hand without the contribution of Experts, right activist, stakeholders, especially law enforcing authority the prevention of narcotics cannot be possible. As some law enforcing officer takes benefits by misusing those tough laws, as for example they use narcotics as a measure of amassing money illegally by putting various drugs in people’s pocket. As government decided to setup separate courts or tribunals for trying narcotics related cases this will solve another problem which is lack of manpower particularly for this type of case.[5]
Concluding Remarks:
There are two sides to this following case. Firstly a citizen was harassed by law for ambiguous provision of law and secondly maybe an actual accused had got the verdict of acquittal due to the loopholes of law.
It is hoped that with the amended and newly formulated Narcotics Act and establishment of separate courts regarding narcotics issues will help the future cases regarding narcotics in getting a realistic solution.
[1] 55 DLR 7
[2] 1996 BLD (AD) 239; 2BLC(AD)157
[3] Tougher law to deal with drug cases, The Daily Star, March 03, 2018, Last accessed on 13th August, 2018, available at https://www.thedailystar.net/frontpage/tougher-law-deal-drug-cases-1542814
[4] Half of narcotics cases end in acquittal, The Dhaka Tribune, September 30,2016, Last accessed on 6th August,2018, available at https://www.dhakatribune.com/bangladesh/crime/2016/09/30/half-narcotics-cases-end-acquittal
[5] Separate court to be set up for narcotics cases, The New Age, June 21,2018, Last accessed on 6th August 2018, available at https://www newsagebd.net/article/44035/separate-court-to-be-set-up-for-narcotics-cases/index.php
Marjia Mahazabin Afrahim
