Fact: On 28th May, 1973 some B.D.R personnel headed by Havilder Obaidul Hoque were on petrol duty at Gabindhakati under P.S. Sathkhira in district of Khulna and at 4 pm they arrested at the appellant Phani Bhusan Halder alon with a bag containing Indian clothes of different types worth about Tk. 411.50 The appellant failed to show any authority for carrying those cloths. The cloth were seized and the seizure list was prepared in presence of the witnesses. The seized articles were deposited with the customs officer who in due course forwarded him to the court on 29.5.73 and the court by an order remanded the appellant to custody. Since then the appellant has been in custody. The police after completion of investigation submitted charge sheet.

Evidence Issue: Whether existence or condition of any material things is necessary to produce before the court, when referred in the direct oral evidence?

Argument: Defense was aggrieved that the failure of the prosecution to produce the articles seized alleging the same as Indian cloths contained in the said bag. The court left a material defect in proving the offence for which the appellant was charged.

As section 60 of the evidence act says “Oral evidence must, in all cases whatever, be direct” but at the end it provided also that, if oral evidence refers to existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection. There was no independent witness other than the B.D.R. personals. The seizure list also does not show that any of the seized cloths had Indian level and was never produced before the court, where there was enough scope under section 165 of evidence act which can be applied using discretionary power of the court to be ensure about that material fact.

Judgment: The appeal is allowed and the order of the conviction and sentence is set aside.

Opinion: The Magistrate, 1st class could have taken the evidentiary issue more seriously before his verdict to ensure the justice and May appropriately use its residual power as it was an extra ordinary situation  for the end of justice.

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Rayhanul Islam

Advocate Rayhanul Islam is the founder and Editor in Chief of Law Help BD. He is also a researcher. Critical thinking is his main focus. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human rights concept to the root level. e-mail: [email protected]

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