High Court Acquits Woman in Drug Case for Failure to Ensure Local Witnesses During Search Under Section 103 of the Code of Criminal Procedure
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| Supreme Court of Bangladesh |
The High Court has observed that the presence of respectable local residents during search and seizure operations in criminal cases is mandatory under Section 103 of the Code of Criminal Procedure. The Court held that a search and seizure must be conducted in the presence of at least two respectable inhabitants of the locality from beginning to end. Failure to comply with this legal requirement renders the search and seizure unlawful, and the resulting evidence must be excluded from consideration in a criminal trial.
In Criminal Revision No. 2309 of 2016, Mst. Rotna Khatun v. The State, a single bench of Justice Md. Salim delivered the judgment on July 19, 2026. The High Court set aside the conviction of Rotna Khatun under the Narcotics Control Act, 1990, and acquitted her of the charge. The judgement was published on the website of the Supreme Court on 12 October, 2026.
Background of the Case
According to the case records, on August 25, 2008, Md. Faruk Sultan, an inspector of the Kushtia Sadar Circle of the Department of Narcotics Control, conducted a raid at Rotna Khatun’s residence in Kacharipara village under Bheramara Police Station, Kushtia, accompanied by departmental personnel and police officers.
The prosecution alleged that Rotna Khatun was detained during the raid and searched by female constable Papiya Sultana. During the search, 25 packets of heroin weighing approximately three grams were allegedly recovered from a plastic container. A seizure list was subsequently prepared, and a sample was sent for chemical examination.
Following the investigation, a charge sheet was submitted against her under Table 1(ka) of Section 19(1) of the Narcotics Control Act, 1990.
Conviction by the Trial Court and Dismissal of Appeal
On January 11, 2011, the Joint Sessions Judge, Third Court, Kushtia, convicted Rotna Khatun and sentenced her to two years of rigorous imprisonment and a fine of Tk 5,000. In default of payment of the fine, she was ordered to undergo an additional six months of rigorous imprisonment.
Her Criminal Appeal No. 14 of 2011 was dismissed by the Additional Sessions Judge, Second Court, Kushtia, on April 13, 2014, thereby upholding the trial court’s conviction and sentence.
Rotna Khatun subsequently filed a criminal revision before the High Court challenging the conviction and sentence.
Independent Witnesses Did Not Support the Alleged Recovery
Before the High Court, counsel for the accused argued that the informant had also conducted the investigation and that the seizure-list witnesses had not supported the alleged recovery of heroin. Therefore, the conviction had not been based on reliable evidence.
The prosecution, on the other hand, maintained that the trial court had properly evaluated the evidence before convicting the accused and that the appellate court had rightly upheld the decision.
Upon examining the records, the High Court found that both seizure-list witnesses had denied having direct knowledge of the alleged recovery of heroin. One witness stated that he had signed the seizure list after arriving at the scene but had no personal knowledge of the recovery. The other witness identified his signature on the seizure list but did not corroborate the prosecution’s account of the recovery.
The Court also noted that the informant himself had investigated the case. The testimony of another member of the Department of Narcotics Control did not provide the necessary corroboration regarding the alleged recovery.
Section 103 of the Code of Criminal Procedure Is Mandatory
In its judgment, the High Court discussed the requirements of Section 103 of the Code of Criminal Procedure. Under this provision, at least two respectable inhabitants of the locality must be called upon to witness a search. A list of the items seized must also be prepared, and the witnesses present are required to sign it.
The Court observed that the presence of respectable local residents must be ensured throughout the search and seizure operation. The statutory requirement is not fulfilled if the search or seizure is completed before the witnesses arrive or after they have left.
According to the High Court, the provisions of subsections (1) and (2) of Section 103 are mandatory. If a search and seizure operation is conducted without strictly complying with these requirements, it is unlawful, and the resulting evidence must be excluded from consideration in a criminal trial.
Excluding the Search and Seizure Evidence Leaves No Basis for Conviction
Upon analysing the evidence, the High Court found that the search and alleged recovery of heroin had taken place before the seizure-list witnesses arrived at the scene. In other words, the recovery and seizure had not been conducted in their presence.
The Court therefore held that the evidence relating to the alleged recovery and the seizure list could not be relied upon to establish the accused’s guilt. Once that evidence was excluded, there was insufficient material to conclude that Rotna Khatun had possessed heroin on the day of the alleged incident.
The Court held that the prosecution had failed to prove the charge beyond reasonable doubt. Accordingly, the accused was entitled to acquittal.
Appellate Court Must Independently Assess the Evidence
The High Court further observed that an appellate court must independently examine whether the trial court had properly and judiciously evaluated the evidence before reaching its decision.
In this case, however, the appellate court had mechanically upheld the trial court’s decision without independently assessing the evidence. The High Court considered this another sufficient ground for interfering with the conviction.
Conviction Set Aside and Accused Acquitted
Considering all the circumstances, the High Court made the Rule absolute. It set aside both the order dated April 13, 2014, passed by the Additional Sessions Judge, Second Court, Kushtia, and the judgment of conviction and sentence dated January 11, 2011, passed by the Joint Sessions Judge, Third Court, Kushtia.
The Court acquitted Rotna Khatun of the charge and discharged her bail bond.
Legal Significance
The judgment underscores the importance of complying with statutory procedures during search and seizure operations in criminal cases. Where the law prescribes a mandatory procedure, evidence of an alleged recovery cannot automatically be accepted solely on the basis of the statements of officers involved in the operation, particularly when independent witnesses do not support the prosecution’s account and the prescribed procedure has not been followed.
The judgment also reiterates that an appellate court cannot simply affirm a trial court’s decision without conducting an independent and proper assessment of the evidence.
BDLawPost / Masum
