Authored By: Md. Al Nahian Bin Ratan
Green University of Bangladesh
Case Name
Appellant/Petitioner: Mrs. Khaleda Akhtar VS Respondents/Defendants: The State
Name of the Court
THE HIGH COURT DIVISION OF THE SUPREME COURT OF BANGLADESH
Name of Judges
A.T.M. Afzal, J. and Aminur Rahman Khan, J.
Decided on
September 9, 1985
Name of the Advocates
For Appellant/Petitioner/Plaintiff: Khondker Mahbub Hossain, Afsarul Islam, and Shah M. Zahurul Haque, Advocates For Respondents/Defendant: Moazzem Hossain, Deputy Attorney General
Fact of the Case
In March 1985, acting on confidential information, an Inspector from the Detective Branch of the Dhaka Metropolitan Police, along with other officers, conducted a raid on M/s. Rana Research Laboratory is located at 192-193 North Shahjahanpur, under Motijheel Police Station, Dhaka. The laboratory was reportedly owned by Mrs. Khaleda Akhtar and another accused. A large quantity of banned drugs, i.e., Sio-Alkali and Vitamin-B, and labels of certain other banned drugs were recovered and seized in the presence of witnesses from the raid. This led to the registration of Drug Case No. 10/85 under section 16 of the Drugs (Control) Ordinance, 1982 (as amended).
The case came up as a result of a complaint lodged on 21st April 1985 by the Superintendent of Drugs, basing his complaint on the seizure report and list prepared by the aforementioned police inspector to the Director of Drug Administration. The drugs seized were alleged to be prohibited, unregistered, spurious, and imitated, which is a criminal offense under the said ordinance.
Seven prosecution witnesses were produced and examined during the trial. One of them, on 12th August 1985, Rezaur Rahman, conductor of the TV program Ain-Adalat, deposed that he had gone to the residence of M/s. Rana Research Laboratory, on a tip and captured the incident on video. Later on, the prosecution sought to exhibit this video record in court as evidence and prayed for Rezaur Rahman’s recall for that. The Drug Court allowed the prayer on that date. Mrs. Khaleda Akhtar and the co-accused, aggrieved by this order, petitioned before the High Court Division, challenging the admissibility of the video cassette as evidence under the Evidence Act of 1872.
Decision of the Trial Court
In Mrs. Khaleda Akhtar vs. The State, the accused was tried by the Drug Court under section 16 of the Drugs (Control) Ordinance, 1982. Based on the evidence gathered during the raid and the finding of illicit and unregistered pharmaceuticals, the prosecution called witnesses to bolster its case. Among them, the prosecution found the testimony of Rezaur Rahman, the television reporter who videotaped the raid, to be crucial.
It was on 12th August 1985 that the Drug Court granted the prosecution’s prayer to recall Rezaur Rahman for further examination and also permitted the production of the video cassette as evidence. It was held by the court that the video recording, allegedly showing the storage and seizure of illegal drugs, could be admitted for corroborative purposes. This ruling of the trial court was challenged by the accused prior to the High Court Division on the grounds that such electronic evidence was inadmissible under the then Evidence Act of 1872.
Issues of the Case
- Whether the video cassette, being an electronic record, is admissible as evidence under the prevailing legal framework (Evidence Act, 1872)?
- Whether the Drug Court justified in recalling the prosecution witness (journalist Rezaur Rahman) for further examination regarding the video evidence?
- Whether allowing the production of the video cassette and the recalling of the witness violated the rights of the accused or the principles of natural justice?
Arguments
The learned Advocate for the petitioner, Mrs. Khaleda Akhtar, contended that the order of the Drug Court to allow production of the video cassette by the prosecution and the recall of the witness Rezaur Rahman was illegal and constituted lack of jurisdiction. He argued that, as per the Evidence Act of 1872, and particularly Sections 61 to 65, there was no law provision under the law regarding video cassettes as evidence unless they were certified or part of the document types of documentary evidence. He stressed that the cassette was neither original evidence nor a certified reproduction of any document admissible as evidence, and therefore, its production was not authorized by law.
It was also contended that the impugned video cassette was not produced by an official government agency or an authorized person in the official capacity, but by a producer of a private television program. It thus fell into none of the exceptions to the rule of hearsay. The defense contended that the admission of such a recording without authentication, chain of custody, or expert testimony would be grossly prejudicial to the accused and amount to a miscarriage of justice.
In response, the Assistant Public Prosecutor (APP) representing the State produced the cassette was a contemporaneous record of the raid and seizure operation and had considerable corroborative value. He argued the progress of modern technology necessitated a liberal approach to the interpretation of the Evidence Act and urged the court to consider the video recording as part of the further evidence which could corroborate the oral testimonies of the prosecution witnesses, most notably the independent journalist.
The APP had urged that since Rezaur Rahman was being called back for additional inquiry, his defense would also have adequate opportunity to cross-question him regarding the context and authenticity of the tape. In no way, then, would the petitioner be prejudiced. He based himself on broad principles of fair trial and the evolving standards of evidence in criminal jurisprudence, implying that strict technicalities should not take precedence over the greater interest of justice in prosecuting offenses under the Drugs (Control) Ordinance.
Judgment
In Mrs. Khaleda Akhtar vs. The State, the issue of law set out before the High Court Division was whether the Drug Court order permitting the production of a video cassette and recalling a prosecution witness for further examination was legal and according to the Evidence Act of 1872.
The High Court dismissed the petition of Mrs. Khaleda Akhtar and confirmed the order of the Drug Court. The Court did not discover any legal flaw in allowing the video cassette to be manufactured and the witness to be called again.
Ratio Decidendi
The High Court pointed out that changing standards of evidence could no longer be rejected, especially where offenses were extremely sophisticated, such as illegal production and keeping of banned drugs.
The Court believed that as the cassette was a modern record of the raid, it served as a corroborative piece of evidence and could aid the court to ascertain the truthfulness of the oral testimonies, provided that it was verified properly on closer scrutiny. The Court also opined that as the witness who recorded the video, Rezaur Rahman, was being re-summoned, the defense would be allowed sufficient opportunity to cross-examine him, such that no procedural unfairness was caused.
The judges also dismissed the argument that the 1872 Evidence Act excluded such electronic evidence by its terms. Instead, they focused on the fact that evidence law must be interpreted dynamically to recognize technological upgradation as well as new investigation methods. The court, in this regard, did not refer to any specific precedent but derived inspiration from general principles of fair trial and admissibility of best evidence available in the circumstances.
Observation
In this case, the High Court Division ruled in favor of the State by sustaining the validity of the order of the Drug Court for the creation of a video cassette as proof and recalling a witness for re-examination. The main query that resulted in the entire proceedings was the admissibility and evidentiary value of electronic evidence, i.e., a video recording, under the prevailing legal situation at that time of the Evidence Act, 1872.
The Court’s response to the case illustrates a liberal interpretation of the law, with agreement from the growing role of technology in criminal investigation and prosecution. As much as there is no provision under the Evidence Act of 1872, as it were, for video or electronic evidence, the High Court emphasized the point that purpose and intent behind rules of evidence must be harmonized with contemporary methods of proof. This mirrors the wider jurisprudential trend away from strict formalism towards functional realism, in which fairness and pursuit of truth trump procedural technicalities.
The ruling establishes a valuable precedent for Bangladeshi law in holding that electronically generated evidence is admissible, provided that it is proven and the defense given a fair chance of establishing its authenticity through cross-examination. The Court cautioned that although such evidence is not specifically covered under the then prevalent Evidence Act, nevertheless it can serve as corroborative where it is supplemented by oral evidence and identification on the part of the maker or the observer of the recording.
The recall of the journalist Rezaur Rahman, the individual behind the video, ensured the observance of natural justice principles, allowing the accused individual to meet and confront the creator of the evidence, known as due process. The Court avoided relying solely on rigid literal construction and instead depended on the dynamic nature of justice and the exigencies of the flexibility of evidentiary principles in the reality of technological innovation.
Thus, in light of all the factors, this case facilitated the identification and establishment of electronic evidence in the form of video recordings to be admissible in criminal proceedings, setting the pioneering precedent for future cases in Bangladesh regarding digital or technological material.
Reference(S):
[1] Undergraduate final year student, Department of Law, Green University of Bangladesh.
