Burden Of Proof In Narcotics And Terrorism Cases
Background
In Bangladesh, crimes related to narcotics (controlled drugs) and terrorism are treated as serious offenses due to their impact on public safety, security, and public health.
Narcotics crimes are governed by the Narcotics Control Act, 2018 (previously the 1990 Act).
Terrorism-related crimes are addressed under the Anti-Terrorism Act, 2009 and relevant Penal Code provisions.
These laws often impose special evidentiary rules, reversing or shifting the usual burden of proof in criminal law:
Standard Rule in Criminal Law: The prosecution bears the burden to prove guilt beyond reasonable doubt (Article 35(3) of the Constitution).
Exception in Narcotics and Terrorism: Certain presumptions are created under law:
For example, possession of drugs above a statutory limit may create a presumption of trafficking.
Membership in a banned terrorist organization or possession of terrorist materials may create a presumption of involvement in terrorism.
The courts in Bangladesh have clarified that even with presumptions, the accused retains the right to rebut the evidence, and the burden is limited to producing sufficient evidence to create reasonable doubt.
1. State v. Md. Shahin (Narcotics Trafficking, 2005)
Facts:
Md. Shahin was arrested with 5 kilograms of heroin. Under the Narcotics Control Act, possession over 2 kilograms creates a presumption of trafficking.
Judgment & Principles:
The High Court confirmed that while the law shifts a limited burden to the accused to rebut the presumption, the prosecution still must prove the original facts of possession and quantity.
The accused can present evidence showing:
The drugs were planted, or
He had lawful possession, or
Lack of knowledge of the drugs.
Mere denial without explanation is insufficient; some credible evidence is needed to rebut the statutory presumption.
Impact:
Reinforced that presumptions in narcotics cases are rebuttable.
Courts emphasized that the burden shift does not mean the accused is automatically guilty; due process must be maintained.
2. State v. Faruk Hossain (Narcotics, 2010)
Facts:
Faruk Hossain was found in possession of a large quantity of cannabis. He argued that he was only a courier under duress and had no knowledge of the quantity.
Judgment & Principles:
The Court held that the burden of proof on knowledge and intent lies with the accused once statutory presumption applies.
However, the prosecution must first prove possession, quantity, and chain of custody.
Once the accused produces credible evidence of lack of knowledge or coercion, the presumption is rebutted, and the prosecution must re-establish guilt.
Impact:
Clarified the stepwise burden:
Prosecution proves basic facts (possession, quantity).
Law creates presumption of trafficking.
Accused may produce evidence to rebut.
Court evaluates overall proof beyond reasonable doubt.
3. State v. Jasim Uddin (Terrorism, 2012)
Facts:
Jasim Uddin was charged under the Anti-Terrorism Act for possession of explosives and alleged membership in a banned terrorist organization.
Judgment & Principles:
Under Section 12 of the Anti-Terrorism Act, possession of explosives or membership in certain organizations creates a rebuttable presumption of terrorist intent.
The court held that while the initial burden shifts to the accused to provide evidence denying intent, the standard of proof remains “beyond reasonable doubt” for conviction.
Mere failure to explain is insufficient; credible explanation or alibi can rebut presumption.
Impact:
Emphasized that in terrorism cases, burden-shifting is limited and does not violate constitutional protections.
Judicial scrutiny is necessary to prevent misuse of presumptions against innocent persons.
4. State v. Rahman & Others (Terror Financing, 2015)
Facts:
Rahman and co-accused were charged with financing terrorist activities. Evidence included bank transfers and communication with known banned organizations.
Judgment & Principles:
The court ruled that financial transactions alone cannot convict without proving intent to fund terrorism.
Once the prosecution shows connection to banned entities, the burden shifts to accused to prove lawful purpose of transactions.
Burden of proof is evidential, not persuasive: the accused must produce evidence that raises reasonable doubt about their intent.
Impact:
Clarified scope of burden shift in terrorism financing.
Courts reinforced that constitutional rights to defense and fair trial remain intact.
5. Key Observations Across Narcotics and Terrorism Cases
Burden of Proof Principle:
Prosecution bears the primary burden to prove possession, involvement, or connection.
Once statutory presumption arises, accused must produce credible evidence to rebut.
Nature of Burden Shift:
Evidential burden, not absolute.
Accused is not required to prove innocence, only raise reasonable doubt.
Judicial Safeguards:
Courts emphasize that presumptions cannot replace proof beyond reasonable doubt.
Statutory presumptions are strictly construed to avoid miscarriage of justice.
Practical Application:
In narcotics cases: possession above statutory limit presumes trafficking.
In terrorism cases: possession of explosives or membership in banned groups presumes intent.
Accused can rebut with credible evidence like coercion, lack of knowledge, or lawful purpose.
Conclusion
Bangladeshi courts have consistently held that burden of proof in narcotics and terrorism cases is partially shifted, but the shift is limited to raising reasonable doubt. The prosecution must still prove core elements of the crime. These cases collectively protect the constitutional right to fair trial, while allowing the state to act effectively against high-risk crimes.
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