Zohmingthanga v. State of Mizoram — 1997 DIGILAW 262 (GAU)

This revision petition is directed against the judgment and order dated 4.8.97 passed by the Magistrate, 1st Class, Aizawl in GR No. 1107 of 1997 thereby holding the petitioner guilty of offence punishable under section 8 (1) of the Mizoram Liquor Total Prohibition Act. 1995 and sentencing them to undergo SI for 90 days with fine of Rs.1.000/- or in default of payment of fine to suffer 10 days further imprisonment. 2. The accused persons were arrested on 2.8.97 they were produced before the Magistrate on 4th who pleaded guilty to the charge and on their pleading guilty, recorded the conviction and sentences as noted above. 3. Although none appears for the accused petitioner and the revision petition is yet to be admitted, this petition has been filed without placing certified copy of the impugned judgment and order on record, none appears for the petitioner and the petition can be out right dismissed, but instead of dismissing the same on this technical ground, it is taken up for consideration on merits. Section 2 (j) of the Act defines liquor which reads as follows : “(j) 'Liquor' means any intoxicating liquor and includes Zu, Rakzu, Tinzu, Zupui and all liquid consisting of or containing alcohol and any substance which the Govt. may, by notification, declare to be liquor for the purpose of this Act.” Section 7 contains prohibition and penalties for transport, import, export, or possess liquor which reads as follows : “7. No person shall - (a) (i) transport, import, export or possess liquor; (ii) sell or buy liquor; (iii) manufacture liquor; (iv) use or keep for use any material utensil, implement or apparatus whatsoever for manufacture of liquor; and (v) construct any distillery or brewery; (b) consume liquor except on a prescription of a registered medical practioner, or on a permit granted under the provisions of this Act or the rules made thereunder, as the case may be.” 4. Punishment for contravention of section 7 is contained in section 8, the said section 8 is quoted below : “8. (1) Whoever contravenes the provisions of clause (a) of section 7 of this Act shall, on conviction, be punished with imprisonment for a term which may extend to five years but not less than three months and also with fine which may extend to ten thousand rupees but not less than one thousand rupees.” 5. (1) Whoever contravenes the provisions of clause (a) of section 7 of this Act shall, on conviction, be punished with imprisonment for a term which may extend to five years but not less than three months and also with fine which may extend to ten thousand rupees but not less than one thousand rupees.” 5. The trial Court's record shows that no formal charge was framed, nor the accused were posted with the knowledge of facts constituting the charge. Going through the record, it appears that the accuseds were found to be in possession of 7 litres of liquor was not brought to the notice of the accuseds before calling upon them to answer the charge. The first duty of the Magistrate was to enquire of the accused, if they had been furnished copies of the charge sheet, the least that was expected before calling upon they to plead to the charges. 6. A conjoint reading of section 207 and 238 CrPC makes it abundantly clear that it is the duty of the Magistrate before whom the accused is brought to satisfy himself that he has complied with the provisions of section 207 CrPC and section 207 CrPC, laid down the provisions for supply of police report. First Information Report, statements recorded under section 161 and 164 CrPC and any other documents. Complaint is not unoften made. that even in case where copies were supplied, they are not legible. The Law Commission in its report has highlighted the importance of supplying such copies and observed that the Magistrate should satisfy himself that the copies supplied of such character that the accused is able to read them and know their contents. In this case no copies at all of any documents were supplied to the accused, when they were called upon to plead the charge. Section 212 prescribes what charge should contain the particular as to the time and place of the alleged offence, and the person and other particulars so as to give the accused notice of the matter with which he is charged. 7. When an accused is asked whether he pleads guilty of charge or claims to be tried, law permits and provide for recording conviction on his plea of guilty as provided under sections 229 and 241 CrPC. 7. When an accused is asked whether he pleads guilty of charge or claims to be tried, law permits and provide for recording conviction on his plea of guilty as provided under sections 229 and 241 CrPC. There must be a charge before an accused is called upon to plead and the charge must contain the facts and particulars of offence and the plea made by the accused must be clear, unqualified and recorded in the actual word used by him. 8. Framing of charge is not an empty formality, the object behind of framing of charge is posed to accused, the knowledge and the nature of accusation made against him. the case brought against him. it is for this reason that the Magistrate must frame a specific charge, mere mention of the penal section to provisions of law is hardly a substitute. The trial Court was palpably wrong in calling upon the accused to plead guilty to the charge which does not appear from the trial Court's record to have been framed or explained to the accused. It is for this reason that the legal aid and assistance to an unrepresented accused assumes importance. There is nothing on record to show that as to what were the words stated by them and what were the words put to them by the Magistrate, the conviction based on such a plea is not merely a procedural flow, but goes to the root of the matter. 9. 'Liquor' has been defined in section 2 (j) of the Act, ignoring the above illegalities and proceedings on the assumption that the accused were supplied with copy of the charge sheet, charge was explained to them and they pleaded guilty to the charge, yet there is a fatal defect in the prosecution case which appears to have gone totally unnoticed. 10. Liquor containing with alcohol is an essential ingredient of liquor, possession of liquor which has been made punishable under section 8 of the Act. The burden of proving of a particular commodity of question comes under the definition of liquor as defined under section 2 (j) of the Act was undoubtedly on the prosecution. Sometime some physical test is done, but in the case at hand such physical test has not been done and even hydrometer test not applied. The burden of proving of a particular commodity of question comes under the definition of liquor as defined under section 2 (j) of the Act was undoubtedly on the prosecution. Sometime some physical test is done, but in the case at hand such physical test has not been done and even hydrometer test not applied. In State vs. Madhukar Gopinath Lolge, 1967 CrI L J167, the accused was carrying 24 bottles of liquor in rubber tubes, the question before the Bombay High Court was the same as it arises in the present case, of course it was not a case of having pleaded guilty of charge, the validity of hydrometer test which was applied was challenged and the Court held : “It is however, urged that the circumstances in which the respondent was caught, the manner and the method of carrying the liquid which was out of the ordinary, viz in rubber tubes, and the time of the night when this contraband articles, are all circumstances which may well be taken into consideration in determining whether the liquid was not liquor. In my opinion, all these circumstances would raise a grave suspicion about the respondent, but none of these circumstances would be useful or reliable to determine whether the particular liquid which was carried was liquor or not. Though it is true that the usual modus operandi of transporting liquor clandestinely is found to be carrying it through rubber tubes, that fact alone can hardly be determinative of the crucial question, viz whether the liquid is liquor or not. As opined by Dr. Mahal, the reliable test on which the Court of law can act would be the chemical test or the idoform test. Therefore, the question is put in issue, the prosecution must prove beyond doubt that the liquid which was seized was liquor or prohibited liquor. In view of this conclusion, it is not possible to interfere with the finding of the learned Magistrate.” 11. There being no iota of evidence to suggest much less prove that the articles seized were liquor as defined in section 2 (j) of the Act, the conviction as recorded by the trial Court apart from inherent infirmities vitiated the trial. In view of this conclusion, it is not possible to interfere with the finding of the learned Magistrate.” 11. There being no iota of evidence to suggest much less prove that the articles seized were liquor as defined in section 2 (j) of the Act, the conviction as recorded by the trial Court apart from inherent infirmities vitiated the trial. Even if the prosecution case is taken on its face value, yet there is no material on record to hold the accused as guilty of possessing liquor as defined in section 2 (j) of the Act. 12. Possession is one of the most complex concept of jurisprudential law. In a warrant case, it is not proper to convict on a plea of guilty without taking further evidence. The Supreme Court in Kasambhai, AIR 1980 SC 854 has held that- “A conviction to a light sentence on a plea of guilty as are sult of plea bargaining between the prosecution, the defence and the Magistrate being unreasonable, unfair, unjust and violative of Article 21 of Constitution. High Court on its attention being drawn in suo motu revision should set aside the conviction and send the case back for trial in accordance with law.” 13. This is a case where four of the accuseds have by now suffered the imprisonment imposed by the trial Court. Therefore, there is no question of remanding the case for fresh trial in accordance with law. 14. In view of the foregoing discussions, the conviction as recorded by the trial Court, cannot be sustained in law, it is liable to be quashed, accordingly quashed. 15. The accused petitioners on filing of this revision petition as ordered to be released on bail by order dated 28.9.97. There is a delicate irony in this petition, 3 months sentence is over on 3.11.1997, the other four accuseds, even if they have not deposited the fine has completed the term of imprisonment as imposed by the trial Court. An appeal or revision against the conviction is not a matter of pure academics, the accused petitioner who primarily approached this Court invoking its jurisdiction for restoration of liberty and in this aspect, so far as the other four accuseds who by not must have completed the term of imprisonment as imposed by the trial Court is now rendered purely academic. Article 21 declares protection of every person, his life and liberty. Article 21 declares protection of every person, his life and liberty. Nobody can be deprived of personal liberty without applying procedure established by law. By series of judgments commencing from Ranchod vs. State of Gujrat, AIR 1974 SC 1143 ; Hussainara vs. State of Bihar, AIR 1979 SC 1369 ; Khatri vs. State of Bihar, AIR 1981 SC 928 and SukDas vs. State of Arunachal Pradesh, AIR 1986 SC 991 , legal aid, for such accused who are not even aware of their right as an accused, it is not merely the duty of the Court, but it should be first anxiety of the Court to see that no one is deprived of his liberty without following the procedure established by law. 16. Incidentally this case raises yet another important issue although there has been a constant demand for restoration of the judiciary from the Executives, Article 50 of the Constitution has not yet been made a leaving reality in this State, the sooner it is done, me better, it is to uphold the cherist values and ideals of the Constitution and allow the people of this State to enjoy the same. 17. The petition is allowed, the conviction and sentences not only of the petitioner but also all the accuseds is set aside, fine if paid or deposited by the accuseds be refunded to them. The PR bond executed by the accused is discharged.