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2011 DIGILAW 931 (GAU)

State of Mizoram v. C. Lalhmingliana

2011-11-25

S.C.DAS

body2011
1. Heard learned Addl. P.P., Mr. Lalsawirema for the State appellant and learned counsel, Mr. A.R. Malhotra for the respondent. 2. This appeal/application under sections 378 and 482 of Cr.PC is directed against the judgment and order dated 23.7.2010, passed by learned Addl. Sessions Judge, Aizawl in Criminal Appeal No.04/2010, arising out of Crl. Trl.(Ex) No.97/2008. 3. The respondent Sh. C. Lalhmingliana was prosecuted for commission of offence punishable under section 13(1) of Assam Drugs (Control) Act, 1950 ('ADC Act') and the trial was taken up in the court of learned Magistrate, 1st Class, Aizawl, and the learned Magistrate, on conclusion of trial by judgment dated 14.12.2009 found the accused-respondent guilty of committing offence under section 13(1) of ADC Act and sentenced him to suffer SI for a period of 4(four) days and to pay a fine of Rs. 1,000 (rupees one thousand), in default of payment, to suffer SI for 10(ten) days. Being aggrieved with the judgment and order of conviction and sentence, passed by the learned Magistrate, the respondent preferred Criminal Appeal No.04/2010 in the Court of Sessions and learned Addl. Sessions Judge by impugned judgment and order dated 23.7.2010 set aside the judgment and order of conviction and sentence, passed by the learned Magistrate and set the accused at liberty. Against that order of the learned Addl. Sessions Judge, the present appeal/application, under sections 378 and 482 of Cr.PC, has been preferred by the State appellant. 4. As I find on record, the appellant-petitioner had filed a separate petition, under section 378(3) of Cr.PC, praying for granting leave to the appellant for preferring the present appeal and that leave was granted by this court by order dated 8.2.20L1, passed in Crl. Misc. Appl. No. 17 of 2010 in connection with this criminal appeal. 5. Learned counsel, Mr. Malhotra at the outset has submitted that the appeal is not maintainable for the reason that it was not preferred by the complainant and so leave granted by this court to prefer the appeal was not proper. Learned counsel, drawing my attention to the records submits that the complaint before the Magistrate was filed by Inspector of Excise and Narcotics in the capacity of a public servant and based on that complaint, cognizance was taken and the accused was convicted by the Magistrate. Learned counsel, drawing my attention to the records submits that the complaint before the Magistrate was filed by Inspector of Excise and Narcotics in the capacity of a public servant and based on that complaint, cognizance was taken and the accused was convicted by the Magistrate. The Additional Sessions Judge set aside the judgment and order of conviction and sentence, passed by the Magistrate and according to law only the complainant, who originally filed the complaint, was entitled to prefer an appeal and to pray for leave before this court. In support of his contention he has referred the case law reported in K. Ramachandran v. V.N. Rajan andAnr., (2009) 14 SCC 569 , wherein the Apex Court in para 33 of the judgment has held that if a case is instituted by the complainant and such leave is refused, even the State Government would be unable to pursue any appeal under sub-sections (1) or (2) against the impugned judgment of acquittal. He has further submitted that the present appeal was preferred by the State of Mizoram, represented by the Secretary to the Government, and, therefore, the appeal cannot be entertained. 6. Appearing for the appellant learned Addl. P.P., has submitted that the respondent now cannot raise this question as the respondent also made the State of Mizoram as party in the criminal appeal before the Sessions Court and the complainant was not made a party in that appeal. Now the respondent is barred by his own conduct and since the complaint was filed by Inspector of Excise and Narcotics in the capacity of public servant, it may be treated as a State appeal. I have considered the rival contentions of both sides. The word 'complaint' is defined in section 2(d) of Cr.PC, thus : "(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation. - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;" 7. Explanation. - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;" 7. The procedure for inquiry and trial of a complaint case has been prescribed in the Cr.PC and such procedure cannot be mingled with the procedure prescribed for trial of a police report case. Chapter XV, in sections 200 to 203 prescribes the procedure how a complaint is to be entertained by the Magistrate. Section 200(a) prescribes that if a public servant acting or purporting to act in the discharge of his official duties or a court makes a complaint, the Magistrate need not examine the complainant and the witnesses at the stage of inquiry into the complaint under that Chapter. Section 378(5) also prescribes that in the case of a complaint filed by a public servant the period of limitation for granting of special leave shall be six months. The above provisions, if we read carefully and chronologically, it becomes amply clear that simply because of a public servant in the discharge of his official duties, files a complaint, we cannot treat it as a police report case or as a case filed by the State. Therefore, in the present case it was not proper for filing the appeal by the State and the appeal ought to be preferred by the complainant himself. It was also not proper for the respondent in filing the criminal appeal before the learned Addl. Sessions Judge without making the complainant as party to it. So both sides were wrong in presenting the appeals before the Court of Sessions and before this court as well. 8. Since the present appeal/application was filed under section 378 as well as under section 482 of Cr.PC, in the facts and circumstances of this case, for fair ends of justice, I consider it proper to entertain this appeal/application as an appeal under section 482 of Cr.PC. 9. It is really shocking to see that both the trial court and the appellate court dealt with the case most casually, giving goodbye to the procedure established by law. 9. It is really shocking to see that both the trial court and the appellate court dealt with the case most casually, giving goodbye to the procedure established by law. The brief fact leading to the criminal case was that based on a report received from source, B. Zoliana, Inspector of Excise and Narcotics, went to Selesih on 7.2.2008 and was waiting for a suspected person as per information. At that time they detained a Sumo vehicle bearing registration No.MZ-02-7327 and found the suspect Pu C. Lalhmingliana and his wife and they took the vehicle with those persons to the office of the Commissioner of Excise and Narcotics and Lalhmingliana was asked to open his suitcase, wherefrom 1296 numbers of Spasmo Proxyvon capsules were found and those were seized. Such Spasmo Proxyvon capsules were contraband drugs, and, therefore, those were seized by preparing seizure list and after observing formality, V.L. Rengliana, Inspector of Excise and Narcotics, Anti-Narcotics Squad, Mizoram, filed the complaint before the Magisterial Court for commission of offence under section 13(1) of ADC Act, 1950. Cognizance was taken on the basis of that complaint and trial was taken up against the respondent. His wife, who was accompanying him, was discharged. 10. In course of hearing, learned Addl. P.P., has submitted that the learned Addl. Sessions Judge acted most wrongly and illegally in allowing the appeal and acquitting the accused as the learned Addl. Sessions Judge did not consider the gravity of the offence and the evidence on record. Only on the point of sanction, learned Addl. Sessions Judge, within a few short paragraphs passed the impugned judgment and acquitted the accused which has caused gross injustice. He has also submitted that the accused-respondent is an Inspector of Excise and he himself was involved for committing the offence in violation of the orders issued by the Government pursuant to section 6 of the ADC Act and, therefore, the order of acquittal will simply encourage the offenders. He has also submitted that there were some other infirmities in the record and, therefore, the case may be remitted back to the trial court for addressing those inconsistencies and to have a de novo trial. 11. Learned counsel, Mr. Malhotra has submitted that the respondent, in his Memo, of Appeal before the learned Addl. He has also submitted that there were some other infirmities in the record and, therefore, the case may be remitted back to the trial court for addressing those inconsistencies and to have a de novo trial. 11. Learned counsel, Mr. Malhotra has submitted that the respondent, in his Memo, of Appeal before the learned Addl. Sessions Judge, raised several points of infirmities and inconsistencies in the lower Court record but those were not considered by the learned Addl. Sessions Judge. He has also pointed out that the accused was not examined under section 313 of Cr.PC referring to the incriminating evidence on record. He was also not given opportunity to adduce evidence, and, therefore, the judgment passed by the learned Magistrate was illegal, wrong and liable to be quashed. 12. In course of hearing it was found that by order dated 6.9.2011, L.C. records were called including that of the records of Crl. Trl.(Ex.) No.97/2008. Office note at page 15 of the order sheets shows that the Registry received L.C. records, but before the court, only 'photocopies of some papers of Crl. Trl.(Ex) No.97/2008 were only received. The Registry, on query, stated that only those photocopies have been received and the original records have not been received. Receiving of photocopies does not mean that the original records have been received. The Registry must take care of the matter in future very strictly. 13. Learned counsels drawn my attention that the photocopies of the order sheets consist of day to day orders passed up to 17.4.2009, on which date the charge was framed. Thereafter, judgment was passed in five pages of order sheets and every page was containing different dates and the first page contained dated 14.12.2009, second page dated 24.11.2009, third page dated 4.12.2009, fourth page 4.12.2009 and fifth page also dated 4.12.2009, but at the bottom. Magistrate signed and put the date as 4.12.2009. This is really confusing as to how those different dates mentioned in different pages of the sheets, where the judgment has been written. My notice has been drawn to the certified copy of the judgment passed by the learned Magistrate which is on record and that copy of judgment shows the same contents but the date of hearing and judgment as on 14.12.2009. There is nothing in the order sheet or in the judgment that learned Magistrate complied section 247 of Cr.PC. My notice has been drawn to the certified copy of the judgment passed by the learned Magistrate which is on record and that copy of judgment shows the same contents but the date of hearing and judgment as on 14.12.2009. There is nothing in the order sheet or in the judgment that learned Magistrate complied section 247 of Cr.PC. Admittedly, it was a case instituted otherwise than on police report and to be tried as a warrant case, and, therefore, provisions prescribed in sections 244 to 250 shall apply as prescribed in Chapter XIX of Cr.PC. 14. On perusal of the photocopies of the L.C. records it was found that the charge was framed on 17.4.2009. All the witnesses were examined before that date, i.e., before framing of charge. There was nothing that after framing of charge those witnesses were recalled for cross-examination or re-examination as prescribed in sub-section (5) of section 246. There was also nothing on record as to whether any further opportunity was given to the prosecution to examine any remaining witnesses. It is rightly submitted by learned counsel, Mr. Malhotra that the accused was not afforded any opportunity to adduce evidence as prescribed under section 247 of Cr.PC. This is a serious lapse on the part of the Magistrate in the trial of the case. The Magistrate has taken away a valuable right of the accused prescribed by law. Learned Magistrate must see the provisions prescribed by law and try the case according to law and not otherwise. The copy of the examination under section 313 of Cr.PC is found to be most peculiar and it has been done giving total goodbye to the law laid down by this court and by the Apex Court. The purpose of examination under section 313 of Cr.PC is not a mere formality. It has a definite purpose to afford opportunity to the accused in explaining the circumstances appeared in evidence against him. The learned Magistrate only put a question stating - "Is it a fact that on 8.2.2008 at 12.15 a.m. you were arrested for illegal possession of 1296 Capsules of Spasmo Proxyvon". The accused answered, "No, it is not a fact". No other incriminating evidence, appeared in the deposition of the witness, was referred to the accused. This is done in total violation of the procedure prescribed by law. The accused answered, "No, it is not a fact". No other incriminating evidence, appeared in the deposition of the witness, was referred to the accused. This is done in total violation of the procedure prescribed by law. The judgment passed by the learned Magistrate, therefore, cannot stand and is liable to be set aside. 15. The judgment passed by the learned Addl. Sessions Judge is more interesting. Learned Addl. Sessions Judge has taken a casual approach to set aside the judgment passed by the learned Magistrate, without discussing any other point and only on the point of sanction set aside the judgment but the finding of the learned Addl. Sessions Judge was absolutely wrong. The accused was prosecuted for commission of offence under a special Act, i.e., Assam Drugs (Control) Act, 1950. The offence committed was punishable under section 13 of the Act. Section 15 of the Act prescribes the procedure and sub-section (2) of section 15 of that special Act prescribes "No prosecution of any offence punishable under this Act shall be instituted except with the previous sanction of the District Magistrate". The sanction of the District Magistrate was obtained and the criminal prosecution was initiated. Learned Addl. Sessions Judge has observed that the sanction under section 197 of Cr.PC was necessary which seems to be an observation contrary to the provision as mentioned above. Where an offence was committed under a special law and the procedure for sanction was prescribed under the special law itself that shall prevail over the general law and the provision prescribed in the general law shall not apply. Moreover, regarding sanction, it is the settled law that sanction will be required only when the offence is committed by a public servant in the discharge of his official duty. There must be a close proximity of the discharge of official duty and the offence committed. If the accused was found carrying contraband drugs in his possession that in no way come under the purview of discharge of his official duty, and, therefore, sanction under section 197 of Cr.PC was not required. As I find, in the Memo, of Appeal filed before the Court of Sessions, there was numerous other points/grounds, taken by the appellant but those were not at all discussed by the learned Addl. Sessions Judge. As I find, in the Memo, of Appeal filed before the Court of Sessions, there was numerous other points/grounds, taken by the appellant but those were not at all discussed by the learned Addl. Sessions Judge. It is desirable that a Sessions Court should apply its mind and consider the records of an inferior criminal Court so that no injustice caused to anybody. There are some other infirmities, which I do not like to further discuss. I think, it is a fit case which should be remanded back to the court of the Magistrate to afford opportunity to the complainant and the accused to adduce evidence as per law and thereafter to examine the accused properly under section 313 of Cr.PC and to pass judgment according to law. 16. Accordingly, the judgment and order dated 14.12.2009, passed by learned Magistrate, 1st Class, in Crl. Trl.(Ex) No.97/2008, and judgment and order dated 23.7.2010, passed by learned Addl. Sessions Judge, Aizawl, in Criminal Appeal No.04/2010, are set aside. The learned Magistrate is directed to take up the trial afresh as aforesaid. 17. The appeal is accordingly disposed of. Send a copy of the judgment to the court of learned Addl. Sessions Judge, Aizawl and to the court of learned Magistrate, 1st Class, Aizawl.