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2014 DIGILAW 1001 (GAU)

State of Mizoram v. Hauhliri

2014-11-17

N.CHAUDHURY

body2014
1. By this application, the State of Mizoram has challenged the order dated 18.9.2013 issued by the learned Special Judge, Aizawl in Crl.Tr.Ex. No. 1278/2013 whereby charge has been framed against the accused under section 21 (a) of the NDPS Act against seizure of 3960 capsules of Parvon spas although charge sheet was submitted under section 21 (c) of the NDPS Act. 2. The case was initiated on the basis of a charge sheet submitted by Sub-Inspector, Excise & Narcotics, Anti-Narcotics Squad, Mizoram on 23.7.2013 alleging that the Anti-Narcotics Squad seized 3960 maroon coloured Parvon spas capsules suspected to contain Dextropropoxyphene from the accused, namely, Smt Hauhliri, daughter of one Thangawia (L) of Vaivakawn, Zohnuai at Tukhuahtlang in presence of civilian witnesses. The seizing officer submitted the report of seizure and arrest to the Officer-in-charge, Anti-Narcotics Squad whereupon the instant case was registered and further investigation was conducted. In course of investigation it was found that strips of Parvon spas capsules were kept in 20 polythene bags. The prosecution sent a sample of 5 capsules to the Forensic Science Laboratory for chemical examination to see as to whether the tablets contained Dextropropoxyphene. The result from the chemical examination was given on 23.7.2013 and thereupon it was found that the sample contained propoxyphene. Having so found and upon completion of the investigation, the Anti-Narcotics Squad submitted charge sheet before the Special Court leading to registration of the case in question. The learned court after consideration of the materials including the report passed the impugned order dated 18.9.2013 holding that a charge under section 21 (a) of the NDPS Act is liable to be drawn against the accused although prosecution submitted charge sheet under section 21(c) of the NDPS Act. The learned Court found that since prosecution sent only 5 capsules for examination, it is not possible to hold that all the 3960 capsules would contain the specified contraband. It is this order which has been challenged by the State before this court. 3.1 have heard Mr. A.jC Rokhum, learned Additional Advocate General-cum-Public Prosecutor on behalf of the petitioner. I have also heard Mr. Zochhuana, learned amicus curiae who was appointed by this court to assist the court in regard to point of law since the opposite party accused has not put up appearance by engaging any counsel. I have perused the lower courts records. 4. Mr. A.jC Rokhum, learned Additional Advocate General-cum-Public Prosecutor on behalf of the petitioner. I have also heard Mr. Zochhuana, learned amicus curiae who was appointed by this court to assist the court in regard to point of law since the opposite party accused has not put up appearance by engaging any counsel. I have perused the lower courts records. 4. Mr. A.K. Rokhum, learned Public Prosecutor would argue that all the capsules were identical in shape, colour and size and merely because these strips of capsules were kept in 20 polythene bags, that itself is not sufficient to raise a reasonable doubt that all the capsules would not contain the same content. According to the learned counsel, there is nothing on record to come to a finding that capsules were not sealed in strips and that they were not identical by their appearance and marks imprinted on it. Drawing attention of this court to the FSL report, the learned Public Prosecutor would argue that the capsules were found to be labelled as Parvon spas. Such a finding is discernible from description of the exhibit given by the FSL, Aizawl. With these submissions, the learned Public Prosecutor would argue that all the capsules being labeled with the same name and they being of identical colour, size and shape and all of them being placed in same strips merely because they were kept in 20 different polythene bags would not necessitate sending of all the capsules to the Forensic Science Laboratory for individual test. 5. Per contra, Mr. Zochhuana, learned amicus curiae would argue that framing charge against an accused also has to be on the basis of the materials available on record and in so doing, only that part of the records which is beyond reasonable doubt can be taken into consideration. The learned amicus curiae has placed reliance on the case of Gaunter Edwin Kircher v. State ofGoa, Secretariat Panaji, Goa, 1993 SCC (Cri) 803. In this reported case, a German national was nabbed by the Police Sub-Inspector on 29.9.1989 at Calangute Beach near Panjim and from his possession a polythene pouch was recovered which contained some tobacco, one cigarette paper packet and two cylindrical pieces suspected to be of charas. Out of the two cylindrical pieces, one weighed 7 gms and another weighed 5 gms. After preparation of panchnama, both the pieces were kept separately in two different sealed envelopes. Out of the two cylindrical pieces, one weighed 7 gms and another weighed 5 gms. After preparation of panchnama, both the pieces were kept separately in two different sealed envelopes. One of the pieces weighing less man 5 gms was sent for chemical analysis and the other pieces weighing 7 gms was neither sent nor a part of it was taken as sample for the purpose. The Forensic Science Laboratory in that case found that the sample containing 5 gms was chafas and thereupon prosecution charge sheeted the accused for possessing 12 gms of charas which is a commercial commodity. In paragraph No. 5 of this judgment it was held that it was not open to the prosecution to arrive at an opinion that all the 12 gms of suspected substance was charas when only a part of 5 gms cylindrical piece was sent to the FSL. The hon'ble Supreme Court held that the other cylindrical piece might not have contained charas but something else and so the teamed court was at Hberty to frame charge against the accused only with respect the 5 gms or the cylindrical piece containing 5 gms and not against the total 12 gms of the seized materials. For ready reference, paragraph No. 5 of the judgment is quoted below : "5. The next and most important submission of Shri LalitChari, tine learned senior counsel appearing for the appellant is that both the courts below have erred in holding that the accused was found in possession of 12 gms of Charas. According to the learned counsel, only a small quantity i.e. less than 5 gms has been sent for analysis and the evidence of PWI, the Junior Scientific Officer would at the most establish that only that much of quantity which was less than 5 gms of Charas is alleged to have been found with the accused. The remaining part of the substance which has not been sent for analysis cannot be held to be also Charas in the absence of any expert evidence and the same could be any other material like tobacco or other intoxicating type which are not covered by the Act. The remaining part of the substance which has not been sent for analysis cannot be held to be also Charas in the absence of any expert evidence and the same could be any other material like tobacco or other intoxicating type which are not covered by the Act. Therefore, the submission of the learned counsel is that the quantity proved to have been in the possession of the accused would be small quantity as provided under section 27 of the Act and the accused should have been given the benefit of that section. Shri Wad, learned senior counsel appearing for the State submitted that the other piece of 7 gms also was recovered from the possession of the accused and there was no need to send the entire quantity for chemical analysis and the fact that one of the pieces which was sent for analysis has been found to contain Charas, the necessary inference would be that the other piece also contained Charas and that at any rate since the accused has totally denied, he cannot get the benefit of section 27 as he has not discharged the necessary burden as required under the said section. Before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms and 5 gms respectively. As already mentioned only one piece was sent for chemical analysis and PWI, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof mat both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms of Charas were recovered from the accused. In view of the evidence of PWI it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms was recovered from the accused. The failure to send the other piece has given rise to this inference. In view of the evidence of PWI it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe mat to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions oflaw." 6. Having heard the learned counsel for the parties and on perusal offee lower courts records including the seizure/arrest memo the question arises as to whether the reported judgment referred to above, would be applicable to the case in hand. In the reported judgment the suspected material did not contain any distinguishing mark or seal. The contraband was in the form of two cylindrical pieces which the seized authority dowbted to be Charas. The seizing official kept the two pieces in two different envelopes and took 5 gms from one envelope and sent it for FSL. m view 7. While framing a charge, trial court needs to satisfy itself as to prima facie proof and not proof beyond reasonable doubt. At this stage, court is to see whether there is reason to suspect. So, in this view of the matter benefit of doubt at this stage tilts in favour of prosecution. However, to hold an accused guilty proof beyond reasonable doubt is a must and consequently benefit would be in favour of the accused and against prosecution. In this case the trial court refused to frame charge under section 21(e) of tte Act for not sending whole of the seized substance to the FSL. The order does not show that the learned court was not satisfied as to flie identical labeling of the capsules. The question of sending the whole of the seized material may arise in a case having factual background of the reported case as referred to hereinabove. The order does not show that the learned court was not satisfied as to flie identical labeling of the capsules. The question of sending the whole of the seized material may arise in a case having factual background of the reported case as referred to hereinabove. But when a particular case involves seizure of tablets or capsules containing a label on it and which are kept on sealed strips, the same standard cannot apply. All the capsules are marked as Parvon spas in this case. So a reasonable doubt could have been raised as to content of the capsules 'Parvon spas' but not as to whether drawing of samples from 3,960 capsules was done in irrational way. As it would appear from the records that capsules were marked as Parvon spas individually and strips of these capsules were kept in twenty different polythene bags, there is no doubt that each of these capsules were of Parvon spas. A specific ground to that effect has been taken by the State in this present proceeding stating that the seized capsules are all identical in appearance and colour and all of them contained same mark 'Parvon spas'. Once at least 5 of the tablets containing similar mark have been found to contain psychotropic substance, prosecution in this case appears to have succeeded to make out a ground to suspect that accused committed offence under section 21 (c) of the NDPS Act. Of course, the observations made hereinabove, are tentative and shall not influence the learned Court at the time of trial. The impugned order dated 18.9.2013, therefore, is set aside. The learned court shall frame charge under section 21(c) of the NDPS Act, 1985 and shall proceed thereafter in accordance with law. 8. Before parting with the records, this court needs to keep on record the words of appreciation about the commendable service rendered by the learned amicus ciiriae in arriving at a decision in this case. He shall be entitled to a fee of Rs. 5,000 only to be payable by the State of Mizoram.