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2017 DIGILAW 1312 (GAU)

Lalchhandama v. State of Mizoram

2017-09-19

AJIT BORTHAKUR

body2017
JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. Victor L. Ralte, learned Amicus Curiae for the accused appellant. Also heard Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State. This Criminal appeal has been preferred from Central Jail, Aizawl against the Judgment & Order dated 17.11.2016, whereby, the accused appellant has been held guilty under Section 20 (b)(ii)(B) of the ND & PS Act, 1985 and sentenced to undergo Rigorous Imprisonment for 3 (three) years and to pay a fine of Rs. 50,000/- i.d Rigorous Imprisonment for another 1 (one) year. 2. The prosecution case, in brief is that Inspector Malsawmkima, Excise & Narcotics, Anti-Narcotic Squad, Mizoram, Aizawl lodged a complaint on 24.05.2014 before the Officer-in-Charge, Anti-Narcotic Squad, Mizoram, Aizawl alleging that on that day at around 9:30 am, while performing his duty at Forest Check Gate, Zemabawk, he along with some constables intercepted one Nano car, which was coming from Tuirial side and after recording the reasons to believe as required under Section 42 of the ND&PS Act, he conducted search in the said vehicle and recovered 10 kgs of dried leaves with flowering tops kept in white nylon sack, carried on its back seat, whereupon he seized the aforesaid suspected contraband substance and arrested the accused appellant. 3. Based on the above complaint, Excise Case No. Ex-N-140/2014, dated 25.8.2014, under Section 20(b)(ii)(B) of the ND&PS Act was registered and endorsed the case to Inspector M. Lianchhingpuii for investigation, who after completion of investigation submitted the complaint against the accused-appellant 4. The learned Special Judge (ND&PS Act), Aizawl, after hearing the learned counsels for the parties and scrutiny of the materials placed, framed charge under Section 20 (b)(ii)(B) of the ND&PS Act, against the accused appellant. The charge was read over and explained to the accused appellant to which he pleaded "not guilty". 5. In order to establish the above charge, the prosecution has examined 4 witnesses while the defense cross-examined them at length, including the Investigating Officer. 6. After closing the evidence of the prosecution side, the learned Trial Court recorded the statement of the accused appellant under Section 313 Cr.PC. The accused appellant pleaded "not guilty" and declined to examine any witnesses in defense. 7. 6. After closing the evidence of the prosecution side, the learned Trial Court recorded the statement of the accused appellant under Section 313 Cr.PC. The accused appellant pleaded "not guilty" and declined to examine any witnesses in defense. 7. On hearing the arguments advanced by the learned counsels of both the sides and appreciation of the evidence on record, the learned Trial Court convicted and sentenced the accused appellant as stated above. 8. Now let us look to the evidence on record. 9. P.W No. 1 C. Lalduhawma deposed that he was summoned to witness search in one red coloured Nano Car at Forest Check Gate, Zemabawk. On 25.08.2014 at around 9:00 A.M, he saw the Excise personnel recovering Ganja carried in 10 polythene packets which were further packed in a white nylon sack. Packing and sealing of the seized items were done at the spot. Sample was taken from each packet. On weighing, each packet weighted 1 kg making the total weight of seized articles at 10 kgs. The accused-appellant admitted that the seized articles belonged to him. Being a witness, he put his signature on seizure and arrest memo. He recognized seizure and arrest memo, seized articles and his signatures thereon. 10. P.W No. 2 Thawngliana identified the accused-appellant and deposed that he was summoned to witness search conducted in one red coloured Nano Car at Forest Check Gate, Zemabawk. On 25.08.2014 at around 9:00 AM, he saw the Excise personnel recovering suspected Ganja kept in 10 polythene packets which were further packed in a white nylon sack. Packing and sealing of the seized materials were done at the spot. Sample was taken from each such packet. On weighing, each packet weighted 1 kg making the total weight of seized articles at 10 kgs. The accused-appellant admitted that the seized articles belonged to him. Being a witness, he put his signature on the seizure and arrest memo. He recognized the seizure and arrest memo, seized articles and his signatures thereon. 11. P.W. No. 3 Inspector Malsawmkima ANS, Excise identified the accused-appellant and deposed that they intercepted one red coloured Nano Car through random check at Forest Check Gate, Zemabawk on 24.08.2014, after preparing reasons of believe, they searched in the vehicle in presence of civilian witnesses and recovered one white nylon sack from the back luggage box containing 10 polythene packets of suspected Ganja. On weighing, each packet was found weighing 1 kg making the total weight at 10 kgs. Sample was drawn from each packet and packing and sealing were done at the spot in presence of civilian witnesses. The accused-appellant admitted that he procured the seized articles from Tuirial for sale at Aizawl. He prepared the seizure and arrest memo and submitted a report to the Officer-in-Charge. He recognized the seizure and arrest memo, report, reasons of believe, seized articles and his signatures thereof. 12. P.W No. 5 M. Lianchhingpuii identified the accused-appellant and deposed that Inspector Malsawmkima recovered Ganja from inside a white nylon sack, packed in 10 polythene packets. The seizure was made from Nano Car bearing registration MZ-01 J-1802 driven by the accused-appellant, who was in possession of the seized articles. The seized articles i.e. Ganja 10 kgs and the Nano Car along with the documents were seized in presence of witnesses. Sampling, weighing, packing and sealing were done in presence of independent witnesses and the accused-appellant at the spot. In course of investigation, she examined the accused-appellant and two witnesses. Samples were sent to FSL for examination and received report there from to the effect that the samples of seized substance were Ganja. As such, she found a prima facie case under Section 20 (b) (ii) (C) of ND & PS Act 85 for violation of Section 8 (C) of the Act against the accused-appellant. She recognized the seizure and arrest memo, its report, reasons of believe, FSL Report, seized articles, complaint sheet and her signatures thereon. In cross-examination, she admitted that she did not make any further enquiry with regard to the person from whom the accused-appellant obtained the seized articles. She admitted that there is nothing on record to show that samples were drawn, however, according to her, it would have not been possible to forward samples to FSL if the same were not drawn. 13. Mr. Victor L. Ralte, learned Amicus Curiae submits that in view of the grounds cited in the Memo of Appeal, submitted by the accused appellant, wherein, he has narrated the miserable condition of his family, for whom he is the sole bread earner, the sentence of fine imposed on him may be modified/reduced suitably so that he can afford to pay. 14. Mrs. Linda L. Fambawl, learned Addl. 14. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State submits that the impugned Judgment & Order passed by the learned Trial Court seems to be based on legal proof and the requirements of procedure provided in the ND&PS Act for recovery and seizure of the contraband was being done in presence of independent witnesses, as it appears from evidence, this Court may not like to interfere therein. 15. The possession contemplated under the ND&PS Act refers to the conscious and exclusive possession of the accused or constructive possession depending on the facts of the case. In the instant case, according to PW-3, Inspector Malsawmkima, ANS, Excise, who is the complainant in this case, deposed to have conducted search in the Nano car, which was driven by the accused appellant in suspicious manner at the Forest Check Gate, Zemabawk and thereupon, he prepared the reasons of believe as required under Section 42 of the ND&PS Act before search was conducted therein in presence of witnesses. During course of such search being conducted in the Nano car, in presence of witnesses and the accused appellant, he recovered Ganja (cannabis) like substance being carried in 10 polythene packets. He made weighment of the recovered substance at the spot and found it weighing total 10 kgs. Accordingly, PW-3, the complainant seized the recovered substance in presence of witnesses on the spot and on enquiry, the accused appellant confessed before him that he carried the same with the intention to sell it in Aizawl. He recognized Ext. P-1, the seizure and arrest memo, Ext. P-2, the report of seizure and arrest, submitted to the Officer-in-Charge, ANS, Aizawl, Ext. P-3, reasons of belief and Ext. M-1, the seized substance. PW-1 Sh. C. Lalhluna is the Chairman of the Berawlui Welfare Committee, who is a resident near to the Forest Check Gate, Zemabawk has corroborated the evidence of PW-3, the complainant He deposed, inter-alia, that having summoned to witness the search in the Nano car, he went to the Check Gate and witnessed the Excise personnel checking the red coloured Nano car, and in course of such checking, making recovery of Ganja packed in 10 polythene packages, which were further kept in one white nylon sack. According to him (PW-1), weighment was being at the spot in their presence and each package was found containing 1 kg, total weight found to be 10 kgs. According to him (PW-1), weighment was being at the spot in their presence and each package was found containing 1 kg, total weight found to be 10 kgs. Samples of seized substance was drawn from each package and re-packing and sealing thereof were done at the spot in their presence. The accused appellant admitted before them that the seized suspected Ganja (cannabis) belonged to him. He (PW-3) put his signatures on Ext. P-1, the seizure and arrest memo and Ext. M-1, the seized substance. Turning to the evidence of PW-2, Khamliana, the Assistant Secretary of Berawlui Welfare Committee, has corroborated the evidence of PW-1 and recognized Ext. P-1, the seizure and arrest memo, Ext. M-1, the seized substance. He (PW-2) deposed that he witnessed the entire exercise of search and seizure of the suspected contraband and drawing samples thereof which was done in his presence and others at the spot. The records show that PW-4 Lalhmachhuana, Assistant Director, FSL was not called as a witness as the defense has not disputed his finding to the effect that the seized substance was Ganja (Cannabis). 16. It is worthwhile to mention that Section 293 Cr.PC empowers the Court to accept the documents of Government Scientific Expert as valid evidence without examining the expert concerned. Thus, the evidence on record reveals that there is cogent and convincing evidence to show that on 24.08.2014 at about 9:30 am at the Forest Check Gate, Zemabawk, the accused-appellant was apprehended while carrying 10 kgs of Ganja (Cannabis) at the aforesaid check gate by PW-3, the complainant, who was on duty at the relevant time, in presence of independent witnesses namely, PW-1 and PW-2 and further, the entire process of seizure and drawing samples of the seized substance for chemical examination were done at the spot. As stated above, there is no dispute regarding the chemical examiner's report that the seized substance was Ganja (Cannabis). It is also noticed that the accused appellant confessed to have carried the seized contraband in the Nano car, which was seized by the complainant PW-3 Inspector of ANS, Excise. The confessional statement of accused appellant was, however, not recorded. Be that as it may, there is no room to suspect the recovery and seizure of the aforesaid contraband out of the exclusive and conscious possession of the accused appellant in view of the inspiring evidence tendered by the prosecution witnesses. The confessional statement of accused appellant was, however, not recorded. Be that as it may, there is no room to suspect the recovery and seizure of the aforesaid contraband out of the exclusive and conscious possession of the accused appellant in view of the inspiring evidence tendered by the prosecution witnesses. The defence appears to have failed to dislodge the veracity of testimony of the prosecution witnesses. 17. Having regard to the fact that the offence under Section 20(b)(2)(B) of the ND&PS Act, involves illegal possession of Ganja (Cannabis) for a quantity lesser than commercial quantity but greater than small quantity, for which the punishment of Rigorous Imprisonment for a term which may extend to 10 years and a fine which may extend up to 1 lakh have been prescribed by law and further, the peculiar circumstances in the life of the accused-appellant and his family, as it is revealed from the Memo of Appeal, this Court is of the considered opinion that no interference in the sentence of imprisonment awarded by the learned Trial Court is called for, but in respect of fine amount of Rs. 50,000/- imposed on him as stated above be reduced to an amount which the accused appellant, despite his extreme financial hardship, can afford to pay. Accordingly, the fine amount of Rs. 50,000/- is modified/altered to Rs. 5,000/- i.d to suffer Rigorous Imprisonment for another period of 15 days. 18. Accordingly, the impugned Judgment & Order dated 17.11.2016 stands affirmed, but modified in respect of punishment to the extent indicated above. The appeal stands partly allowed accordingly. In appreciation of the services rendered by the learned Amicus Curiae Mr. Victor L. Ralte, his fee is fixed at Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only to be paid by the State Legal Services Authority, Aizawl, Mizoram. Send back the LCRs along with a copy of this Judgment & Order.