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2017 DIGILAW 267 (GAU)

Lalthuama v. State of Mizoram

2017-03-01

NELSON SAILO

body2017
JUDGMENT AND ORDER Nelson Sailo, J. Heard Mr. J.C. Lalnunsanga, learned counsel for the appellant as well as Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram. 2. The instant appeal has been prepared by the convict/appellant against the Judgment and Order dated 27.10.2016 passed by the Special Court, ND&PS Act, Aizawl in Crl. Tr. Ex. No. 1555/2015 arising out of Excise Case No. 74/2015 under Section 25 A' of the ND&PS Act, 1985. By the said impugned Judgment and Order dated 27.10.2016, the learned Special Court convicted and sentenced the appellant under Section 25 A' of the ND&PS Act, 1985 and sentenced him to undergo Rigorous Imprisonment for 5 years and to pay a fine of Rs. 50,000/-, in default of payment, to undergo Rigorous Imprisonment for another one year. 3. At the outset, it may be noticed and as will be discussed hereafter that the Judgment and Order dated 27.10.2016 passed by the learned Special Court , ND&PS Act, Aizawl in Crl. Tr. Ex. No. 1555/2015 impugned in the instant appeal was passed without affording the appellant an opportunity of sentence hearing as mandated under Section 235(2) of the CrPC. Therefore, consideration of the appeal on merit may not be required. However, for disposal of the instant appeal, brief facts of the case may be looked into. 4. The case of the prosecution is that on 17.5.2015, Sub-Inspector, Lalrinnunga seized 2,30,000 (Two lakh thirty thousand) white tablets suspected to contain Pseudoephedrine at Khatla, Aizawl and in connection with the seizure, he arrested the appellant and two other persons, namely, Lalhriatpuia and David Remlalnghaka. Samples were drawn from the seized materials and sent for chemical test at the Forensic Science Laboratory, Aizawl. A case under Sections 25'A' and 29 r/w 25'A' of the ND&PS Act, 1985 was thereafter registered and investigated upon. The appellant was found to posses and transport the seized articles in his vehicle from Guwahati. The FSL report confirmed that the seized articles contained Pseudoephedrine. 5. A case under Sections 25'A' and 29 r/w 25'A' of the ND&PS Act, 1985 was thereafter registered and investigated upon. The appellant was found to posses and transport the seized articles in his vehicle from Guwahati. The FSL report confirmed that the seized articles contained Pseudoephedrine. 5. A prima facie case under Sections 25'A' and 29 r/w 25'A' of the ND&PS Act, 1985 was found established against the appellant and he was accordingly charge for violation of Sections 4(1) and 10(2) of the RCS Order, 2013 while the other two co-accused persons, namely, Lalhriatpuia and David Remlalnghaka were released by the learned Trial Court on the prayer made by the Investigating Officer since the Investigating Officer did not find their involvement in the case. 6. Charge was framed by the learned Trial Court on 1.4.2016 under Section 25 A' of the ND&PS Act and for violation of Section 4 (1) and Section 10(2) of the RCS Order, 2013 to which the appellant pleaded not guilty. As a result, the Criminal Trial was set in motion. During trial, the prosecution examined as many as 4 prosecution witnesses to establish the fact that the appellant was guilty of the charge. However, since the accused had no defence witnesses, there were none to be examined. 7. The accused thereafter on 24.08.2016 was examined under Section 313 of the CrPC, wherein he admitted to the fact of transporting the seized materials in his vehicle but he however denied of having the knowledge that the materials he transported were drugs. Consequently, the learned Trial Court found the appellant guilty of the charge beyond doubt under Section 25'A' of the ND&PS Act and for violation of Section 4(1) and Section 7(1) of the ND& PS Act and Section 9'A' of the ND&PS Act, convicted and sentenced the accused to undergo Rigorous Imprisonment for 5 years and to pay a fine of Rs. 50,000/- and in default, to undergo Rigorous Imprisonment for another one year. 8. The learned counsel for the appellant at the outset submits that although the learned Trial Court referred to various decisions of the Hon'ble Apex Court on the quantum of the sentence to be imposed upon the appellant, the appellant was however not given any opportunity of sentence hearing as mandated under Section 235(2) of the CrPC. 8. The learned counsel for the appellant at the outset submits that although the learned Trial Court referred to various decisions of the Hon'ble Apex Court on the quantum of the sentence to be imposed upon the appellant, the appellant was however not given any opportunity of sentence hearing as mandated under Section 235(2) of the CrPC. He submits that the impugned Judgment and Order in fact was passed on 27.10.2016 and by the same Judgment and Order, the appellant was convicted and sentenced. 9. Mr. J.C. Lalnunsanga, learned counsel for the appellant further submits that the defence counsel that was engaged to defend the appellant during the relevant point of time had expired and at the same time due to the on-going strike by the defence counsels at the relevant time, the appellant had no opportunity to be represented for sentence hearing even by presuming that the parties were heard before passing of the impugned Judgment and Order dated 27.10.2016. 10. Mr. J.C. Lalnunsanga, learned counsel for the appellant also relies upon the decision of the Apex Court rendered in the case of Allauddin Mian and Others v. State of Bihar reported in (1989) 3 SCC 5 , wherein the Apex Court has held as follows:- "In a case of life or death as stated earlier, the presiding officer must show a high decree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the court, the court's decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative decision; a fortiori, therefore, the principle of fair play must apply with greater vigour in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. Likewise a sentencing decision taken without following the requirements of sub-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing court must approach the question seriously and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender." 11. He therefore submits that compliance of Section 235 (2) of the CrPC is mandatory and non-compliance of which vitiate the conviction and sentence of the appellant. 12. Section 235 of the CrPC is also reproduced herein below for ready reference:- "235. Judgment of acquittal or conviction.(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused in convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law." 13. Mr. J.C. Lalnunsanga, learned counsel for the appellant has also drawn the attention of this Court to the Judgment and Order dated 8.12.2016 passed by the Division Bench of this Court in Crl. Appeal No. 12/2016 (J), wherein the ratio laid down by the Apex Court in Allauddin Mian(Supra) has been followed and resultantly the order towards sentence was set aside and a direction was given to the learned Trial Court to fix a date for sentence hearing and pass necessary order as deemed fit and proper. He therefore submits that the instant case can also be disposed of in similar lines with a direction to the learned Trial Court to fix a date for sentence hearing to enable the appellant to make his submission. He therefore submits that the instant case can also be disposed of in similar lines with a direction to the learned Trial Court to fix a date for sentence hearing to enable the appellant to make his submission. He further submits that pending such sentence hearing, the appellant should be enlarged on bail since he was on bail during the trial. 14. Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram to the submission made by the learned counsel for the appellant and in his usual fairness agrees that the learned Trial Court ought to have given an opportunity to the appellant before passing the order of sentence. He however objects to the fact that the appellant cannot be released on bail at this stage even if the case is to be remanded back on account of denial of opportunity towards sentence hearing. He submits that the offence is serious in nature inasmuch as 2,30,000 (Two lakh thirty thousand) white tablets containing Pseudoephedrine was transported by the appellant in his vehicle and the appellant having been convicted now at this stage cannot be released on bail. 15. I have carefully considered the rival contentions of the learned counsel for the parties. 16. It is undisputed that the learned Trial Court while rendering the Judgment and Order dated 27.10.2016 also passed an order towards the sentencing of the appellant. It can therefore be seen that there was no occasion for the appellant to make his submission to the Court on the quantum of the sentence prior to the passing of the order. Considering the decision rendered by the Apex Court in the case of Allauddin Mian(Supra) as well as the decision rendered by a Division Bench of this Court in Crl. A. No. 12/2016 (J), the case is remanded back to the learned Trial Court without entering into the merit of the appeal. The impugned Judgment and Order dated 27.10.2016 passed by the learned Trial Court is set aside only as far as the sentencing part is concerned. 17. The learned Trial Court shall now fix the date for sentence hearing with due notice to the parties as may be found reasonable and thereafter, upon hearing the parties as may be required shall pass necessary order(s) as may be deemed fit and proper. 17. The learned Trial Court shall now fix the date for sentence hearing with due notice to the parties as may be found reasonable and thereafter, upon hearing the parties as may be required shall pass necessary order(s) as may be deemed fit and proper. Such an exercise shall be carried out within a period of 2(two) months from the date of receipt of the LCR. 18. Send back the LCR. 19. The criminal appeal is disposed of in the above terms.