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2018 DIGILAW 1171 (GAU)

Romanga v. State of Mizoram

2018-08-08

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : Michael Zothankhuma, J. Heard Mr. Lalpianfela, learned counsel for the appellant as well as Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor. 2. The appellant has challenged the Judgment & Order dated 05.12.2017, passed by the Special Court, ND&PS Act, Champhai, in Sessions Case No. 51/2016, wherein he has been convicted and sentenced under Section 20 (b) (ii) & (B) ND&PS Act, 1985 to suffer R.I for a period of 10 years and to pay a fine of Rs. 1 lakh, i.d., S.I for 2 (two) months. He has also been convicted and sentenced under Section 14 of the Foreigners Act to suffer S.I for a period of 10 (ten) months. 3. The appellant's counsel submits that the impugned Judgment & Order dated 05.12.2017 should be set aside on 3 (three) grounds. Firstly, the Police Sub Inspector, who was the complainant in the case, was also the Seizing Officer and Investigating Officer. Secondly, Section 42 of the ND&PS Act, 1985 was not followed, as the complainant did not take down in writing, the information received by her with regard to recovery of the seized ganja from the house of the appellant. Thirdly, sample was not drawn from the seized article in the presence of a Magistrate, as required under Section 52-A of the ND&PS Act, 1985. 4. The appellant's counsel submits that though the seized article was seized from the house of the appellant, the seizure witnesses came into the appellant's house only after the seized article had been recovered and were not present during the search. 5. Ms. Linda L. Fambawl, learned Addl. Public Prosecutor submits that possession of ganja is proved in this case, as the appellant has not denied the recovery and seizure of the seized articles from his house. She also submits that as there is a lack of manpower in Ngopa Village, where the incident took place, S.I. Lucy Zosangzuali had to act as complainant, Seizing Officer and I.O of the case simultaneously. 6. I have heard the learned counsels for the parties. 7. The impugned Judgment & Order dated 05.12.2017 clearly states that S.I Lucy Zosangzuali was the complainant, Seizing Officer and I.O of the case. She also submitted the charge-sheet. 8. In the case of State Vs. 6. I have heard the learned counsels for the parties. 7. The impugned Judgment & Order dated 05.12.2017 clearly states that S.I Lucy Zosangzuali was the complainant, Seizing Officer and I.O of the case. She also submitted the charge-sheet. 8. In the case of State Vs. Rajangam, (2010) 15 SCC 369, the Apex Court has held that when investigation of the case has been done by the same officer who registered the crime, the High Court was justified in acquitting the accused, as the investigation would be suspect to fair and impartial investigation and as such, the entire proceedings would be vitiated. Para 8, 9 & 10 of the judgment passed in State Vs. Rajangam is reproduced below: "8. The short question which falls for consideration of this Court is: whether P.W.6 who registered the crime could have investigated the case or an independent officer ought to have investigated the case? 9. The learned counsel appearing for the accused submitted that the controversy involved in this case is no longer res integra. In Megha Singh v. State of Haryana this Court has taken a categorical view that the officer who arrested the accused should not have proceeded with the investigation of the case. The relevant paragraph reads as under: "4. ... We have also noted another disturbing feature in this case. P.W.3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. 10. The ratio of Megha's case has been followed by other cases. In another case in Balasundaran v. State, in para 16, the Madras High Court took the same view. The relevant portion reads as under: "16. 10. The ratio of Megha's case has been followed by other cases. In another case in Balasundaran v. State, in para 16, the Madras High Court took the same view. The relevant portion reads as under: "16. Learned Counsel for the appellants also stated that P.W. 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. PW 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, PW 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to PW 5 alone had filed the charge-sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. PW 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated." 9. In the present case, the evidence of the S.I Lucy Zosangzuali is to the effect that she received secret information on 27.11.2015, while in the Police Station, that there was suspected contraband drugs in the house of the appellant. Thereafter, a police team under her command reached the appellant's house and conducted search of the house. There is nothing in the record to show that the secret information received by the S.I Lucy Zosangzuali had been reduced to writing, as is required under Section 42 of the ND&PS Act. As secret information received was to have been reduced in writing by the S.I Lucy Zosangzuali, the violation of a mandatory provision of law has also vitiated the entire proceedings. In this regard, para 35 of the judgment of the Apex Court in Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539 , is reproduced below:- "35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. State of Haryana, (2009) 8 SCC 539 , is reproduced below:- "35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith in form the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub- section (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub- section (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, of fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 10. With regard to the question of whether the sample of the seized narcotic drug should have been drawn in the presence of the Magistrate, it would be profitable to refer to para 19 & 31.1 of the judgment of the Apex Court in Union of India Vs. Mohanlal & Anr, (2016) 3 SCC 379 , which is as follows:- "19. Mr. Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc. without any loss of time. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not broke any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable section (3) of Section 52-A. We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions. 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order." 11. As per the above extract of the judgment of the Apex Court in Mohanlal, the sample of the seized narcotic or psychotropic drug etc., should be drawn before a Magistrate under Section 52-A of the ND&PS Act. However, there is no definite finding or law laid down by the Apex Court that non-compliance of the above would vitiate the entire judicial proceeding. In any event, as the S.I Lucy Zosangzuali could not have been the complainant, Seized Officer and I.O of the case simultaneously, the impugned Judgment & Order dated 05.12.2017 is liable to be set aside as the Trial Court proceedings have been vitiated. Also, as Section 42 of the ND&PS Act has not been followed in the case as the secret information was not reduced into writing, the Trial Court proceeding is again vitiated and the impugned Judgment & Order is also liable to be set aside on this ground also. The above being said, the enforcement agencies should draw samples of the seized articles in the presence of a Magistrate. 12. The learned Trial Court has convicted the appellant on the basis of the judgment of the Apex Court in the case of State of Punjab Vs. Balbir Singh, (1994) AIR SC 1872, which involves chance recovery of narcotic drugs or psychotropic substance during an investigation by a police officer. 13. The facts in the case of Balbir Singh are different from the facts in this case. It is settled law that a judgment is an authority for the case it decides and not what logically follows from it. A little difference in facts makes the judgment passed in other case lose its precedential value with regard to the facts of another case. Accordingly, this Court is of the view that the case of Balbir Singh is not applicable to the facts of this case. 14. A little difference in facts makes the judgment passed in other case lose its precedential value with regard to the facts of another case. Accordingly, this Court is of the view that the case of Balbir Singh is not applicable to the facts of this case. 14. In view of the reasons stated above, this Court finds that the Trial Court proceedings have been vitiated due to non compliance of the first two points raised by the appellant's counsel and accordingly, the impugned Judgment & Order dated 05.12.2017, passed by the Special Court ND&PS Act, Champhai in Sessions Case No. 51/2016 is set aside, in so far as it relates to the conviction and sentence of the appellant under Section 20 (b) (ii) (B) ND&PS Act, 1985. 15. There being no challenge made by the appellant to his conviction and sentence under Section 14 of the Foreigners Act, the conviction and sentence under Section 14 of the Foreigners Act by the Trial Court is not disturbed by this Court. The appellant shall accordingly be released from Jail, Champhai after completing his sentence given under Section 14 of the Foreigners Act. 16. The appeal is accordingly disposed of. Send back the LCR.