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2018 DIGILAW 1284 (GAU)

Zodinmawia v. State of Mizoram

2018-08-31

NELSON SAILO

body2018
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. K. Laldinliana, the learned counsel for the appellant and Mr. A.K. Rokhum, the learned Public Prosecutor. 2. This is an appeal against the Judgment & Order dated 03.05.2018 passed by the learned Special Judge under the Narcotic Drugs & Psychotropic Substances Act, 1985 (ND&PS Act), Aizawl Judicial District, Champhai, Mizoram in Session Registration No. 30/2016 arising out of Criminal Trial No. 190/2016 convicting and sentencing the appellant under Section 21(b) of the ND&PS Act and sentencing him to undergo Rigorous Imprisonment for a period of 3 years and to pay fine of Rs. 20,000/- with a default clause. 3. The case of the prosecution briefly is that on 11.10.2015, an Assistant Sub-Inspector of Police, Mr. V.L. Chama Ralte, Officer-in-charge of Zokhawthar Police Outpost along with other Police personnels while performing duty in the outpost recovered 32 grams of contraband substances suspected to be heroin from the possession of the appellant. As a result, Champhai Police Station Case No. 157/2015 dated 11.12.2015 under Section 21(b) of the ND&PS Act was registered against the appellant after an FIR was filed. The case was investigated into by Mr. Lalsangliana, Sub-Inspector of Police. During his investigation, he visited the place of recovery and seizure. He arrested the accused and interrogated him. Upon finding a prima facie case against the appellant under Section 21(b) of the ND&PS Act, he submitted a charge sheet against the appellant before the Court. Samples of the seized contraband substances were also sent to the Forensic Science Laboratory at New Secretariat Complex, Aizawl for chemical analysis. Upon such examination, the seized contraband substances were found to be heroin. 4. The Court then framed formal charge under Section 21(b) of the ND&PS Act against the appellant and it was read over and explained to him in the language he understood. The appellant then pleaded guilty and claimed to be tried. During the trial, although six prosecution witnesses were cited, the prosecution examined two prosecution witnesses only. As for the defence, no witnesses were examined. Upon conclusion of the trial, the learned Trial Court found the appellant to be guilty of the charge under Section 21(b) of the ND&PS Act and thus convicted and sentenced him as already mentioned hereinabove. 5. Mr. As for the defence, no witnesses were examined. Upon conclusion of the trial, the learned Trial Court found the appellant to be guilty of the charge under Section 21(b) of the ND&PS Act and thus convicted and sentenced him as already mentioned hereinabove. 5. Mr. K. Laldinliana, the learned counsel for the appellant submits that the conviction and sentence of the appellant by the Trial Court vide its Judgment & Order dated 03.05.2018 cannot be sustained mainly on four grounds. Firstly, the Officer who arrested the appellant and seized the contraband substance was only a Sub-Inspector of Police who was otherwise not authorized to make such arrest and seizure. He submits that the State Government is empowered under Section 42(1) of the ND&PS Act to authorize any such Officer being an Officer superior in rank to a Peon, Sepoy or Constable to conduct search and seizure and to exercise the powers and perform duties specified in Section 42 of the ND&PS Act. The State Government therefore, in exercise of the powers conferred by Sub-Section (1) of Section 42 of the ND&PS Act has empowered all Officers of an above the rank of Sub-Inspector of Excise and Police to exercise such powers vide Notification under Memo No. B.12029/12/85-EXC/129(A) dated 07.03.1986, which is holding the field as on date. However, in the instant case the arrest and seizure was made by an Assistant Sub-Inspector of Police and therefore, the impugned Judgment & Order cannot be sustained. 6. Secondly, in order to establish their case, the prosecution did not examine any civilian witnesses but only examined the Seizing Officer and the case Investigating Officer. Therefore, even on this ground, the impugned Judgment & Order cannot be sustained. 7. Thirdly, the learned counsel submits that the appellant after the evidences were taken in the trial was not examined under Section 313 of the Cr.P.C. Therefore, his conviction and sentence is only vitiated since it is a well settled law that the examination of an accused under Section 313 of the Cr.P.C is not an empty formality but a process provided by law to ensure that the principles of natural justice is complied with. 8. Fourthly, the learned counsel submits that the appellant was not informed by the Arresting Officer of his rights to be search in the presence of a Gazetted Officer as provided by Section 50(1) of the ND&PS Act. 8. Fourthly, the learned counsel submits that the appellant was not informed by the Arresting Officer of his rights to be search in the presence of a Gazetted Officer as provided by Section 50(1) of the ND&PS Act. He submits that from the evidence-in-chief of PW-1 i.e., the Arresting Officer, it can be seen that all that was asked from the appellant was whether he wanted to be searched before a Gazetted Officer or a Magistrate. He submits that the same by no means can be considered to be compliance of the mandatory provisions prescribed by Section 50(1) of the ND&PS Act, as the appellant was not informed about his rights. Thus, the impugned Judgment & Order convicting and sentencing the appellant under Section 21(b) of the ND&PS Act under the given facts and circumstances cannot be sustained and therefore, the same should be set aside and quashed. 9. In support of his submissions, the learned counsel has relied upon the following of the Apex Court in the case of (i) NARSI Vs State of Haryana, (1999) 1 SCC 166 (ii) Roy V.D Vs State of Kerala, (2000) 8 SCC 590 and (iii) Vijaysinh Chandubha Jadeja Vs State of Gujarat, (2011) 1 SCC 609 . 10. Mr. A.K.Rokhum, the learned Public Prosecutor on the other hand submits that the impugned Judgment & Order requires no interference of this Court. He submits that at the relevant point of time, there was no Sub-Inspector of Police available to conduct search, seizure and arrest. Therefore, instead of allowing the appellant to escape with the contraband substance, PW-1 although being only an Assistant Sub-Inspector of Police had to take necessary action in conducting search, seizure and arresting the appellant. In making such search and seizure, PW-1 also recorded his grounds of believe to justify his actions. The learned Public Prosecutor by referring to paragraph No. 9 of the impugned Judgment & Order submits that the learned Trial Court clearly came to a finding that there was no authorized Officer at Zokhawthar Village at the relevant point of time within a radius of 40 Kms. from the place of occurrence. The use of drugs, such as heroin being highly rampant and detrimental to the society, the learned Trial Court opined that the arrest made by PW-1 cannot be considered to vitiate the prosecution's case. from the place of occurrence. The use of drugs, such as heroin being highly rampant and detrimental to the society, the learned Trial Court opined that the arrest made by PW-1 cannot be considered to vitiate the prosecution's case. Consequently, the appellant was convicted and sentenced and the same should not be interfered with by this Court. 11. Mr. A.K.Rokhum, the learned Public Prosecutor with regard to non-examination of civilian or independent witnesses submits that the same cannot be said to vitiate the conviction and sentenced of the appellant. He submits that the place of occurrence being in a remote corner of the State, one cannot expect civilian witnesses to be present all the time. The prosecution witness may be Police Officers but when their versions are truthful and inspires the confidence of the Court, non-examination of independent witnesses to corroborate the case of the prosecution cannot result in vitiating the trial and the conviction and sentence of the accused. To substantiate his submission, the learned Public Prosecutor relies upon the decision of the Apex Court rendered in Karamjit Singh Vs State (Delhi Administration), (2003) 5 SCC 291 . 12. The learned Public Prosecutor further submits that insofar as recovery of drugs is concerned, a technical approached should not be taken since the use of drugs is a menace to the society. There are also limited infrastructure to curb the menace. The contraband substance recovered from the appellant upon examination by the Forensic Science Laboratory was found to be heroin and considering the quantity that was recovered from the appellant i.e., 32 grams, the learned Trial Court rightly convicted and sentenced the appellant. In fact, the appellant has only been sentenced for three years, Rigorous Imprisonment while Section 21(b) of the ND&PS Act provides for a Rigorous Imprisonment for a term which may extend to 10 years and with fine. Therefore, under the given facts and circumstances the impugned Judgment & Order should be up-held and the appeal be dismissed. 13. I have heard the learned counsels for the rival parties and I have perused the materials available on record, including the Lower Court Records. There is no dispute of the fact that the appellant was arrested by PW-1 who is an Assistant Sub-Inspector of Police. 13. I have heard the learned counsels for the rival parties and I have perused the materials available on record, including the Lower Court Records. There is no dispute of the fact that the appellant was arrested by PW-1 who is an Assistant Sub-Inspector of Police. In exercise of the powers conferred by Sub-Section (1) of Section 42 of the ND&PS Act, the Secretary to the Government of Mizoram, Defence, Excise and Taxation Department vide Notification dated 07.03.1986 empowered all Officers of the rank of Sub-Inspector of Excise and Police and above to exercise the powers and perform duties specified in Section 42 of the ND&PS Act. Undisputedly, the Notification dated 07.03.1986 holds the field as on date. Section 42(1) of the ND&PS Act empowers the Central Government as well as the State Government to authorize its Officers to exercise the power of entry, search, seizure and arrest without warrant or authorization subject to the limitations provided therein. As may be noticed, the appellant was arrested by PW-1 who is an Officer below to a Sub-Inspector of Police or Excise. The Apex Court in the case of Roy V.D held that no Officer other than an empowered Officer can resort to Section 41(2) or exercise powers under Section 42(1) of the ND&PS Act and if an Officer who is not empowered has made the seizure, detention or arrest of a person under the ND&PS Act, the same will vitiate the case of the prosecution and the trial. 14. Insofar as the right of the appellant under Section 50(1) of the ND&PS Act is concerned, it may be seen that in the evidence of the PW-1, he had deposed that he asked the appellant whether he wanted to be search before the Gazetted Officer or a Magistrate but the appellant denied the same. The question is as to whether the same can be considered to meet the requirements of Section 50(1) of the ND&PS Act. The Apex Court in the case of Vijaysinh Chandubha Jadeja has held that it will be imperative on the part of the empowered Officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The Apex Court in the case of Vijaysinh Chandubha Jadeja has held that it will be imperative on the part of the empowered Officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. As may be seen, the Arresting Officer i.e., PW-1 was an Assistant Sub-Inspector of Police and more over by merely asking the appellant as to whether he would like to be searched before a Gazetted Officer or a Magistrate, the same cannot be understood or be equated to being informed of one's right to be searched before a Gazetted Officer or a Magistrate. Therefore, I find force in the submission made by the learned counsel for the appellant. 15. Insofar as non-examination of independent or civilian witnesses is concerned, it may be noticed that out of the 6 witnesses cited by the prosecution, only 2 prosecution witnesses were examined i.e., the Arresting Officer as PW-1 and the Inquiry Officer as PW-6. No independent or civilian witnesses were examined. The Apex Court in the case of Karamjit Singh has held that there is no principle of law which provides that without corroboration by independent witnesses to the testimony of police personnels who deposed as prosecution witnesses, their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. In the present case as can be seen from the testimony of the two witnesses the learned Trial Court was of the view that their versions were truthful, trustworthy and inspired the confidence of the Court. Therefore, I am of the considered view that non-examination of civilian by the independent witness alone cannot be the ground to vitiate the impugned conviction and sentence. However, in view of the fact that Section 42(1) and Section 50 of the ND&PS Act are found to have been violated by the prosecution, the conviction and sentence of the appellant vide the impugned Judgment & Order in my considered view is found to be unsustainable. Moreover, the appellant was not examined under Section 313 of the Cr.P.C to enable him explain the incriminating materials found against him in the evidence of the prosecution. Moreover, the appellant was not examined under Section 313 of the Cr.P.C to enable him explain the incriminating materials found against him in the evidence of the prosecution. The Apex Court in the case of Mohan Singh Vs Prem Singh & Anr, (2002) 10 SCC 236 has held that the reply given by an accused in an examination under Section 313 cannot be the ground to convict him, but examination under Section 313 has its significance since the same is an opportunity given to an accused to explain his case and therefore, it will have a material bearing in appreciating the prosecution's case. 16. Thus, upon considering the case in its entirety, I find merit in the appeal and as such, the impugned Judgment & Order dated 03.05.2018 passed by the learned Special Judge under the ND&PS Act in Session Registration No. 30/2016 is hereby set aside. The appellant is set at liberty unless he is wanted in connection with any other case. 17. Let the LCR be sent back forthwith.