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2018 DIGILAW 255 (GAU)

Chingo v. State of Mizoram

2018-02-09

M.R.PATHAK

body2018
JUDGMENT & ORDER : M.R. Pathak, J. Heard Mr. C. Lalfakzuala, learned counsel for the accused appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram for the State respondent. 2. The convicted accused Smt. Chingo, as an appellant, has preferred this Criminal Appeal being aggrieved with the Judgment & Order of conviction dated 29.05.2017 and the order of sentence dated 31.05.2017 passed by learned Special Judge (Additional Sessions Judge, Siaha), Special Court, ND & PS Act, Siaha, Mizoram in S.R. No. 04/2016 (Criminal Trial No. 49/2016) arising out of Siaha Police Station Case No, 46/2016 by which the appellant was convicted under Section 18 (c) of the ND & PS Act, 1985 and sentenced to undergo 3 (three) years of Rigorous Imprisonment with a fine of Rs. 9,000/-, in default of payment of fine, further imprisonment for 3 (three) months, setting of the period of detention already in Judicial Custody in the said case. 3. The prosecution case as it emerges from its First Information Report dated 05.05.2016 (Exhibit P-12) lodged by PW-1 Sh. David H. Lallianhluana, S.I. of Police is that when he along with another S.I. and an A.S.I. of Police and his staff, including woman Constable, during conducting of opium checking at N. Siaha Bazar, an woman, the accused/appellant herein of Kawlchaw East, on suspicion. was apprehended and she was brought to Siaha Police Station by woman constable and during preliminary interrogation, she disclosed that 4 (four) packets of opium was taken from Kawlchaw East to Siaha by a Sumo car on that morning, which was concealed with her son-in-law, Sh. was apprehended and she was brought to Siaha Police Station by woman constable and during preliminary interrogation, she disclosed that 4 (four) packets of opium was taken from Kawlchaw East to Siaha by a Sumo car on that morning, which was concealed with her son-in-law, Sh. Hmangaihsanga of Lungzarhtum (acquitted co-accused of the case) at N. Siaha Bazar and on such disclosure of the accused appellant, her said son-in-law (co-accused of the case) was also apprehended and he was also brought to the Siaha Police Station, wherein, after preparing the ground of believe under Section 42 of the ND & PS Act, body search of both the accused persons were conducted, as the spot from where they were apprehended was far from the nearest concerned authority and it was during such body search of said co-accused of the case (son-in-law of the present accused appellant), the informant PW-1 recovered 4 (four) transparent polythene packets containing, dark brown substance, Suspected to be opium from him, which the present accused appellant concealed with him and after such recovery of said substance, it was duly seized from the possession of the co-accused in presence of civil witnesses and after weighing the same, it was found to be of 200 grams and accordingly, the said informant drawn the sample of about 5 grams from the said seized properly for its necessary examination by Forensic Laboratory from each of the four packets in presence of the civil witnesses and also the apprehended persons and thus the said in-formant prayed before the authority of Siaha Police Station to take necessary action against both the accused persons. 4. Accordingly, the said FIR of the informant PW-1 was registered against the above noted accused persons as Siaha Police Station Case No. 46/2016 under Section 22 (b) of the ND & PS Act. 5. 4. Accordingly, the said FIR of the informant PW-1 was registered against the above noted accused persons as Siaha Police Station Case No. 46/2016 under Section 22 (b) of the ND & PS Act. 5. The concerned Investigating Officer of the case recorded the statements of the witnesses acquainted with it, including the seizure witnesses, arrested the accused persons and finding prima facie materials against them accused persons, the concerned Officer of Siaha Police Station on 16.08.2016 vide No. 57/2016 filed the Charge-Sheet in said Siaha Police Station Case No. 46/2016 along with the FSL report dated 30.05.2016 (Exhibit P-7), stating that a prima facie case under Section 18 (c) of the ND & PS Act read with Section 34 of the IPC were founded against both the accused persons of the case. 6. The learned Special Judge on 20.09.2016 framed charge against both the accused persons under Section 18 (c) of the ND & PS Act read with Section 34 of the IPC, which were explained to them, to which the accused persons pleaded not guilty and claim to be tried and accordingly, the trial of the case began. 7. In order to bring home the charges against the accused persons, the prosecution examined 5 (five) witnesses including the informant, seizure witnesses, the investigating Officers of the case and the concerned Officer of the Forensic Laboratory of the State who examined the seized articles in the case and the defence cross examined all the prosecution witnesses of the case. After completion of the recording of evidence of the prosecution witnesses, the statements under Section 313 Cr.P.C., 1973 of both the accused persons were recorded by the learned Trial Judge on 15.05.2017. The defence also examined 2 (two) witnesses on their behalf, who were also cross examined by the prosecution. After appreciation of the evidences adduced by the prosecution as well as the defence, the learned Special Judge recorded the impugned Judgment & Order of conviction and sentence as noted above and hence the present appeal. 8. Heard Mr. C. Lalfakzuala, learned counsel for the accused appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor for the State. 9. Mr. 8. Heard Mr. C. Lalfakzuala, learned counsel for the accused appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor for the State. 9. Mr. C. Lalfakzuala, learned counsel on behalf of the accused appellant submitted that the prosecution failed to bring home the charge beyond all reasonable doubt so as to convict the accused appellant under Section 18 (c) of the ND & PS Act. He also stated that the learned Trial Court erred in convicting the accused appellant by the impugned Judgment & Order of conviction and sentence on the basis of the statement of the co-accused of the case, recorded under Section 313 Cr.P.C, 1973 who was acquitted by the learned Trial Court by the impugned Judgment & Order itself. 10. Mr. C. Lalfakzuala, learned counsel further placed before the Court that the learned Special Judge while recording the impugned Judgment & Order of conviction and sentence, did not consider the provisions of Sections 18 (c) & 50 of the ND & PS Act. sections 100 and 354 (1)(c) of the Cr.P.C., 1973 and Sections 27 of the Evidence Act in proper perspective. He further stated that there was no witness at the time when search of the accused persons were conducted as well as during the time of alleged recovery of ND & PS article from the accused persons and the same were not as per the conformity of said 1985 Act. 11. In support of his argument, Mr. C. Lalfakzuala, learned counsel on behalf of the appellant relied on the Judgments of the Hon'ble Supreme Court in the cases of Manoranjan Singh v. State of Delhi, reported in (1998) 3 SCC 523 , Avtar Singh v. State of Punjab, reported in (2002) 7 SCC 419 , Bodhraj v. State of J&K, reported in (2002) 8 SCC 45 , Sujit Biswas v. State of Assam, reported in (2013) 12 SCC 406 , State of Rajasthan v. Parmanand, reported in (2014) 5 SCC 345 , Nagaraj v. State reported in (2015) 4 SCC 739 , Makhan Singh v. State of Haryana reported in (2015) 12 SCC 247 and also a Judgment of Jharkhand High Court in the case of Parduman Manjhi v. State of Jharkhand reported in 2011 Crl.L.J. 1604. 12. Mr. 12. Mr. C. Lalfakzuala, learned counsel for the accused appellant submitted that she should be acquitted in said Criminal Trial No. 49/2016 arising out of Siaha Police Station Case No. 46/2016 and necessary order should be issued to release her from custody forthwith. 13. Mrs. Linda L. Fambawl, learned Additional Public Prosecutor on the other hand submitted that the prosecution could prove the charge against the accused appellant beyond reasonable doubt and her statement under Section 313 Cr.P.C., 1973 recorded by the learned Trial Judge corroborated the evidence that were placed by the prosecution before the Court. 14. Mrs. Linda L. Fambawl, further submitted that as the prosecution placed sufficient materials before the learned Special Judge to prove the guilt of the accused, the learned Trial Judge rightly recorded the impugned Judgment & Order of conviction and sentence against the accused appellant and therefore, the appeal in hand of the accused appellant should be dismissed. 15. Considered the submissions advance by the learned counsels for both the parties, perused the evidence that were adduced before the learned Trial Judge, the impugned Judgment & Order of conviction and sentence recorded by the learned Special Judge as well as the judgments cited on behalf of the accused appellant. To examine the correctness to the impugned Judgment & Order of conviction and sentence, let briefly scrutinised the evidence on record. 16. PW-1 David H. Lallianhluana, the informant of the case in his deposition stated before the Court that while they were on duty on the date of the incident on 05.05.2016, suspecting her movement, the accused appellant was brought to the Siaha Police Station, wherein during her preliminary interrogation, she confessed about transporting the seized article into Siaha that she had already given to her son-in-law, the co-accused of the case and on her such confession, the co-accused was also apprehended, he too was brought to the Siaha Police Station, where during preliminary investigation and on following the due process of law, like the grounds of believe, when his body search was made, the said seized articles were recovered from the said co-accused of the case and accordingly the FIR of the case was lodged. Said PW-1 also stated that he was present at the time of drawing the seizure, the samples and packing the seized articles of the case. 17. Said PW-1 also stated that he was present at the time of drawing the seizure, the samples and packing the seized articles of the case. 17. During his cross examination by the defence, he deposed that on the date of the incident the suspected opium was not recovered from the accused appellant and the said seized article was recovered from the possession of the co-accused of the case at Siaha Police Station where they were interrogated and that all such search, seizure and arrest of the accused persons were done in the Siaha Police Station itself. Said PW-1 stated that the Gazette Officer, SDPO Siaha was present during the body search of the accused persons. 18. PW-2 namely, P.C. Chuauhluni, seizure witness of the case, in her deposition before the Court stated that she was present at the Police Station where the accused persons were also present and the seized article i.e. opium was seized from the co-accused of the case and further stated that she was present when the seized articles were packed. 19. During her cross examination by the defence, said PW-2 stated that she was present in the Police Station after recovery of the seized articles and she was not present at the time of the search and recovery of the same and that she did not know from whom and where such recovery of the seized article was made and as she was requested to be the seizure witness of the seized articles she had done the same. 20. PW-3 namely, Vanlalsiama one of the Investigating Officer of the case in his deposition stated as the previous Investigating Officer of the case was unwell, he was directed to finalise the investigation and after meticulous examination of the record, pertaining to the investigation of the case, he submitted the charge sheet in said Siaha Police Station Case No. 46/2016 finding prima facie case under Section 18 (c) of the ND & PS Act against both the accused persons. 21. In his cross examination, said PW-3 stated that he was not present at the time of recovery and seizure of the seized articles and was present at the time of drawing the samples of the seized articles and he was not involved regarding arrest of the accused persons as well as the initiation of the case. 22. PW-4 namely, Ms. In his cross examination, said PW-3 stated that he was not present at the time of recovery and seizure of the seized articles and was present at the time of drawing the samples of the seized articles and he was not involved regarding arrest of the accused persons as well as the initiation of the case. 22. PW-4 namely, Ms. C. Zakhumi, the previous Investigating Officer of the case deposed before the Court that the PW-1, a S.I. of police and the informant of the case and his team apprehended both the accused persons and brought them to Siaha Police Station where the articles were recovered from the co-accused of the case, which belongs to both the accused persons. She further deposed that samples of the seized articles were drawn by said PW-1 and his team and thereafter, the case was entrusted to her and she formally arrested both the accused persons and sent the samples of the seized articles for necessary examination and report of the FSL Aizawl, so as to ascertain whether the seized articles was opium or not and later when she received the report from the FSL, which disclosed that the seized articles recovered in the case from the accused persons of the case is proved to be opium; but she could not complete the investigation as she had to take medical leave. 23. During her cross examination, said PW-4 admitted that the seized articles were recovered and seized from the accused persons of the case by PW-1 and she did not know to what extent recovery and seizure was made from those accused persons as she was not present at that time, more so, she was also not present at the time of the search of the accused persons as well as at the time of drawal of samples from the seized articles and stated that after the drawal of the samples and those were packed, she only forwarded the said samples of the seized articles to the FSL. 24. 24. PW-5 namely Lalhmachhuana, the concerned examining Officer of the FSL Aizawl deposed that on 18.05.2016, the Director of the FSL endorsed the case to him for scientific examination of the articles after it was received by the said Director and he had thoroughly checked the contents of the seized articles, where during such scientific examination, the 4 (four) exhibits were found to be opium and accordingly, sent the examination report to the forwarding authority on 30.05.2016. 25. During his cross examination, said PW-5 admitted that the packets of the parcels which contain the exhibits were not produced before the Court on said day, at the time of his deposition before the Court. 26. In his re-examination by the prosecution, said PW-5 stated that the samples that were forwarded by the Investigating Officer of the case for scientific examination were not returned by the forwarding authority after its examination. 27. The defence witness No. 1, H.C. Paly in his deposition stated that he is not aware how the accused persons were arrested by Siaha Police and stated that both the accused persons were having good relation in their village and they do not bear any bad name or action and further stated that he do not have any knowledge or information about the accused persons indulging in the activities of selling or possessing opium or any such ND & PS articles. 28. During his cross examination, said DW-1 stated that he is the Vice President of Kawlchaw East Village Council-II and that the present accused appellant had her own speed boat that was used to collect sand for sale and that he is not aware about the profession and living of the co-accused and that he was not present at the time of search, seizure and arrest of the accused persons. 29. 29. PW-2 namely Ngosua, in her deposition before the Court submitted that she knew both the accused persons where the accused Smt. Chingo is her biological mother whereas the co-accused Hmangaihsanga is her husband and on the date of the incident, she along with her husband came to Siaha for medical treatment for which appointment was already fixed and they met her mother there who was also coming from Kawlchaw Village and then Police in uniform apprehended her mother and later apprehended her husband who were brought to the Siaha Police Station and she doesn't know about the involvement of her husband (co-accused of the case) pertaining to the allegation of said case. 30. During her cross examination by the prosecution, she stated that their occupation is extraction of sand and other casual work and that she doesn't know the exact nature of offence. During her cross examination, she further stated that she does not know whether the accused persons are involved with the seized article or not and whether, they were trying to sell those articles or not. 31. In her statement before the Court under Section 313 Cr.P.C, 1973 the accused appellant Smt. Chingo stated before the learned Trial Judge that she was sent with the item from Lawngtlai, which was seized in the case and she was not even paid any amount for the said work and since she was to take her daughter to the concerned doctor for medical check-up, she asked her son-in-law, the co-accused of the case, Hmangaihsanga to keep the said seized article and that he might have kept the same inside his pant pocket. She also stated that she did not carry the articles in the case to sell the same and it was only sent through her. She also stated that she was informed that some person will call her and shall collect the same from her and therefore, she carried those articles seized in the case, which doesn't belong to her and that she just carried it so as to receive an amount of Rs. 1000/- as carrying charge. She further stated that she was not aware about the contents of the packets seized in the case since it was not her and that she was not scared to carry the said seized articles. 32. 1000/- as carrying charge. She further stated that she was not aware about the contents of the packets seized in the case since it was not her and that she was not scared to carry the said seized articles. 32. The co-accused of the case Hmangaihsanga in his statement under Section 313 Cr.P.C., 1973 before the learned Trial Judge stated that when he travelled from Lungzarhtum with his wife for her medical check-up, his mother-in-law asked him to keep the articles seized in the case, stating that someone sent it through her and that he did not know that it was opium. He also stated that the seized articles, which was in a packet covered in black polythene was recovered from his pant pocket and that he was not aware about the content of said seized packet and realised about it as opium only after its seizure from him. He further stated that he does not consume any intoxicants and did not keep the seized articles for re-sale and kept the same with him as instructed by her mother-in-law, the present accused appellant and he further stated that he was not aware about the types of intoxicants since he never consumed any and he was also not aware how the Police suspected him. 33. Considered the submissions and the judgments placed by the learned counsels for the parties, on behalf of the accused appellant and the State. From the evidence adduced by the prosecution, it is seen that the prosecution could prove that the acquitted co-accused of the case was searched by the concern Officer in presence of a Gazette Officer and during such search, the ND & PS article was recovered and seized from physical possession of said co-accused of the case (from his pant pocket), who is now acquitted and the defence could not deny and demolish the said evidence of prosecution. Further, the said co-accused, son-in-law of the present accused appellant and the accused appellant, both of them in their statement under Section 313 Cr.P.C., 1973 on being pointed out by the learned Trial Judge regarding the evidence adduced by the prosecution, clearly stated before him that as she had to take her daughter to Doctor for Medical Check-up, she told her son-in-law, the other acquitted accused to keep the packets that were seized in the case and she further stated that her said son-in-law might have kept the same inside his pant pocket. Further, when the present appellant was informed that prosecution led evidence that it is she who brought the ND & PS item seized in the case with an intention to sell at Siaha, she stated that it does not belong to her and she had no intention to sell the same as it was someone who sent it through her stating that some person shall call them and will collected the same from them and as such, for those persons she had carried the said item seized in the case. Under Section 313 Cr.P.C., 1973 she further stated before the learned Trial Judge that the item recovered and seized in the case doesn't belong to her and that she only carried it so as to receive the carrying charge of Rs. 1000/- and she does not know what is it, since it doesn't belong to her. 34. Further, the other co-accused in his statement before the learned Trial Judge recorded under Section 313 Cr.P.C., 1973clearly stated that it is his mother-in-law, the present appellant asked him to keep the articles seized in the case stating that someone had sent the same through her and that he was not aware about contents of the packet that was given to him by her mother-in-law, the present accused appellant, which he had kept it in his pant pocket that was given to him by his mother-in-law and was unaware that it was opium. 35. Exhibit P-7 is the FSL report that was placed by the prosecution with regard to the ND & PS article that was recovered and seized from the-accused person and as per the said FSL report dated 30.05.2016 it specifies the same as Opium. 36. 35. Exhibit P-7 is the FSL report that was placed by the prosecution with regard to the ND & PS article that was recovered and seized from the-accused person and as per the said FSL report dated 30.05.2016 it specifies the same as Opium. 36. The expression "possession" as held by the Hon'ble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors. reported in AIR 1980 SC 52 is a polymorphous term which assumes different colors in different context. It may carry different meanings in contextually different backgrounds. It is impossible, to work out a completely logical and precise definition of possession uniformly applicable to all situations in the context of all statutes. 37. The Hon'ble Apex Court in the case of Gunwantlal v. The State of M.P. reported in AIR 1972 SC 1756 have held that "conscious" means awareness about the particular fact and that it is a state of mind which is delivered or intended. The Hon'ble Supreme Court in the said case of Gunwantlal (supra) observed that possession in a given case need not be physical possession but it can be constructive, having power and control over the article in the case in question while the person to whom physical possession is given holds it subject to that power or control. 38. As noted above, the prosecution could prove that the ND & PS articles recovered and seized in the case was found and proved to be Opium which where possessed by the accused persons of the case and from the evidence adduced by the prosecution and were cross examined by the defence, the prosecution proved beyond any doubt that it is the present accused appellant who was in conscious possession of the said recovered and seized Opium. Moreover, once it is established, that the person was in conscious possession of said ND & PS articles, then it is the said person who claims that he or she as the case may be, was not a conscious possessor, has to establish it, as because the accused who is found to be of conscious possession of the ND & PS articles must establish how the said accused came to be in possession of the same, which was within the special knowledge of the accused person in the present case. The accused appellant failed to place anything on record to that extent. 39. The statement of the accused persons under Section 313 Cr.P.C., 1973 in the case were recorded after the closure of recording of evidence of the prosecution. The object of the said Section 313 Cr.P.C., 1973 is for the purpose of enabling the accused person of the case personally to explain any circumstances appearing in the evidence against the said accused and giving an opportunity to the accused to say what the accused wanted to say in respect of prosecution's case against his/her in-compliance of the principle of natural justice. It is well settled that said Section 313 Cr.P.C., 1973 is a special provision mainly intended to benefit the accused and its corollary to benefit the Court in reaching the final conclusion. The examination of the accused under Section 313 Cr.P.C., 1973 as already settled, is not a mere formality and ensures given by the accused during such examination are important and useful in Criminal Trial as a part for affording an opportunity to the accused to explain incriminating circumstances evolved in the case against the accused concerned and the result of such examination is helpful to the Court in appreciating the evidence adduced in the Court during the trial and to come to a particular conclusion regarding the guilt of the accused and further, it is also permissible to the Court to take into account even in inculpatory statements, ignoring exculpatory statements, if it accords with the evidence on record and press it to the arena of appreciation. In the present case, the learned Trial Judge has taken into account the statement made by the accused under Section 313 Cr.P.C., 1973 where the accused appellant have admitted regarding carrying of the packets of opium by her in lieu of money and giving those packets of Opium to her son-in-law to keep with him. 40. In the present case, the learned Trial Judge has taken into account the statement made by the accused under Section 313 Cr.P.C., 1973 where the accused appellant have admitted regarding carrying of the packets of opium by her in lieu of money and giving those packets of Opium to her son-in-law to keep with him. 40. For the reasons above, the Court is of the view that the prosecution could prove the guilt of the accused appellant beyond all reasonable doubt and as such the impugned Judgment & Order of conviction dated 29.05.2017 and sentence dated 31.05.2017 passed by learned Special Judge, ND & PS, i.e. the Additional Sessions Judge, Siaha, Mizoram in S.R. No. 04/2016 arising out of Siaha Police Station Case No. 46/2016 convicting the accused appellant under Section 18 (c) of the ND & PS Act, 1985 as amended, does not need any interference. 41. Accordingly, this Criminal Appeal, being devoid of merit, stands dismissed. No order as to cost. 42. Registry shall return the records of the S.R. No. 04/2016 (Criminal Trial No. 49/2016) arising out of Siaha Police Station Case No. 46/2016 to the Court of learned Special Judge (Additional Sessions Judge, Siaha), Special Court, ND & PS Act, Siaha, Mizoram with a copy of this order.