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2018 DIGILAW 350 (GAU)

Ramengmawii v. State of Mizoram

2018-02-23

NELSON SAILO

body2018
JUDGMENT : N. Sailo, J. Heard Mr. A.R. Malhotra, the learned counsel for the appellant and Mr. A.K. Rokhum, the learned Public Prosecutor appearing for the State respondent. 2. The appeal is directed against the Judgment and Order dated 23.03.2017 passed by the learned Judge, Special Court under the ND&PS Act at Aizawl in Crl. Trial Ex. No. 207/2016 convicting the appellant under Section 25-A of the ND&PS Act for violation of Order-4(1) and 7 (1) of the ND&PS (Regulation of Controlled Substances) Order, 2013 made under Section 9-A of the ND&PS Act, 1985 and sentencing her to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs. 25,000/- and with a default clause. 3. The prosecution case in brief is that on 12.10.2015 at around 8.00 pm, information was received from a reliable source that some quantities of Pseudoephedrine was to be sold illegally in Ngaizel area for further export to Myanmar. Upon receiving such information, S.I. H. Lalhmingthangi and party rushed to Ngaizel area and at around 8.20 pm, they located the appellant seated inside the Taxi bearing Registration No. MZ 01 K 3500. Upon conducting search, 4 cement bags containing suspected Pseudo ephedrine was found in the back seat and in the boot of the car. Two bags were kept in the back seat while the other two bags were kept in the boot of the car. Counting was done in the presence of the appellant and two reliable witnesses which revealed that one white cement bag contained 58 plastic bottles and the other white bag contained 50 plastic bottles. The third bag which was green in colour contained 39 plastic bottles and the fourth bags contained 31 plastic bottles. A total 178 plastic bottles suspected to be Pseudo ephedrine was recovered from the 4 cement bags and each of the plastic bottles contained 2000 tablets of suspected Pseudo ephedrine. Consequently, a total 3,56,000 tablets of suspected Pseudo ephedrine weighing 11.392 kgs and having market value of about Rs. 4,00,000/- was recovered and seized in the presence of reliable witnesses. A sample was drawn from each of the bags in the presence of the appellant and the reliable witnesses for Forensic examination. The appellant was thus arrested and an FIR lodged before the Officer in Charge, Special Narcotic Police Station at Aizawl on the same evening itself. 4,00,000/- was recovered and seized in the presence of reliable witnesses. A sample was drawn from each of the bags in the presence of the appellant and the reliable witnesses for Forensic examination. The appellant was thus arrested and an FIR lodged before the Officer in Charge, Special Narcotic Police Station at Aizawl on the same evening itself. As a result, Special Narcotic PS Case No. 26/2015 dated 13.10.2015 under Section 25A of the ND&PS Act, 1985 was registered and investigation conducted. 4. Upon conclusion of the investigation, charge sheet was filed before the learned Judge, Special Court under the ND&PS Act and charged under Section 25A of the ND&PS Act, 1985 for violation of Section 9A of the said Act was framed against the appellant. The appellant pleaded not guilty and claimed to be tried. 5. During the trial, the prosecution examined as many as 7 prosecution witnesses and upon conclusion of prosecution evidence, the appellant was examined under Section 313 of the CrPC by the learned Trial Judge. Thereafter, vide Judgment and Order dated 23.03.2017, the appellant was convicted and sentenced to imprisonment as aforesaid. 6. Mr. A.R. Malhotra appearing for the appellant submits that the conviction and sentenced of the appellant vide the Judgment and Order dated 23.03.2017 is unsustainable inasmuch as Section 42 of the ND&PS Act, 1985 was violated by the investigating agency while conducting search and seizure. He submits that the Seizing Officer was only the complainant but she was recorded the statement of witnesses which is clearly contrary to the decision of the Apex Court rendered in the case of Megha Singh v. State of Haryana, (1996) 11 SCC 709 . He also submits that the Taxi Driver from where the suspected Pseudo ephedrine tablets were recovered was even made a witness during the trial so as to establish the guilt of the appellant. 7. Mr. A.R. Malhotra further submits that there are major contradictions in the evidence led by the prosecution by pointing out the facts that the prosecution witness Nos. 2 and 3, who are the seizure witnesses in their examination-in-chief deposed that the incident occurred on 25.09.2015 whereas the date of occurrence as per the FIR was 12.10.2015. He further submits that PWs 2 and 3 in their examination-in-chief also deposed that samples were drawn from each of the plastic containers and thereafter packed and sealed in their presence. 2 and 3, who are the seizure witnesses in their examination-in-chief deposed that the incident occurred on 25.09.2015 whereas the date of occurrence as per the FIR was 12.10.2015. He further submits that PWs 2 and 3 in their examination-in-chief also deposed that samples were drawn from each of the plastic containers and thereafter packed and sealed in their presence. However, the remaining prosecution witnesses deposed before the Court that samples were drawn from each of the 4 cement bags only. He therefore submits that such discrepancies being a major discrepancy, the learned Trial Court could have overlooked the same as a mere clerical error. 8. Mr. A.R. Malhotra further submits that after the prosecution led their evidences, the learned Trial Judge examined the appellant under Section 313 of the CrPC by only putting two questions to the appellant. He submits that the learned Trial Judge in examining the appellant under Section 313 of the CrPC in the manner it was done has clearly deprived the appellant from explaining the incriminating circumstances and evidences that was led against the appellant. He submits that it is a well settled position in law that the provision of Section 313 of the CrPC is intended to nail the accused but the same is only in compliance to the most solitary principles of natural justice and shrined in the maxim audi alteram partem. In this connection, he relied upon the decision of the Apex Court rendered in the case of Basavaraj R. Patil and Others v. State of Karnataka and Others, (2000) 8 SCC 740 and Latu Mahto and Another v. State of Bihar, (2008) 8 SCC 395 . 9. Mr. A.R. Malhotra further submits that the Investigating Authority upon receiving information about the transportation of the tablets suspected to be Pseudo ephedrine is bound to comply with the mandatory provision contained in Section 42 (1) and Section 42 (2) of the ND&PS Act, 1985. He submits that in terms of the aforesaid provision, the Officer concerned if under the apprehension that the alleged offender would make good his escape or conceal evidences before search and seizure can be conducted is required to record the ground of his belief when such information is received and to be followed up between sunset and sunrise. He submits that in terms of the aforesaid provision, the Officer concerned if under the apprehension that the alleged offender would make good his escape or conceal evidences before search and seizure can be conducted is required to record the ground of his belief when such information is received and to be followed up between sunset and sunrise. Thereafter, upon recording the ground of belief, the same should be forwarded to an immediate superior officer within 72 hours of the search and seizure. He submits that however in the instant case, the seizing officer failed to record her ground of belief before proceeding with the search and seizure. In this connection, Mr. A.R. Malhotra refers to the deposition of the seizing officer who deposed before the Court as PW1 wherein she stated that the information received by her was only recorded on return and after the alleged illegal drugs were seized. He submits that no reasons were assigned as to why the same was recorded only after the search and seizure and at the same time it is nowhere in the prosecution evidence that a copy of the ground of belief as mandated under Section 42 of the ND&PS Act was actually forwarded to the next superior authority. 10. Mr. A.R. Malhotra further submits that Ngaizel area being a public place, there was no reason for summoning PWs 2 and 3 to be the seizure witnesses inasmuch as the evidence on record clearly reveals that there were independent witnesses available at the relevant point of time. Therefore, the investigating authority having detained the appellant while the PWs 2 and 3 were being asked to come to the spot is only illegal and clearly in violation of the relevant provision of the ND&PS Act, 1985. Mr. A.R. Malhotra in support of his contention with regard to the non-compliance of the requirement of Section 42 of the ND&PS Act, 1985 relied upon the decision rendered by the Apex Court in the case of Karnail Singh v. State of Haryana, (2009) 8 SCC 539 . 11. Mr. A.K. Rokhum, the learned Public Prosecutor representing the State respondent submits that the learned Trial Judge in convicting and sentencing the appellant vide the Judgment and Order dated 23.03.2017 has committed any illegality. 11. Mr. A.K. Rokhum, the learned Public Prosecutor representing the State respondent submits that the learned Trial Judge in convicting and sentencing the appellant vide the Judgment and Order dated 23.03.2017 has committed any illegality. He submits that the prosecution examined as many as 7 prosecution witnesses and out of which there were 2 civilian and independent witnesses who were examined. Mr. A.K. Rokhum be referring to the exhibit P-15 of the paper book which is the Forensic Report dated 05.11.2015 submits that the samples drawn from the 4 bags which were suspected to be Pseudo ephedrine was sent to the Forensic Science Laboratory and upon examination of the same by various scientific method, it was opined by the Assistant Director of the Forensic Science Laboratory that the exhibited materials contained Pseudo ephedrine. Therefore, the materials having been seized from the appellant, no further evidence would be required to be adduced when the testimony of the Officer who had seized the materials and the statement of the seizure witness had clearly revealed that the same was recovered from the appellant. In this connection, he relied upon the decision of the Apex Court rendered in the case of Govindaraju Alias Govinda v. State by Sriramapuram Police Station and Another, (2012) 4 SCC 722 . 12. With regard to the compliance of Section 313 of the CrPC, the learned Public Prosecutor submits that if the appellant had failed to sufficiently explain the incriminating materials placed by the Trial Court, the Trial Court has every right to draw an adverse inference against the appellant. In this connection, he relied upon the case of Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353 . 13. The learned Public Prosecutor further submits that the contractions and discrepancies as submitted by the learned counsel for the appellant are only minor in nature and therefore, the learned Trial Court was justified in overlooking such minor discrepancies and contradictions. In this connection, he relies upon the decision of the Apex Court rendered in State of Andhra Pradesh v. Gangula Satya Murthy, AIR 1997 SC 1588 . 14. I have considered the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record. 15. In this connection, he relies upon the decision of the Apex Court rendered in State of Andhra Pradesh v. Gangula Satya Murthy, AIR 1997 SC 1588 . 14. I have considered the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record. 15. What can be noticed is that the PWI who had received the information about some quantities of suspected Pseudo ephedrine tablets being in transit at Ngaizel area on 12.10.2015 at around 8:00 pm had rushed to the spot. As can be further seen PWI did record the information received in writing before proceeding to Ngaizel to investigate as per her own version during cross examination. PWI is only the informant but also she had recorded the statement of witnesses on the spot before forwarding the appellant with the seized articles to the Officer-in-Charge of Special Narcotic for further investigation. The Apex Court in the case of Megha Singh (Supra) has held that an Investigating Officer also being the complainant should proceed with the investigation of the case and proceed to examine witnesses under Section 161 of the Cr PC. 16. However, in the instant case, although the PWI was the informant, she examined the witnesses present on the spot and recorded their statements. But it may also be noticed that she was the Investigating Officer who conducted the investigation inasmuch as PW8 was assigned with the task of investigation. Therefore, on the ground taken by the appellant that PWI was both the complainant as well as the person who conducted the investigation cannot be accepted. With regard to the recording of reasons as well as the ground of belief, as may be noticed, the same has been duly recorded by the PWI who had gone to the place of occurrence on the night of 12.10.2015. As can be seen, the appellant was in a Taxi and perhaps was bound for some unknown destination. In such circumstances, as noted by the PWI in the information which was recorded on night after returning from the spot, there appears to be reasonable ground for having recorded the information first before proceeding to the spot. As can be seen, the appellant was in a Taxi and perhaps was bound for some unknown destination. In such circumstances, as noted by the PWI in the information which was recorded on night after returning from the spot, there appears to be reasonable ground for having recorded the information first before proceeding to the spot. Therefore, the urgency and expediency which has been held to be the main factor for recording the information received before following up such information by the investigating authorities as held by the Apex Court in Karnail Singh (Supra) is found to have been violated by the investigating authority. Therefore, the said decision only comes to the aid of the prosecution. 17. Moving on to the discrepancy that is found during the trial as submitted by the learned counsel for the appellant, it may be noticed that the discrepancy is with regard to the date of occurrence. While the prosecution witnesses apart from the PWs 2 and 3 have maintained that the date of occurrence was 25.09.2015. All other prosecution witnesses have stated that it was 12.10.2015 when the incident occurred. Further, the discrepancy with regard to the taking of sample from the seized materials, although all the prosecution witnesses maintained that the samples for examination in Forensic Laboratory was drawn from each bag seized from the possession of the appellant, the two prosecution witnesses i.e, PWs 2 & 3 have deposed in their examination-in-chief that samples were drawn from each of the plastic containers. Such discrepancy in my considered view cannot be a ground to reject the case of the prosecution when it is clearly established is that the materials were seized from the possession of the appellant. Therefore, on this point, I find that the learned Trial Court below has committed any error in discarding the discrepancy. 18. With regard to the examination of the appellant under Section 313, it may be noticed that only two questions were put before the appellant by the learned Trial Court and considering the evidences led by the prosecution during the trial, there was hardly any scope of putting multiple questions from the evidence appearing against the appellant inasmuch as the entire case of the prosecution was recovery of tablets suspected to be Pseudo ephedrine from the appellant without any authority in contravention of the relevant law in this regard. Although the learned Trial Court may have put up further questions to the appellant which appeared in the evidence against her. But nevertheless, with the two questions put before the appellant by the learned Trial Court, the same cannot construe to have violated the rights of the appellant. The appellant having been afforded an opportunity by the learned trial Court, I find that the cases of Basavaraj R. Patil (Supra) and Latu Mahto (Supra) relied upon by learned counsel for the appellant will come to the appellant's rescue. 19. For the aforesaid reasons, I do not find any reason for interfering with the impugned Judgment & Order dated 23.03.2017 passed by the learned Judge, Special Court under ND & PS Act, Aizawl. 20. Having opined as such, I do not find the necessity to dwell upon the other decisions relied upon by the learned Public Prosecutor. In the result, the impugned Judgment & Order dated 23.03.2017 is upheld and the appeal is dismissed.