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2018 DIGILAW 949 (GAU)

Zamkhawngin S/o Zamkhanning v. State of Mizoram

2018-06-19

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Mr. C. Lalfakzuala, the learned counsel for the appellant as well as Mr. A.K. Rokhum, the learned Public Prosecutor for the State respondent. 2. By filing this appeal, the appellant has challenged the Judgment & Order dated 28.02.2018 passed by the learned Judge, Special Court under the ND&PS Act at Aizawl in Criminal Trial No. 115/2016 whereby, the appellant was convicted under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (ND&PS Act) and sentenced to a rigorous imprisonment for 5 years with a fine of Rs. 5000/- and with a default clause. 3. Assailing the order of conviction and sentence, Mr. C. Lalfakzuala, the learned counsel submits that the appellant could not have been convicted and sentenced by the learned Trial Court, inasmuch as, the entire investigation right from the seizure of the alleged material suspected to be Ganja up to the filing of the charge sheet is vitiated by multiple defects and short comings. The learned counsel by referring to the FIR submitted by one Mr. Saingura Sailo, Assistant Sub-Inspector of Police, Saitual Police Station submits that upon receiving a telephonic information from Wing Commander of Khawlian 2nd Indian Reserve Battalion Post, the Officer concerned rushed to the Khawlian 2nd Indian Reserve Battalion Post and apprehended the appellant along with 16 kgs of material suspected to be Ganja from his possession. According to the Officer concerned, the materials were seized from the appellant and it was packed in the presence of reliable witnesses. The learned counsel submits that as per the provisions of Sections 42 and 43 of the ND&PS Act, only the Authorized Officer mentioned therein would be empowered to make such seizure and arrest. He further refers to the Notification dated 06.10.2015 issued by the Excise & Narcotics Department, Government of Mizoram vide Memo No. J.24011/1/2010-EXC to contend that Officers of the rank of Sub-Inspector and above in the Excise & Narcotics Department and the Police Department are empowered to make the arrest and seizure in terms of Section 41(2) of the ND&PS Act. However, in the instant case, the arrest and seizure was made by the Assistant Sub- Inspector of Police who was neither empowered nor authorized. 4. However, in the instant case, the arrest and seizure was made by the Assistant Sub- Inspector of Police who was neither empowered nor authorized. 4. The learned counsel further submits that the Seizing Officer was examined as PW-1 by the prosecution and in his examination-in-chief, he deposed that on 18.11.2015, he received a telephonic information from the Wing Commander, Khawlian 2nd Indian Reserve Battalion (2nd I.R. Bn.) Post, that they had detained the appellant whom they believe to possess material suspected to be Ganja. Therefore, he along with other Police personnel’s rushed to Khawlian after recording grounds of believe. Upon reaching the spot and in the presence of two local independent witnesses from Khawlian, he checked the belongings of the appellant and recovered one gunny bag. Upon opening the said bag, he found some material suspected to be Ganja inside it and he therefore seized the same in the presence of the two civilian witnesses. On measuring the weight of the material suspected to be Ganja, it was found to be 16 Kgs. Samples was then drawn and the same was packed and sealed in the presence of the appellant and the civilian witnesses. In his cross examination, PW-1 deposed that at the relevant time the Sub-Inspector posted in the Police Station concerned was on leave and out of Station and that, the Officer-in-charge also was out of station. Being the only Officer in the Police Station, he had to conduct the search and seizure. From his deposition, Mr. C. Lalfakzuala, the learned counsel submits that it can be seen that it was he who conducted the search, seizure and arrest of the appellant although he was not authorized. He further submits that the contention of PW-1 that he being the only Officer present at Saitual Police Station, he had to conduct the search and seizure cannot be a ground to undertake such search and seizure. In fact, such an explanation cannot be accepted in view of the fact that the Officer-in-charge of the Saitual Police Station clearly subscribed his signature on the day of the arrest i.e., 18.11.2015 in the FIR submitted by PW-1 and registered a case. Therefore, on this ground alone, the Judgment & Order impugned convicting and sentencing the appellant is liable to be set aside and quashed. 5. Therefore, on this ground alone, the Judgment & Order impugned convicting and sentencing the appellant is liable to be set aside and quashed. 5. The learned counsel further submits that besides the non-fulfillment of the mandate prescribed by law as aforesaid, there is discrepancy with regard to the place from where the seizure was made. As per PW-1, seizure was made from the quarters of the Post Commander of 2nd I.R. Bn. but however, as per the deposition of the two civilian witnesses who were examined as PW-2 and 3 by the prosecution, the materials suspected to be Ganja was recovered from the Pick-up vehicle which was proceeding from Daido Village near Lungdawh Kawn Khawlian. Apart from such contradiction, the prosecution also failed to examine any of the occupants of the Pick-up vehicle wherein, the alleged contraband was said to have been carried including the Post Commander of the 2nd I.R. Bn. Post at Khawlian. Therefore, under such circumstance, the prosecution apart from the legal lacuna has clearly failed to establish their case with prove beyond reasonable doubt. As such, the impugned Judgment & Order being unsustainable in law, the same should be set aside and quashed and the appellant should be acquitted from the charge. The learned counsel in support of his submission has placed his reliance upon the following decisions:- (i) Basudev Ghosh Vs. State of Assam 2017 (3) GLT 528 (ii) Roy V.D Vs. State of Kerala (2000) 8 SCC 590 6. Mr. A.K. Rokhum, the learned Public Prosecutor appearing for the State submits that during the relevant time as can be seen from the deposition of PW-1, there was no other Officer besides the PW-1 at Saitual Police Station who could conduct search and seizure of the materials alleged to be Ganja and therefore, instead of allowing the smuggling of contraband, PW-1 was justified in conducting the search and seizure. He also submits that the Seizing Officer after seizing the alleged Ganja had clearly recorded the grounds of believe in making the search and seizure and the same was exhibited as Exhibit P-2 and Exhibit P-2(a) during the trial. As such, the requirements of law has clearly been met. He further submits that the action of the seizure is well justified, inasmuch as, PW-1 being a Police Officer, he cannot remain silent and he acted in good faith and in public interest. As such, the requirements of law has clearly been met. He further submits that the action of the seizure is well justified, inasmuch as, PW-1 being a Police Officer, he cannot remain silent and he acted in good faith and in public interest. The learned Public Prosecutor further submits that pursuant to the seizure of the materials suspected to be Ganja, the same was sent for forensic examination before the Forensic Science Laboratory and upon examination, the same was found to be Ganja. The Junior Scientific Officer of the Forensic Science Laboratory was also examined as PW-4 during the trial proceeding. From his deposition, the finding of the seized material to be Ganja was neither disproved nor falsified by the defence and therefore, the learned Trial Court is only justified in convicting and sentencing the appellant. 7. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Records that was requisitioned. 8. From the discussions above made, it may be noticed that the facts are broadly not disputed. On 18.11.2015, 16 kilograms of material suspected to be Ganja was seized by PW-1 and upon completion of necessary formalities including drawing of samples and sending it for forensic examination. Before we proceed any further, let us examine as to whether the seizure was made as per the relevant provisions prescribed by law. In order to have a better appreciation of the requirements of the law, Sections 42 and 43 of the ND&PS Act may be gainfully abstracted as hereunder:- “42. Power of entry, search, seizure and arrest without warrant or authorization. In order to have a better appreciation of the requirements of the law, Sections 42 and 43 of the ND&PS Act may be gainfully abstracted as hereunder:- “42. Power of entry, search, seizure and arrest without warrant or authorization. – (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-- (a) Enter into and search any such building, conveyance or place; (b) In case of resistance, break open any door and remove any obstacle to such entry; (c) Seizure such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and (d) Detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a license for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. COMMENTS When the search was conducted by a Gazetted Officer himself, compliance with section 42 is not necessary; Union of India v. Satrohan, 2008 (8) SCC 313 : 2008 (10) SCR 888 . 43. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in section 42 may – (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation. – For the purpose of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.” 9. As may be noticed from the above abstraction, Section 42 deals with the power of entry, search, seizure and arrest without warrant or authorization on any such buildings, conveyance or place. Section 43 provides for the power of seizure and arrest in public place. As per the two provisions, it is only the authorized Officers empowered under Sections 41(2) and 42(1) of the ND&PS Act who can conduct search and seizure. Section 43 provides for the power of seizure and arrest in public place. As per the two provisions, it is only the authorized Officers empowered under Sections 41(2) and 42(1) of the ND&PS Act who can conduct search and seizure. The State respondent in the Excise & Narcotics Department has issued a Notification dated 07.03.1986 under Section 42(1) of the ND&PS Act and thereafter another Notification on 06.10.2015 under Section 41(2) of the same Act empowering Officers in the rank of Sub-Inspector and above of the State Excise & Narcotics Department and the Police Department to exercise powers and perform duties specified in Section 42 and Section 41(2) of the ND&PS Act respectively. The Notification dated 07.03.1986 issued by the Finance, Excise & Taxation Department and the Notification dated 06.10.2015 issued by the Excise & Narcotics Department, Government of Mizoram may gainfully be abstracted as below:- 07.03.1986 “FINANCE, EXCISE & TAXATION DEPARTMENT NOTIFICATION Dated Aizawl, the 7th March, 1986. No.B.12029/12/85-EXC/129 : In exercise of the powers conferred by sub-section (1) of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) the Lieutenant Governor (Administrator) of Mizoram is pleased to empower all the Officers of and above the rank of Sub-Inspector of the Excise and Police Departments of the Government of Mizoram to exercise the powers and perform the duties specified in section 42 within the area of their respective jurisdiction and also authorises the said officers to exercise the powers conferred upon them under Section 67 of the Act. Sd/- NARENDRA PRASAD Secretary to the Govt. of Mizoram Finance, Excise & Taxation Department.” 06.10.2015 “GOVERNMENT OF MIZORAM EXCISE & NARCOTICS DEPARTMENT NOTIFICATION Dated Aizawl, the 6th Oct., 2015 NO.J.24011/1/2010-EXC :- In continuation of this Department’s Notification No.B.12029/12/85-EXC/128(A) : Dt.7.3.1986 and in exercise of the power conferred by Sub-section (2) of Section 41 of ND&PS Act, 1985, the Governor of Mizoram is pleased to empower all Officers, of and above the rank of Sub-Inspector of Excise & Narcotics Department and of and above the rank of Sub-Inspector in Police Department under the Govt. of Mizoram to exercise the powers specified in Sub-section (2) of that Section within the areas of their respective Jurisdiction. Sd/- P.C. LALLAWMSANGA Principal Secretary to the Govt. of Mizoram, Excise & Narcotics Department.” 10. of Mizoram to exercise the powers specified in Sub-section (2) of that Section within the areas of their respective Jurisdiction. Sd/- P.C. LALLAWMSANGA Principal Secretary to the Govt. of Mizoram, Excise & Narcotics Department.” 10. Coming to the present case, from the deposition of PW-1 who is an Assistant Sub-Inspector of Police and the Officer who conducted the search and seizure, it is evident that he did not have the power and authorization to conduct the search and seizure. The reason given that he was the only Officer present at Saitual Police Station cannot be a ground for initiating the search and seizure. Moreso, contrary to his stand in his cross examination, the Officer-in-charge of Saitual Police Station on the date when the search, seizure and arrest was made was present as it was he who registered the case. Therefore, the evidence led by PW-1 cannot have any persuasive value. It may further be noticed that PW-1 besides being the Seizing Officer was also the Investigating Officer who conducted the investigation. This fact has clearly been noticed on perusal of the LCR. It is a well settled law that an Investigating Officer cannot be a person who was associated with the arrest or seizure in a criminal investigation. Unfortunately, PW-1 appears to have played a dual role in making the search and seizure while also investigating the case. The Apex Court in the case of Roy V.D (Supra) has held that arrest and search by an Officer who is not empowered or authorized in terms of Section 41 of the ND&PS Act would vitiate the appeal. Paragraph-16 of the said Judgment may gainfully be abstracted as below:- “16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of subsection (1) of Section 36-A of the NDPS Act. Paragraph-16 of the said Judgment may gainfully be abstracted as below:- “16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of subsection (1) of Section 36-A of the NDPS Act. It follows that any collection of materials, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial.” 11. In the case of Basudev Ghosh (Supra), a co-ordinate Bench of this Court had also made similar observation and in doing so, the conviction and sentence passed by the Trial Court concerned was set aside and the accused/appellant was acquitted from the charge. 12. What emerges from the aforesaid discussion is that the conviction and sentence of the appellant has clearly been vitiated for non-compliance of the mandatory provisions provided by Sections 41, 42 and 43 of the ND&PS Act. It would therefore be unnecessary to travel any further to examine the impugned finding of the Trial Court on other aspects. The Officer concerned who conducted the search and seizure having recorded the grounds of believe to justify the steps taken by him will also be of no consequence unless, the mandate of law provided under Sections 41, 42 and 43 of the ND&PS Act has been meticulously followed. Non-establishing of the place of seizure in view of the contradictions in the evidence led by the prosecution is also another glaring lacuna which makes the case of the prosecution unreliable in view of the degree of proof required in a criminal trial proceeding to establish guilt of the accused and much more, in a case falling under the ND&PS Act. 13. 13. For all the aforementioned reasons and upon careful perusal of the materials available on record in its entirety including the LCR, I am of the considered opinion that there is no escape from the conclusion other than to hold that the criminal trial is vitiated for reasons aforementioned. In consequence thereof, the Judgment & Order dated 28.02.2018 is found to be unsustainable and the same is set aside and quashed. The appellant is acquitted from the charge and he shall be set at liberty forthwith unless he is wanted in any other case. 14. This disposes of the Criminal Appeal. Let the LCR be send back to the Trial Court forthwith.