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2019 DIGILAW 1073 (GAU)

Lalmawia v. S. I. Lalnuntluanga

2019-09-19

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. Heard Mr. A.R. Malhotra, the learned counsel for the appellants as well as Mr. C. Zoramchhana, the learned Public Prosecutor, Mizoram for the State respondents. 2. This is an appeal under Section 374 of the CrPC preferred by the appellants against the Judgment & Order dated 11.10.2018 as well as against the order of Sentence dated 12.10.2018 by which, they were convicted under Section 21 (c) of the ND&PS Act, 1985 (ND&PS Act) and sentenced to undergo RI for 15 years and to pay a fine of Rs. 1,00,000/- each and i.d. thereof, another RI for 1,000 days each. 3. The case of the prosecution in brief is that 318 grams of suspected heroin was recovered and seized from the possession of both the appellants at around 4:00 P.M on 03.08.2017 in the outskirts of Pukpui, near the Nursery of Environment & Forest Department, which was transported in a Motor Cycle bearing registration No. MZ-06/5272. The appellants were therefore arrested and the contraband substance suspected to be heroin was seized in front of civilian witnesses. Samples were drawn for examination in the Forensic Science Laboratory before the Magistrate and in the presence of civilian witnesses. Both the appellants were also alleged to have entered into India (Mizoram) from Myanmar without valid passport, visa or permit and thereby, attracting clause 3 of the Foreigners Order, 1948 and Section 14 of the Foreigners Act, 1946. As a result, Lunglei Police Station Case No. 115/2017 dated 03.08.2017 was registered and investigations conducted. Upon completion of the investigation, the Investigating Officer, found a prima facie case against the appellants under Section 21 (c) of the ND&PS Act and also under Section 14 of the Foreigners Act, 1946 and therefore, filed a Charge-sheet before the Trial Court below. 4. Charge under the aforesaid Section of law was framed against both the appellants on 27.10.2017 and to which, both of them pleaded not guilty and claimed for trial. During the trial, the prosecution examine 8 (eight) prosecution witnesses while the defence examine 2 (two) witnesses. Consequently, the Trial Court vide the impugned Judgment & Order dated 11.10.2018 convicted both the appellants under Section 21 (c) of the ND&PS Act, 1985 while acquitting them of the charge under Section 14 of the Foreigners Act, 1946. Thereafter, vide the impugned Order dated 12.10.2018, both the appellants were sentenced as already mentioned herein above. Consequently, the Trial Court vide the impugned Judgment & Order dated 11.10.2018 convicted both the appellants under Section 21 (c) of the ND&PS Act, 1985 while acquitting them of the charge under Section 14 of the Foreigners Act, 1946. Thereafter, vide the impugned Order dated 12.10.2018, both the appellants were sentenced as already mentioned herein above. 5. Mr. A.R. Malhotra, the learned counsel for the appellants submits that PW-3 Mr. Michael Ramdinthara, a Sub-Inspector of Police deposed that he received a phone call from his known source on 02.08.2017 at 5:00 P.M, while he was at his residence to the effect that heroin will be transported on that day by taking the route from Serchhip passing through Dawn Village to reach Lunglei. However, no recovery was made on that day. The next day, i.e., on 03.08.2017 at around 3:00 P.M, he received another phone call from the same informant to the effect that the suspected drugs was being transported in a Motor Cycle coming from Lunglei to Pukpui side. The description of the Motor Cycle was also informed to him whereafter, he proceeded to Pukpui after conveying the information to the Officer-in-charge of Lunglei Police Station. Since it was heavily raining, they proceeded to the spot by hiring a Taxi. 6. Mr. A.R. Malhotra submits that the PW-3, who is the informant did not reduced the information he received in writing before proceeding to the spot, which therefore is in violation of the mandatory provisions provided under Section 42 of the ND&PS Act, 1985. He submits that PW-1, who is the Inquiry Officer, deposed that he got the information over phone from PW-3. However, PW-3 nowhere stated that he telephoned PW-1 to give the information. Therefore, there is no doubt that Section 42 of the ND&PS Act is clearly violated. In support of his submission, the learned counsel relies upon the case of Karnail Singh Vs. State of Haryana in, (2009) 8 SCC 539 . 7. Mr. A.R. Malhotra further submits that there is discrepancy in the weight of the seized contraband drugs. By referring to the samples sent to the Forensic Science Laboratory by the Officer-in-charge of Lunglei Police Station, he submits that the approximate weight of the samples drawn was 1.4 grams each which were drawn from each of the 21 packets. 7. Mr. A.R. Malhotra further submits that there is discrepancy in the weight of the seized contraband drugs. By referring to the samples sent to the Forensic Science Laboratory by the Officer-in-charge of Lunglei Police Station, he submits that the approximate weight of the samples drawn was 1.4 grams each which were drawn from each of the 21 packets. However, the description of the exhibits given by the Forensic Science Laboratory about their findings which was marked as Exhibit P-10 reveals that the weight of the samples on each of the 21 packets were ranging from 357 miligrams to 615 miligrams. Therefore, the discrepancy being un-explained, the fact of there being some tampering on the samples drawn cannot be ruled out. Under the circumstance, the appellants are entitled to be given the benefit of doubt and be acquitted from the charge. He further submits that although the samples were sent for examination on 04.08.2017, but the same were received by the Forensic Science Laboratory only on 07.08.2017. Therefore, without there being any explanation under whose custody the samples were kept in the interregnum, the appellants will have to be given the benefit of doubt, more particularly when there is discrepancy in the weight of the samples that was sent and that was received. He further submits that there is discrepancy in the colour of the contraband drugs sent and received as well. While the description given in the requisition slip or test memo described the contraband drugs as light brown powder, the Forensic Science Laboratory described the materials received as yellowish powder. Under the circumstance, the appellants are only entitled to be given the benefit of doubt and acquitted from the charge under Section 21 (c) of the ND&PS Act, 1985. In support of his submission, the learned counsel has relied upon the following two authorities:- 1. Bhim Ram & Ors. Vs. State of Assam, (2012) 1 GauLT 416 . 2. Lalruatpuii Bawitlung Vs. Union of India, (2017) 5 GauLT 8. Mr. A.R. Malhotra further submits that from the final form report submitted by the Investigating Agency marked as Exhibit P-15, it can be seen that the appellants were arrested on 03.08.2017 but they were produced before the Court only on 06.08.2017. He submits that this would indicate that they were kept under arrest and in custody for more than 24 hours without being produced before the Court. He submits that this would indicate that they were kept under arrest and in custody for more than 24 hours without being produced before the Court. Therefore, the impugned conviction and sentence stands vitiated even on this ground. 9. Mr. A.R. Malhotra, the learned counsel submits that PW-3 did not reveal his identity to the appellants that he was from the CID (SB). In fact, as per the examination of the appellants under Section 313 of the CrPC, the Police had threatened the appellants with pistol. This action clearly being in contravention of the relevant provisions of the ND&PS Act, the impugned Judgment & Order cannot be sustained. The learned counsel by referring to the FIR dated 03.08.2017, which is marked as Exhibit P-5 submits that the same is in clear violation under Section 50 of the ND&PS Act as the appellants were not informed of their rights. He submits that the FIR was submitted by the PW-1 and being the complainant, he could not have examined the witnesses. By referring to the deposition of PW-7, the learned counsel submits that his statement that he recorded the statements of the available witness is false. In this connection, he refers to the statement of PW-2 recorded by PW-1 under Section 161 of the CrPC. He submits that it is a settled law that an informant should not proceed to investigate the case and examine the witnesses under Section 161 of the CrPC, so that no occasion arises for suspecting that a fair and impartial investigation is not being conducted. In this connection, the learned counsel relies upon the case of Megha Singh Vs. State of Haryana, (1996) 11 SCC 709 . 10. Mr. A.R. Malhotra, the learned counsel in support of the discrepancies found in the samples drawn and the actual quantity, which was received by the Forensic Science Laboratory relying upon by the State of Rajasthan Vs. Gurmail Singh, (2005) 3 SCC 59 wherein, the Apex Court held that the link evidence adduced by the prosecution was not at all satisfactory, since the malkhana register was not produced to prove that it was indeed kept in the malkhana till it was taken over by the PW-6 subsequently. 11. Gurmail Singh, (2005) 3 SCC 59 wherein, the Apex Court held that the link evidence adduced by the prosecution was not at all satisfactory, since the malkhana register was not produced to prove that it was indeed kept in the malkhana till it was taken over by the PW-6 subsequently. 11. The learned counsel thus submits that under the facts and circumstances, the impugned Judgment & Order as well as the Sentence Order cannot be sustained and the same may be set aside and the appellants be acquitted and set at liberty. 12. Mr. C. Zoramchhana, the learned Public Prosecutor on the other hand submits that the impugned Judgment & Order requires no interference. By referring to the plea of the appellants, more particularly the appellant No. 2 in reply to the question put to him during charge consideration on 07.10.2017, he submits that the said appellant admitted that the contraband drugs was seized from his possession but the same did not belong to him. The learned Public Prosecutor submits that under the circumstance, it can be safely assumed that the appellant concerned has pleaded guilty and therefore, no appeal would lie against conviction when the accused pleads guilty in terms of Section 375 of the CrPC. Although the appellants contend that they were threatened by the Police with pistol in their statement under Section 313 of the CrPC but, from the statement of PW-8, who was the Taxi driver and independent witness, the Police did not threaten the accused appellants while recovering this contraband drugs. Therefore, the claim of the appellants about being threatened by the Police is without any substance. Further, by referring to Section 21 (c) of the ND&PS Act, the learned Public Prosecutor submits that possession of drugs by itself is sufficient for conviction under the said Section. Therefore, the appellants having admitted that the contraband drugs was seized from their possession, Section 21 (c) of the ND&PS Act is clearly attracted and thus, they have rightly been convicted under the said Section. 13. Mr. C. Zoramchhana further submits that Section 42 of the ND&PS Act will not be attracted to the present case inasmuch as seizure of the contraband drugs was done in a public place and not in an enclosed location requiring an entry. 13. Mr. C. Zoramchhana further submits that Section 42 of the ND&PS Act will not be attracted to the present case inasmuch as seizure of the contraband drugs was done in a public place and not in an enclosed location requiring an entry. The appellants themselves voluntarily opened their bags to show what it contained and as such, Section 42 cannot be not attracted. He submits that it is rather Section 43 of the ND&PS Act which will be applicable. The said Section empowers the authorities named in Section 42 to make seizure and arrest in public place and which is exactly the case in the present appeal. Therefore, the impugned Judgment and Order cannot be said to be vitiated for non-compliance of Section 42 of the ND&PS Act. To support his submission, the learned Public Prosecutor places his reliance upon the decision of the Apex Court rendered in Criminal Appeal No. 459/2017 i.e. S.K. Raju@ Abdul Haque @Jagga Vs. State of West Bengal vide Judgment and Order dated 05.09.2018. 14. The learned Public Prosecutor further submits that Section 50 of the ND&PS Act is also not attracted to the present case inasmuch as the said Section deals with search being made on a person. In the present case, no recovery was made from the appellants from their person but from the bags that had in possession and as such, there is no application of Section 50 in the present case. In so far as the colour of the contraband drugs being described during the trial, the learned counsel submits that the description of the colour is not the crucial factor but in fact it is the contents of the alleged contraband drugs which is relevant to the case for being prosecuted under the ND&PS Act. The materials on record reveals that the contraband drugs was found to be described as brown powder, white brown powder and yellowish white powder. He submits that all these colours are only closely related to each other and will not make much difference particularly when the FSL report shows that the seized contraband drugs is heroin. 15. The materials on record reveals that the contraband drugs was found to be described as brown powder, white brown powder and yellowish white powder. He submits that all these colours are only closely related to each other and will not make much difference particularly when the FSL report shows that the seized contraband drugs is heroin. 15. As regards, the discrepancies in the weight of the contraband drugs that was seized, the learned Public Prosecutor submits that from the evidence it can be seen that it was raining when seizure was made and therefore, it may be due to the humidity or the climate condition that caused the discrepancies in the weight. He further submits that as regards the time taken for the samples to reach the Forensic Science Laboratory, the day on which it was dispatched i.e. 04.08.2017 was a Friday and therefore, the next two days being Saturday and Sunday which were holidays, the samples got delivered on 07.08.2017 which was a Monday. Therefore, without there being any allegation of the samples being tempered during the trial, the same cannot be raised by the appellants at this stage. 16. With regard to the evidence led by the prosecution, the learned Public Prosecutor submits that the evidence of PW-2, PW-8, PW-4 and PW-5 by itself establishes the case of the prosecution. He submits that these witnesses are civilian witnesses, who cannot be interested witnesses and therefore, there being corroboration in their versions, the Trial Court was fully justified in convicting and sentencing the appellants. By referring to the cross examination of PW-3, the learned Public Prosecutor submits that he clearly deposed that he himself did not conduct the search and seizure. He also denied of having opened the two polythene bags which were said to have contained the contraband drugs. 17. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Records. 18. From the materials available on record, it may be seen that about 318 grams of suspected heroin was recovered from the possession of appellants on 03.08.2017. The contraband drugs was kept in 21 soap cases, which were packed inside two black polythenes and kept in two rucksack bags belonging to the appellants. 18. From the materials available on record, it may be seen that about 318 grams of suspected heroin was recovered from the possession of appellants on 03.08.2017. The contraband drugs was kept in 21 soap cases, which were packed inside two black polythenes and kept in two rucksack bags belonging to the appellants. One of them was found to be using his mobile phone on the road side at the outskirts of Pukpui near the Environment & Forest Department Nursery while the other was standing near a Motor Cycle. The appellants on being approached by PW-3, opened the bags and took out the contraband drugs. Therefore, it can be seen that recovery of the contraband drugs was not made on a closed building requiring the authorities concerned to enter and search. Therefore, Section 42 of the ND&PS Act is found to be not attracted but rather it is Section 43, which will be applicable as contended by the learned Public Prosecutor. 19. Coming to the next point raised by the learned counsel for the appellants, it can be seen from the requisition slip or test memo sent by the Officer-in-charge of the Police Station concerned on 04.08.2017 to the Director of Forensic Science Laboratory that samples from all the 21 packets were drawn and their approximate weight was 1.4 grams each. The samples then reached the Forensic Science Laboratory on 07.08.2017 and from the report prepared by the Assistant Director of the Forensic Science Laboratory, the samples were found to be having the weight of 357 milligrams to 615 milligrams. Not only this, the colour of the samples drawn as per the test memo were described as light brown powder while it was described as yellowish powder by the Forensic Science Laboratory. Although, the description of the colour may not be the most crucial point to be determined as submitted by the learned Public Prosecutor but the discrepancies in the weight of the samples will make a lot of difference and cannot be over-looked. This Court in Bhim Ram and Others (Supra) has held that it would be risky and impermissible to leave the samples with a Special Messenger for a long gap of time. Chances of tampering when there is lack of evidence about the safe custody of the sample packets in the hands of the Special Messenger cannot ruled out. This Court in Bhim Ram and Others (Supra) has held that it would be risky and impermissible to leave the samples with a Special Messenger for a long gap of time. Chances of tampering when there is lack of evidence about the safe custody of the sample packets in the hands of the Special Messenger cannot ruled out. The provisions of ND&PS Act provide for stringent provision of conviction. Therefore, the principle of law is that the more stringent the provision for conviction, the more rigorous will be the investigation and trial. In the given facts and circumstances of that case, Court was of the view that the prosecution failed to prove the case against the appellants with proof beyond reasonable doubt and as such, acquitted the appellants by giving them the benefit of doubt. Likewise, in the case of Lalruatpuii Bawihtlung (Supra), this Court upon finding there were discrepancies in the samples drawn for examination by the Forensic Science Laboratory, more particularly, on the weightment of the seized article, found the accused appellant entitled to be given the benefit of doubt and accordingly, allowed the appeal of the accused appellant by acquitting her from the charge. 20. Coming to the present case, it may be seen that the discrepancy in the weight of the seized contraband drugs between 4.08.2017 and 7.8.2017 considerably decreased. The explanation suggested by the learned Public Prosecutor that it was due to the rain at the relevant time and due to humidity cannot be accepted inasmuch as sample was not drawn from the seized contraband drugs on 03.08.2012, but the same was drawn in front of the Magistrate on 04.08.2017. When the same was said to have been duly packed and sealed after drawing samples from each packets, there is hardly any scope for the same to evaporate within three days time by a margin which roughly will be 40% to 50% lesser. Besides this, there is no evidence to show that the samples were all along in safe hands until it reached the Forensic Science Laboratory. Moreover, the acknowledgment receipt signed on behalf of the Director of Forensic Science Laboratory, Aizawl conspicuously shows that the word 'Special Messenger' written against the note of receipt is by a different pen and ink altogether. No doubt, it is true that without there being an examination by an expert. Moreover, the acknowledgment receipt signed on behalf of the Director of Forensic Science Laboratory, Aizawl conspicuously shows that the word 'Special Messenger' written against the note of receipt is by a different pen and ink altogether. No doubt, it is true that without there being an examination by an expert. Court cannot give a finding as to whether there has been any mischief played. However, from a bare perusal of the acknowledgment receipt, it can be seen that the entries have been made by different pen all together. The same, in my considered view will only lead to a doubt which will go against the prosecution. 21. Further, from the evidence of PW-1, who is the informant and who claims to have been present on the spot when the appellants were apprehended on one hand and the deposition of PW-2, an independent witness who was also present on the spot when arrest and seizure was made on the other, discrepancies can only be noticed. PW-1 stated that the contraband drugs were recovered from two black polythenes. One black polythene contained 11 soap cases and the other 10 soap cases. The contraband drugs were kept inside the soap cases. PW-2 on the other hand deposed that all the 21 soap cases were recovered from one polythene kept inside the bag. It is therefore noticed that the versions of the two witnesses do not corroborate and differ from each other. Further, the PW-1 being the complainant, examined the witnesses under Section 161 of the CrPC, which otherwise is impermissible in law as held by the Apex Court in the case of Megha Singh (Supra). Relevant portion of the said decision may be abstracted below for ready perusal:- "4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of PWs 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW-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. PW-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 CrPC. 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." 22. Thus, upon considering the matter in its entirety and in view of the decision of the Apex Court as well this Court as already mentioned herein above, I am of the considered view that the appellants are entitled to be given the benefit of doubt. Having taken such a view, it will not be necessary to dwell upon the other aspects or grounds raised in the appeal. 23. In the result, this appeal succeeds and the appellants are acquitted from the charge under Section 21 (c) of the ND&PS Act and they are directed to be set at liberty forthwith, if not wanted in connection with any other case. 24. The appeal accordingly stands disposed of. Registry shall send back the LCR to the Trial Court.