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2019 DIGILAW 503 (GAU)

Tsukjemsowa Longchar v. State of Nagaland

2019-04-24

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. Sentiyanger, learned counsel for the appellant. Also heard Mr. K. Wotsa, learned P.P. 2. The appellant has prayed for setting aside the judgment and order dated 07.08.2018 passed by the Special ND and PS, in GR Case No. 150/2014, by which the appellant has been convicted under section 21(c) of the ND and PS Act, 1985 and sentenced to undergo rigorous imprisonment for a period of 10 (ten) years with a fine of Rs. 1,00,000/- (One lakh) in default 3 (three) months simple imprisonment vide sentence order dated 09.08.2018. 3. The case involves the seizure of 150 grams (net weight) of cocaine, which was received by the appellant in Dimapur, Nagaland and which was sent from Argentina. The Prosecution case is that on 18.03.2014, the IO received information from NCB, Guwahati informing him that a consignment of cocaine was being smuggled from Argentina and that the expected destination was Dimapur, Nagaland. The address of the cocaine consignment, as given by the NCB, Guwahati was Zopar Fresh Flowers, FF-3, Millennium Building Complex, Old Market, Marwari Patti, Dimapur. 4. The Prosecution's further case is that the information received was reduced into writing and conveyed to the Deputy Commissioner of Excise (Narcotic Cell) (hereinafter NC, in short) on 18.03.2014 itself. Thereafter, the Deputy Commissioner (NC), Nagaland vide detailment order No. EX/NC/JUD-4/90 dated 19.03.2014 constituted a team of 16 (sixteen) members to pursue the said information. The IO was also a part of the 16 (sixteen) member team so constituted. 5. That on 10.04.2014, the Excise Narcotic Cell led by the Superintendent Excise (NC), comprising the IO and other excise personnel waited in close proximity of Zopar Fresh Flowers. The consignment arrived at the above address during day time by courier in an envelope and it was only around 6:30 P.M. that the appellant came to pick up the consignment from the shop whereupon, the appellant was intercepted alongwith the consignment. The appellant admitted that he was the addressee and the recipient of the above cocaine consignment. 6. The initial colour test of the cocaine substance was done at the place of seizure, with the help of the Test kit provided by the NCB, Delhi which gave positive result for cocaine. The appellant admitted that he was the addressee and the recipient of the above cocaine consignment. 6. The initial colour test of the cocaine substance was done at the place of seizure, with the help of the Test kit provided by the NCB, Delhi which gave positive result for cocaine. During investigation, the appellant disclosed that the consignment was meant for him and the same had been sent to him from Argentina with the help of his maternal aunt alongwith one African national, one Mr. Morgan Chemeika. On 11.01.2014, the accused and the seized articles were produced before the Magistrate and samples drawn in the presence of the Magistrate. During the time the appellant was detained, the appellant's Aunt purportedly called the appellant to enquire about the seized article. The Aunt was arrested but the African National could not be traced as he had given a fictitious address. After charge-sheet was filed and trial was completed, the appellant was convicted under section 21 (c) of the ND and PS Act, vide judgment and order dated 07.08.2018 passed by in GR Case No. 150/2014 by the Special Court, ND and PS, Dimapur and sentenced to undergo 10 (ten) years rigorous imprisonment with a fine of Rs. 1,00,000/- (One lakh) in default 3 (three) months simple imprisonment vide sentence order dated 09.08.2018. The appellant's Aunt was however discharged from the case. 7. The appellant's counsel submits that the impugned judgment and order dated 07.08.2018 and the sentence order dated 08.08.2018 should be set aside on the ground that section 42(1) of the ND and PS Act was not followed before making the seizure of the seized drugs. He submits that the information received by the IO was not taken down in writing by the IO. Secondly, though drawing of the sample and the sealing of the sample was done in the presence of the Magistrate on 11.04.2018, the sample was sent to the FSL for examination only on 14.04.2018. He further submits that the sealed article, which was in a sealed envelope, was opened for media persons on 11.04.2014 prior to the same being produced before the Magistrate. He, accordingly submits that there was a likelihood of the seized article and sample being tampered with. He further submits that the sealed article, which was in a sealed envelope, was opened for media persons on 11.04.2014 prior to the same being produced before the Magistrate. He, accordingly submits that there was a likelihood of the seized article and sample being tampered with. Also the persons who kept custody of the sample, prior to the same being sent to the FSL for examination, were not examined as witnesses in the case. Accordingly, the conviction of the appellant could not be sustained in the absence of examining the person in whose custody the sample had been kept. In this regard, the appellant has relied upon the judgment of the Apex Court in the case of State of Rajasthan vs. Daulat Ram, (1980) AIR SC 1314. Thirdly, the IO was the complainant and a member of the seizing party which had seized the drugs. Accordingly, the investigation and trial was vitiated as the complainant and IO were the same person. In support of his submission, he relies upon the judgment of the Apex Court in the case of State vs. Rajangam, (2010) 15 SCC 369 wherein it has been held that the complainant and the investigating officer should not be the same person. 8. Mr. K. Wotsa, learned P.P. submits that though the appellant has tried to make out a case that the information received by the IO on 18.03.2014 was not taken down in writing and submitted to his superior officer, the charge-sheet clearly states that the information was taken down in writing and submitted to the superior officer. He accordingly submits that the mandatory provision of section 42(1) ND and PS has been complied with. He also submits that though the IO was the complainant and a member of the seizing party, the fact remains that the appellant was the recipient of cocaine and the addressee of the consignment was the appellant. He accordingly submits that though there has been some lapse in the IO and the complainant being the same person, the fact remains that the appellant was involved in the illegal act and there was no biasness on the part of the IO during the investigation. He accordingly submits that though there has been some lapse in the IO and the complainant being the same person, the fact remains that the appellant was involved in the illegal act and there was no biasness on the part of the IO during the investigation. He also submits that, there is nothing to show that the samples which were taken out in the presence of the Magistrate and sealed in the presence of the Magistrate had been tampered with, prior to sending the same to the FSL for examination. He submits that as the sample was found to be cocaine as per the FSL report, the appellant has rightly been convicted and sentenced under section 21(c) of the ND and PS Act, 1985. 9. I have heard the learned counsels for the parties. 10. Section 42(1) of the ND and PS Act requires the Excise Officer to take down in writing the information received by him and send the same to his Superior Officer. This is a mandatory provision of law. In the case of F. Vanlalringa vs. State of Mizoram, (2010) 3 GLT 454, the Division Bench of this Court has relied upon the decision of the Apex Court in the case of Babu Ahmed Rahman vs. State of Kerala, (2002) 4 SCC 229 wherein it has been held that the provision of section 42 of the ND and PS Act, 1985 is mandatory and the non-compliance of the same would render the investigation illegal. In the case of Karnail Singh vs. State of Haryana, (2009) 8 SCC 539 , the Apex Court has held in para 35 as follows: "35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information (of the nature referred to in sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior . (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001." 11. In the present case, the evidence of the IO (PW-5), during cross-examination is to the following effect: "This information was received by me from NCB Guwahati was not taken down in writing by me. But I informed by Superior Officers and Subordinate verbally over the phone. It is true that I have not mentioned anything about the information received by me from the NCB Guwahati on 09.04.2014 either in my preliminary complaint or final complaint/ charge sheet filed before this Hon'ble court. This information was noted in my case diary only..........I will not be able to show that the information which I received on 18.03.2014 was registered in the station house register/general diary for the simple reason that we do not maintain such diaries or registers." 12. The above extract of the deposition of the evidence (cross-examination) of the IO clearly gives rise to an inference that the information received by him on 18.03.2014 was not taken down in writing by him. However, the Lower Court records show that the information received by the IO on 18.03.2014 from the NCB, Guwahati was taken down in writing and sent to his superior officer, i.e. the Deputy Commissioner (NC), Nagaland. The information taken down in writing was also exhibited by the learned Trial Court as Exb-8. Thus, this Court finds that section 42(1) of the ND and PS Act has been complied with. 13. The evidence on record shows that the seized article was seized on 10.04.2014 when the sealed envelope containing the same had been collected by the appellant from Zopar Fresh Flowers. The sealed envelope was opened on 10.04.20215 for colour test and again on 11.04.2014 in the presence of the media, for the purpose of colour test, weight test, etc. Thereafter, the same was produced before the Magistrate on 11.04.2014 and samples A-1 and A-2 were drawn on the said date. The samples A-1 and A-2 were sealed in the presence of the Magistrate. Thereafter, the same was produced before the Magistrate on 11.04.2014 and samples A-1 and A-2 were drawn on the said date. The samples A-1 and A-2 were sealed in the presence of the Magistrate. Though sample A-1 was sent to the FSL on 14.04.2014 for examination, there is nothing to show that the samples drawn had been tampered with by any person. Also, there is nothing to show that the samples, which were sealed in the presence of the Magistrate on 11.04.2014 had been tampered with, before the same was given to the FSL for examination and before being produced in the Trial Court during evidence. The petitioner has pleaded that there was a likelihood of the sample produced in Court being tampered with, by relying on the evidence given by the IO, in his cross-examination, which is to the following effect: "It is correct to say that the envelope containing the remnants and the sample does not bear the seal of the officer in charge of the Narcotics Police Station or station house Dimapur." However, there is nothing in the above evidence, which suggests that the sealing of the samples in the Magistrate's presence had been disturbed. The evidence of the IO, in his cross-examination, only reflects that the sample does not bear the seal of the Officer-in- charge of the Narcotics Police Station or Station House, Dimapur. The seizure having been made by the Excise Department, there is no requirement of the seal of a Police Officer being stamped on the sample. In any event, there is nothing to show that the sample produced did not bear the seal of the Magistrate, in whose presence the sample was drawn and seized on 11.04.2014. Further, the evidence shows that the sample A-2, which was drawn and sealed by the Judicial Magistrate, First Class alongwith the remnant of sample A-1 sent back by the FSL was not tampered with. 14. In the case of the State of Rajasthan vs. Daulat Ram (supra), the Apex Court had held that the opium seized under the Opium Act changed several hands before reaching the public analyst. Also, prior to the sample of opium reaching the public analyst, the Office of the Superintendent of Police, Jodhpur, which was to transmit the sample onward to the public analyst, had refused to accept the same, as the labels were not in order. Also, prior to the sample of opium reaching the public analyst, the Office of the Superintendent of Police, Jodhpur, which was to transmit the sample onward to the public analyst, had refused to accept the same, as the labels were not in order. It was in the above context that the Apex Court had upheld the view of the Rajasthan High Court that the prosecution had failed to rule out a possibility of the sample being changed or tampered with from the time the sample was in custody, till handing over the same to the public analyst. The facts in the present case are different from the facts in the State of Rajasthan vs. Daulat Ram (supra). There is nothing to show that there was anything wrong with the drawal and sealing of the sample before the Magistrate. In the present case, the sample did not go through several hands prior to the same reaching the FSL for examination. It is also not the case of the appellant that the seal on the sample sent to the FSL had been broken or tampered with. The sealed samples, were kept in the custody of the Excise and sample A-1, which was sent to the FSL, Guwahati through registered post on 14.04.2014 tested positive for cocaine. The evidence of PW-6, i.e. the Director, Drugs and Narcotics Division, Directorate of FSL is to the effect that the sample sent was properly sealed and everything in it was intact when he received it. After examination of the sample, the remnants of the sample was sealed and sent back to the Deputy Commissioner of Excise (Narcotics), Nagaland. The evidence goes to show that there was no change of hands for the sample to reach the FSL and accordingly, the judgment of the Apex Court in the State of Rajasthan vs. Daulat Ram (supra) cannot be said to be applicable to the facts of this case. In view of the above, there is nothing to show that the samples had been tampered with. 15. In view of the above, there is nothing to show that the samples had been tampered with. 15. With respect to whether the trial of the case was vitiated due to the complainant/ informant being the Investigating Officer and also being a member of the seizing party, the Apex Court in the case of State vs. Rajangam, (2010) 15 SCC 369 has held that when investigation of the case has been done by the same officer who registered the crime, the High Court was justified in acquitting the accused as the investigation would be suspect to being a fair and impartial investigation, and as such, the entire proceedings would be vitiated. 16. In the case of Mohan Lal vs. State of Punjab, (2018) AIR SC 3853, which was disposed of by a 3 (three) Judges Bench of the Apex Court on 16.08.2018, it has been held at para 25 as follows: "25. In view of the conflicting opinions expressed by different Judges Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 or the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof." As per the law laid down in Mohan Lal vs. State of Punjab (supra), the investigation and trial of the present case has to be considered to be vitiated, as the IO (PW-5) is also the complainant. This requirement is all the more imperative in laws carrying a reverse burden of proof." As per the law laid down in Mohan Lal vs. State of Punjab (supra), the investigation and trial of the present case has to be considered to be vitiated, as the IO (PW-5) is also the complainant. However, there is a clarification of the law laid down in Mohan Lal (supra), in as much as the three judges of the Apex Court in a subsequent judgment, i.e. Varinder Kumar vs. State of Himachal Pradesh, Crl. Appeal Nos. 2450-2451/2010, which was disposed of on 11.02.2019, have held that a proper administration of the criminal justice delivery system requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a springboard for acquittal in prosecutions prior to the same, irrespective of all other considerations. The Apex Court, thus, held that all pending prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be covered by the individual facts of the case. 17. It would also be profitable to quote paras 12, 15, 16, 17 and 18 of Varinder Kumar (supra), which are as follows: "12. Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society be it the law-abiding citizen or the potential offender. "Human rights" are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole. 15. Societal interest therefore mandates that the law laid down in Mohan Lal (supra) cannot be allowed to become a springboard by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous. Criminal jurisprudence mandates balancing the rights of the accused and the prosecution. If the facts in Mohan Lal (supra) were telling with regard to the prosecution, the facts in the present case are equally telling with regard to the accused, there is a history of previous convictions of the appellant also. Criminal jurisprudence mandates balancing the rights of the accused and the prosecution. If the facts in Mohan Lal (supra) were telling with regard to the prosecution, the facts in the present case are equally telling with regard to the accused, there is a history of previous convictions of the appellant also. We cannot be oblivious of the fact that while the law stood nebulous, charge sheets have been submitted, trials in progress or concluded, and appeals pending all of which will necessarily be impacted. 16. In Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570 , it was observed as follows: "37. A large number of trials have been held during the period between 4.8.2005 and 18.9.2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 has to be retrospective in operation unless the judicial tool of "perspective Overruling" is applied. However, retrospective application of the judgment is not in the interest of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage. Attempts will be made to reopen cases which have become final." 17. That subsequent events noticed, may require revisiting of an earlier decision, to save actions already taken was considered in Harsh Dhingra vs. State of Haryana and Others, (2001) 9 SCC 550 , observing as follows: "6. Further, when the decision of the High Court in S.R. Dass Case, (1999) 3 SCC 362 had held the field for nearly a decade and the Government, HUDA and the parties to whom the allotments have been made have acted upon and adjusted their affairs in terms of the said decision, to disturb that state of affairs on the basis that now certain other rigorous principles are declared to be applied in Anil Sabharwal Case, (1997) 116 PLR 7 would be setting the rules of the game after the game is over, by which several parties have altered their position to their disadvantage. Therefore, we think that in the larger public interest and to avoid the discrimination which this Court had noticed in the order dated 5.12.1997 (1998) 8 SCC 373 the decision of the High Court in Anil Sabharwal case should be made effective from a perspective date and in this case from the date on which interim order had been passed on 23.4.1996. Therefore, it would be appropriate to fix that the date from which the judgment of the High Court would become effective. If this course is adopted, various anomalies pointed out in respect of different parties referred to above and other instances which we have not adverted to will be ironed out and the creases smoothened so that discrimination is avoided. 7. Prospective declaration of law is a device innovated by this Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty-bound to apply such dictum to cases which would arise in future. Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation. These principles are enunciated by this Court in Baburam vs. C.C. Jacob, (1999) 3 SCC 362 and Ashok Kumar Gupta vs. State of U.P. (1997) 5 SCC 201 ." 18. The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case." 18. In the present case, the lower Court records show that the trial in the Special Court, ND and PS had concluded, vide judgment and order dated 07.08.2018 and sentence order dated 09.08.2018. The law laid down by the Apex Court in Mohan Lal (supra) on 16.08.2018, was subsequent to the Trial Court proceedings. 19. Prior to the judgment of Mohan Lal (supra), there were conflicting decisions of the Apex Court with regard to whether the investigation made by an IO, who was also a complainant, could be considered fair. As stated earlier, in the case of State vs. Rajangam (supra), the Apex Court has held that when investigation of the case was done by the same officer who registered the crime, the High Court was justified in acquitting the accused, as the investigation would be suspect to being fair and impartial. However, in the case of Hardip Singh vs. State of Punjab, (2008) 8 SCC 557 , the Apex Court repelled the contention that the complainant could not be the investigating officer by relying upon another Apex Court judgment, i.e. State Rep. by Inspector of Police, Tiruchirapalli vs. V. Jayapaul, (2004) 5 SCC 223 , by stating as follows: "6........We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased." The facts of the present case do not show as to how the investigation done by the IO, who is also the complainant is unfair or that there has been a likelihood of bias. Keeping in view the fact that the seizure of the 150 gms of cocaine had been made on the basis of prior information and the seizure had been made by the Excise Personnel comprising the Deputy Superintendent of Excise (PW-4) who was also a part of the seizure team, amongst other excise personnel/officers, this Court finds that the appellant has not been able to show as to how there has been any bias on the part of the IO during investigation or whether any prejudice has been caused to him by the factum of the IO being the complainant also. Also, there is nothing in the evidence to show that the investigation was not fair or that the trial was not fair. In that view of the matter, this Court finds that the investigation and trial have not been vitiated. In view of the facts of this case, and the law laid down in Varinder Kumar (supra), the law laid down in Mohan Lal (supra) would not be applicable to the case in hand. 20. The statement of the appellant recorded under section 313 Cr.P.C. shows that there is a blanket denial of all the questions put forth to the appellant by the Trial Court in respect of the evidence that has been adduced against the appellant. In the case of Rajkumar vs. State of U.P. (2014) 5 SCC 353 , the Apex Court has held that in the event of complete denial, silence or non-explanation of incriminating material, the Court would be entitled to draw an inference, including adverse inference against an accused, as may be permissible in law. In the case of Rajkumar vs. State of U.P. (2014) 5 SCC 353 , the Apex Court has held that in the event of complete denial, silence or non-explanation of incriminating material, the Court would be entitled to draw an inference, including adverse inference against an accused, as may be permissible in law. In the present case, the fact of the cocaine being seized from the of the appellant is clearly proved. There is also nothing to suggest that there has been any tampering with the samples drawn from the main body of the seized cocaine. Further, as the trial of the case in the Trial Court had concluded prior to the judgment passed in Mohan Lal (supra), and as there is nothing to show that any prejudice has been caused to the appellant by the IO during investigation, this Court does not find any ground to interfere with the impugned judgment and order of the Trial Court. The appeal is, accordingly, dismissed.