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2019 DIGILAW 522 (GAU)

Vabeilai v. State of Mizoram

2019-04-30

NELSON SAILO

body2019
JUDGMENT : 1. Heard Mr. B. Lalramenga, the learned counsel for the appellant and Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor for the State respondent. None appears for the respondent No. 2. 2. Notice was deemed served upon the respondent No. 2 vide Order dated 05.04.2019 and therefore, this case is taken up for final disposal. 3. The appellant has filed the present appeal against the Judgment & Order dated 19.09.2018 passed by the learned Judge, Special Court under the ND&PS Act, 1985, Siaha Mizoram in SR No. 18/2018, whereby the appellant and the co- accused have been convicted and sentenced by way of a common order. The appellant was convicted under Section 21(b) read with Section 29 of the ND&PS Act, 1985. On such conviction, he was sentenced to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs. 5000/- with a default clause vide Order dated 20.09.2018. 4. Mr. B. Lalramenga, the learned counsel for the appellant submits that the appellant was convicted and sentenced on the ground of alleged recovery of 28 grams of Heroin from the residence of the co-accused. As the appellant was seen with the co-accused, he has been convicted and sentenced for abetment under Section 29 of the ND&PS Act, 1985. The learned counsel submits that though there are irregularities in the manner in which, recovery of the seized articles was made but for the purpose of the present appeal, he submits that the appellant is mainly aggrieved for having been convicted for abetment under Section 29 of the ND&PS Act, 1985. The learned counsel by referring to the evidence led by the prosecution witnesses submits that the appellant on 08.04.2018 was said to be driving a Scooty with the co-accused as the pillion rider. When they were asked to stop by the local NGO representatives, they failed to do so and later on, the appellant was brought to the MYA Office whereupon, he informed the NGO representatives about the residential address of the co-accused and from where the seized drug was recovered. The learned counsel submits that such evidence can in no way be constituted to be sufficient to convict the appellant. 5. Referring to the deposition of the Prosecution Witness No. 4, who was the case Investigating Officer, Mr. The learned counsel submits that such evidence can in no way be constituted to be sufficient to convict the appellant. 5. Referring to the deposition of the Prosecution Witness No. 4, who was the case Investigating Officer, Mr. B. Lalramenga, the learned counsel submits that the said witness deposed that he examined certain civilian witnesses who saw the co-accused collecting material from Colney counter while the appellant was driving a Scooty carrying the co-accused as a pillion rider. However, no civilian witnesses who saw the collection of the seized material from the Colney counter were examined by the prosecution. The said witness in his cross examination also admitted that no verification was made from Colney counter as to whether the name of the co-accused person was available in the counter. He also deposed that seizure of the seized article was made on the basis of the recovery already made by the local NGO representatives. He therefore submits that under the given facts and circumstances, the impugned Judgment & Order convicting the appellant under Section 21(b) read with Section 29 of the ND&PS Act, 1985 cannot be sustained and likewise, the impugned Order dated 20.09.2018 sentencing him to 3 years Rigorous Imprisonment with fine cannot be sustained and should be set aside and quashed. 6. In support of his submission, Mr. B. Lalramenga relies upon the following authorities:- (1) Sorabkhan Gandhkhan Pathan & Another Vs State of Gujarat, reported in (2004) 13 SCC 608 . (2) Amarsingh Ramjibhai Barot Vs State of Gujarat, reported in (2005) 7 SCC 550 . 7. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor submits that there is nothing wrong with the Judgment & Order dated 19.09.2018 as well as the Order of Sentence passed on 20.09.2018. Referring to the prosecution witnesses and their depositions, the learned Addl. Public Prosecutor submits that it was obvious that the appellant and the co-accused person were transporting the seized article on 08.04.2018 in a Scooty, which was driven by the appellant himself. This is because when they were asked to stop by the representatives of the local NGO, they refused to do so. Later on, the appellant revealed the residential address of the co-accused whereupon, the seized article was recovered from his house. It is therefore clear that the appellant is guilty of abetting the crime and for which, he was rightly convicted and sentenced to imprisonment. 8. Later on, the appellant revealed the residential address of the co-accused whereupon, the seized article was recovered from his house. It is therefore clear that the appellant is guilty of abetting the crime and for which, he was rightly convicted and sentenced to imprisonment. 8. The learned Addl. Public Prosecutor further submits that from the charge sheet submitted by the Investigating Agency, it can be clearly seen that the appellant is a drug addict and the same only justifies his action for not stopping the Scooty when he was asked to and also the recovery of the seized article i.e., Heroin from the residence of the co-accused. Under the circumstances, she submits that the conviction and sentence of the appellant be up-held. By referring to the case of Sorabkhan Gandhkhan Pathan & Another (Supra) cited by the learned counsel for the appellant, the learned Addl. Public Prosecutor submits that the facts and circumstances involved in that case is clearly distinguishable from the present case, inasmuch as, the accused therein was a passenger, while in the present case the appellant himself is the one, who drove the Scooty where the seized article was being carried. Likewise, the case of Amarsingh Ramjibhai Barot (Supra) also has no application to the present case since the two accused involved in the case were individually carrying the recovered substance and which is not the case in the present appeal. Recovery was made only from the residence of the co-accused. 9. 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 LCR requisitioned from the Trial Court. 10. As may be noticed, the charge that was framed against the appellant is under Section 21(b) and Section 29 of the ND&PS Act, 1985. Section 21(b) of the ND&PS Act provides for the punishment for contravention in relation to manufactured drugs and preparations where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 29 of the ND&PS Act provides for punishment for abetment and criminal conspiracy and notwithstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. Section 29 of the ND&PS Act provides for punishment for abetment and criminal conspiracy and notwithstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. To establish the guilt of the appellant, the prosecution will have to prove the case beyond reasonable doubt. Such is the mandate of the criminal law in the Indian context. To bring home the guilt of the accused, the prosecution examined 4 prosecution witnesses. The 1st prosecution witness is one of the member of the local NGO, and he deposed in his examination-in-chief that he and the others found the appellant as well as the co-accused driving a Scooty on 08.04.2018. As they suspected that they were transporting some contraband articles, they asked them to stop. However, they failed to stop and they chased them to a location near SBI office at Siaha Viapi. They brought the appellant to MYA office, wherein he told them the residential address of the co-accused. Thereafter, they proceeded to the house of the co- accused and recovered the seized article from his house. 11. Prosecution Witness No. 2, who is also a member of the local NGO in his examination-in-chief, deposed more or less the same thing as what the Prosecution Witness No. 1 had stated. Prosecution Witness No. 3, who is a Sub- Inspector of Excise & Narcotics Department in his examination-in-chief, deposed that on 08.04.2018 after dinner, he received telephonic information from the NRDC about the seizure and recovery of Heroin. Accordingly, he along with the driver and one Constable proceeded to the Office of the MYA, where the appellant as well as the co-accused were held. On reaching the place, the seized article suspected to be Heroin was seized in front of civilian witnesses. The weight of the seized article was taken and it was found to be 28 grams. In his cross examination, Prosecution Witness No. 3 stated that seizure was made on the basis of the recovery already made by the NRDC. Likewise, the Prosecution Witness No. 4, who was the Sub-Inspector of Excise & Narcotics Department, at the relevant time deposed that he was the case Investigating Officer. He deposed in his examination-in-chief that on 08.04.2018 at about 9:00 PM, seizure and arrest was made by Prosecution Witness No. 3. Likewise, the Prosecution Witness No. 4, who was the Sub-Inspector of Excise & Narcotics Department, at the relevant time deposed that he was the case Investigating Officer. He deposed in his examination-in-chief that on 08.04.2018 at about 9:00 PM, seizure and arrest was made by Prosecution Witness No. 3. During his investigation, he found that the co-accused demanded the seized article from Aizawl on 08.04.2018 and civilian witness saw the co-accused collect the same from Colney Counter. Thereafter, the co-accused as well as the appellant were apprehended and the appellant was driving the Scooty. Sample was drawn from the seized article before the Chief Judicial Magistrate on 16.04.2018. The said witness however in his cross examination deposed that he did not search whether the name of the co-accused appeared in the Colney Counter or not and he admitted that the seizure was made on the basis of the recovery already made by the NRDC. 12. Thereafter, the appellant was examined under Section 313 of the Cr.P.C to explain the evidence led by the prosecutor against him. However, the appellant denied of having any knowledge about the recovered material i.e., 28 grams of Heroin from the co-accused. 13. From the above evidence led by the prosecution, it can be seen that the appellant was only seen to be driving the Scooty on 08.04.2018, with the co- accused as the pillion rider. When they were asked to stop by the members of the local NGO, they refused to do so. The recovery of the seized article was made from the residence of the co-accused. The prosecution witnesses, more particularly Prosecution witness No. 1 & 2 deposed that they suspected that the seized article was being transported in the Scooty. However, the fact remains that no recovery was made from the Scooty and no matter how strong the suspicion be, the same cannot be a substitute for proof beyond reasonable doubt to convict the appellant under Section 21 (b) and Section 29 of the ND&PS Act, 1985. 14. Though it may be mentioned in the charge sheet that the appellant is a drug user, the same also cannot be the ground for convicting him in the manner it was done. There are no direct evidence led by the prosecution to establish that the appellant had actually transported the seized article and therefore, Section 29 of the ND&PS Act, 1985 will not be attracted. There are no direct evidence led by the prosecution to establish that the appellant had actually transported the seized article and therefore, Section 29 of the ND&PS Act, 1985 will not be attracted. It is a well settled law that the entire burden to prove the guilt of the accused lies on the prosecution and such burden never shifts. Another feature noticed in the present case is that the manner in which the search and seizure was conducted appears to be in violation of the mandatory provisions prescribed by the ND&PS Act, 1985. However, since the appellant does not press this issue, the same is not being looked into. 15. In the case of Sorabkhan Gandhkhan Pathan & Another (Supra) the Apex Court held that the prosecution did not produce any material whatsoever to establish that either the appellant had the knowledge that the second appellant was carrying the contraband or was, in any manner, conniving with the said accused in carrying the contraband. Therefore, in the absence of any such material, convicting the second appellant only on the ground that he was found in the Auto Rickshaw was not justified. In the present case as well, there was no recovery from the appellant, he was only suspected to have transported the contraband in his Scooty, while carrying the co-accused as the pillion rider. In absence of any evidence led by the prosecution to establish that either the appellant or the co-accused was seen to have collected the contraband from the Colney Counter, presumption cannot be the basis to convict and sentence the appellant. 16. In that view of the matter, there is no other option but to interfere with the impugned Judgment & Order, which I accordingly do. In the result, the impugned Judgment & Order dated 19.09.2018 as well as the impugned Order dated 20.09.2018 are hereby set aside and quashed, insofar as, the appellant Sh. Vabeilai is concerned. The appellant to be set at liberty forthwith, if not wanted in any other case. 17. The appeal thus stands allowed. 18. Registry to transmit back the LCR to the Trial Court concerned and prepare a release order of the accused.