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Gauhati High Court · body

2019 DIGILAW 619 (GAU)

J. H. Goldena v. State of Mizoram

2019-05-17

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : 1. Heard Mr. Lalremtluanga, learned counsel for the appellants as well as Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor. 2. The appellants has prayed for setting aside the Judgment & Order dated 03.05.2018 that Sentence Order dated 29.06.2018, passed by the Special Court, ND&PS in Criminal Trial No. 1010/2015, by which the appellant has been convicted under Section 25/25-A ND&PS Act for violation of Order 4(1), 7(1) & 10(1) of the ND&PS (Regulation of Controlled Substances) Order, 2013 made under Section 9-A of the ND&PS Act, 1985. The appellant No. 1 has been sentenced to undergo R.I for 3 years and to pay a fine of Rs. 10,000/- i.d, S.I for 5 months, while the respondent No. 2 has been sentenced to undergo R.I for 1 year and to pay a fine of Rs. 10,000/- i.d, S.I for 5 months. 3. The prosecution story in brief is that S.I. Lalbuatsaiha CID/SB (field staff) received information at 4:00 pm on 10.04.2015, while he was on a special drive, in an around Durtlang Leitan Area. Acting on the information received by him, the S.I Lalbuatsaiha and his party recovered/seized two Arham (rice) bags and one Amrit bag containing 8,86,400 tablets of stripped medicine, which were suspected to be pseudoephedrine, a controlled substance from the bedroom of the appellant No. 1. The weight of the 8,86,400 tablets was 76 kgs and was believed to be intended for export to Myanmar. The value of the seized goods was Rs. 22,52,640/-. The charge sheet was filed against the appellants and charges were framed against the appellants under Order 4(1) & 10(2) of the Narcotic Drugs & Psychotropic Substances (Regulation of Controlled Substances), Order 2013 read with Section 25/ 25 A & 29 of the ND&PS Act, 1985. The appellants having pleaded not guilty, the trial proceedings were initiated. After the appellants were examined under Section 313 Cr.P.C on 29.09.2016, the learned Trial Court convicted the appellants vide Judgment & Order dated 03.05.2018. Thereafter, the appellants were again examined under Section 313 Cr.P.C on 18.06.2018 and sentenced to undergo R.I with fine, as indicated earlier, vide Sentence Order dated 29.06.2018. 4. Mr. After the appellants were examined under Section 313 Cr.P.C on 29.09.2016, the learned Trial Court convicted the appellants vide Judgment & Order dated 03.05.2018. Thereafter, the appellants were again examined under Section 313 Cr.P.C on 18.06.2018 and sentenced to undergo R.I with fine, as indicated earlier, vide Sentence Order dated 29.06.2018. 4. Mr. Lalremtluanga, learned counsel for the appellants submits that the impugned Judgment & Order and Sentence Order has to be set aside as Section 42 (2) of the ND&PS Act, 1985 was not followed while making the recovery and seizure of the controlled substance. He further submits that the seized contraband goods were not produced before the Magistrate at any time after the same was seized. Accordingly, it is not known from where the prosecution had produced the seized contraband goods at the time of trial, as no order of the Court is available to show that it has been stored in the Malkhana or in the safe custody of any enforcement agency with the permission/knowledge of the Court. 5. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand, submits that Section 42 (2) of the ND&PS Act, 1985 has been followed, inasmuch as, the learned Trial Court has reflected in para 20 of the impugned Judgment & Order that the grounds of belief were written down and exhibited before the Court and accordingly, Section 42 of the ND&PS Act had been complied with. 6. The Addl. Public Prosecutor also submits that the charge sheet clearly reflects the fact that the appellants, at the time of their arrest and recovery/seizure of the contraband goods, had been forwarded to the Special Judge, ND&PS along with seized articles. She thus submits that as the seized articles were produced before the learned Trial Court after recovery and seizure of the same, the grounds taken by the appellant do not hold any water. She accordingly prays for upholding the Judgment & Order of the learned Trial Court. 7. I have heard the learned counsels for the parties. 8. A perusal of the record shows that the judgment & order convicting the appellants under Section 25/25 A of ND&PS Act for violation of Order 4(1), 7(1) & 10(1) of the ND&PS (Regulation of Controlled Substances) Order, 2013 was issued on 03.05.2018. The appellants had been examined under Section 313 Cr.P.C on 29.09.2016. 8. A perusal of the record shows that the judgment & order convicting the appellants under Section 25/25 A of ND&PS Act for violation of Order 4(1), 7(1) & 10(1) of the ND&PS (Regulation of Controlled Substances) Order, 2013 was issued on 03.05.2018. The appellants had been examined under Section 313 Cr.P.C on 29.09.2016. However, the appellants have been again examined under Section 313 Cr.P.C on 18.06.2018, after their conviction, vide Judgment & Order dated 03.05.2018, but prior to the Sentence Order dated 29.06.2018. In the statements given by the appellants under Section 313 Cr.P.C on 29.09.2016, the appellants have given a blanket denial with regard to their involvement with the seized articles. However, the statement of the appellants under Section 313 Cr.P.C on 18.06.2018 shows that the seized articles were recovered from the verandah of the residence of the appellant No. 1. 9. Section 42(1) of the ND&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, reported in 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, reported in 2002 4 SCC 229 wherein it has been held that the provision of section 42 of the ND&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, reported in 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." 10. In the present case, the evidence of PW-1, S.I Lalbuatsaiha CID (SB) is to the effect that while he was duty on 04.10.2015 covering Leitan area, he received information regarding the accused persons being in possession of pseudo ephedrine and accordingly proceeded towards the resident of the appellants. After recording the grounds of beliefs, he entered the said house and recovered the pseudo ephedrine tablets. The evidence of all the other prosecution witnesses is silent with regard to whether the information received by PW-1 was taken down in writing. PW-1, in his evidence has also not stated that he had taken down the information received by him in writing, which is required under Section 42(1) of the ND&PS Act, 1985. 11. The Trial Court, in para 20 of the impugned Judgment & Order, has stated that Section 42 of the ND&PS Act has been complied with. However, the said impugned judgment does not indicate the basis for the Trial Court to come to such a finding. On perusal of the Lower Court Records, this Court also does not find any document showing that the information received by the PW-1 was reduced into writing. Neither is there any evidence adduced by any witness that the information received by the PW-1, had been reduced into writing. There is a document made under Section 42(1) of the ND&PS Act, ie., grounds of belief recorded by the PW-1, which is exhibited as Exp-1. Neither is there any evidence adduced by any witness that the information received by the PW-1, had been reduced into writing. There is a document made under Section 42(1) of the ND&PS Act, ie., grounds of belief recorded by the PW-1, which is exhibited as Exp-1. Exp-1 is reproduced below:- "GROUNDS OF BELIEF (U/S 50 OF ND & PS ACT 1985.) I, SI Lalbuatsaiha CID/8B Mizoram, Aizawl having reason to believe from a reliable information received from my source and to the best of my knowledge and strongly suspicion in my mind that one J.H. Golden-a of Durtlang Leitan was selling/keeping and exchanging some quantity of Heroin (No.4)/ Ganja/ Psychotropic substance at the residence of JH Golden-a Durtlang Leitan search warrant/ authorization could not be obtained from the competent authority due to fear of affording opportunity for the concealment of evidence or facility for the escape of an offender as the spot is too far from the nearest competent Authority. Dated: Aizawl 10.04.2015 Sd/- 10.04.2015 Signature Officer After recording the Grounds of Belief, Body search of the Accused was conducted by observing all formalities. I asked the accused Sh. Goldena and Lalthasanga as to whether he wanted to be searched before a Gazetted Officer or Magistrate to which he declined and I conducted search over his body in presence of the following witnesses as per Section 50 of ND&PS Act, 1985 on this day 10.04.2015 at Durtlang Leitan. 12. The report of Arrest and Seizure dated 10.04.2015, issued by PW-1, which is exhibited as P-7, is also reproduced below:- "To The Officer-in-Charge Special Narcotic Police Station Aizawl. Subj : Report of Arrest and seizure. Ref : Special Narcotic PS C/ No. 09/2015 dt. 10/04/2015 u/s 25(A)/29 ND&PS Act. Sir, As per the provision of Section 57 of ND&PS Act, I have the honour to submit herewith the report of seizure of 8,86,400 tablets of suspected to be pseudoephedrine at Durtlang, Leitan Veng, Aizawl on 10/04/2015 @ 5.10 pm from the possession of JH Goldena (54) S/o Sanglura (L) of Durtlang Leitan and Lalthasanga (28) S/o Thangthuama (L) of Tuirial Airfield, both Aizawl. The illegal possessors are also arrested at the place of occurrence by preparing proper arrest memo after informing the grounds of their arrest. Intimation is also given to their relatives. Submitted for favour of your kind information. Yours faithfully, Sd/- SI (LALBUATSAIHA) CID/ SB Mizoram, Aizawl" 13. The illegal possessors are also arrested at the place of occurrence by preparing proper arrest memo after informing the grounds of their arrest. Intimation is also given to their relatives. Submitted for favour of your kind information. Yours faithfully, Sd/- SI (LALBUATSAIHA) CID/ SB Mizoram, Aizawl" 13. A perusal of the above, Exb-1 clearly shows that the document is not the information received by PW-1 and taken down in writing, regard being had to Section 42(1) of the ND&PS Act. Grounds of belief is required to be recorded only if the Enforcement Agency Officer is unable to obtain a search warrant or authorization, before entering and searching any building, conveyance or enclosed place between sunset and sunrise, as required under the second proviso to section 42 (1)(d) of the ND&PS Act. Grounds of belief is not the information which is contemplated under Section 42(1). Further, exhibit P-7, which is the report of arrest and seizure made by PW-1 and addressed to the O.C Special Narcotic Police Station cannot be accepted to be information taken down in writing, as required under Section 42(1) ND&PS Act, inasmuch as, the same does not speaks of any information being received by PW-1, but only speaks of report of arrest and seizure of the seized articles from the appellants. 14. In view of the above reasons, this Court finds that the information received by PW-1, regarding possession of the contraband goods by the appellants, was not recorded into writing, as required under Section 42(1) of ND&PS Act. Section 42(1) not being complied with, the investigation and trial of the case is deemed to be vitiated. 15. With regard to the submission of the appellants counsel that the seized drugs were not produced before the Magistrate, after the same was seized by the police, this Court finds that there is nothing recorded in the orders of the Trial Court (Lower Court record), showing that the seized drugs had been produced before the Magistrate or that the Trial Court ordered the seized articles to be kept in the safe custody of any authority, after the same was seized. Thus, no samples of the seized article can be said, to have been drawn in the presence of a Magistrate. Thus, no samples of the seized article can be said, to have been drawn in the presence of a Magistrate. In the case of Union of India vs. Mohanlal & Anr, reported in 2016 3 SCC 379 , the Apex Court has held at para 19 and 31.1 as follows:- "19. Mr. Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc., without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not broke any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time- frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable section (3) of Section 53-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions. 31.1. 31.1. No sooner the seizure of any narcotic drugs an psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order." As per the above extract of the judgment of the Apex Court in Mohanlal (Supra), the sample of the seized narcotic or psychotropic drug etc., should be drawn before a Magistrate under Section 52-A of the ND&PS Act. However, there is no law laid down by the Apex Court that non-compliance of the above would vitiate the entire judicial proceeding. 16. A perusal of Section 313 Cr.P.C shows that the Trial Court did not have any power to examine the accused persons/appellants under Section 313 Cr.P.C, after they had been convicted by the Courts and prior to them being sentenced. The above being said, it is clear that the Trial Court proceeding was vitiated as the Section 42(1) of the ND&PS Act was not complied with. 17. In view of the reasons stated above, this Court finds that there has been violation of Section 42(1) and 52(A) of the ND&PS Act. Consequently, the investigation and trial has to be deemed to be vitiated. 18. In view of the reasons stated above, this Court finds that the learned Trial Court could not have convicted the appellants. Accordingly, the impugned Judgment & Order dated 03.05.2018 and Sentence order dated 29.06.2018, passed by the Special Court, ND&PS in Criminal Trial No. 1010/2015 is hereby set aside. The appellants should be released from Jail immediately. Send back the LCR.