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2019 DIGILAW 686 (GAU)

Lalthuama v. State of Mizoram

2019-05-31

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. J.C. Lalnunsanga, the learned Amicus Curiae for the appellant and Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor. 2. This is an appeal directed against the Judgment and Order dated 27.10.2016 passed by the learned Special Court under the ND&PS Act Aizawl in Criminal Trial Ex. No. 1555/2015, convicting the appellant under Section 25-A of the Narcotic Drugs & Psychotropic Substance Act, 1985 (ND&PS Act) for violation of Clause 4 (1) and Clause 7 (1) of the ND&PS Act (Regulation of Controlled Substances) Order, 2013 passed under Section 9-A of the ND&PS Act as well as the Order dated 24.03.2017, by which the appellant, for his conviction under the aforesaid Section was sentenced to a Rigorous Imprisonment for 4 years and to pay a fine of Rs. 25,000/- with a default clause. 3. It may be stated herein that the appellant was earlier sentenced to a Rigorous Imprisonment for 5 years and to pay a fine of Rs. 50,000/- with a default clause vide the Judgment and Order dated 27.10.2016. On an appeal filed by him, this Court after coming to a finding that no sentence hearing was conducted as contemplated under Section 235 of the Cr.P.C. the case was remanded back to the Trial Court for sentence hearing. The appeal was registered and numbered as Criminal appeal No. 32/2016. Pursuant thereto, the Trial Court vide Order dated 24.03.2017 passed the sentence upon the appellant as already stated hereinabove. 4. The case of the prosecution in brief is that on 17.05.2015, Sub-Inspector Sh. Lalrinnunga seized 2,30,000 white tablets suspected to contain Pseudoephedrine at Khatla, Aizawl and in connection with the seizure, he arrested the appellant and 2 other persons namely, Lalhriatpuia and David Remlalnghaka. Samples were drawn from the seized materials and sent for chemical test at Forensic Science Laboratory, Aizawl and a case under Sections 25-A and 29 read with 25-A of the ND&PS Act was registered and investigations conducted. The appellant was found to possess and transport the seized tablets in his Tata Sumo vehicle driven by him from Guwahati. The FSL report confirmed that the seized tablets contained Pseudoephedrine. The appellant was found to possess and transport the seized tablets in his Tata Sumo vehicle driven by him from Guwahati. The FSL report confirmed that the seized tablets contained Pseudoephedrine. A prima-facie case under Sections 25-A and 29 read with 25-A of the ND&PS Act was found established against the appellant and he was accordingly charged for having violated Sections 4 (1) and 10 (2) of the ND&PS Act (Regulation of Controlled Substances) Order, 2013 (RCS Order, 2013). The 2 other accused persons were released by the Trial Court on a prayer made by the Investigating Officer since he do not find their involvement in the case after he conducted the investigation. Charge was accordingly framed by the Trial Court on 01.04.2016 under Section 25-A of the ND&PS Act and for violation of Section 4 (1) and Section 10 (2) of the RCS Order, 2013. The appellant pleaded not guilty and claimed for trial and as such, trial was held. During the Trial, prosecution examined 4 prosecution witnesses to establish their case but the appellant did not have any defence witness. During his examination under Section 313 of the Cr.P.C. the appellant admitted of having transported the seized tablets in his vehicle but he denied any knowledge about the contents of the materials he transported. Upon conclusion of the trial, the Trial Court found the appellant guilty of the charge beyond reasonable doubt and accordingly convicted him and passed the sentence as already mentioned hereinabove. 5. Mr. J.C. Lalnunsanga, the learned Amicus Curiae by referring to the complaint sheet submitted by the case Investigating Officer submits that as per her findings, during investigation, the appellant carried the seized articles in his vehicle from Guwahati for a consideration of Rs. 30,000/-. However, no evidence was led by the prosecution to prove that the appellant carried the seized article knowing fully well about its contents and he transported it for a consideration of Rs. 30,000/-. The 2 co-accused Lalhriatpuia and David Remlalnghaka were not examined by the prosecution. The appellant during his examination under Section 313 of the Cr.P.C. stated that he transported the seized article but he did not know the contents of the same. Therefore, without there being any evidence, the appellant could not have been convicted and sentenced. 30,000/-. The 2 co-accused Lalhriatpuia and David Remlalnghaka were not examined by the prosecution. The appellant during his examination under Section 313 of the Cr.P.C. stated that he transported the seized article but he did not know the contents of the same. Therefore, without there being any evidence, the appellant could not have been convicted and sentenced. He submits that the appellant was only asked one question in his examination under 313 Cr.P.C. and the same was conducted in a most perfunctory manner which also vitiates the conviction. 6. Mr. J.C. Lalnunsanga, the learned Amicus Curiae further submits that under Section 52-A of the ND&PS Act, samples from the seized material has to be drawn in front of a Magistrate, which otherwise was not done in the instant case. The place of seizure also is not conclusive since the complaint sheet submitted by the case Investigating Officer stated that seizure was made at Khatla, Aizawl, whereas in the evidence of the prosecution witnesses, it was recovered at Rangvamual. The seizure of the articles at any rate having not being done as per Section 52-A of the ND&PS Act, the impugned conviction and sentence cannot be sustained. In support of his submission, he refers to the case of Union of India vs. Mohanlal and Another, (2016) 3 SCC 379 . He also submits that relying upon the said decision, a Co-ordinate Bench of this Court in Criminal Appeal No. 23/2018 allowed the appeal preferred by 2 convicts vide Judgment & Order dated 17.05.2019. 7. The learned Amicus Curiae further submits that the Trial Court did not giving any opportunity to the appellant to defend himself as contemplated under Section 233 of the Cr.P.C. He submits that a perusal of the statements recorded under Section 313 of the Cr.P.C. would reveal that the appellant was not even asked as to whether he would like to lead his own evidence to defend himself. Therefore, the impugned conviction and sentence is also unsustainable even on this ground. In this connection, he refers to a Division Bench judgment of this Court rendered in Milan Riang and Others vs. State of Mizoram, (2016) 1 GLR 239. 8. Therefore, the impugned conviction and sentence is also unsustainable even on this ground. In this connection, he refers to a Division Bench judgment of this Court rendered in Milan Riang and Others vs. State of Mizoram, (2016) 1 GLR 239. 8. The learned Amicus Curiae referring to Section 35 of the ND&PS Act submits that in any prosecution for an offence under the Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Such burden of proof can be discharged by the accused by relying upon the materials available in the prosecution evidence and may even elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. If circumstances appearing in the case of the prosecution or in the prosecution evidence are such as to give reasonable assurance to the Court that the appellant could not have had the knowledge for the required intention, the burden cast on him under Section 35 of the Act would stand discharge even if he had not adduce any other evidence of his own when he is called upon to enter on his defence. The appellant in the present case was not given an opportunity to enter into his defence but the evidence of the prosecution itself would go to show that the appellant had no knowledge about the fact that he transported the seized tablets containing Pseudoephedrine. Therefore, the conviction and sentence of the appellant is only vitiated. In support of his submission he relies upon the decision of the Apex Court rendered in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513 . 9. Mr. J.C. Lalnunsanga finally submits that the seized articles were not produced before the Trial Court and in absence of which, the conviction cannot be sustained as well. In this connection, he relies upon the case of Gorakh Nath Prasad vs. State of Bihar, (2018) 2 SCC 305 . Under the facts and circumstances, he submits that the impugned judgment and order convicting and sentencing the appellant should be set aside and the appellant be set at liberty. 10. Mrs. Linda L. Fambawl, the learned Addl. In this connection, he relies upon the case of Gorakh Nath Prasad vs. State of Bihar, (2018) 2 SCC 305 . Under the facts and circumstances, he submits that the impugned judgment and order convicting and sentencing the appellant should be set aside and the appellant be set at liberty. 10. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor submits if there is any deficiency in the examination of the appellant under Section 313 of the Cr.P.C. the appeal may be remanded back to the Trial Court from that stage. She submits that samples were drawn from the seized article as per the 1989 Standing Order, which finds a mentioned in the impugned judgment and order itself. The requirement of drawing the samples of the seized article before a Magistrate as held in the case of Mohanlal and Another (Supra) cannot be made applicable to the present case, inasmuch as, the impugned judgment and order in the present case was passed much earlier. She also submits that a perusal of the impugned judgment and order also reveals that the seized article was marked as Exhibit-M-1 and produced before the Court. Under the facts and circumstance, the impugned judgment and order requires no interference and the appeal may be dismissed. 11. 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. 12. From the complaint sheet submitted by the case Investigating Officer, 3 persons were arrested along with the seized article. However, except for the appellant, the other 2 persons were released since the Investigating Officer did not find their involvement in the case. Her investigation revealed that the appellant carried the seized article in his vehicle. The 2 co-accused who were subsequently released after their arrests have not been examined though 4 prosecution witnesses were examined. 13. PW-1 in his examination-in-chief deposed that on 17.05.2015, he received a telephone call from the Excise & Narcotics personnel who were on duty inviting him to witness the seizure of the contraband drugs from the appellant. He deposed that on reaching the place of occurrence, the Excise personnel seized and recovered the contraband drugs from the possession of the appellant which were kept in three bags. Upon counting the tablets, they were altogether 2,30,000 tablets, weighing 46 kgs. He deposed that on reaching the place of occurrence, the Excise personnel seized and recovered the contraband drugs from the possession of the appellant which were kept in three bags. Upon counting the tablets, they were altogether 2,30,000 tablets, weighing 46 kgs. Samples were drawn from each bag and were sealed and packed in his presence. He was thus the seizure witness of the seized articles. In his cross-examination, he deposed that nothing was recovered from the physical possession and the residence of the appellant. The name of the appellant also did not appear in any of the seized bags. Due to his poor eye sight and as he was not wearing his spectacles at the relevant time, he could not see what was written on the tablets. 14. PW-2 also in his examination-in-chief made similar deposition as PW-1. 15. PW-3 in his examination-in-chief deposed that on 17.05.2015, while he and others were on duty at Rangvamual, they suspected the Sumo vehicle driven by the appellant to be carrying contraband drugs. There were two occupants in their vehicle, apart from the appellant. When they asked the appellant, who was driving the vehicle, as to who was the owner of the drugs, he replied that the owner was at Zarkawt and was waiting for them. Therefore, they detained the three suspected persons and brought them to Zarkawt. However, on reaching Zarkawt, there was no one to be seen. Therefore, they invited two independent witnesses to witness the seizure and after recording their grounds of belief, he conducted checking of the vehicle and recovered three bags weighting 46 kgs, containing white tablets suspected to be Pseudoephedrine. Sample was then drawn, sealed and packed in front of the witnesses. In his cross-examination, he stated that nothing was recovered from the physical possession of the accused person. It may be noted herein that if the appellant was found to have carried suspected drugs in his vehicle at Rangvamual area, where was the question of conducting another checking at Tuikual. 16. PW-5 who is the case Investigating Officer in her examination-in-chief deposed that she was endorsed with the case for investigation. During her investigation, she found that the accused Lalhriatpuia and David Remlalnghaka had no involvement with the case. The seized articles were carried by the appellant in his vehicle without the knowledge of the other two persons. 16. PW-5 who is the case Investigating Officer in her examination-in-chief deposed that she was endorsed with the case for investigation. During her investigation, she found that the accused Lalhriatpuia and David Remlalnghaka had no involvement with the case. The seized articles were carried by the appellant in his vehicle without the knowledge of the other two persons. She, therefore, prayed for their release to the Trial Court. Further, as per the FSL report, the seized articles contained Pseudoephedrine. Therefore, having found a prima facie case under Section 25-A of the ND&PS Act and violation of Sections 4 (1) and 10 (2) of the RCS Order, 2013, she submitted the complaint sheet before the Trial Court. 17. The appellant was examined under Section 313 of the Cr.P.C. and during the course of such examination only one question was put to him. It is a settled position in law that the provision of Section 313 Cr.P.C. is not just a formality. It is a means to enable the accused to explain the evidence appearing against him or her during the trial. Therefore, in the present case, the mandate of Section 313 of the Cr.P.C. having regard to the evidence led by the prosecution, apparently was not fulfilled. Furthermore, the mandate of Section 52-A of the ND&PS Act, is that the seized materials suspected to be contraband substance should be opened and samples drawn in the presence of a Magistrate. A Co-ordinate Bench of this Court in Criminal Appeal No. 150 (J) of 2007 and Criminal Appeal No. 151 (J) of 2007 on 07.08.2012 held that it is mandatory that the seized contraband articles should be produced before the Magistrate 1st Class and then with the order of the Magistrate, the samples taken from the seized contraband to be sent to the Forensic Science Laboratory for examination. The law in this regard is well settled by the Apex Court in Mohanlal and Another (Supra). 18. The admitted position in the present case is that samples were not drawn in the presence of a Magistrate and that the materials were seized as per the 1989 Standing Order as indicated in the judgment. 1989 Standing Order has not been produced before this Court. Therefore, in my considered view the mandate of Section 52-A of the ND&PS Act has not been fulfilled. 19. 1989 Standing Order has not been produced before this Court. Therefore, in my considered view the mandate of Section 52-A of the ND&PS Act has not been fulfilled. 19. With the above finding, it will not be necessary to examine the other issues raised by the parties as I am of the considered view that the impugned judgment and order cannot be sustained. Accordingly, the impugned Judgment and Order dated 27.10.2016 and the Order dated 24.03.2017 are hereby set aside. 20. The appellant shall be set at liberty, if not wanted in any connection with any other case. 21. Registry shall send back the LCR to the Trial Court immediately. 22. For the valuable assistance rendered by the learned Amicus Curiae, Mr. J.C. Lalnunsanga in the present appeal, he shall be entitled to a consolidated fee of Rs. 7500/- which shall be paid by the Mizoram State Legal Services Authority on production of a copy of this order.