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2020 DIGILAW 613 (GAU)

Zamkhawgin (45) v. State Of Mizoram

2020-07-02

NELSON SAILO

body2020
JUDGMENT Nelson Sailo, J. - Heard Mrs. Dinari T. Azyu, the learned Amicus Curiae for the appellant as well as Mr. C. Zoramchhana, the learned Public Prosecutor appearing for the State respondent. 2. This is an appeal from jail preferred by the accused/appellant against the Judgment & Order dated 09.04.2019, passed by the Special Court under ND&PS Act, 1985 (ND&PS Act), Aizawl, Mizoram in Criminal Trial (Ex.) No. 713/2017 arising out of Excise Case No. N-61/2017 under Section 20(b)(ii)(C) of the ND&PS Act, by which two accused persons including the present appellant were convicted under the aforesaid section and also the order of Sentence dated 24.04.2019, by which the appellant and the co-accused were sentenced to undergo Rigorous Imprisonment for 10 years with fine of Rs. 500/- each and in default to undergo S.I. for 10 days. This appeal is preferred by the convict Sh. Zamkhawgin only. 3. The story of the prosecution in brief is that on the 17th March, 2017 at around 3:00 PM, SI C. Lalbiaktluanga received information from a reliable source that ganja was to be transferred at Rangvamual. He therefore recorded the information received by him and then formed a team to investigate on the case. While on duty, he suspected two (2) persons to be doing illegal business at the verandah of the residence of Vanlalhriati without her knowledge. So, the officer recorded grounds of belief as per U/s 42 of ND & PS Act, ''85 to conduct search. Before conducting search, they called two (2) volunteers as witnesses. On conducting search, they recovered three (3) nylon bags of dried leaves with flowering tops suspected to be Ganja. On interrogation, the two suspects confirm that it belonged to them. The weight of the suspected ganja was taken in the presence of reliable civilian witnesses and it was found to be 20.150 Kgs. The suspected ganja was then packed and sealed to be produced before the Magistrate. The Excise personnel then prepared seizure and arrest memo against the accused (1) Zamkhawgin (45) S/o Zamkhanning (L) of Lamka, Manipur (2) Lalsangzuala (31) S/o Laldenlien of N.E. Tlangnuam, Mizoram as being the dual possessors of the illicit ganja. 4. The suspected ganja was then packed and sealed to be produced before the Magistrate. The Excise personnel then prepared seizure and arrest memo against the accused (1) Zamkhawgin (45) S/o Zamkhanning (L) of Lamka, Manipur (2) Lalsangzuala (31) S/o Laldenlien of N.E. Tlangnuam, Mizoram as being the dual possessors of the illicit ganja. 4. After the contraband substance was seized and the appellant and the co- accused were arrested, the Arresting Authority submitted a report before the Officer-in-charge of the Anti Narcotic Squad and Excise Case No. N-61/2017 under Section 20(b)(ii)(C) of the ND&PS Act was registered and investigations conducted. Upon completion of the investigation, the Case I.O. found a prima facie case well established against the two accused persons namely Lalsangzuala and the appellant Zamkhawgin U/s 20(b)(ii)(C) of ND & PS, ''85 and he submitted a complaint sheet to the Court. 5. Mrs. Dinari T. Azyu, the learned Amicus Curiae submits that the appellant did not claim ownership of the seized article at any point of time and this fact can be appreciated from the complaint sheet submitted by the case I.O. before the Trial Court. Referring to the statement of the co-accused person i.e., Sh. Lalsangzuala recorded by the Excise personnel, she submits that it is clear that it was he who had bought the Ganja from Manipur for selling the same at Rangvamual. She also submits that from the statement of the accused recorded by the Excise personnel, it is clear that the seized article did not belong to the appellant but to the co-accused person. 6. The learned Amicus Curiae submits that there are contradictions in the evidence of the PW-1. The PW-1 in the beginning of his cross examination by the counsel for the co-accused stated that the seized article was not covered with blue coloured silpaulin but in the later part, he stated that the three bags that were seized were kept amongst the sugar cane and were covered with blue coloured silpaulin. The said witness thereafter on being cross examined by the counsel for the appellant stated that the seized article was said to be owned by Sh. Lalsangzuala as recorded by the Excise personnel. On being re-examined by the Additional Public Prosecutor, the said witness stated that sample was taken from each three nylon bags and packed in a single packet of sample bag/transparent polythene. Lalsangzuala as recorded by the Excise personnel. On being re-examined by the Additional Public Prosecutor, the said witness stated that sample was taken from each three nylon bags and packed in a single packet of sample bag/transparent polythene. The learned Amicus Curiae further refers to the evidence of PW-2 and submits that the said witness in her cross examination stated that she was not sure whether the accused claimed ownership of the seized article or not. Likewise, even PW-3 in his cross examination denied that the accused persons claimed ownership of the seized article. 7. Mrs. Dinari T. Azyu further refers to the evidence of PW-5 and submits that the said witness, who was the case I.O. in his examination-in-chief stated that during investigation, he found the accused appellant as well as the co- accused Sh. Lalsangzuala possessing and selling the seized article even though the accused appellant did not claim ownership of the seized article. The said witness further stated in his cross examination that sample was not drawn at the place of occurrence but before the Magistrate 1st Class the next day. Therefore, there is clear contradiction between the statement of this witness and that of PW- 1. Besides this, she submits that nowhere in the evidence of the prosecution has it been stated as to what was used for weighing the seized article when it was allegedly seized on the night of 17.03.2017 after 10:00 PM. Under the circumstance, the learned Amicus Curiae submits that the prosecution has failed to prove the case against the appellant beyond reasonable doubt so as to convict the appellant of the charge framed against him. She therefore submits that the impugned conviction and sentence insofar as the appellant is concerned cannot be sustained and may be set aside. 8. Mr. C. Zoramchhana, the learned Public Prosecutor on the other hand submits that the prosecution in order to prove the case against the appellant and the co-accused, examined five witnesses out of the named six prosecution witnesses. He submits that under the ND&PS Act, proof of possession of the banned contraband substance is sufficient to convict an accused. He submits that it is not necessary for the prosecution to establish ownership of the seized article by the accused. He submits that under the ND&PS Act, proof of possession of the banned contraband substance is sufficient to convict an accused. He submits that it is not necessary for the prosecution to establish ownership of the seized article by the accused. In this connection, by referring to Section 20(b) of the ND&PS Act, the learned Public Prosecutor submits that the said provision provides that whoever in contravention of any provision of the Act cultivates any cannabis plant or is in possession of the same shall be punishable as provided therein. In the present case, the appellant and the co-accused person were found to be in possession of 20.150 Kgs of Ganja and therefore, Section 20(b)(C) of the ND&PS Act which provides for punishment in cases involving commercial quantity is attracted. Accordingly, the appellant and the co-accused person were righty convicted and sentenced by the Trial Court. 9. The learned Public Prosecutor further submits that from the evidence led by the prosecution, the appellant cannot just claim that he is not involved in the recovery of the Ganja as it did not belong to him. In fact, the appellant was all along aware that the co-accused was carrying Ganja when they boarded the bus from Manipur and thereafter, when they took a taxi to reach Rangvamual. Therefore, even assuming that the seized material did not belong to the appellant, he was nevertheless aware that Ganja was being carried by the co-accused and as such, Section 35 of the ND&PS Act will be attracted. Referring to the said Section, the learned Public Prosecutor submits that presumption of culpable mental state which includes intention, motive, knowledge of a fact, belief or reason to believe are the ingredients which constitute presumption of culpable metal state. Therefore, there cannot be any escape of the fact that the appellant all along knew very well that they were carrying Ganja and for which, the punishment provided under Section 20(b)(ii)(C) of the ND&PS Act is attracted. The learned Trial Court therefore rightly convicted and sentenced the appellant. In support of his submission, the learned Public Prosecutor relies upon the Apex Court decision rendered in Baldev Singh Vs. State of Haryana, (2015) 17 SCC 554 . 10. 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. 11. In support of his submission, the learned Public Prosecutor relies upon the Apex Court decision rendered in Baldev Singh Vs. State of Haryana, (2015) 17 SCC 554 . 10. 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. 11. As may be noticed, the appellant has preferred this appeal from jail. The records reveal that the appellant has not raised any particular ground for filing the appeal. All that is stated in his appeal is that he was convicted and sentenced by the Trial Court and being aggrieved, he has preferred the appeal from jail. However, even in the absence of any grounds of appeal, this Court will still be required to examine as to whether the impugned conviction and sentence are sustainable in law or not. As already seen, the prosecution in order to prove their case, examined as many as five witnesses out of the six named prosecution witnesses. The prosecution witness whose examination was dispensed with is Sh. Lalmuanawma, Assistant Director, Forensic Science Laboratory, Aizawl. PW-1 & PW-2 are both seizure witnesses. PW-1 in his examination-in-chief deposed that on 17.03.2017 at 10:00 PM, while he was in his residence, an Excise personnel asked him to be a witness in the seizure of the Ganja. He along with the said personnel proceeded to the residence of Smt. Vanlalhriati, where he saw the two suspected persons including the appellant sitting on the verandah near a sugar cane grinding machine. The Excise personnel conducted checking near the place where the two accused persons sat and recovered three nylon bags kept above the bundle of sugar cane, which were covered by silpaulin. When they opened the nylon bags, he saw dried leaves with fruiting tops of Ganja inside the three bags and the two suspected persons admitted that the three bags containing Ganja belonged to them. The same was seized by the Excise personnel and the two persons were arrested. Weighment of the seized article was done in his presence and it turned out to be 20.150 Kgs. After weighment was taken, the same was sealed and packed in his presence and he put his signature in the memo prepared for seizure and the arrest. The same was seized by the Excise personnel and the two persons were arrested. Weighment of the seized article was done in his presence and it turned out to be 20.150 Kgs. After weighment was taken, the same was sealed and packed in his presence and he put his signature in the memo prepared for seizure and the arrest. In his cross examination, the said witness stated that as per the photographs of the seized article, they were not covered with blue coloured silpaulin. He also stated that the seized three bags were kept on sugar cane and the same were covered with blue coloured silpaulin. He also stated that a single packet of samples were drawn from the seized article, which he again clarified in his re-examination that he meant that samples were taken from each of the three nylon bags and packed in a single packet of sample bag/transparent polythene. He also stated that it was a fact that the appellant never admitted the ownership of the seized article in his presence. 12. PW-2 in his examination-in-chief stated that on 17.03.2017 at 10:00 PM, while she was asleep, the Excise personnel knocked at her door and woke her up. They informed her that they apprehended and detained two accused persons along with three nylon bags, which were hidden amongst the sugar cane she kept in her verandah. The Excise personnel then checked the verandah where the two accused persons sat and recovered three nylon bags kept above the bundle of sugarcane, which were covered by silpaulin. On opening the nylon bags, she saw dried leaves with fruiting tops of Ganja and the two suspected persons including the appellant admitted that the bags belonged to them. Weighment of the seized article was taken and it was 20.150 Kgs. She put her signature against the memo of arrest and seizure that was prepared. In her cross examination, PW-2 stated that she was not sure whether the accused claimed ownership of the seized article or not. 13. PW-3, S.I. C. Lalbiaktluanga is the person who had arrested the accused persons and recovered the materials suspected to be Ganja on 17.03.2017. His deposition was similar to the depositions made by the PW-1 & PW-2. In her cross examination, PW-2 stated that she was not sure whether the accused claimed ownership of the seized article or not. 13. PW-3, S.I. C. Lalbiaktluanga is the person who had arrested the accused persons and recovered the materials suspected to be Ganja on 17.03.2017. His deposition was similar to the depositions made by the PW-1 & PW-2. He also stated that he did not arrest PW-2, as he believed that she had no knowledge about the seized article and therefore, he cited her as a seizure witness. After he submitted a report of the seizure and arrest to the Officer-in-charge, a case was registered and endorsed to S.I. Benjamin Lalruattluanga for further investigation. In his cross examination, PW-3 stated that it was not a fact that the accused persons claimed ownership of the seized article. 14. PW-5, S.I. Benjamin Lalruattluanga, who was the case I.O. in his examination-in-chief stated that during his investigation, he visited the place of occurrence, examined all the available witnesses and recorded their statements. He also interrogated the two accused persons and recorded their statements. From his investigation, he found that both the accused persons had bought the seized article from Manipur for a price of Rs. 500/- per Kg and intended to sell the same at Rangvamual, Aizawl for Rs. 2000/- per Kg. His further investigation revealed that the appellant accompanied the co-accused Sh. Lalsangzuala for selling the seized article even though he did not claim ownership of the seized article. He also found that the appellant was earlier convicted by the Trial Court for the same nature of offence. He further stated that the sample which was sent to Forensic Science Laboratory, Aizawl for examination revealed that the seized article was Ganja. Upon finding a prima facie case against the two persons, he submitted a complaint sheet against the two accused persons under Section 20(b)(ii)(C) of the ND&PS Act. PW-5 in his cross examination stated that PW-2 was the only adult occupant of the residence where the seized article was recovered. He also stated that sample was not drawn at the place of occurrence but before the Magistrate 1st Class the next day. 15. PW-6, Sh. T. Lalhmachhuana is the Judicial Magistrate 1st Class, Aizawl who stated in his examination-in-chief that an inventory of seized article and its weighment was taken in his presence. He also stated that sample was not drawn at the place of occurrence but before the Magistrate 1st Class the next day. 15. PW-6, Sh. T. Lalhmachhuana is the Judicial Magistrate 1st Class, Aizawl who stated in his examination-in-chief that an inventory of seized article and its weighment was taken in his presence. He exhibited the application for inventory photographs and drawing of samples as Exhibit P-8, his signature as Exhibit P- 8(b), the inventory and his signature as Exhibit P-9 and P-9(b) respectively, the list of sample drawn and his signature as Exhibit P-10 and P-10(b) respectively, the photographs of the seized article as Exhibit P-11 and P-11A and his signatures as Exhibit P-11(a) and P-11A(a) respectively. 16. From an analysis of the above evidence of the prosecution, it may be seen that the Excise personnel recovered 20.150 Kgs of Ganja on 17.03.2017 from the verandah of PW-2 and arrested the appellant as well as the co-accused Sh. Lalsangzuala. PW-1 and PW-2 in their evidence have deposed that the three nylon bags kept above the bundle of sugar cane in the verandah of PW-2 when opened were found to contain Ganja and both the accused persons including the appellant admitted that the same belonged to them. Although PW-1 in his cross examination has stated that the seized articles were owned by Sh. Lalsangzuala, the co-accused person but the fact remains that the same is as per the statement recorded by the Excise personnel. Neither of the two accused persons admitted that the seized article belonged to them as per the statement of PW-1 & 2 during their cross examination. A perusal of the statement of the appellant before the Excise personnel goes to show that the appellant was well aware of the fact that the other accused i.e., Sh. Lalsangzuala carried the seized article i.e., Ganja from Manipur and upon reaching Rangvamual, he kept the same amongst the sugar cane in the verandah of PW-2. He also stated that he had earlier been arrested in a Ganja case. The complaint sheet submitted by the case I.O. also reflects the statement of the appellant stating that even though he denied that he is the owner of the Ganja, his behavior, action and the fact that he was with the other accused person knowing that he was carrying illegal Ganja has made him believe to be an accomplice. The complaint sheet submitted by the case I.O. also reflects the statement of the appellant stating that even though he denied that he is the owner of the Ganja, his behavior, action and the fact that he was with the other accused person knowing that he was carrying illegal Ganja has made him believe to be an accomplice. Further, the appellant was also arrested on earlier occasion for possession of Ganja. 17. After the complaint sheet was submitted by the case I.O., the Trial Court framed charge against the appellant under Section 20(b)(ii)(C)/29 of the ND&PS Act and to which he pleaded not guilty. Charge was framed against the other accused person under the same Section of law except for Section 29 of the ND&PS Act. After the evidence was led by the prosecution, both the accused persons were examined under Section 313 of the Cr.P.C. The co-accused Sh. Lalsangzuala stated that he came to Aizawl to seek for work and that the appellant was carrying Ganja and he asked him to claim ownership as he was having a similar criminal case. As for him, he was innocent. The appellant in his examination under Section 313 of the Cr.P.C. stated that the Ganja belonged to the father-in-law of the co-accused Sh. Lalsangzuala. They carried it from north- east Tlangnuam in a pick-up truck up to Thanglailung village. From Thanglailung village, they hired a taxi up to Rangvamual, Aizawl. Before they could sell the Ganja, the Excise people seized the Ganja and arrested them. He also stated that the Ganja did not belong to him but they carried/transported the same. He further stated that he had a similar case earlier and therefore, the co-accused claimed ownership. 18. Section 35 of the ND&PS Act provides for presumption of culpable mental state. The same may be reproduced below for ready perusal:- "35. He also stated that the Ganja did not belong to him but they carried/transported the same. He further stated that he had a similar case earlier and therefore, the co-accused claimed ownership. 18. Section 35 of the ND&PS Act provides for presumption of culpable mental state. The same may be reproduced below for ready perusal:- "35. Presumption of culpable mental state.- (1) In any prosecution for an offence under this 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." The explanation provided for the above extract further is that "culpable mental state" will include intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. 19. As already noticed earlier, the appellant undisputably was of the conscious knowledge that they were transporting Ganja irrespective of the fact as to whether it belonged to the co-accused person or the father-in-law of the co- accused person. The Apex Court in Baldev Singh (Supra) has held that the accused can rely on the materials available in prosecution case raising doubts about prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. If the circumstances appearing in prosecution case give reasonable assurance to the Court that the accused could not have had the knowledge of required intention, burden cast on him under Section 35 of the ND&PS Act would stand discharged even if the accused had not adduced any other evidence of his own. In the given facts of that case, the Apex Court held that from the evidence led by the prosecution, it was proved beyond reasonable doubt that the accused being the driver of the tractor was in conscious possession of the thirty three bags of poppy husk in the trolley attached to the tractor. The accused only pleaded that a false case has been made out against him and he did not take the plea that he was not in concious possession of the contraband. There was no reason given why the police would make a false case against him. The accused only pleaded that a false case has been made out against him and he did not take the plea that he was not in concious possession of the contraband. There was no reason given why the police would make a false case against him. Accordingly, the decision of the High Court reversing acquittal of the convicted appellant was upheld by the Apex Court. 20. In the present case as well, even without the burden cast upon the appellant under Section 35 of the ND&PS Act being discharged by him, the materials on record go to show that the appellant was aware of the contraband article being transported by them. Besides this, PW-6 in his examination-in-chief clearly deposed that the inventory of the seized article, weighment and drawing of samples were done in his presence. This fact has neither been controverted nor falsified by the defence. The FSL report by which finding was made that the samples sent and examined were found to be Ganja is also not disputed. 21. Thus, upon due consideration of the materials available on record and after hearing the learned counsels, I find no good grounds to interfere with the impugned judgment and order of conviction. As for the sentence, it is seen that the minimum prescribed sentence was imposed upon the Trial Court and therefore, no interference is called for. The appeal is thus found without merit and is therefore accordingly dismissed. Registry to send back the LCR. 22. For the valuable assistance rendered by Mrs. Dinari T. Azyu, the learned Amicus Curiae, she shall be paid a sum of Rs. 7500/- (Rupees seven thousand five hundred) only by the Mizoram State Legal Services Authority, on production of a copy of this order.