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2020 DIGILAW 623 (GAU)

Lalengliana v. State Of Mizoram

2020-07-22

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT 1. Heard Mr. A.R. Malhotra, learned counsel for the appellant as well as the learned Amicus Curiae, Mr. Vanlalnghaka. Also heard Mr. C. Zoramchhana, learned Public Prosecutor. 2. The present appeal is filed by the two convict appellants against the impugned Judgment & Order dated 27.08.2019 passed by the Special Court, ND&PS Act, Champhai in SR No. 15/2018 arising out of Criminal Trial No. 121/2018, by which they have been convicted under Section 21(c) ND&PS Act and sentenced to undergo 20 years RI with a fine of Rs. 1 lakh each, i.d., RI for 2 months. The appellants were also convicted under Section 14 of the Foreigners Act and sentenced to imprisonment for a period of 5 months each. 3. The prosecution case in brief is that on 19.08.2017, S.I. H. Lalengzama of Champhai Police Station received an information at around 3:45 PM, to the effect that heroin was going to be smuggled into India from Myanmar. S.I. H. Lalengzama thereafter put down in writing the information received by him and after taking prior authorization from the O.C. Champhai P.S., he and his party conducted checking at Dungtlang Police check gate. In the meantime, a red alert had also been issued to all the Police Stations and Police Outpost within Champhai District. One two wheeler (Apache black colour) bearing registration No. MZ 01 B - 8763, was detained on the ground of suspicion at the Dungtlang Police check gate. The bike, was carrying a yellow sack from which 30 soap cases containing suspected heroin weighing 439 grams was recovered. The two appellants had been riding the said two wheeler prior to being detained at Dungtlang Police Outpost check gate. Samples of the seized article was then sent to the FSL and the FSL examination report proved that the seized articles were heroin. The heroin was seized by S.I. H. Lalengzama on 19.08.2017, in the presence of civilian witnesses and the appellants were also arrested by S.I. Lalsangliana on 19.08.2017. The investigation of the case was entrusted to S.I. Lalsangliana. However, as S.I. Lalsangliana was suspended, the filing of the charge sheet was done by the O.C of Champhai P.S. i.e., H.P. Vanlalchaka (PW-6). The I.O. in the charge sheet has recorded that a prima facie case under Section 21(c)/29 ND&PS Act read with Section 14 of the Foreigners Act was found against the appellants. However, as S.I. Lalsangliana was suspended, the filing of the charge sheet was done by the O.C of Champhai P.S. i.e., H.P. Vanlalchaka (PW-6). The I.O. in the charge sheet has recorded that a prima facie case under Section 21(c)/29 ND&PS Act read with Section 14 of the Foreigners Act was found against the appellants. Further, charge under Section 25 ND&PS Act was also found against the appellant No. 1, as he had allowed his two wheeler to transport the seized heroin. 4. Charges were framed against the appellants on 28.02.2018 under Section 21(c)/29 ND&PS Act read with Section 14 of the Foreigners Act. Thereafter, 5 prosecution witnesses were examined i.e., PW 1 - 3 & 5 - 6. Thereafter, the appellants were examined under Section 313 Cr.P.C. After final hearing was conducted, the impugned Judgment & Order dated 29.08.2019 was passed by the Special Court, ND&PS Act Champhai in Session Registration No. 15/2018, wherein the appellants were convicted and sentenced under Section 21(c) of the ND&PS Act and under Section 14 of the Foreigners Act. 5. Being aggrieved, the appellants have filed the present jail appeal. As the same is a jail appeal, an Amicus Curiae had been appointed by this Court. However, just prior to the hearing of this case, the appellants have engaged a counsel in their private capacity. Accordingly, besides hearing the learned Amicus Curiae, the appellants are represented by their counsel. 6. The challenge made to the impugned judgment and order by the appellants is on the following grounds: wxyz (i) that during the entire Trial Court proceedings, the bulk quantity of the seized heroin was neither produced before the Trial Court nor was it exhibited. Also the samples taken out from the seized heroin were never exhibited in the Trial Court. As such, the inventory of the seized articles (Exhibit P-15) could not be said to be proved against the appellants. The non-production of the bulk seized article was accordingly in violation of the judgments of the Apex Court, in the case of Union of India Vs. Jarooparam, (2018) 4 SCC 334 and in the case of Gorakh Nath Prasad Vs. The State of Bihar, (2018) 2 SCC 305 . zyxw wxyz (ii) As the seized heroin was not produced before the learned Trial Court, there was no material exhibit made by the Trial Court. Jarooparam, (2018) 4 SCC 334 and in the case of Gorakh Nath Prasad Vs. The State of Bihar, (2018) 2 SCC 305 . zyxw wxyz (ii) As the seized heroin was not produced before the learned Trial Court, there was no material exhibit made by the Trial Court. As such, the Trial was vitiated and in support of the submission, the learned counsel for the appellant has relied upon the judgment of the Apex Court in the case of Mohinder Singh Vs. State of Punjab, (2018) 18 SCC 540 . zyxw wxyz (iii) that samples of the seized heroin were neither produced nor drawn before the learned Magistrate and therefore, the same is in violation of Section 52 A(2)(c) of the ND&PS Act, the judgment of the Apex Court in the case of Union of India Vs. Mohanlal & Anr., (2016) 3 SCC 379 (31.1) and the judgment of the Gauhati High Court in the case of Dipak Kumar Singh & Anr. Vs. State of Assam, 2018 4 GauLT 128 . zyxw wxyz (iv) that the evidence adduced during the trial only reflects the fact that S.I. H. Lalengzama had taken down in writing the information received by him, with regard to transportation of heroin from Myanmar into Mizoram. However, there is nothing to show that the said information taken down in writing by S.I. H. Lalengzama had been forwarded to an authority superior to him. Therefore as Section 42(2) of the ND&PS Act has not been complied with, the appellants are to be acquitted from the charge. In support of his submission, the learned counsel for the appellants has relied upon the judgment of the Apex Court in Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539 . zyxw wxyz (v) that there are discrepancies in the evidence adduced by the official witnesses and the civilian witnesses and therefore, the benefit of doubt has to be given to the appellants. In this regard, the learned counsel for the appellants has relied upon the judgment of the Apex Court in the case of Union of India Vs. Leen Martin & Anr., (2018) 4 SCC 490 . In this regard, the learned counsel for the appellants has relied upon the judgment of the Apex Court in the case of Union of India Vs. Leen Martin & Anr., (2018) 4 SCC 490 . zyxw wxyz (vi) that the evidence given by PW-6, wherein it has been stated that the Dungtlang Police Outpost personnel seized 30 packets of heroin clearly shows that prior to S.I. Lalengzama having recovered and seized the heroin, Dungtlang Police Outpost personnel had already recovered the seized articles. zyxw wxyz (vii) that the I.O who had investigated the case was never produced as a witness. As such, the appellants were not given the opportunity to cross examine the earlier I.O., i.e., S.I. Lalsangliana. The latter I.O. i.e., the O.C. of Champhai Police Station (PW-6) only submitted the charge sheet and he never conducted the investigation. As the earlier I.O. could not be cross examined, the benefit of doubt has to be given to the appellants. zyxw wxyz (viii) that PW-6 gave his evidence twice i.e., on 22.05.2018 and 19.06.2018, wherein he improved upon his earlier evidence, which cannot be allowed. zyxw wxyz (ix) that as the appellants have been convicted as first time offenders, they should have been given the minimum punishment provided under Section 21(c) ND&PS Act i.e., 10 years and not 20 years imprisonment. In this regard, the appellants counsel has relied upon the judgments of the Apex Court in the case of Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat, (2013) 1 SCC 570 and in Balwinder Singh Vs. Asstt. Commr; Customs & Central Excise, (2005) 4 SCC 146 . zyxw wxyz (x) that the Arresting Officer, S.I. Lalsangliana was also the Investigating Officer and therefore, the investigation and the Trial are vitiated. In this regard, the learned Amicus Curiae has relied upon the judgment of the Apex Court in the case of State Vs. Rajangam, (2010) 15 SCC 369 . zyxw 7. The Public Prosecutor, on the other hand, submits that even though the bulk of the seized articles had not been produced during the Trial, as the same is not reflected in the evidence adduced by the witnesses, the evidence of PW-6, who is the second I.O. and Officer-in-charge of Champhai P.S. shows that the copy of the inventory of the seized heroin was exhibited as Ext.P-15. He accordingly submits that as there was no challenge to the contents of Ext.P-15, the fact that 439 grams of heroin was seized from the possession of the appellants has been proved. 8. The Public Prosecutor also submits that Section 42 of the ND&PS Act has been complied with, as the evidence of PW-6 states that S.I. H. Lalengzama had recorded the information in writing under Section 42(1) ND&PS Act and also in view of Exhibit P-5, which is the information recorded by S.I. H. Lalengzama under Section 42(1) of the ND&PS Act. 9. The learned Public Prosecutor also submits that Sub-Section 2 of Section 52 A of the ND&PS Act was followed by the Police, while producing the seized heroin and taking samples before the Court of the Magistrate 1st Class. In this regard, the learned counsel has relied upon Exhibit P-15. He also submits that the evidence of the civilian witnesses, PW-2 & PW-3 clearly proves the fact that the seized heroin was recovered from the constructive possession of the appellants. He also submits that the appellants were required to establish as to how they were in possession of the heroin, which they could not explain satisfactorily. As such, the fact of the seized heroin being recovered from the possession of the appellants is proved. In this regard, he has relied upon the judgment of the Apex Court in State of Punjab Vs. Lakhwinder Singh & Anr., (2010) 4 SCC 402 . The learned Public Prosecutor also submits that the appellants cannot now raise issues in this appeal, which they had not otherwise raised during the Trial. He submits that the various issues which the appellants are trying to raise now, should have been put to the prosecution witnesses during their cross examination. The same having not being done, the appellants cannot now raise new points and if new facts are to be considered at the appellate stage, the case should be remanded back for re-trial on those new facts. 10. We have heard the learned counsels for the parties. 11. A perusal of the records show that only 5 prosecution witnesses were examined by the Trial Court. The evidence of all the 5 prosecution witnesses are silent with respect to production of the seized articles/heroin and/or the samples during the Trial. Exhibit P-15 is a copy of the inventory of the seized articles. 11. A perusal of the records show that only 5 prosecution witnesses were examined by the Trial Court. The evidence of all the 5 prosecution witnesses are silent with respect to production of the seized articles/heroin and/or the samples during the Trial. Exhibit P-15 is a copy of the inventory of the seized articles. The contents of PW-15 has not been disputed by the appellants. 12. In the case of Union of India Vs. Jarooparan (Supra), the Apex Court has held that omission on the part of the prosecution to produce the bulk quantity of the seized opium would create a doubt in the mind of the Court on the genuineness of the samples drawn and marked as drawn from the alleged seized contraband. In the case of Gorakh Nath Prasad Vs. State of Bihar (Supra), the Apex Court has held that where no explanation has been furnished by the prosecution for non-production of the contraband as an exhibit in the Trial, the benefit of doubt would have to go to the accused, as there would be no evidence to connect the forensic report with the contraband that was seized from the possession of the accused. In the above case of Gorakh Nath Prasad (Supra), the Apex Court also found that the independent search and seizure witnesses had turned hostile and the remaining prosecution witnesses were only Police Officers. It was in view of the above facts that the Apex Court held that it would not be safe to rely upon the testimony of Police Officers alone, especially when the seized Ganja had not been produced as an exhibit in the Trial. In the case of Jitendra Singh Vs. State of M.P., (2011) 5 SCC 123 , the Apex Court has held that where there was no independent witness to the recovery of drugs from the possession of the accused and as the drugs were not produced before the Trial Court, so as to connect them with the samples sent to the FSL, the burden of proving that the drugs were recovered from the accused cannot be discharged when there was no explanation for the failure to produce the same. In the case of Mohinder Singh Vs. State of Punjab (Supra), the Apex Court held at paragraph 12 & 13 as follows:- wxyz "12. In the case of Mohinder Singh Vs. State of Punjab (Supra), the Apex Court held at paragraph 12 & 13 as follows:- wxyz "12. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband. zyxw wxyz 13. In Vijay Jain v. state of M.P., this Court reiterated the necessity of production of contraband substances seized from the accused before the trial court to establish that the contraband substances seized from the accused tallied with the samples sent to the FSL. It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient. It was held as under:- zyxw wxyz " 10. On the other hand, on a reading of this Court''s judgment in Jitendra v. State of M.P., we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok v. State of M.P., this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant." zyxw wxyz In the case of State of Rajasthan Vs. Sahi Ram, (2019) 10 SCC 649 , the Apex Court has held that the non-production of the entire contraband is not a ground for acquittal by itself. It held that if seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the Court. Further, the Apex Court has held in paragraph Nos. 15 & 16 as follows:- zyxw wxyz "15. It is true that in all the aforesaid cases submission was advanced on behalf of the accused that failure to produce contraband material before the Court ought to result in acquittal of the accused. However in none of the aforesaid cases the said submission singularly weighed with this Court to extend benefit of acquittal only on that ground. As is clear from the decision of this court in Jintendra, apart from the aforesaid submission other facets of the matter also weighed with the Court which is evident from paras 7 to 9 of the decision. Similarly in Ashok, the fact that there was no explanation where the seized substance was kept (para 11) and the further fact that there was no evidence to connect the forensic report with the substance that was seized, (para 12) were also relied upon while extending benefit of doubt in favour of the accused. Similarly, in Vijay Jain, the fact that the evidence on record did not establish that the material was seized from the appellants, was one of the relevant circumstances. In the latest decision of this Court in Vijay Pandey, again the fact that there was no evidence to connect the forensic report with the substance that was seized was also relied upon to extend the benefit of acquittal. zyxw wxyz 16. It is thus clear that in none of the decisions of this Court, nonproduction of the contraband material before the court has singularly been found to be sufficient to grant the benefit of acquittal." zyxw 13. In the present case, the fact that 439 grams of heroin had been recovered from 30 plastic soap cases kept in a yellow sack/bag which was being carried in the motor cycle ridden by the appellants have been proved not only by the independent private seizure witnesses, but also by the police. In the present case, the fact that 439 grams of heroin had been recovered from 30 plastic soap cases kept in a yellow sack/bag which was being carried in the motor cycle ridden by the appellants have been proved not only by the independent private seizure witnesses, but also by the police. The evidence of the prosecution civilian witnesses have not been put to test by the appellants during the trial to the effect that the seized heroin was not recovered from the nylon bag that was being carried on the motor cycle. Further Exhibit-15, which is the inventory of the seized 439 grams of heroin signed by PW-6 as the Officer-in-charge of Champhai Police Station and countersigned by the Judicial Magistrate 1st Class, Champhai has not been put to test or denied by the appellants during the Trial. The FSL report dated 31.08.2017 which found the samples of the seized heroin to be 84% pure and which was marked as Exhibit P-3 by PW-1 has not been put to test by the appellants, as they have not made any suggestion to PW-1 that the FSL report was wrong or that it did not relate to the seized 439 grams of heroin. In addition to this, the Police Officers have given their evidence which is in support of the evidence of the civilian witnesses and the FSL that the seized heroin was recovered from the bag which was being carried in the motor cycle being ridden by the two appellants. Thus, even though the seized heroin or the samples had not been produced in the Trial Court, the inventory of the seized heroin (Exhibit P-15), which was signed by the Officer-in-charge of Champhai Police Station and countersigned by the Judicial Magistrate 1st Class has not been put to challenge and as such, the same is only an admitted document. In view of the above reasons and keeping in mind the decision of the Apex Court in the case of State of Rajasthan Vs. Sahi Ram, (2019) 10 SCC 649 , non-production of the contraband material cannot be the reason to be singularly sufficient to grant the benefit of acquittal. In view of the above reasons and keeping in mind the decision of the Apex Court in the case of State of Rajasthan Vs. Sahi Ram, (2019) 10 SCC 649 , non-production of the contraband material cannot be the reason to be singularly sufficient to grant the benefit of acquittal. As no suggestion was put to the civilian witnesses by the appellants that the seized heroin was not recovered from the appellants and as there is no suggestion that the FSL examination report was not related to the samples taken from the seized heroin, we are of the view that the seizure of 439 grams of heroin from the appellants has been proven by the prosecution. 14. In the case of Dipak Kumar Singh & Anr. Vs. State of Assam (Supra), the Division Bench of this Court has held at paragraph No. 20 as follows:- wxyz "20. Now, in view of the law laid down in the case of Gurmail Singh (supra) and Chanam Metei (supra), the sampling done in the manner provided under Section 52A(2) provides credibility to the fact that samples sent for forensic examination and the samples seized were the same. Since, in the present case, procedure prescribed under Section 52A(2) has not been complied with there is no evidence to prove satisfactorily that the seals found by the PW 1 were in fact the same seals as were put on the sample packets." zyxw 15. The evidence of PW-6 is to the effect that S.I. H. Lalengzama had taken down in writing the information that heroin was going to be smuggled into Mizoram from Myanmar. Besides the above, Exhibit P-5 is the information taken down in writing by S.I. H. Lalengzama in compliance with Section 42(1) of the ND&PS Act. Section 42(2) of the ND&PS Act requires that a copy of the information taken down in writing under Section 42(1) by an Officer has to be sent to his immediate official superior. Besides the above, Exhibit P-5 is the information taken down in writing by S.I. H. Lalengzama in compliance with Section 42(1) of the ND&PS Act. Section 42(2) of the ND&PS Act requires that a copy of the information taken down in writing under Section 42(1) by an Officer has to be sent to his immediate official superior. Though there is no specific averment made in the evidence that a copy of the said information had been sent to the immediate official superior of S.I. H. Lalengzama, the evidence of PW-6, who was the O.C. of the Champhai Police Station, implies that a copy of the information taken down in writing had been served upon him and that he was aware of the same, as his evidence states that he had directed S.I. H. Lalengzama to take necessary steps. In any event, as the appellants did not put any suggestion to the Police Officers during cross-examination that the information taking down in writing had not been sent to the superior officer and as they did not cross examine PW-6 on whether he had been served a copy of the information taken down in writing, we do not have any reason to come to a finding that Section 42(2) of the ND&PS Act had not been followed. wxyz In the case of Union of India Vs. Mohanlal & Anr., (2016) 3 SCC 379 , the Apex Court has held at paragraph No. 31.1 as follows:- zyxw wxyz "31.1. No sooner the seizure of any narcotic drugs and 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." zyxw 16. As per the above extracts of the judgment of the Apex Court in Mohanlal (Supra) and the Division Bench of this Court in Dipak Kumar Singh & Anr. Vs. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order." zyxw 16. As per the above extracts of the judgment of the Apex Court in Mohanlal (Supra) and the Division Bench of this Court in Dipak Kumar Singh & Anr. Vs. State of Assam (Supra), an application under Section 52-A(2) of the ND&PS Act has to be made to the Magistrate, once seizure of any narcotic drugs, psychotropic and control substance is affected and after making an inventory of the same, 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. As stated earlier, the evidence of PW-6 who was the earlier Officer-in-charge of Champhai Police Station and who had submitted the charge sheet, even though he had not conducted investigation in the case, shows that the inventory of the seized heroin had been exhibited as Exhibit P-15. Exhibit P-15 has not been denied or doubted by the appellants, while cross examining PW-6. In fact, the appellants did not put any suggestion to PW-6 during cross examination to the effect that the seized heroin had not been recovered from the appellants. wxyz Further, a perusal of Exhibit P-15 shows that an application under Section 52-A(2) of the ND&PS Act had been made to the Judicial Magistrate 1st Class, Champhai and the said Magistrate countersigned the said inventory of seized drugs. Though there is nothing to show in Exhibit P-15 that samples have been taken from the seized drugs, the Order dated 20.08.2017 passed in the order sheet states as follows:- zyxw wxyz "Seen and received Champhai P.S C/No: 93/17 Dt. 19/8/17 u/s 21(c)/29 ND&PS r/w section 14 of Foreigners Act from O/C Champhai P.S against arrested accused Lalengliana (19) S/o Challianzual of Tahan, 2) Vansuihnunga (30) S/o Hmetlian of Tahan. This case record is 17 pages. The case I/O prayed to 48 hours of Police remanded and also prayed to application for certifying correctness of inventory, for taking photograph of seized articles and for drawing samples of S/A in presence of Magistrate and certifying the correctness of list of samples drawn. Prayer is allowed and accordingly, both accused shall be remanded into Police custody for 48 hrs. However, they shall be taken for medical examination at a regular interval. zyxw wxyz Also certified inventory. Prayer is allowed and accordingly, both accused shall be remanded into Police custody for 48 hrs. However, they shall be taken for medical examination at a regular interval. zyxw wxyz Also certified inventory. Photograph is taken and 2 samples each from each package is also drawn for chemical analysis." zyxw wxyz The above Order dated 20.08.2017 passed by the Judicial Magistrate 1st Class clearly goes to show that Section 52-A(2) of the ND&PS Act has been followed by the prosecution and the samples had been drawn in the presence of the Magistrate. Also on a perusal of the Lower Court Records, it is found that samples had been drawn in the presence of the Judicial Magistrate 1st Class, Champhai on 20.08.2017 vide certificate titled "List of sample drawn". However, the said document has not been exhibited by the prosecution in the Trial Court, for reasons best known to the prosecution. The exhibit of the "List of sample drawn" was not only the duty of the prosecution, but the learned Trial Court also had the duty to ensure that documents that had to be exhibited should have been exhibited. The Courts cannot be allowed to ignore facts and documents which are a part of the records. Though there can be instances of unintentional mistakes in overlooking facts and documents but nevertheless, it is the duty of Court to be diligent, especially in a case involving the seizure of heroin of commercial quantity. In any event, the Ld. Magistrate having clearly recorded the fact that the samples were drawn in his presence as per the order dated 20.08.2017 passed in the Trial Court order sheet, we do not find any reason to doubt the same. In the case of State of Maharashtra vs. Ramdas Shrivinas, the Apex Court has held at para 4 as follows:- zyxw wxyz 4...."We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there....." zyxw 17. With regard to the submission of the learned counsel for the appellants that there are discrepancies in the evidence adduced by the police witnesses and the civilian witnesses and that Dungtlang police personnel had already recovered the seized articles, prior to S.I. Lalengzama arriving at the scene and recovering the seized article, we do not find any discrepancies in the evidence given by the police witnesses and the civilian witnesses. Further, there is nothing to show that the recovery of the heroin had been made by the policemen in Dungtlang Police Outpost, prior to the same being done by S.I Lalengzama. There might be some minor inconsistencies, but the evidence of all the prosecution witnesses as a whole clearly shows that the seized heroin had been recovered from a bag, which was being carried in a bike ridden by the two appellants. 18. There might be some minor inconsistencies, but the evidence of all the prosecution witnesses as a whole clearly shows that the seized heroin had been recovered from a bag, which was being carried in a bike ridden by the two appellants. 18. With regard to the contention of the counsel for the appellants that the appellants were not given the opportunity to cross examine the earlier I.O. i.e., S.I. Lalsangliana, the appellants'' counsel has not been able to show as to how the same has caused any prejudice to the appellants, especially when the earlier I.O. has not given any evidence by way of examination-in-chief also. Also, the second I.O had given his evidence and the appellants had also cross-examined the second I.O. If the appellants had wanted some aspects of the seizure and recovery of heroin to be clarified, they could have put suggestions to the witnesses at the time of cross-examination, which they have not done. Further, nothing prevented the appellants from making an application before the learned Trial Court with a prayer to examine the earlier I.O. The same not having been done, the appellants cannot now take the stand that they were not given the opportunity to examine the earlier I.O. 19. With respect to the submission of the appellants'' counsel that PW-6 gave his evidence twice and that he improved upon his earlier evidence, we find that the main difference between the two evidence given by PW-6 on two different dates, is that the inventory of seized articles has been exhibited as Exhibit P-15 on the later date. We do not find any infirmity with the recalling of PW-6 for further evidence as the same can be done as per Section 311 Cr.P.C. and as no prejudice has been caused to the appellants due to the same. Further, the giving of evidence for the second time by PW-6 has never put to challenge by the appellants at any stage and neither has the authenticity of Exhibit P-15 been challenged by the appellants by way of a suggestion or denial during cross examination or at any stage. 20. The answer given by the appellant No. 1 in his examination under Section 313 Cr.P.C. as per question and answer No. 3 is as follows:- wxyz "Q (3). 20. The answer given by the appellant No. 1 in his examination under Section 313 Cr.P.C. as per question and answer No. 3 is as follows:- wxyz "Q (3). The evidence against you is that on your way to Aizawl by taking Dungtlang road, police on duty at Dungtlang outpost intercepted you and then recovered the heroin from your possession. Is it correct? zyxw wxyz Ans:- Yes, it is correct. The Dungtlang police recovered the seized heroin from our possession. I agreed to accompany my friend accused no 2 just because of the money Rs. 5000/- being paid to me for taking my bike on hire. I never know that I was involved in such illegal transportation of contraband substances. I got involved in the present case unknowingly. I have no knowledge that my friend accused no 2 had an intention to carry such heroin." zyxw wxyz The answer given by the appellant No. 2 in his examination under 313 Cr.P.C. as per question and answer No. 5 is as follows:- zyxw wxyz "Q (5). Have you got any other thing to tell this court? zyxw wxyz Ans:- Frankly speaking this is the first time I came across with heroin. It belonged to Lalchhuanmawii R/o Zokhawthar. She asked me if I would help her carrying certain goods from Zokhawthar to Aizawl and I would be paid certain amount of money at Aizawl by someone else who would take delivery of the said goods. The said Lalchhuanmawii never divulged about the details of the said goods but simply said certain goods. Without knowing the content of the packet I simply with the help of accused no 1 took it towards Aizawl but on our way we were intercepted by the police." zyxw wxyz The answer of the appellants, as quoted above, indicates that the seized heroin was recovered from their possession. zyxw wxyz It is settled law that statements given by the accused under Section 313 Cr.P.C. cannot be the basis for convicting an accused. However, the statements given under Section 313 Cr.P.C. can be taken into consideration for corroborating the other evidence adduced by the witnesses for conviction, as per the judgment of the Apex Court in the case of Ashok Debbarma Vs. State of Tripura, (2014) 4 SCC 747 . zyxw 21. However, the statements given under Section 313 Cr.P.C. can be taken into consideration for corroborating the other evidence adduced by the witnesses for conviction, as per the judgment of the Apex Court in the case of Ashok Debbarma Vs. State of Tripura, (2014) 4 SCC 747 . zyxw 21. With regard to the contention of the learned Amicus Curiae that the investigation and trial were vitiated as the first I.O. i.e., S.I. Lalsangliana was also the Arresting Officer, we find that no suggestion had ever been made by the appellants to the witnesses during evidence or even during recording of their statement under Section 313 Cr.P.C. that the investigation or trial was vitiated due to the above fact. 22. The Apex Court in the case of State Vs. Rajangam (Supra) has not interfered with the acquittal of the accused by the High Court, on the ground that the Officer who had registered the crime in the case also investigated the said crime. This decision had been made on the basis of the earlier judgment of the Apex Court in Megha Singh Vs. State of Haryana, (1996) 11 SCC 709 , which held that the complainant should not be investigating the case. In paragraph No. 4 of Megha Singh Vs. State of Haryana (supra), the Apex Court has held as follows:- wxyz "4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of PWs 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW 3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 CrPC. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." zyxw 23. The Judgment of the Apex Court in State Vs. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." zyxw 23. The Judgment of the Apex Court in State Vs. Rajangam (Supra) has been relied upon by a 3 Judges Bench of the Apex Court in the case of Mohan Lal Vs. State of Punjab, (2018) AIR SC 3853 , where it has laid down the law that fair investigation, which is the very foundation of a fair trial, necessarily postulates that the informant and the investigator must not be the same person. Accordingly, the Apex Court in the above case, which was with regard to the ND&PS Act, 1985 held that the prosecution was vitiated because a fair trial/ investigation could not be done. wxyz The above being said, there is a clarification of the law laid down in Mohan Lal (supra), in as much as another three judges of the Apex Court in a subsequent judgment, i.e. Varinder Kumar Vs. State of Himachal Pradesh, (2020) 3 SCC 321 , 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. zyxw wxyz Paras 12, 15, and 18 in Varinder Kumar (supra) are as follows: zyxw wxyz "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. zyxw wxyz 15. "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. zyxw wxyz 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. 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. zyxw wxyz 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. 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." zyxw 24. As can be seen from the judgments of the Apex Court in State Vs. Rajangam (Supra), Megha Singh Vs. State of Haryana (supra) and Mohan Lal vs. State of Punjab (supra), the Apex Court has held that the complainant/officer who registered the crime cannot be the Investigating Officer. In the present case, the earlier I.O, who had investigated the case i.e., S.I Lalsangliana was not the complainant as he had not registered the complaint. The complainant was S.I H. Lalengzama. Accordingly, we hold that the judgments of the Apex Court in State vs. Rajangam (Supra), Mohan Lal (supra) and Megha Singh Vs. State of Haryana (Supra) are not applicable to the facts of this case. The complainant was S.I H. Lalengzama. Accordingly, we hold that the judgments of the Apex Court in State vs. Rajangam (Supra), Mohan Lal (supra) and Megha Singh Vs. State of Haryana (Supra) are not applicable to the facts of this case. Further, there is nothing to show that the investigation or trial was not fair and neither has any suggestion been made on that issue by the appellants during trial (cross-examination). 25. With regard to the appellants'' counsel submission that the appellants being first time offenders, they should have been given the minimum sentence, we do not find any reason to subscribe to that point of view. In the case of Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat (Supra), the Apex Court reduced the sentence imposed upon the first time offender to 10 years, for possession of commercial quantity of brown sugar, taking into account the fact that the appellants had been convicted for the first time. The said decision had been made in light of the decision of the Apex Court in Balwinder Singh Vs. Asstt. Commr; Customs & Central Excise (Supra). wxyz On a perusal of the above two judgments of the Apex Court i.e., Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat (Supra) and Balwinder Singh Vs. Asstt. Commr; Customs & Central Excise (Supra), we find that no law has been laid down by the Apex Court that a first time offender needs to be given the minimum sentence and not the maximum sentence. However, the Apex Court has reduced the sentence having regard to the facts of the case and as the accused had been convicted for the first time. The present case shows that the appellants have been convicted for the first time. Though there is no hard and fast rule that a first time offender should be given the minimum sentence, keeping in view the facts and circumstances of the case, we are of the view that justice would be served if the sentence imposed is reduced. Accordingly, in view of the reasons stated above, we do not find any ground to interfere with the conviction of the appellants. Thus, while the appeal against the conviction is dismissed, the sentence imposed upon the appellants is reduced to 12 years Rigorous Imprisonment with a fine of Rs. 1 lakh each, i.d. R.I. for 2 months. Accordingly, in view of the reasons stated above, we do not find any ground to interfere with the conviction of the appellants. Thus, while the appeal against the conviction is dismissed, the sentence imposed upon the appellants is reduced to 12 years Rigorous Imprisonment with a fine of Rs. 1 lakh each, i.d. R.I. for 2 months. As no grounds of challenge have been put forth by the appellants with regard to their conviction and sentence under Section 14 of the Foreigners Act, the same is upheld. zyxw 26. Consequently, the impugned Judgment & Order dated 29.08.2018 passed by the Special Court, ND&PS Act, Champhai in Sessions Registration No. 15/2018 is modified to the extent that the appellants are sentenced under Section 21(c) of the ND&PS Act, 1985, to undergo Rigorous Imprisonment for 12 years with a fine of Rs. 1 lakh each, i.d. R.I. for 2 months. It is needless to mention herein that the period of sentence already undergone by the appellants shall be set off. 27. In appreciation of the assistance provided by Mr. Vanlalnghaka, the learned Amicus Curiae, his fee is fixed at Rs. 9,000/-, to be paid by the Mizoram State Legal Services Authority. The LCR being only photo copy of the original, the same need not be sent back.