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2020 DIGILAW 629 (GAU)

Rolianthuama v. State Of Mizoram

2020-07-31

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Nelson Sailo, J. - Heard Mr. Victor L. Ralte, the learned counsel for the appellant. Also heard Mrs. Linda L. Fambawl, the Addl. Public Prosecutor, Mizoram for the State respondent. 2. This is an appeal filed by the accused appellant against the Judgment & Order dated 03.12.2018 passed by the Special Court, Narcotic Drugs & Psychotropic Substances Act, 1985 (ND&PS Act), Aizawl Judicial District, Champhai Mizoram in Sessions Registration No. 140/2017, arising out of Criminal Trial No. 1270/2017 whereby, the appellant was convicted under Section 21(c) of the ND&PS Act and thereafter, sentenced to undergo Rigorous Imprisonment for a period of 18 years and to pay fine of Rs. 90,000/-. In default thereof, the appellant was also sentenced to undergo a further Rigorous Imprisonment for 1 (one) month. Be it stated herein that there were two accused persons who faced trial before the Court below and the instant appellant was the accused No. 1. 3. Mr. Victor L. Ralte, the learned counsel for the appellant at the outset has drawn our attention to the framing of charge against the appellant as well as the co-accused by the Trial Court on 13.09.2017. He submits that against the charge framed under Section 21(c)/29 of the ND&PS Act, the appellant pleaded guilty whereas, the co-accused pleaded not guilty. He submits that the learned Trial Court in the impugned Judgment & Order dated 03.12.2018, however recorded that the charge was read over and explained to the accused persons in Mizo language/own vernacular language which they both understood well and to which, they pleaded not guilty and claimed to be tried. 4. The learned counsel for the appellant further submits that although trial was conducted both against the appellant as well as the co-accused person, the learned Trial Court in the impugned judgment and order has not recorded any conclusion in respect of the other accused person Gindeihpianga. He therefore submits that the impugned judgment and order in so far as the co-accused is concerned, remains inconclusive. The learned counsel also submits that considering the charge and the conviction of the appellant for the first time, the sentence imposed upon the appellant is too harsh and excessive and therefore, the same may be suitably modified. 5. In view of the above submission, we have carefully perused the LCR requisitioned from the Trial Court. The learned counsel also submits that considering the charge and the conviction of the appellant for the first time, the sentence imposed upon the appellant is too harsh and excessive and therefore, the same may be suitably modified. 5. In view of the above submission, we have carefully perused the LCR requisitioned from the Trial Court. As already stated above, charge was framed against the accused persons on 13.09.2017 and the order that was recorded by the Trial Court in the Order Sheet may be reproduced below for ready perusal:- wxyz "Accd Rolianthuama and Gindeihpianga are produced from district jail. Today is fixed for c.c. zyxw wxyz Charge u/s 21(c)/29 ND & PS Act are framed, read over and explained to them to which Accd. No.1 pleaded guilty while Accd. No.2 pleaded not guilty. zyxw wxyz Fixed 20.9.2017 for F/P." zyxw 6. From the above abstract, it may be seen that the present appellant (accused No.1) pleaded guilty to the charge framed, while the other accused person (accused No.2) pleaded not guilty. Section 375 of the Cr.P.C. provides that no appeal will lie when an accused person pleads guilty. The said provision is abstracted below for ready perusal:- wxyz "375. No appeal in certain cases when accused pleads guilty.- Notwithstanding anything contained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,- zyxw wxyz (a) if the conviction is by a High Court; or zyxw wxyz (b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence." zyxw 7. As already stated herein above, the appellant pleaded guilty before the Trial Court and the same was duly recorded on 13.09.2017 in the Order Sheet of the Trial Court''s record. Having regard to the provision provided under Section 375 of the Cr.P.C, there appears to be no scope for the appellant to file an appeal against his conviction vide the impugned judgment and order except as to the extent or legality of the sentence. We therefore find no ground to interfere with the conviction and as such, it shall be maintained. 8. We therefore find no ground to interfere with the conviction and as such, it shall be maintained. 8. With regard to the second issue raised by the learned counsel for the appellant, a perusal of the Order Sheet in the LCR reveals that the Trial Court on 30.11.2018 had recorded certain observations. The same is reproduced below for ready perusal:- wxyz "Accused Rolianthuama @ Thuamtea and Gindeihpianga are produced from jail and their ld. Defence Counsel Ms. H. Vanlalhumi present. Ld Special PP Pu Zothanpuia Chawngthu present on behalf of the State. zyxw wxyz I have heard the ld. Special PP. and Ld. Defence Counsel. I have also heard Accused Rolianthuama who categorically and firmly stated to the Court that accused No.2 Gindeihpianga has no knowledge about the contraband substances concealed in the said vehicle. He was simply invited to accompany him towards Aizawl without any involvement in the case. I have also heard Gindeihpianga who stated that he has no hand in the case. zyxw wxyz I have come to a conclusion to pass a conviction order u/s 21(c) ND & PS Act against accused Rolianthuama only. Fixed 3.12.2018 for sentence hearing." zyxw 9. From the above abstract, it may be seen that as the appellant stated before the Court that the co-accused person did not have any knowledge about the contraband substances concealed in the vehicle and was simply invited to accompany him to Aizawl, the Trial Court decided to convict only the appellant of the charge framed. However, despite such observation and conclusion reached on 30.11.2018, the Trial Court did not pass a formal order to this effect as can be seen from the impugned judgment and order itself. Be that as it may, since it is nobody''s case that the co-accused/accused No.2 too should have been convicted and sentenced, we are not inclined to enter into this issue and leave it open to be examined in appropriate proceeding as and when the situation demands. We however caution the Court below to be more careful and meticulous in conducting trials, recording its findings and drawing its conclusion keeping in mind the stringent provisions laid down in the ND&PS Act. 10. Lastly, after convicting the appellant under Section 21(c) of the ND&PS Act, the Court below sentenced him to undergo Rigorous Imprisonment for a period of 18 years and to pay fine of Rs. 10. Lastly, after convicting the appellant under Section 21(c) of the ND&PS Act, the Court below sentenced him to undergo Rigorous Imprisonment for a period of 18 years and to pay fine of Rs. 90,000/- and with a default clause. It may be noticed that the minimum sentence prescribed by Section 21(c) of the ND&PS Act is 10 years imprisonment which may extend to 20 years with fine, which shall not be less than one lakh rupees but may extend to two lakh rupees. The Apex Court in Siddarama & Ors. Vs. State of Karnataka, (2006) 10 SCC 673 has held that sentencing system should be corrective or deterrent. It should be stern where it should be and tempered with mercy where it warrants to be. In other words, Court should award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. 11. The Apex Court in Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Anr., (2005) 1 SCC 122 has held that Section 482 of the Cr.P.C. does not confer any new powers on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. That it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. Similar view was taken by the Apex Court in Popular Muthiah Vs. State represented by Inspector of Police, (2006) 7 SCC 296 . The Apex Court went on to add that the High Court while exercising its revisional or appellate power, may exercise its inherent powers and the same can be exercised, both in relation to substantive as also procedural matters. 12. In the above backdrop and having regard to the facts and circumstances in the present case, particularly the fact that the appellant has been convicted for the first time, we are of the considered view that the Court below ought to have imposed an appropriate sentence. 12. In the above backdrop and having regard to the facts and circumstances in the present case, particularly the fact that the appellant has been convicted for the first time, we are of the considered view that the Court below ought to have imposed an appropriate sentence. We therefore hold that the ends of justice will be served, if the sentence imposed upon the appellant is reduced to Rigorous Imprisonment for 12 years by invoking the powers conferred to this Court by Section 482 of the Cr.P.C. In so far as the fine imposed and the default clause are concerned, we do not intend to differ and they shall remain unchanged. It is ordered accordingly. 13. With the above observations, directions and modification, the appeal stands disposed of. The LCR being only a photo copy of the original, the same be retained. A copy of this order be sent to the Court below for guidance and compliance.