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2021 DIGILAW 170 (GAU)

Ralkhuma Chhangte v. State Of Mizoram

2021-02-23

MICHAEL ZOTHANKHUMA, S.HUKATO SWU

body2021
JUDGMENT M. Zothankhuma, J. - Heard Mr. Vanlalnghaka, learned Amicus Curiae. Also heard Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor. 2. This is an appeal against the Judgment & Order dated 07.11.2019 passed by the Special Court, ND&PS Act, Champhai in Sessions Case No. 106/2018 arising out of Criminal Trial No. 657/2018, by which the appellant has been convicted under Section 20(b)(ii)(C) of the ND&PS Act, 1985 and sentenced him to undergo rigorous imprisonment for 12 years with a fine of Rs. 1 lakh, in default rigorous imprisonment for 6 (six) months. 3. The prosecution story of the case in brief is that S.I Jerry L.D Poonte, incharge of DSB, Champhai Police received information that contraband was going to be transported in a Maxi Cab Sumo. On the basis of the information which was taken down in writing, Mr. Jerry L.D Poonte, S.I and his party conducted a search of Maxi Cab Sumo bearing registration No. MZ-01-J-9673 at Zote village, Champhai and thereupon seized 2 (two) white nylon bags and 1 (one) green hold-all. The same contained seeds and flowering tops suspected to be ganja weighing a total of 51.6 kilograms. Thereafter, Champhai P.S Case No. 9/2018 dated 31.01.2018 was registered under Section 20(b)(ii)(C) of ND&PS Act, 1985. The accused/appellant and the seized articles were produced before the Magistrate wherein the samples were drawn and inventory of the seized articles made. The sample was sent to the FSL for chemical analysis. 4. After the I.O conducted the investigation and the FSL report confirmed that the seized articles were ganja, charge-sheet was filed. 5. Charge was framed under Section 20(b)(ii)(C) of the ND&PS Act, 1985, to which the appellant pleaded not guilty. Thereafter, 3 (three) prosecution witnesses and 7 (seven) defence witnesses were examined by the learned Trial Court. The examination of the appellant was also taken under Section 313 Cr.P.C on 01.10.2019. The learned Trial Court thereafter came to a finding that the appellant had knowingly carried the bags/hold-all containing 51.6 kilograms of ganja and thus convicted the appellant under Section 20(b)(ii)(C) of the ND&PS Act and sentenced him to undergo rigorous imprisonment for a period of 12 (twelve) years and to pay a fine of Rs. 1,00,000/-, in default rigorous imprisonment for 6 (six) months. 6. 1,00,000/-, in default rigorous imprisonment for 6 (six) months. 6. The learned Amicus Curiae submits that the evidence of DW-7 and the statement given by the appellant under Section 313 Cr.P.C would go to show that the seized ganja did not belong to the appellant. The appellant was carrying the seized articles for his friend, believing the same to be clothes. He accordingly submits that as the appellant was not aware that he was carrying ganja, the appellant should not have been convicted for a crime which was not of his making. 7. Mr. Vanlalnghaka, the learned Amicus Curiae also makes an alternative prayer for showing leniency upon the appellant, as he is the sole bread earner of his family, having a wife and children, by reducing the sentence imposed upon the appellant. 8. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand, submits that there has been no violation of the provisions of the ND&PS Act, 1985 during the time of search and seizure. Further, the appellant had admitted to being in possession of the green hold-all and the two white bags, which contained the seized articles. She accordingly submits that as there has been conscious possession of the seized bags/hold-all, which contained the seized articles, there is nothing to show that appellant was innocent of the charge framed under Section 20(b)(ii)(C) of the ND&PS Act. She also submits that the evidence given by the defence witnesses nowhere states that the appellant was not guilty of the crime. She submits that the evidence given by the defence witness only points to the fact that the appellant was a member of the YMA (an NGO) and was a Church going member of the society. She accordingly prays that the impugned judgment & order should be upheld. 9. We have heard the learned counsels for the parties. 10. The fact that the green hold-all and the two white bags contained ganja is not denied by the appellant. The only stand taken by the appellant in his examination under Section 313 Cr.P.C is that his childhood friend Maliana had brought the hold-all/bags, while he was sitting in the Maxi Cab and had asked him to take the same till Champhai. The only stand taken by the appellant in his examination under Section 313 Cr.P.C is that his childhood friend Maliana had brought the hold-all/bags, while he was sitting in the Maxi Cab and had asked him to take the same till Champhai. The appellant in his examination under Section 313 Cr.P.C also states that he did not know the contents of the bags/hold-all, believing the same to be clothes for students, as that what was told to him by Maliana. The appellant came to realize the bags/hold-all contained ganja only when the recovery of the same was made by the Police. 11. The evidence given by the defence witnesses, which includes the wife of the appellant, i.e. DW-6, nowhere states that one Maliana had asked or given the bags/hold-all to the appellant to take from Hnahlan village to Champhai. DW-6 states in her evidence that when the Police unloaded the hold-all from the Sumo, which contained ganja and enquired about the owner of the same, her husband (appellant) claimed ownership of the hold-all. 12. The Lower Court records show that in the first progress report made by the Police during the Police investigation, the appellant had admitted to the Police that before he and his wife had departed from Hnahlan, one person whose name he did not know, requested him to carry his 2 (two) white plastic bags and one green hold-all. He was also informed that one person from Champhai would receive the articles at the Sumo counter in Champhai. 13. The evidence of PW-4, i.e. the I.O, is that the appellant never claimed ownership of the seized articles though he had admitted carrying the contraband substances towards Champhai in the bags/hold-all. 14. The evidence of PW-1, i.e. S.I of Police Jerry L.D Poonte, is that on receiving secret information about the transportation of ganja from Hnahlan to Champhai, which he took down in writing, he informed his superiors as per Section 41(1) of the ND&PS Act. The Police party waited for the Sumo at Zote village. The Sumo was stopped and the 2 (two) plastic bags and hold-all were opened, wherein ganja was found. When asked as to who was the owner of the plastic bag and the holdall, the driver of the Sumo stated that it belonged to the appellant. The Police party waited for the Sumo at Zote village. The Sumo was stopped and the 2 (two) plastic bags and hold-all were opened, wherein ganja was found. When asked as to who was the owner of the plastic bag and the holdall, the driver of the Sumo stated that it belonged to the appellant. The appellant thereafter claimed ownership of the same, after being asked if he was the owner of the same. 15. The evidence of PW-3, who is the seizure witness, is to the effect that the bags and the hold-all contained ganja and that he put his signature in the seizure memo. A perusal of the seizure memo also shows that besides PW-3, the driver of the Sumo was the second civilian seizure witness. 16. The evidence of DW-7, who was one of the passengers in the Maxi Cab is to the effect that the appellant did not carry a bag. Nothing was seized from the bag or the body of the appellant. DW-7 however states in the cross-examination that when the Police asked as to who was the owner of the seized items, the appellant responded that someone had sent the same through him. 17. The examination of the appellant under Section 313 Cr.P.C shows that the appellant has admitted to carrying the seized articles, though he has denied that he was aware of the contents of the hold-all and the white nylon bags at the time he accepted the request to carry the bags/hold-all. The examination of the appellant under Section 313 Cr.P.C is reproduced below:- "Q. (1). The evidence against you is that on 31.01.2018, at around 10:00 AM, you were on board of a maxi cab Sumo bearing No. MZ01-J-9673 from Hnahlan to Champhai. Is it correct? Ans: Yes. It is correct. Q. (2). The evidence against you is that by that time of your journey, you carried ganja weighing 51.6 grams along with you and the same was seized by Champhai police at Zote Bridge. Is it correct? Ans: Yes. It is correct. Q. (3). The evidence against you is that you have not obtained any permission for possessing/carrying/transporting such huge quantity of contraband substances. Is it correct? Ans: Yes. It is correct. (4). Have you got anything to tell this court? Ans:- I am a permanent resident of Hnahlan village. I have a friend named Maliana residing at Khuangphah village. Q. (3). The evidence against you is that you have not obtained any permission for possessing/carrying/transporting such huge quantity of contraband substances. Is it correct? Ans: Yes. It is correct. (4). Have you got anything to tell this court? Ans:- I am a permanent resident of Hnahlan village. I have a friend named Maliana residing at Khuangphah village. He was my childhood friend. Just before I got into the Maxi Cab Sumo, he brought the said hold-all and requested me to carry with me on the vehicle till Champhai. I and the driver of the vehicle picked it up and put it on the rooftop of the maxi cab Sumo. I did not know the contents of the bag/hold-all. But my friend told me that it was cloths for students. When we reached Zote Bridge, the police intercepted the Sumo and seized the ganja." 18. In the case of Deepak Pangyang vs. State of Arunachal Pradesh, (2011) 1 GauLR 160 , the Division Bench of this Court has held that there is no impediment in law for a Court to convict an accused on his admission, made by him during his examination under Section 313 Cr.P.C. 19. As can be seen, the appellant has not denied carrying the hold-all and nylon bags from Hnahlan to Champhai. The only denial made is that he was not aware that the bags/hold-all contained ganja, as he believed the same to be containing clothes. 20. In the case of Dharampal Singh vs. State of Punjab, (2010) 9 SCC 608 , the Apex Court has held that once possession is established, the accused who claims that it was not a conscious possession has to establish it because it is within his special knowledge. Further, Section 54 of the ND&PS Act, 1985, raises a presumption of possession of illicit articles and unless and until the contrary is proved, the accused has committed an offence of possession under the ND&PS Act, 1985. The Apex Court held that a reading of Section 54 of ND&PS Act creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence, in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession therefore has to be understood in that context thereon. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession therefore has to be understood in that context thereon. The Apex Court in the above case of Dharampal Singh vs. State of Punjab (supra) has held at para 16 as follows:- "16. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in the case of Madan Lal and another vs. State of H.P., (2003) 7 SCC 465, wherein it has been held as follows: "26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act." 21. In the present case, while putting to test the possession of the seized ganja in the context of Section 35 & Section 54 of the ND&PS Act, 1985, we are of the view that the appellant was in conscious possession of the ganja, as no satisfactory explanation for the same has been given by the appellant. Further, the name of Maliana has only come up in the examination of the appellant under Section 313 Cr.P.C, though the said information, could have been given to the Enforcement Agency right from the very beginning, at the time of seizure of the ganja. The evidence of the defence witnesses nowhere shows that any person had given the said hold-all/bags to the appellant. It is surprising that there were no eye witness to the handing over of the 2 (two) white bags and green hold-all to the appellant by the said Maliana or anybody else when the appellant was about to get into the Maxi Cab. It is surprising that there were no eye witness to the handing over of the 2 (two) white bags and green hold-all to the appellant by the said Maliana or anybody else when the appellant was about to get into the Maxi Cab. The evidence clearly shows that the appellant was in conscious possession of the 2 (two) big white bags and the hold-all containing ganja, as it is unlikely that the appellant would not know what was being carried by him. 22. In view of the reasons stated above, we do not find any grounds to interfere with the conviction of the appellant vide impugned judgment & order passed by the learned Trial Court. However, we are of the view that justice would be served if the sentence imposed upon the appellant is reduced to 10 years rigorous imprisonment with a fine of Rs. 1 lakh, in default rigorous imprisonment for 6 (six) months. Consequently, though the conviction of the appellant under Section 20(b)(ii)(C) of the ND&PS Act, 1985 is not interfered with, the sentence imposed is modified to the extent indicated above in the impugned Judgment & Order dated 07.11.2019 passed by the Special Court, ND&PS Act, Champhai in Sessions Case No. 106/2018 arising out of Criminal Trial No. 657/2018. 23. Send back the LCR. 24. In view of the assistance provided by the learned Amicus Curiae, his fee is fixed at Rs. 9,000/- (Rupees Nine Thousand) only, to be paid by the Mizoram State Legal Services Authority.