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2021 DIGILAW 447 (GAU)

Rohmingthanga v. State of Mizoram

2021-07-23

NELSON SAILO

body2021
JUDGMENT : Nelson Sailo, J. 1. Both the criminal appeals arise out of the common judgment and order dated 29.8.2019 and the order of sentence dated 04.09.2019 passed by the Court of Additional District and Sessions Judge-III, Aizawl Judicial District, Aizawl in S.C. No. 125 of 2016, A/o Cr. Tr. No. 1150 of 2016 u/s. 25(1-A) of the Arms Act, 1959 (Arms Act) r/w Section 34 of the Indian Penal Code (IPC) and therefore, they are taken up together for disposal. 2. The case of the prosecution in brief is that on 16.01.2015, pursuant to the information received from sources, CID (SB) Staff, Narcotic P.S Staff and ‘G’ Branch SHQ, BSF, Aizawl conducted a joint operation in the evening of 16.01.2015 at 3:15 p.m. and recovered 1986 numbers of 5.56 mm prohibited ammunition estimated to be valued at Rs. 5,95,800/- from one taxi bearing registration No. MZ-01 C 0985 near Sairang village. The driver of the said taxi Mr. Rohmingthanga (the appellant in Crl. A. No. 46/2019) and his passenger Laldinnghaka were apprehended and the ammunition seized. Accordingly, an FIR was lodged before the Officer-in-Charge, Sairang Police Station, Aizawl, Mizoram and Sairang P.S Case No. 3/2015 dated 16.1.2015 U/s 25(1-A) of the Arms Act r/w Section 34 IPC was registered. In the course of investigation, Mr. Laldinnghaka was not found to be involved in the said case and after being remanded to judicial custody, he was released. The statement of the accused Mr. Rohmingthanga revealed that the seized ammunition belonged to Mr. H. John Sangkhuma and therefore, the latter was also arrested. Five (5) numbers of the seized ammunition was sent to the FSL for examination and upon test firing and examination, they were found to be live ammunition of foreign origin. The case Investigating Officer (10) upon finding a prima facie case against both the accused persons filed the charge sheet against them before the Court below u/s. 25 (1-A) of the Arms Act r/w Section 34 of the IPC. The Trial Court framed charge against both the accused persons on 08.11.2016 under the aforementioned sections of law and to which, both the appellants pleaded not guilty and claimed for trial. 3. During the trial, the prosecution examined seven (7) prosecution witnesses (PWs) while the defense examined three (3) defense witnesses (DWs). The Trial Court framed charge against both the accused persons on 08.11.2016 under the aforementioned sections of law and to which, both the appellants pleaded not guilty and claimed for trial. 3. During the trial, the prosecution examined seven (7) prosecution witnesses (PWs) while the defense examined three (3) defense witnesses (DWs). After the evidence of the prosecution was over, the appellants were examined u/s. 313 of the Cr.P.C. and the reply to the questions put to them was basically that of denial. They denied of having any knowledge about the seized ammunitions and their involvement with the same. Consequently, the learned Trial Court upon hearing the rival parties vide the impugned Judgment and order dated 29.08.2019 convicted both the appellants u/s. 25 of the Arms Act r/w Section 34 of the IPC and thereafter, vide order dated 04.09.2019 sentenced them both to undergo five (5) years Simple Imprisonment and to pay a fine of Rs. 1,000/- each with a default clause. Aggrieved, the appellants are before this Court through the instant appeals. 4. Appearing for the appellant in Crl. A No. 46/2019, Mr. J.C. Lalnunsanga, learned counsel submits that the appellant has challenged the decision of the learned Trial court on five (5) main grounds. They are: (i) The appellant did not have conscious possession of the alleged seized ammunitions, (ii) There were no civilian witnesses to witness the alleged seizure, (iii) The alleged ammunition was not seized from the appellant but from the passenger of the taxi driven by the appellant i.e. Sh. Laldinnghaka, (iv) It is not clear from the prosecution’s case as to whether the alleged ammunition was kept in a gunny bag or in a nylon bag and therefore, the contradiction vitiates the conviction and (v) There was delay in the examination of the alleged ammunition by the FSL. 5. Referring to the deposition of DW-2, the learned counsel submits that the appellant is a taxi driver by profession and on the day of the incident, the appellant while he was at Ramrikawn Taxi Stand, he received a telephone call from the co-accused Mr. H. John Sangkhuma. The latter asked him to go to Sihhmui to deliver two (2) parcels containing ration from Dawrpui Vengthar, Aizawl. H. John Sangkhuma. The latter asked him to go to Sihhmui to deliver two (2) parcels containing ration from Dawrpui Vengthar, Aizawl. Accordingly, he proceeded to Dawrpui Vengthar and after loading the two (2) parcels into his taxi, he proceeded towards Sihhmui along with one male person whom he invited to come along. The appellant stated that he was informed by Mr. H. John Sangkhuma that some laborers constructing bridge at Sihhmui will collect the said two (2) parcels when he reached Sihhmui. However, before reaching Sairang, the police intercepted them and they were brought to Sairang Police Station. The appellant did not know the contents of the two (2) parcels and that he innocently transported them to Sihhmui as instructed by Mr. H. John Sangkhuma. 6. The learned counsel by referring to the deposition of DW-3 i.e. Mr. H. John Sangkhuma submits that the version of the appellant is clearly corroborated by the said witness and therefore, it is clear that the appellant is not involved in the recovery of the alleged ammunition and is innocent. He further submits that the learned Trial court committed error in drawing a presumption that the appellant was aware of the contents of the two (2) parcels merely because he was given a sum of Rs. 500/- as taxi fare and that the co-accused person did not give any fare for engaging his taxi from Ramrikawn to Dawrpui Vengthar. In this regard, the learned counsel submits that there are no materials on record to show that the appellant was engaged free of cost. 7. The learned counsel submits that in order to establish a case under the Arms Act, mere possession of the arms and ammunition is not sufficient and that the possession has to be conscious possession which may either be physical possession or constructive possession i.e. having power and control over the arms and ammunition in question. In support of his submission, the learned counsel relies upon the following authorities: (1) Adhiraj Singh Yadav vs. State, W.P (Crl) No. 754/2020, dated 31.12.2020 (2) Gumvantlal vs. State of Madhya Pradesh, (1972) 2 SCC 194 (3) Sanjay Dutt vs. State through CBI Bombay, (1994) 3 SCC 344 (4) Raosaheh Balu Killedar vs. State of Maharashtra, 1995 Cri. L.J. 2632 8. L.J. 2632 8. The learned counsel further submits that the investigating team did not make any attempt to call independent civilian witnesses to witness the alleged seizure and therefore, the same has made the prosecution’s case to be highly doubtful. He submits that the packing and sealing of the seized ammunition was also not done in front of independent civilian witnesses. Therefore, the same amounts to a serious infirmity since the possibility of tampering with the seized ammunition cannot be ruled out. As such, the appellant is entitled to the benefit of doubt. In this connection, the learned counsel relies upon the following authorities: (1) Md. Moinul Hague vs. State of Assam, Criminal Revision No. 269/2004, dated 6.6.2012 (2) Sahib Singh vs. State of Punjab, (1996) 11 SCC 685 9. The learned counsel submits that from the cross-examination of PW-1, it is clear that at the time of seizing the alleged ammunition, no civilian witnesses were present. The learned counsel submits that according to the prosecution, the alleged ammunition was seized on 16.01.2015 and the same was sent for FSL examination after a lapse of seven (7) days on 23.01.2015 without there being any order from the court. He submits that the police did not obtain certificate of authority from the court for sending the seized ammunition for FSL examination and that it was simply forwarded by the Addl. Superintendent of Police, Aizawl District, Aizawl on 23.1.2015. The prosecution was also required to produce the concerned Malkhana Register to show that the seized article was not tampered with. Since there is nothing on record to show that the seized article was kept in sealed cover immediately after it was seized, the prosecution has only failed to establish their case with proof beyond reasonable doubt and therefore, the appellant is entitled to be given the benefit of doubt. In support of his submission, the learned counsel has relied upon the decision of this Court rendered in Lalmawia and Another vs. State of Mizoram and Another, 2019 (5) GLT 828 [Criminal Appeal No. 38/2018 vide Judgment and Order dated 19.9.2019]. 10. Mr. F. Lalengliana, learned counsel appearing for the appellant in Criminal Appeal No. 4/2020 submits that he adopts the arguments presented by Mr. J.C. Lalnunsanga. He also submits that the seized article was not recovered from the possession of the appellant. 10. Mr. F. Lalengliana, learned counsel appearing for the appellant in Criminal Appeal No. 4/2020 submits that he adopts the arguments presented by Mr. J.C. Lalnunsanga. He also submits that the seized article was not recovered from the possession of the appellant. Although the prosecution examined seven (7) prosecution witnesses but there are no independent witnesses and therefore, the same has made the case of the prosecution doubtful and unreliable. He submits that in fact the appellant was not present when seizure was made and that the prosecution failed to prove mens-rea on the part of appellant. 11. The learned counsel further submits that the charge framed against the appellant on 8.11.2016 is to the effect that on 16.01.2015, the appellant was said to be in possession of 1986 numbers of 5.56 mm prohibited ammunition inside Clenson Firing Arms Engineering Works at Dawrpui Vengthar where he was working and therefore, he had committed an offence punishable u/s. 25 of the Arms Act. The learned counsel submits that the materials on record would go to show that the ammunition was not seized from the possession of the appellant inside the engineering works at Dawrpui Vengthar but from the taxi driven by the co-accused person near Sairang. Therefore, the charge being vague and not in consonance with the evidence on record, the conviction and sentence of the appellant cannot be sustained. 12. The learned counsel further submits that when two (2) views are possible, the view which is favorable to the accused should be adopted. In support of his submission, the learned counsel has relied upon the following authorities: (1) Durga Prasad Gupta vs. State of Rajasthan through CBI, (2003) 12 SCC 257 (2) Harijana Thirupala and Others vs. Public Prosecutor, High Court of A.P. Hyderabad, (2002) 6 SCC 470 13. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor appearing for the State in both the appeals submits that the two (2) appellants are partners and therefore, there is conscious possession of the ammunition that was seized. She submits that PW-2 and PW-3 are civilian witnesses and therefore, the issue raised by the learned counsels for the appellants will have to be ignored. She submits that in the absence of any suspicious circumstance, delay by itself will not be fatal. She submits that PW-2 and PW-3 are civilian witnesses and therefore, the issue raised by the learned counsels for the appellants will have to be ignored. She submits that in the absence of any suspicious circumstance, delay by itself will not be fatal. She submits that even the FSL expert i.e. PW-4 was examined by the prosecution and the defense had the opportunity to cross-examine him. The said witness nowhere in his evidence stated that there was suspicion or even a presumption that there was tampering in the ammunition that was sent for forensic examination. Further, as per the Information Manual of the Directorate of Forensic Science Laboratory, Home Department, Govt. of Mizoram, cases to be examined in the laboratory can be forwarded by any officer who is not below the rank of Deputy Superintendent of Police. In the present case, samples of the ammunitions seized was forwarded by the Addl. Superintendent of Police, Aizawl District, Aizawl and therefore, the investigating agency and the prosecution have not violated any law. In support of her submission, the learned Addl. Public Prosecutor relies upon the following authorities: (1) Dharampal Singh vs. State of Punjab, (2010) 9 SCC 608 (2) Hardip Singh vs. State of Punjab, (2008) 8 SCC 557 14. 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. The issue to be decided is as to whether the charge framed against the appellants u/s. 25 (1-A) of the Arms Act r/w Section 34 IPC have been proved beyond any reasonable doubt. In order to find that out, let us examine the evidence led by the rival parties. 15. PW-1 S.I. Lalrokima Chhangte is the informant who stated in his examination-in-chief that on 16.01.2015 while he was performing duty in his office, a reliable information was received to the effect that ammunitions were being transported between Sairang and Aizawl. Accordingly, CID (SB) Staff, Narcotic P.S Staff and ‘G’ Branch SHQ, BSF, Aizawl conducted joint operation that evening at around 3:15 p.m. and they recovered 1986 rounds of 5.56 mm ammunition estimated to have a value of Rs. 5,95,800/- from one taxi bearing registration No. MZ-01C-0985 near Sairang village. He seized the said ammunitions, the taxi alongwith its documents and also detained the taxi driver Mr. Rohmingthanga and his passenger Laldinnghaka. 5,95,800/- from one taxi bearing registration No. MZ-01C-0985 near Sairang village. He seized the said ammunitions, the taxi alongwith its documents and also detained the taxi driver Mr. Rohmingthanga and his passenger Laldinnghaka. He then produced the seized articles and the detainees at Sairang Police Station and submitted an FIR. He exhibited the FIR, his signature, the seizure memo and his signature, the seized ammunitions, the seized taxi and the documents of the taxi as exhibit P-1, P-1 (a), P-2, P-2(a), M-1, M-2 and M-3 respectively. In his cross-examination, he stated that at the time of seizing the alleged ammunition, no civilian witnesses were present. Further, at the time of seizure only Mr. Rohmingthanga, the taxi driver and the passenger Mr. Laldinnghaka were present and that the other accused Mr. H. John Sangkhuma was not present. He also stated that he did not know when the seized article was sent to the expert for examination. 16. PW-2, Lalduhzuala in his examination-in-chief stated that on the evening of 6.1.2015, the CID (SB) Staff, Narcotic P.S Staff and ‘G’ Branch SHQ, BSF Aizawl conducted joint operation and they seized 1986 numbers of 5.56 mm ammunitions kept in a gunny bag under the front seat of taxi bearing registration No. MZ-01C-0985 in his presence and he stood as seizure witness. The taxi and its documents were also seized and the accused Rohmingthanga was the driver of the taxi. He exhibited the seizure memo and his signature as Exhibit P-2 and P-2(b). He also exhibited the seized ammunition, the seized taxi and the documents of the taxi as Exhibit M-1, M-2 and M-3 respectively. In his cross-examination, he stated that he did not know the passenger Laldinnghaka and also the co-accused person Mr. H. John Sangkhuma. He did not know as to whether the other accused person was present in the place of occurrence and that he was not present at the time of counting the seized ammunition. 17. PW-3 Mr. John Daniel Rengsi in his examination-in-chief deposed that he stood as seizure witness for the ammunition that was seized from the taxi concerned. Both his deposition in his examination-in-chief as well as in his cross-examination were similar to the deposition of PW-2. 18. PW-4 Mr. 17. PW-3 Mr. John Daniel Rengsi in his examination-in-chief deposed that he stood as seizure witness for the ammunition that was seized from the taxi concerned. Both his deposition in his examination-in-chief as well as in his cross-examination were similar to the deposition of PW-2. 18. PW-4 Mr. R Sangzuala in his examination-in-chief stated that on 23.01.2015 they received a requisition for examination of five (5) numbers of suspected 5.56 ammunition marked as ‘Exhibit-A’ in connection with Sairang P.S. Case No. 3/2015 dated 16.1.2015 for examination. He examined the same on 19.02.2015 and selected two (2) cartridges randomly for test firing. Test firing was successfully done and he found all the cartridges to be in working condition. In his cross-examination, he re-iterated what is stated in his examination-in-chief. He also denied to the suggestion that the remaining ammunitions were not in working condition merely because they were not test fired. 19. PW-5, Mr. Thomas Lalrammawia in his examination-in-chief deposed that he knows the accused Mr. H. John Sangkhuma, who was present in the court. On being endorsed, he recorded the confessional statement of H. John Sangkhuma on 22.07.2015 at 3:00 p.m. after giving him a reflection time of about 4 and half hours. Before recording his confessional statement, he explained to him the provision of Section 164 of the Cr.PC and also told him that he was not bound to make a confession. However, the accused person wanted his confessional statement to be recorded and therefore, the same was done. PW-5 exhibited the confessional statement and his signature as Exhibit P-4 and P-4(a) respectively. In his cross-examination, the said witness stated that the accused person told him that the parcels belonged to Munga of Myanmar and that he had asked him to send the parcels to his employees at Sihhmui farm for their ration and for which he handed him over a sum of Rs. 500/- for taxi fare. He then handed over the parcels to the co-accused Mr. Rohmingthanga for delivery. He denied of having any knowledge that the parcels contained ammunition. 20. PW-6 Mr. J. Lalchungnunga in his examination-in-chief stated that at the relevant time he was posted at Sairang Police Station as Sub-Inspector of Police. Upon receiving the FIR from S.I. Lalrokima, he was endorsed to investigate into the case. First of all, he arrested Mr. Rohmingthanga and Mr. He denied of having any knowledge that the parcels contained ammunition. 20. PW-6 Mr. J. Lalchungnunga in his examination-in-chief stated that at the relevant time he was posted at Sairang Police Station as Sub-Inspector of Police. Upon receiving the FIR from S.I. Lalrokima, he was endorsed to investigate into the case. First of all, he arrested Mr. Rohmingthanga and Mr. Laldinnghaka, who were both apprehended by the personnel of CID (SB). As a result of the interrogation of both the arrested persons, the name of Mr. H. John Sangkhuma came into picture as the owner of the seized ammunition. He was then located subsequently and interrogated where he admitted of possessing the seized ammunition. Although he arrested Mr. H. John Sangkhuma, he had to be released on bail since he had obtained pre-arrest bail from the court. From the statement of both the accused and as he could not establish any incriminating materials against Mr. Laldinnghaka, he was therefore discharged/released. The seized ammunitions was sent to the FSL for expert opinion and the opinion revealed that the ammunitions were live ammunitions and of foreign origin. Although he had recorded the statements of both the accused person and the complainant, he was transferred out from Sairang Police Station and he left the case to the Officer-in-Charge of Sairang Police Station. The said witness exhibited the arrest memo of Mr. H. John Sangkhuma, Mr. Laldinnghaka and Mr. Rohmingthanga and his signature as Exhibit P-3, P-3(a), P-4, P-4(a), P-5 and P-5(a) respectively. He also exhibited the statement of the complainant, the statement of Mr. Laldinnghaka, Mr. Rohmingthanga, Mr. H. John Sangkhuma as Exhibit P-6, P-6(a), P- 7, P-7(a), P-8, P-8(a), P-9 and P-9(a) respectively. He also exhibited the forwarding letter of the seized ammunition to FSL and his signature as Exhibit P-10 and P-10(a) respectively. 21. In his cross-examination, the said witness deposed and reiterated what he had said in his examination-in-chief. He also stated that despite all efforts to locate Mr. Mungliana, who was said to be one who supplied the ammunition to Mr. H. John Sangkhuma, he could not locate him. 22. PW-7 Mr. Ricky Lalduhawma in his examination-in-chief deposed that since the previous case I/O was transferred, he was re-endorsed to investigate the matter. He also stated that despite all efforts to locate Mr. Mungliana, who was said to be one who supplied the ammunition to Mr. H. John Sangkhuma, he could not locate him. 22. PW-7 Mr. Ricky Lalduhawma in his examination-in-chief deposed that since the previous case I/O was transferred, he was re-endorsed to investigate the matter. However, by that time, the statements of all the witnesses had already been recorded and he mainly summed up the evidence collected by the previous case I/O and he prepared the final report/charge sheet and submitted the same for further proceedings after finding prima facie case against both the accused persons u/s. 25(1-A) and the Arms Act. He exhibited the final report/charge sheet and his signature as Exhibit P-11 and P-11 (a) respectively. The said witness in his cross-examination reiterated what he had stated in his examination-in-chief. He also admitted that the registering personnel in respect of the seized ammunition in the Malkhana was not included in the list of witnesses in the charge-sheet. 23. Mr. Lalmalsawma was examined as DW-1 and in his examination-in-chief, he stated that while working at Dawrpui Vengthar, Aizawl he saw the accused Mr. H. John Sangkhuma and another unknown person. The said unknown person requested Mr. H. John Sangkhuma to send one parcel containing ration to Sihhmui and to which, Mr. H. John Sangkhuma replied that he knows one taxi driver with whom he can send the parcel. As he was working, he did not know what happened further. In his cross-examination, the said witness stated that he was engaged as a labourer for the construction work only for one (1) day and that he did not know the name or the particulars of his employer. He also stated that he did not know as to whether there was any person who witnessed the transaction between Mr. H. John Sangkhuma and the said unknown person. 24. Mr. Rohmingthanga was examined as DW-2 and in his examination-in-chief he deposed that he was a taxi driver by profession and on the date of the incident, which he did not remember, he received a telephone call from Mr. H. John Sangkhuma while he was at Ramrikawn Taxi Stand. Mr. H. John Sangkhuma asked him to transport two (2) parcels containing ration from Dawrpui Vengthar, Aizawl to Sihhmui. H. John Sangkhuma while he was at Ramrikawn Taxi Stand. Mr. H. John Sangkhuma asked him to transport two (2) parcels containing ration from Dawrpui Vengthar, Aizawl to Sihhmui. He therefore proceeded to Dawrpui Vengthar and after loading the two (2) parcels, he proceeded toward Sihhmui along with one male person who boarded the taxi on his invitation. He stated that Mr. H. John Sangkhuma told him that some laborers constructing bridge at Sihhmui will collect the said two (2) parcels when they reach Sihhmui. However, the police intercepted them before they arrived Sairang and they were taken to Sairang Police Station. He did not know the contents of the two (2) parcels and he innocently transported them to Sihhmui as his taxi was hired by Mr. H. John Sangkhuma. In his cross-examination, he stated that he did ask Mr. H. John Sangkhuma about the nature of the parcel i.e. weight and size etc. and to which, he was told that they were simple and light parcels. He also stated that the normal hiring charge of taxi from Ramrikawn to Dawrpui Vengthar at the relevant time was Rs. 250/-. He also denied the suggestion that on earlier occasions he used to transport the belongings of Mr. H. John Sangkhuma. He also stated that it was a fact that one young male aged about 17 years who was also on board in his taxi did not have any connection with the seized article in his knowledge. He further admitted that Mr. H. John Sangkhuma did not give him any details about the persons who were supposed to collect the transported two (2) parcels and that if the two (2) parcels were not collected at Sihhmui, he may have brought back the same to Mr. H. John Sangkhuma. He denied having knowledge about the contents of the parcels, which was transported in his taxi. 25. Mr. H. John Sangkhuma was examined as DW-3 and in his examination-in-chief, he stated that on the date of the incident, the date which he does not remember, he proceeded to one workshop where he was engaged. He then went to one small shop to purchase pan and cigarette. At that time, one taxi was proceeding from Vaivakawn side at high speed and one Mr. Mungliana stepped out from the said taxi. He then went to one small shop to purchase pan and cigarette. At that time, one taxi was proceeding from Vaivakawn side at high speed and one Mr. Mungliana stepped out from the said taxi. He asked him whether he knew any taxi driver who could transport two (2) parcels to Sihhmui. He then called the co-accused Mr. Rohmingthanga through telephone for transporting the two (2) parcels to Sihhmui. According to him, Mr. Mungliana is a businessman of Myanmar origin who sold articles in the street. In fact, they had earlier purchased grinder parts from him. Although Mr. Mungliana remained there for some time but as the taxi driver Mr. Rohmingthanga was yet to arrive, Mr. Mungliana being in a hurry, left by placing two (2) parcels on the opposite side of the road. When Mr. Rohmingthanga arrived, he gave him Rs. 500/- which was given to him by Mr. Mungliana as taxi fare and asked him to proceed to Sihhmui with the two (2) parcels where some laborers doing construction work at the bridge at Sihhmui will collecting the same as stated by Mr. Mungliana. Later, in the afternoon at about 3 pm, he received a phone call from Mr. Rohmingthanga, who informed him that the two (2) parcels contained ammunitions and that he was taken to Sairang Police Station. It was only then that he came to know about the contents of the two (2) parcels and after three (3) days, he was summoned to Aizawl Police Station where he was threatened that unless he claimed ownership of the seized ammunition, he would be tortured. However, if he claimed ownership, he would be released. He was then brought before the Addl. District & Sessions Judge, Aizawl where he initially claimed ownership as instructed by the police. Thereafter, he was taken before the Magistrate and his judicial statement was recorded. He was later released on bail. In his cross-examination, he reiterated what he stated in his examination-in-chief. 26. From the evidence of PW-1, more particularly in his cross-examination, he was the one who lodged the FIR and also the seizing officer. In his cross examination, he stated that it was a fact that when he seized the alleged ammunition, no civilians were present. PW-2 and PW-3 are seizure witnesses and as disclosed in the charge sheet, they are Government Servants. In his cross examination, he stated that it was a fact that when he seized the alleged ammunition, no civilians were present. PW-2 and PW-3 are seizure witnesses and as disclosed in the charge sheet, they are Government Servants. It is not in evidence as to how they happen to be present on the spot where seizure of the alleged ammunition was made. In their examination-in-chief, they deposed that on 06.01.2015 while having joint operation by CID (SB) Staff, Narcotic P.S Staff and ‘G’ Branch SHQ, BSF, Aizawl, they seized 1986 numbers of 5.56 mm ammunition kept in gunny bags from under the front seat of the taxi in their presence and they stood as seizure witnesses. However, as per the FIR, seizure was made on 16.01.2015 and not on 6.1.2015. Even assuming that the same is a typographical mistake, there is further contradiction or inconsistency in the seizure memo (Exhibit P-2) which shows that the 5.56 mm live ammunitions were kept in one white nylon bag and one yellow bag and were seized from the possession of Laldinnghaka whereas, PW-2 deposed that the ammunitions were kept in gunny bags and seized from under the front seat of the taxi concerned. Likewise, PW-3 deposed that the ammunitions kept in gunny bags were seized from the taxi. As held by the Apex Court in Dharampal Singh (supra), it is true that the case of the prosecution cannot be rejected only on the ground that independent witnesses have not been examined. However, the Court on appraisal of the evidence on record has to find that the case of prosecution is trustworthy. 27. In the present case, as already noticed herein above, there are inconsistencies in the statements made by the seizure witnesses, considering what was recorded in the seizure memo. PW-1 who was the seizing officer, in his cross-examination also stated that it was a fact that he does not know whether the seized article was sent for expert examination. The evidence of PW-1, PW-2 and PW-3 also does not reveal that samples from the seized ammunition were packed and sealed for examination by the expert in the Forensic Science Laboratory (FSL). The Apex Court in Amarjit Singh vs. State of Punjab, 1995 Supp. (3) SCC 217 observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The Apex Court in Amarjit Singh vs. State of Punjab, 1995 Supp. (3) SCC 217 observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. Further, from the evidence, the ammunition were said to have been recovered on 16.01.2015 but the same was forwarded for FSL examination under the certificate of authority signed by the Addl. Superintendent of Police, Aizawl District, Aizawl on 23.01.2015 only. It is nowhere revealed in the evidence as to where and how the seized ammunitions were kept before it was sent for FSL examination and why was it sent only after seven (7) days. This Court in Lalmawia and Another (supra) by relying upon Bhim Ram and Others vs. State of Assam, 2012 (1) GLT 416 held that the chance of tampering with the seized articles when there is lack of evidence about its safe custody cannot be ruled out and therefore, in such circumstance, the accused person should be given the benefit of doubt. 28. Another aspect of the matter as contended by the learned counsels for the appellants is that the seized ammunitions were not produced before the court for the purpose of sending the samples for expert examination in the FSL. In this connection, the learned Addl. Public Prosecutor has produced the Information Manual published in terms of Section 4(1)(b) of the Right to Information Act, 2005 (i.e. Obligation of public authorities) by the Directorate of Forensic Science Laboratory, Home Department, Govt. of Mizoram wherein under paragraph No. 4(2) of the said publication, it is provided that cases to be examined in the laboratory should be forwarded by an officer not below the rank of Dy. SP. The samples for forensic examination no doubt was forwarded by an Additional Superintendent of Police, Aizawl District, Aizawl on 23.01.2015 but the fact remains that despite a specific note recorded in the forwarding letter that the samples were packed and sealed by the 10 in the presence of GO and civilian witnesses, there are no materials on record disclosing who the GO and civilian witnesses are, not to speak of their statements or depositions. The depositions of the first and second IO who were examined as PW-6 and PW-7 respectively also do not disclose anything in this regard. The depositions of the first and second IO who were examined as PW-6 and PW-7 respectively also do not disclose anything in this regard. Under the circumstance, I find deficiency in the forwarding note (Exbt.P-10) exhibited by the prosecution and therefore, it cannot lend any support to their case. As such, the issue raised about obtaining certificate of authority from the court need not be gone into and that the same can be dealt with in an appropriate case. 29. The case of the prosecution is that 1986 numbers of prohibited 5.56 mm ammunition valued at Rs. 5,95,800/- were recovered from the taxi driven by the appellant Rohmingthanga near Sairang village. However, to bring home the guilt of the appellants, the prosecution has to establish and prove the fact that the appellants were in conscious possession of the seized ammunition. Appellant Rohmingthanga as DW-2 in his examination-in-chief stated that being a local taxi driver, he transported the two (2) parcels towards Sihhmui as instructed by appellant Sh. H. John Sangkhuma. In his cross-examination, he also stated that Mr. H. John Sangkhuma did not tell him the names and phone numbers of the persons who were supposed to collect the two (2) parcels at Sihhmui and that if no one collected the transported parcels at Sihhmui, he would bring back the same to Mr. H. John Sangkhuma. He also stated that he did not have any knowledge about the illegal items he transported in his taxi. The appellant Mr. H. John Sangkhuma as DW-3 in his examination-in-chief also stated that one Mr. Mungliana requested him to send the two (2) parcels to Sihhmui and he gave him a sum of Rs. 500/- towards taxi fare. He therefore called the appellant Mr. Rohmingthanga, a taxi driver known to him to transport the two (2) parcels to Sihhmui telling him that some labourers would collect the same. In his cross-examination, he denied having knowledge about the contents of the two (2) parcels. 30. 500/- towards taxi fare. He therefore called the appellant Mr. Rohmingthanga, a taxi driver known to him to transport the two (2) parcels to Sihhmui telling him that some labourers would collect the same. In his cross-examination, he denied having knowledge about the contents of the two (2) parcels. 30. The Apex Court in Gunwant Lal (supra) held that the possession of a firearm under the Arms Act firstly must have the element of conscious or knowledge of that possession in the person charged with such offense and secondly, where he has not have the actual physical possession, he has nonetheless a power or control over that weapon so that his possession thereon continues besides physical possession being in someone else. In Sanjay Dutt (supra), the Apex Court held that possession must mean possession with the requisite mental element i.e. conscious possession and not mere custody without the awareness of the nature of such possession. The above two (2) decisions of the Apex Court was applied by the Delhi High Court in Adhiraj Singh Yadav (supra) and in the given facts of that case, the High Court held that an offense under Section 25 of the Arms Act would not be made out when the suspect was not conscious that he was in possession of live ammunition. 31. The Apex Court in Raosaheb Balu Killedar (supra) in the given facts and circum-stances of that case held that it was not possible to say conclusively and beyond reasonable doubt that the appellant had conscious possession of the revolver and the cartridge. The evidence of PW-1, PW-9 and PW-12, which only relates to the making of the disclosure statement and the recovery of the revolver and the cartridge, cannot advance the case of the prosecution to hold that the appellant was in conscious possession of the revolver and the cartridge. The evidence of the ballistic expert also pales into insignificance. 32. The Apex Court in Durga Prasad Gupta (supra) which was a case under Terrorist and Disruptive Activities (Prevention) Act, 1987 held that the expression “possession” is a polymorphous term which assumes different colors in different contexts. It may carry different meaning in contextually different backgrounds. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. It may carry different meaning in contextually different backgrounds. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal vs. State of M.P. (supra) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. 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. 33. Coming back to the present case, as already noticed herein above, the prosecution has not been able to establish the fact that both the appellants were conscious about the contents of the two (2) parcels. Suspicion no matter how strong, cannot replace proof and in fact, proof beyond reasonable doubt, as required under the Criminal Law in India. It is only after the prosecution is able to establish that the appellants were in conscious possession of the ammunition that the burden to disprove the same would shift to the appellants. Therefore, although there may be strong suspicion against the two (2) appellants but the same itself cannot be the basis for their conviction u/s. 25 (1-A) of the Arms Act and also u/s. 34 of the IPC. It may also be noticed that both the appellants even in their examination-in-chief u/s. 313 of the Cr.P.C. have denied having conscious knowledge about the contents of the two (2) parcels being sent and carried to Sihhmui. 34. The Apex Court in Harijana Thirupala and Others (supra) held that in our administration of criminal justice, an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offense with which he is charged. Further, if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favorable to the accused is to be accepted. In cases where the Court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favor of the accused. 35. In cases where the Court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favor of the accused. 35. Thus, upon due consideration of the case in its entirety, I find that the charge framed against the appellants has not been established with proof beyond reasonable doubt and therefore, they are entitled to be given the benefit of doubt. Having concluded as such, the impugned Judgment and Order and the Order of Sentence cannot be sustained and they are accordingly set aside. The appellants are directed to be released and set at liberty unless they are wanted in connection with any other case.