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2021 DIGILAW 741 (GAU)

Lalsangzuala v. State of Mizoram

2021-11-26

NELSON SAILO

body2021
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. C. Lalfakzuala, learned Amicus Curiae for the appellant and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State respondent. 2. This is an appeal filed from jail by the accused appellant against the Judgment & Order dated 09.04.2019 passed by the Judge, Special Court under the ND&PS Act in Crl.Trl.(Ex) No. 713/2017 convicting the appellant as well as another co-accused person under Section 20 (b) (ii) (c) of the ND& PS Act and against the Order of Sentence dated 24.04.2019 by which, they were both sentenced to undergo Rigorous Imprisonment for 10 years with a fine of Rs. 500/- each with a default clause. Be it stated herein that the co-accused person i.e., Sh. Zamkhawgin had preferred a separate appeal from jail, which was registered and numbered as Criminal Appeal No. 47/2019 (J) and the same was dismissed vide Judgment & Order dated 02.07.2020. Despite the dismissal of the appeal filed by the co-accused person, the instant appeal is being heard and disposed of on merits. 3. The case of the prosecution in brief is that on 17.03.2017 at around 3 pm, Sub-Inspector C. Lalbiaktluanga received certain information from a reliable source that an illicit ganja was to be transferred at Rangvamual. He therefore recorded his information report and organizes a team to investigate the case. While on duty, he suspected two (2) persons of doing illegal business at the veranda of the residence of Smt. Vanlalhruaii without her knowledge. The Officer therefore recorded grounds of belief as per Section 42 of the ND&PS Act to conduct search. Before doing so, two (2) civilian witnesses were asked to witness the search. On conducting the search, three (3) nylon bags of dried leaves with flowering tops suspected to be ganja was recovered. Upon interrogating the two (2) suspects, they confirmed that the same belonged to them. Thereafter, the weighment of the suspected ganja was done in the presence of the civilian witnesses and the same was found to be 20.150 kilograms. The recovered articles were then packed and sealed to be produced before the Magistrate and seizing officer prepared a seizure and arrest memo and the appellant as well as the co-accused were then arrested. The officer concerned then filed an information report while producing the accused persons and the seized materials before the Officer-in-Charge, Anti Narcotic Squad. The recovered articles were then packed and sealed to be produced before the Magistrate and seizing officer prepared a seizure and arrest memo and the appellant as well as the co-accused were then arrested. The officer concerned then filed an information report while producing the accused persons and the seized materials before the Officer-in-Charge, Anti Narcotic Squad. Following the information report, Excise Case No. EXN. 61/2017 dated 18.03.2017 under Section 20 (b) (ii) (c) of the ND&PS Act was registered and an investigation was conducted by Sub-Inspector Benjamin Lalruattluanga on being endorsed with the case. The case I/O then visited the place of occurrence, examined the witnesses and recorded their statements. Upon finding prima facie case well established against the accused persons, the case I/O filed the charge-sheet against them under Section 20 (b)(ii)(c) of the ND&PS Act. Thereafter, charge was framed against the appellant under Section 20 (b)(ii)(c) and to which, he pleaded not guilty. In view of such plea, trial commenced against the appellant. During the trial, the prosecution examined as many as five (5) witnesses out of the cited six (6) prosecution witnesses. As for the defense, no defense witnesses were examined. After the evidence of the prosecution was over, the appellant was examined under Section 313 Cr.PC. Thereafter, upon hearing the parties, the Trial Court vide the impugned Judgment &Order convicted the appellant under 20 (b)(ii)(c) of the ND&PS Act and sentenced him to imprisonment as already indicated herein above. 4. Mr. C. Lalfakzuala, learned Amicus Curiae submits that the seized articles were not produced before the Court and therefore, the same has only made the case of the prosecution to be doubtful. He also submits that the appellant was not given any opportunity to lead defense evidence and for this reason, the impugned Judgment & Order of conviction cannot be sustained as well. He further submits that the conviction of the appellant is based on circumstantial evidence and that in absence of a chain of unblemished evidence against the appellant, the impugned Judgment & Order of conviction cannot be sustained and therefore should be set aside. In support of his submission, the learned Amicus Curiae relies upon the following authorities:- (i) Judgment dated 31.10.2018 of the Apex Court in Criminal Appeal No. 1330 of 2018 (Reena Hazarika -Vs- State of Assam). (ii) Judgment dated 24.04.2009 of the Apex Court in Criminal Appeal Nos. In support of his submission, the learned Amicus Curiae relies upon the following authorities:- (i) Judgment dated 31.10.2018 of the Apex Court in Criminal Appeal No. 1330 of 2018 (Reena Hazarika -Vs- State of Assam). (ii) Judgment dated 24.04.2009 of the Apex Court in Criminal Appeal Nos. 868-869 of 2004 (Ramesh Bhai & Anr -Vs- State of Rajasthan). (iii) Judgment dated 31.07.2018 of the Apex Court in Criminal Appeal No. 949 of 2018 (Surinder Kumar Khanna -Vs-Intelligence Officer Directorate of Revenue Intelligence). (iv) Vijay Jain -Vs- State of Madhya Pradesh, (2013) 14 SCC 527 . (v) Gias Uddin -Vs- State of Assam, 2012 (2) GLT 842. (vi) Onyx Maiphok & Ors -Vs- State of Assam & Anr., 2010 (4) GLT 569. 5. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor appearing for the State respondent on the other hand submits that the appeal filed by the co-accused person on the same ground and on the same set of facts has already been dismissed by this Court and therefore, the present appeal being squarely covered should also be dismissed. She also submits that there is no procedural lapse on the part of the Investigating Agency so as to vitiate either the investigating process or the trial proceedings and therefore, the Order of conviction and sentence passed by the Trial Court should be up-held. 6. 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. As already stated herein above, the prosecution examined five (5) prosecution witnesses. In order to see as to whether the conviction and sentence imposed upon the appellant is sustainable or not, let us examine the evidence of the prosecution witnesses. PW-1 in his examination-in-chief deposed that on 17.03.2017 at 10:00 PM, while he was in his residence, an Excise personnel asked him to be a witness in the seizure of the Ganja. He along with the said personnel proceeded to the residence of Smt. Vanlalhriati, where he saw the two suspected persons including the appellant sitting on the verandah near a sugar cane grinding machine. The Excise personnel conducted checking near the place where the two accused persons sat and recovered three nylon bags kept above the bundle of sugar cane, which were covered by silpaulin. The Excise personnel conducted checking near the place where the two accused persons sat and recovered three nylon bags kept above the bundle of sugar cane, which were covered by silpaulin. When they opened the nylon bags, he saw dried leaves with fruiting tops of Ganja inside the three bags and the two suspected persons admitted that the three bags containing Ganja belonged to them. The same was seized by the Excise personnel and the two persons were arrested. Weighment of the seized article was done in his presence and it turned out to be 20.150 Kgs. After weighment was taken, the same was sealed and packed in his presence and he put his signature in the memo prepared for seizure and the arrest. In his cross examination, the said witness stated that as per the photographs of the seized article, they were not covered with blue coloured silpaulin. He also stated that the seized three bags were kept on sugar cane and the same were covered with blue coloured silpaulin. He also stated that a single packet of samples were drawn from the seized article, which he again clarified in his re-examination that he meant that samples were taken from each of the three nylon bags and packed in a single packet of sample bag/transparent polythene. He also stated that it was a fact that the appellant never admitted the ownership of the seized article in his presence. 7. PW-2 in his examination-in-chief stated that on 17.03.2017 at 10:00 PM, while she was asleep, the Excise personnel knocked at her door and woke her up. They informed her that they apprehended and detained two accused persons along with three nylon bags, which were hidden amongst the sugar cane she kept in her verandah. The Excise personnel then checked the verandah where the two accused persons sat and recovered three nylon bags kept above the bundle of sugarcane, which were covered by silpaulin. On opening the nylon bags, she saw dried leaves with fruiting tops of Ganja and the two suspected persons including the appellant admitted that the bags belonged to them. Weighment of the seized article was taken and it was 20.150 Kgs. She put her signature against the memo of arrest and seizure that was prepared. In her cross examination, PW-2 stated that she was not sure whether the accused claimed ownership of the seized article or not. Weighment of the seized article was taken and it was 20.150 Kgs. She put her signature against the memo of arrest and seizure that was prepared. In her cross examination, PW-2 stated that she was not sure whether the accused claimed ownership of the seized article or not. 8. PW-3, S.I.C. Lalbiaktluanga is the person who had arrested the accused persons and recovered the materials suspected to be Ganja on 17.03.2017. His deposition was similar to the depositions made by the PW-1 & PW-2. He also stated that he did not arrest PW-2, as he believed that she had no knowledge about the seized article and therefore, he cited her as a seizure witness. After he submitted a report of the seizure and arrest to the Officer-in-charge, a case was registered and endorsed to S.I. Benjamin Lalruattluanga for further investigation. In his cross examination, PW-3 stated that it was not a fact that the accused persons claimed ownership of the seized article. 9. PW-5, S.I. Benjamin Lalruattluanga, who was the case I.O. in his examination-in-chief stated that during his investigation, he visited the place of occurrence, examined all the available witnesses and recorded their statements. He also interrogated the two accused persons and recorded their statements. From his investigation, he found that both the accused persons had bought the seized article from Manipur for a price of Rs. 500/- per Kg and intended to sell the same at Rangvamual, Aizawl for Rs. 2000/- per Kg. His further investigation revealed that the appellant accompanied the co-accused Sh. Lalsangzuala for selling the seized article even though he did not claim ownership of the seized article. He also found that the appellant was earlier convicted by the Trial Court for the same nature of offence. He further stated that the sample which was sent to Forensic Science Laboratory, Aizawl for examination revealed that the seized article was Ganja. Upon finding a prima facie case against the two persons, he submitted a complaint sheet against the two accused persons under Section 20(b)(ii)(C) of the ND&PS Act. PW-5 in his cross examination stated that PW-2 was the only adult occupant of the residence where the seized article was recovered. He also stated that sample was not drawn at the place of occurrence but before the Magistrate 1st Class the next day. 10. PW-6, Sh. PW-5 in his cross examination stated that PW-2 was the only adult occupant of the residence where the seized article was recovered. He also stated that sample was not drawn at the place of occurrence but before the Magistrate 1st Class the next day. 10. PW-6, Sh. T. Lalhmachhuana is the Judicial Magistrate 1st Class, Aizawl who stated in his examination-in-chief that an inventory of seized article and its weighment was taken in his presence. He exhibited the application for inventory photographs and drawing of samples as Exhibit P-8, his signature as Exhibit P- 8(b), the inventory and his signature as Exhibit P-9 and P-9 (b) respectively, the list of sample drawn and his signature as Exhibit P-10 and P-10 (b) respectively, the photographs of the seized article as Exhibit P-11 and P-11A and his signatures as Exhibit P-11 (a) and P-11A (a) respectively. 11. From an analysis of the above evidence of the prosecution, it may be seen that the Excise personnel recovered 20.150 Kgs of Ganja on 17.03.2017 from the verandah of PW-2 and arrested the appellant as well as the co-accused. PW-1 and PW-2 in their evidence have deposed that the three nylon bags kept above the bundle of sugar cane in the verandah of PW-2 when opened were found to contain Ganja and both the accused persons including the appellant admitted that the same belonged to them. PW-1 in his cross examination stated that the seized articles were owned by the appellant as per the statement recorded by the Excise personnel. Neither of the two accused persons admitted that the seized article belonged to them as per the statement of PW-1 & 2 during their cross examination. A perusal of the statement of the appellant before the Excise personnel goes to show that the appellant admitted procuring the ganja from Manipur and that he intended to sell them at Rangvamual at a profit. The complaint sheet submitted by the case I.O. also reflects the statement of the appellant stating that on 17.03.2021, he and the co-accused left N.E. Tlangnuam for Aizawl bringing along with them their illegal possession i.e. Ganja. Though the co-accused denied ownership of the ganja but he was well aware that they were transporting the same and that has made him believe that he is an accomplice. Further, the co-accused was also arrested on earlier occasion for possession of Ganja. 12. Though the co-accused denied ownership of the ganja but he was well aware that they were transporting the same and that has made him believe that he is an accomplice. Further, the co-accused was also arrested on earlier occasion for possession of Ganja. 12. After the complaint sheet was submitted by the case I.O., the Trial Court framed charge against the appellant under Section 20(b)(ii) (C)/29 of the ND&PS Act and to which he pleaded not guilty. Charge was framed against the other accused person under the same Section of law including Section 29 of the ND&PS Act. After the evidence was led by the prosecution, both the accused persons were examined under Section 313 of the Cr.P.C. The appellant stated that he came to Aizawl to look for work and that the co-accused was carrying Ganja and he asked him to claim ownership as he was already having a similar criminal case. As for him, he was innocent. The appellant further stated that he has a wife and 3 (three) children. There is no one to look after them. It was for the first time he was involved in a criminal case and he begged mercy of the Court. 13. Section 35 of the ND&PS Act provides for presumption of culpable mental state. The same may be reproduced below for ready perusal:- "35. Presumption of culpable mental state.- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution." The explanation provided for the above extract further is that "culpable mental state" will include intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. 14. As already noticed earlier, the appellant indisputably was of the conscious knowledge that they were transporting Ganja irrespective of the fact as to whether it belonged to the co-accused person or not. The Apex Court in Baldev Singh (Supra) has held that the accused can rely on the materials available in prosecution case raising doubts about prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. The Apex Court in Baldev Singh (Supra) has held that the accused can rely on the materials available in prosecution case raising doubts about prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. If the circumstances appearing in prosecution case give reasonable assurance to the Court that the accused could not have had the knowledge of required intention, burden cast on him under Section 35 of the ND&PS Act would stand discharged even if the accused had not adduced any other evidence of his own. In the given facts of that case, the Apex Court held that from the evidence led by the prosecution, it was proved beyond reasonable doubt that the accused being the driver of the tractor was in conscious possession of the thirty three bags of poppy husk in the trolley attached to the tractor. The accused only pleaded that a false case has been made out against him and he did not take the plea that he was not in conscious possession of the contraband. There was no reason given why the police would make a false case against him. Accordingly, the decision of the High Court reversing acquittal of the convicted appellant was upheld by the Apex Court. 15. In the present case as well, even without the burden cast upon the appellant under Section 35 of the ND&PS Act being discharged by him, the materials on record go to show that the appellant was aware of the contraband article being transported by them. Besides this, PW-6 in his examination-in-chief clearly deposed that the inventory of the seized article, weighment and drawing of samples were done in his presence. This fact has neither been controverted nor falsified by the defence. The FSL report by which finding was made that the samples sent and examined were found to be Ganja is also not disputed. 16. In Onyx Maiphok & Ors. (supra) this Court by relying upon the decision of the Apex Court held that suspicion, howsoever grave cannot take the place of proof. Even if the movement of the accused person at the place of recovery in suspicious manner is considered to be an adverse circumstances, that by itself is not enough to affirm conviction in absence of corroborative additional incriminating circumstances. Even if the movement of the accused person at the place of recovery in suspicious manner is considered to be an adverse circumstances, that by itself is not enough to affirm conviction in absence of corroborative additional incriminating circumstances. In the present case, not only were the appellant and the co-accused person found in the veranda of PW-2, but they in fact admitted that the seized articles were brought by them. There is also no evidence to the contrary that the same did not belong to them. Therefore, the case referred to by the learned Amicus Curiae is found to be not applicable to the present case. 17. The learned Amicus Curiae has relied upon the case of Gias Uddin (supra) to contend that due opportunity was not given to the appellant during trial. However, on perusal of the examination of the appellant under Section 313 Cr.PC, it is seen that although the appellant was asked to whether he had any other things to say before the Court apart from the query made by the Court, he had nothing to say to the Court. There is also no suggestion that the appellant wanted to enter into his defense by examining defense witnesses. Similarly, from the Memorandum of Appeal filed by the appellant from jail, there is no indication that he has defense witness to be examined. 18. The Apex Court in Vijay Jain (supra) in the given facts of that case held that due to the failure on the part of the prosecution to produce the contraband materials before the Court, it would not be sufficient to make out an offence under the ND&PS Act. However, in the present case, although the materials seized were not produced before the Court during trial but the prosecution had produced and exhibited the inventory of the seized articles along with the photographs before the Court. Moreover, no objection was raised by the defense in not producing seized materials before the Court. This was not the case in Vijay Jain (supra) where only oral evidence was led by the prosecution about the seizure of the contraband substance and moreover, the panch witnesses had turned hostile. Therefore, the facts involved not being similar, the case of Vijay Jain (supra) will not apply to the present case. 19. This was not the case in Vijay Jain (supra) where only oral evidence was led by the prosecution about the seizure of the contraband substance and moreover, the panch witnesses had turned hostile. Therefore, the facts involved not being similar, the case of Vijay Jain (supra) will not apply to the present case. 19. In Surinder Kumar Khanna (supra), the Apex Court held that in absence of any substantive evidence, it would be not appropriate to base the conviction of the appellant purely on the statements of the co-accused. In the present case, conviction of the appellant is not based on the statements of the co-accused but on the evidence led by the prosecution witnesses. Therefore, this decision referred to by the learned Amicus Curiae is not found to be applicable. 20. There is also no arguments to the fact that while evaluating circumstantial evidence, if there is a possibility of drawing two (2) inference i.e., one in favor of the accused and the other against the accused, the one favorable to the accused must be accepted. In the present case, there is no scope for drawing two (2) distinct inference in the background to the case. The materials on record go to show that the contraband substance was recovered not from the physical possession of the appellant and the co-accused but from their possession. According to them, the same was brought from Manipur for resale at Rangvamual. The chain of circumstances in the considered view of this Court is only complete. As such, the case of Ramesh Bhai & Anr. (supra) cannot be applied to the present case. 21. In the case of Reena Hazarika (supra), the Apex Court held that Section 313 Cr.PC cannot be seen simply as a part of audi alteram partem. In fact, it confers a valuable right upon the accused to establish his innocence and can be well considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution. However, to give such consideration, the accused has to take a defense after the evidence of the prosecution is closed. In the present case, what the appellant stated upon being examined under Section 313 Cr.PC is that he was asked by the co-accused to claim that the seized ganja belonged to him. However, to give such consideration, the accused has to take a defense after the evidence of the prosecution is closed. In the present case, what the appellant stated upon being examined under Section 313 Cr.PC is that he was asked by the co-accused to claim that the seized ganja belonged to him. The same only goes to show that the appellant was well aware of the fact that they were transporting ganja from Manipur to Rangvamual, Aizawl. It is therefore seen that the appellant has not raised any sustainable ground for his defense before the Court to examine. As such, the decision under reference is also found to be not applicable. 22. Thus, upon due consideration of the materials available on record and after hearing the learned counsels, I find no good grounds for interfering with the impugned Judgment & Order of conviction and also on the sentence imposed by the Trial Court. In the result, the appeal is found to be without any merit and the same is dismissed. 23. For the valuable assistance rendered by the learned Amicus Curiae, he shall be paid an amount of Rs. 7,500/- by the State Legal Services Authority on receipt of a copy of this Order. Office to send back the LCR.