Research › Search › Judgment

Manipur High Court · body

2022 DIGILAW 225 (MAN)

Kimkim @ Kimkim Haokip v. State of Manipur

2022-11-18

SANJAY KUMAR

body2022
JUDGMENT 1. By Charge Order dated 28.04.2022 passed in Special Trial (ND & PS) Case No. 3 of 2021 [Ref:- FIR No. 48(7)2019 NAB. PS. u/S.18(b)/29 ND & PS Act], the learned Special Judge (ND & PS), Bishnupur, framed a charge against Mrs. Kimkim Haokip that she had committed an offence punishable under Section 18(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for brevity, 'the NDPS Act') and a charge against Mrs. Hevah Vaiphei that she had committed an offence punishable under Section 29 of the NDPS Act. The contents of the charges were read over to both the accused and the learned Special Judge recorded their pleas as under: 'Plea of the accused person namely Kimkim Haokip. Q. No. 1 Do you understand the charge framed against you? Ans: Yes, I understand the charge framed against me. Q. No. 2 Do you plead guilty or not? Ans: I plead guilty. But, I do not know how much quantity of Opium was seized on that day.' 'Plea of the accused person namely Hevah Vaiphei. Q. No. 1 Do you understand the charge framed against you? Ans: Yes, I understand the charge framed against me. Q. No. 2 Do you plead guilty or not? Ans: Yes, I plead guilty. On that day, I was accompanied with the accused Kimkim haokip and seized some quantity of opium from the possession of the accused Kimkim Haokip.' 2. Thereupon, the learned Special Judge noted that both the accused had pleaded guilty and convicted them of their respective charged offences. 3. The learned Special Judge then passed Sentence Hearing & Order dated 05.05.2022, noting that 13 Kgs of opium had been seized in the case and as the same qualified as a 'commercial quantity' under the NDPS Act, the learned Special Judge observed that the charged offences were punishable with not less than 10 years rigorous imprisonment along with a fine of Rs. 1,00,000/- which could extend up to 20 years rigorous imprisonment with a fine of Rs. 2,00,000/-. The learned Special Judge accordingly sentenced both the accused to 14 years rigorous imprisonment with individual fines of Rs. 1,00,000/- each. In the event of failure to pay the fines, both the accused were directed to undergo rigorous imprisonment for a further period of 6 months. 2,00,000/-. The learned Special Judge accordingly sentenced both the accused to 14 years rigorous imprisonment with individual fines of Rs. 1,00,000/- each. In the event of failure to pay the fines, both the accused were directed to undergo rigorous imprisonment for a further period of 6 months. Aggrieved by their conviction and sentencing, both the accused are before this Court by way of these revisions filed under Section 397 read with Section 401 Cr.P.C. Crl. Rev. Petition No. 20 of 2022 was filed by Mrs. Kimkim Haokip while Crl. Rev.Petition No. 21 of 2022 was filed by Mrs. Hevah Vaiphei. 4. Heard Mr. Serto T. Kom, learned counsel for the petitioners in both the revisions; and Mr. Athouba Khaidem, learned PP, appearing for the State. 5. Section 36A of the NDPS Act mandates that all offences arising under the said Act which are punishable with imprisonment for a term of more than 3 years shall be triable only by the Special Court constituted for the area in which the offence has been committed. Section 36 of the NDPS Act deals with constitution of Special Courts and Section 36(3) provides that a person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. In consequence, the procedure set out in Chapter XVIII of the Code of Criminal Procedure, 1973, dealing with trials before a Court of Session, would apply to trials before the Special Court under the NDPS Act. Chapter XVIII of the Code of Criminal Procedure, 1973, comprises Sections 225 to 237. Section 228(1)(a) & (b) therein deal with framing of a charge and, to the extent relevant, this provision reads to the effect that if, after consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the Judge is of the opinion that the accused has committed an offence which is exclusively triable by the said Court, he shall frame in writing a charge against the accused. Section 228(2) Cr.P.C. provides that where the Judge frames any charge under Section 228(1)(b) Cr.P.C., the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 228(2) Cr.P.C. provides that where the Judge frames any charge under Section 228(1)(b) Cr.P.C., the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 Cr.P.C provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. 6. This being the statutory scheme, it may be noticed that there was no clear admission of guilt to the charges, in their entirety, by either of the accused in the case on hand. The Sentence Hearing & Order dated 05.05.2022 manifests that the quantum of imprisonment and fine turned upon the fact that the seized opium was a commercial quantity, viz, 13 kgs. Therefore, this aspect played a crucial role in the proceedings. However, the admission of Mrs. Kimkim Haokip recorded by the learned Special Judge clearly manifests that she did not admit having a 'commercial quantity' in her possession. On the other hand, though the charge framed against her clearly mentioned the seized amount of opium as 13 kgs., she specifically stated that she did not know how much quantity of opium was seized on that day. Similarly, though the charge framed against Mrs. Hevah Vaiphei also mentioned 13 kgs. of opium, she only admitted that she was accompanied by Mrs. Kimkim Haokip, and 'some quantity' of opium was seized from the possession of Mrs. Kimkim Haokip. Therefore, there was no admission by either of the accused that they were found with the commercial quantity of 13 kgs. of opium with them. 7. Significantly, the seized opium was not even produced before the learned Special Judge at the time of framing of charges and the conviction of the accused on their admission of guilt. The seized opium seems to have been produced only at the time of sentencing. The Sentence Hearing & Order dated 05.05.2022 records this fact and reads as under: 'The Ld. Spl. PP also has produced the seized a bit less than 13 Kgs of Opium with sealed one packet from the malkhana in order to satisfy the court. The sealed packet is weighed by using scaling machine provided by the prosecution. Upon weighing the said packet, it is found 11.865 Kgs. Spl. PP also has produced the seized a bit less than 13 Kgs of Opium with sealed one packet from the malkhana in order to satisfy the court. The sealed packet is weighed by using scaling machine provided by the prosecution. Upon weighing the said packet, it is found 11.865 Kgs. The sealed packet is break open before the court in presence of the two convicts, their ld. defence counsel and the ld. Spl. PP and upon opening the said parent packet, there are 13 pieces of the seized opium which is contained in an 'iodised salt' packet. One packet measures 0.929 kg. Due to old and having been found fungus of all the twelve packets, the court feels that there is no necessity to measure all the other remaining twelve packets.' 8. In effect, the seized opium was not even shown to both the accused at the time of framing of the charges and they were never asked whether they admitted the seizure of 13 iodised salt' packets containing opium, irrespective of the weight, whereby at least an inference of guilt by implication could have been drawn by the learned Special Judge against them. In the absence of a comprehensive admission of guilt from both the accused in relation to possession of a commercial quantity of opium, the learned Special Judge ought not to have convicted them straightaway of offences relating to a commercial quantity of opium and sentenced them accordingly. In this regard, reference may be made to State of Maharashtra v. Sukhdev Singh alias Sukha and others [(1992) 3 SCC 701], wherein the Supreme Court observed that a plea of guilt tantamounts to an admission of all the facts constituting the offence and it is therefore essential that before accepting and acting on the plea, the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. It was further observed that that plea of the accused must therefore be 'clear, unambiguous and unqualified' and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. 9. The Charge Order dated 28.04.2022 and the Sentence Hearing & Order dated 05.05.2022 are therefore unsustainable in law and are accordingly set aside. Mr. Athouba Khaidem, learned PP, states on instructions that the seized opium, in its entirety, is still there in the Malkhana of NAB-PS, Manipur. 9. The Charge Order dated 28.04.2022 and the Sentence Hearing & Order dated 05.05.2022 are therefore unsustainable in law and are accordingly set aside. Mr. Athouba Khaidem, learned PP, states on instructions that the seized opium, in its entirety, is still there in the Malkhana of NAB-PS, Manipur. That being so, Special Trial (ND&PS) Case No. 3 of 2021 shall stand restored to the file of the learned Special Judge (ND&PS), Bishnupur, for continuation of proceedings in accordance with law. This Court is informed that both the accused were earlier released on bail during the pendency of Special Trial (ND&PS) Case No. 3 of 2021. If so, their bail orders shall also stand restored but they shall furnish fresh bail bonds and sureties in accordance with the said bail orders before being released on bail. Crl. Rev. Petition No. 20 of 2022 and Crl. Rev. Petition No. 21 of 2022 are accordingly allowed to the extent indicated above.