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2022 DIGILAW 474 (GAU)

Lalpekhlui, D/o. Thanliana v. State of Mizoram

2022-05-09

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. Lalpianfela Chawngthu, learned counsel for the appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor. 2. This is an appeal under Section 374 Cr.P.C against the impugned Judgment & Order dated 18.02.2019 passed by the Special Court, ND&PS Act, 1985, Champhai, Mizoram in Session Registration No. 1351/2017 arising out of Crl.Tr. No. 1266/2017, by which the appellant was convicted under Section 21(b) ND&PS Act and sentenced to undergo Rigorous Imprisonment for a period of 8 (eight) years and to pay a fine of Rs.50,000/-, on default Rigorous Imprisonment for 1 (one) month. 3. The brief facts of the case is that on 23.06.2017 at around 5:45 pm, Champhai Excise & Narcotics under the command of Sub-Inspector Mr. J. Laltlanmawia while performing random checking at Mualkawi, and while checking one of the Maxi cabs had seized 212.6 grams of heroin kept in 15 soap cases from the bag of Mrs. Lalpekhlui, 23 years of age, daughter of Mr. Thanliana, Permanent resident of Tahan, Myanmar. On her arrest by Champhai Excise & Narcotics a case vide Excise Case No.EXN-112/17/17/CPI dated 24.06.2017 under Section 21 (b) ND&PS Act was against the accused Lalpekhlui. 4. The Officer-in-Charge, Champhai Excise & Narcotics Station had entrusted Ms. C. Zodinpuii, SI of Excise & Narcotics to investigate the case. She visited the place of occurrence and examined the seizing Officer with other witnesses and recorded their respective statements. She had interrogated the accused person and sent representative samples of the seized contraband substances to Forensic Science Laboratory (FSL in short), Aizawl for chemical analysis. The FSL report confirmed that the seized substances suspected to be heroin were found to be heroin with purity of 83% w/w & 85% w/w respectively at the time of examinations. After having found strong evidences in the case against the accused, the case I.O submitted the complaint sheet against the accused under Section 21 (b) ND&PS Act and sent up the accused to the court to face her trial. 5. The Court had framed formal charge under Section 21 (b) ND&PS Act against the accused person. The charge was read over and explained to her in her own vernacular language to which she pleaded not guilty and claimed to be tried. 6. The prosecution has cited as many as 5 witnesses and examined four of them while the accused person examined only one defence witness. The charge was read over and explained to her in her own vernacular language to which she pleaded not guilty and claimed to be tried. 6. The prosecution has cited as many as 5 witnesses and examined four of them while the accused person examined only one defence witness. The Court had framed the following points for determinations:- (i) Whether the Excise & Narcotics Officer had seized the contraband substances from the possession of the present accused person? (ii) Whether the seized substances were contraband substances (heroin)? (iii) Whether the Excise & Narcotics Officer had duly followed the mandatory procedures in searching, arresting etc in this case? (iv) Whether the accused is liable to be convicted and sentenced under the charged section of law? All the above points were decided against the appellant and the court held that the place of occurrence being a public place, grounds of belief was not needed to be prepared for the purpose of search and since the accused was not searched in person, section 50 of the Act was need not be complied with. The Special Court concluded that the seizing officer had followed all the mandatory procedures and the FSL reported confirmed that the seized articles was heroin. The Special Court, ND&PS Act passed its Judgment & Order dated 18.02.2019 and convicted the appellant under section 21(b) of NDPS Act ’85 and sentenced her to undergo Rigorous Imprisonment for a period of 8 (eight) years and to pay a fine of Rs.50,000/- on default Rigorous Imprisonment for 1 (one) month hence the instant appeal. 7. Mr. Lalpianfela Chawngthu, learned counsel for the appellant submits that the prosecution had no independent witness to support the search and recovery of the S/A. It is well settled that on account of non-joining of an independent witness at the time of the alleged search and seizure, the case of the prosecution became highly doubtful. The trial court failed to take into consideration, this aspect of the matter which was pointed out during the cross examination of PW-1, as a result of which there was miscarriage of justice. On account of non-joining of an independent witness, the appellant was entitled to be given the benefit of doubt. 8. The trial court failed to take into consideration, this aspect of the matter which was pointed out during the cross examination of PW-1, as a result of which there was miscarriage of justice. On account of non-joining of an independent witness, the appellant was entitled to be given the benefit of doubt. 8. That the appellant at the time of framing charge under section 21(b) NDPS act and in her examination under Section 313 of Cr.P.C stated that on that day she was about to go to Champhai by Sumo from Zokhawthar, one old woman came to her and requested her to carry one black bag along with her and she also stated that after she has reached Champhai the said bag will be taken by one person at Sumo Counter. Without knowing the contents of the said bag, she just carried it with her and before reaching Mualkawi village, she was intercepted by the Excise and narcotics party and thus, recovered the said contraband substances. Thus, it cannot be held that it is a conclusive proof that the alleged seized articles were recovered from the conscious possession of the appellant. This fact was duly corroborated by the statement of the DW No. 1 who deposed under oath before the trial court that the appellant is not the owner of the seized article and the same was handed over to the appellant by some unknown old lady. 9. The learned Counsel further submits that the samples drawn which were forwarded to the FSL could not have been the samples which was drawn in the instant case. In this connection, PW No. 6 C. Zodinpuii, who is the Investigating Officer stated in her cross-examination that she drew two packs each as sample from one soap case of Heroin and in total the samples drawn by her were 30 in numbers and the weight of each samples is about 50 mg. Whereas, the letter dated 08.08.2017 forwarded to the PW No. 6 by the PW No. 4 clearly reveals that the samples which were examined by the PW No. 4 were 15 nos. of 20 mg. thus could not have been the samples which were drawn in connection with the instant case. 10. Whereas, the letter dated 08.08.2017 forwarded to the PW No. 6 by the PW No. 4 clearly reveals that the samples which were examined by the PW No. 4 were 15 nos. of 20 mg. thus could not have been the samples which were drawn in connection with the instant case. 10. For that the seized articles were not kept in custody of police as mandated by Section 55 of ND&PS Act, 85 which resulted in a miscarriage of justice against the appellant. As such the impugned Judgment & Order dated 18.02.2019 is liable to be set aside and quashed. The samples were sent FSL after 9 days and there is no explanation where the samples were kept from 24.06.2017 to 03.07.2017. 11. The learned counsels in support of his submissions has cited the Apex Court judgments in the case of (i) Jitendra & Anr. Vs. State of M.P., reported in (2004) 10 SCC 562 (Para 5), (ii) Bhim Ram & Ors. Vs. State of Assam, reported in 2012 (1) GLT 416 (Para 11), (iii) Lalruatpuii Bawitlung Vs. Union of India, reported in 2017 (5) GLT 29 (Para 15 & 37). 12. Mrs. Linda L. Fambawl learned Addl. PP on the other hand submits that there was no procedural lapse in this case. The bag from where the S.A was seized was not opened immediately but only when two civilian witnesses were called and the bag was opened in their presence. The appellant herself has admitted that she was in possession of the seized article and she herself admitted that the S/A was heroin. 13. The learned Addl. PP further submits that the difference in the weight of the seized articles is very minimal and the seized articles were near and about 20 mg. The delay in sending the seized articles to FLS is due to the fact that the articles were seized at Champhai and time was taken to send the seized articles to FLS which as located at Aizawl. All the S.A was sealed and there was no tampering of the S.A. 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. 15. On peruse of the Lower Courts Records it is seen that PW1 and PW2 are the cited independent civilian witnesses in the case. 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. 15. On peruse of the Lower Courts Records it is seen that PW1 and PW2 are the cited independent civilian witnesses in the case. PW1 stated that he put his signature as seizure witness. The S.A was weighed but he does not remember the weight. However, on cross examination, PW-1 stated that he was not present on the place of occurrence at the time of recovering the contraband substances and did not know from whose possession it was recovered. But on re-examination by Ld. Special P.P, PW-1 stated that the Excise & Narcotics Officer arrested the present accused person consequent upon claim of ownership of the said black bags containing contraband substances. The Court finds this seizure witness to be unreliable. 16. Another civilian witness PW2 deposed that on 23.06.2017, he had gone to Mualkawi village to pay visit to his elder brother (PW-1). It was around 5:30 PM, Excise Officer came inside and requested to associate them as they detained one passenger in the Maxi Cab Sumo on suspicion of possessing contraband substances. He rushed to the place of occurrence. The Excise & Narcotics Officer was asking the accused as to whether she wanted to be taken to a Magistrate or any Gazetted Officer for the purpose of checking her person to which the accused declined. The Excise Officer then opened the black rucksack bags belonging to accused and found 15 number of soap cases containing white powder suspected to be heroin. In his presence, the weighment was taken. From the depositions of PW1 and PW2 it is clear that though they were the civilian witnesses called by the Excise personal, the extent of their knowledge regarding the seizure of the SA is found to be different and inconsistent. 17. PW-3 deposed that on 23.06.2017, Champhai Excise & Narcotics team under his command, while performing usual patrol duty at Mualkawi village conducted random checking of vehicles plying on the main road of Zokhawthar-Champhai and their passengers. One Maxi Cab Sumo proceeding towards them from Zokhawthar side was detained at Mualkawi. He requested all the passengers to identify their respective bags/baggage on the Sumo. When the present accused person pointed at her two black bags, the bags looked suspicious. One Maxi Cab Sumo proceeding towards them from Zokhawthar side was detained at Mualkawi. He requested all the passengers to identify their respective bags/baggage on the Sumo. When the present accused person pointed at her two black bags, the bags looked suspicious. Thus, he invited some civilian witnesses from the nearby houses and in presence of two civilian witnesses, he opened the bags belonging to the accused person and found 15 plastic soap cases lying in the bags containing all substances suspected to be heroin. He took weight of the seized substances on the spot in presence of the witnesses and the S.A weighed 212.6 grams. He then seized the same, arrested its owner and prepared seizure memo, signed by witnesses at the place of occurrence. After completion of all the formalities on the place of occurrence, he and his team with the accused person proceeded to Excise & Narcotics Station at Champhai and then produced the accused person with the seized substances to Officer-in-Charge, Champhai Excise & Narcotics Station for further necessary action. PW-3 stated that the place of occurrence was a public place. I find that nothing was asked in the cross examination of the witness to discredit or high light any procedural lapse during the seizure of the contraband article. 18. Ms. C. Zodinpuii, SI of investigated the case. She has deposed that her investigation revealed that on 23.06.2017 Excise & Narcotics team commanded by SI J. Laltlanmawia conducted random checking of vehicles and passengers plying the highway at Maulkawi village. On checking the accused they found 15 hawng of Heroin equivalent to 212.6 grams kept inside 15 soap cases from her possession. Her investigation revealed that the accused transported the Heroin for earning some money from the owner by paying her Rs.3000/-per soap case of Heorin. On 24.06.2017 she produced the Heroin and accused before the Magistrate, Champhai. In front of the Magistrate, sample was drawn for chemical analysis and inventory of the seized Heroin was prepared in front of the Magistrate. She sent sample of the Heroin drawn from the main body to the Forensic Science Laboratory Aizawl for chemical analysis. On 24.06.2017 she produced the Heroin and accused before the Magistrate, Champhai. In front of the Magistrate, sample was drawn for chemical analysis and inventory of the seized Heroin was prepared in front of the Magistrate. She sent sample of the Heroin drawn from the main body to the Forensic Science Laboratory Aizawl for chemical analysis. On receipt of the FSL report on 18.08.2017 which stated that 6 of the exhibits was of purity of 85%w/w and the rest of the 9 exhibits were also found to be Heroin of purity of 83%w/w. Having found strong evidence against the accused she submitted her C.S u/s 21(b) ND&PS Act and identified the exhibits. On cross examination she has stated that she drew two packs each as sample from one soap case of heroin and in total numbers of sample were 30 nos. The weight of each sample is about 50 mgs. 19. The appellant on her examination under Section 313 of Cr.P.C has explained that she had no knowledge of the contents of the said bag and denied knowledge that the S.A seized from her possession was contraband drugs. She stated that she just carried the bag on the request of an old lady who told her that the bag will to be collected by some person at Champhai. The appellant has produced one defense witness DW1 whose deposition supported the claim of the accused. 20. From the above evidence adduced it is an undisputed fact that 15 hawng of suspected Heroin equivalent to 212.6 grams kept inside 15 soap cases was recovered from the possession of the appellant on 23.06.2017. The appellant along with the S.A was produced before the Officer-in-Charge, Champhai Excise & Narcotics Station by the seizing officer for further necessary action. On 24.06.2017 the case I.O in front of the Magistrate, prepared inventory of the seized suspected Heroin and drew samples from the main body for chemical analysis which she sent to Forensic Science Laboratory Aizawl. On cross examination she has clearly stated that she drew two packs each as sample from one soap case of suspected heroin and in total the samples taken were 30 numbers. The weight of each sample was about 50 mgs. On cross examination she has clearly stated that she drew two packs each as sample from one soap case of suspected heroin and in total the samples taken were 30 numbers. The weight of each sample was about 50 mgs. However it is seen that the FSL report on 18.08.2017 states that 6 of the exhibits was of purity of 85% w/w and the rest of the 9 exhibits were also found to be Heroin of purity of 83% w/w. I find there is no explanation as to why only 15 nos. of the sample was received when 30 nos. of sample was said to be sent for chemical analysis. While the case I/O has also stated that the weight of each sample sent was about 50 gms however in the report No. FSL/370/C (CPI)-252/15/17 dated 8th August 2017 Exhibited as Ext-P-3 it is seen that the weight of the 15 nos. of parcels/polythene packets ranged from 16 mg to 34 mg, which are packed and enclosed in a paper envelope sealed with waxed seals. This is a considerable difference from the said weight of the sent sample i.e 50 mg. Again there is discrepancy in the inventory made before the Magistrate which shows that the quantity of sample was 20 mgs. each (page 34 of the LCR). I am of the considered view that the discrepancies in the number of samples and the weight of the samples sent to the FSL and those received by the Forensic Science Laboratory on 10.7.2017 cannot be overlooked. The court also finds that it took about two weeks for the sample of the seized article to reach the Forensic Science Laboratory, Aizawl which was packed on 24.06.2017 and received by the Directorate of Forensic Science Laboratory, Aizawl on 10/7/17. Exhibit -3 mentions that the memo No. C.30013/3/17-EX(CPI) dated 3/3/17 was received by the office on 10/7/17. There is no explanation as to where the seized sample was kept during this period 24.06.2017 to 03.03.2017, while the deposition of the case I/O mentions that on 24.06.2017 in front of the Magistrate, she prepared inventory of the seized suspected Heroin and drew samples which was sent to Forensic Science Laboratory Aizawl. 21. This court in Bhim Ram & Ors. Vs. 21. This court in Bhim Ram & Ors. Vs. State of Assam (supra) held that it would be risky and impermissible to leave the samples with the special messenger for a long gap of time. Chances of tampering when there is lack of evidence about the safe custody of the sample packets in the hands of the Special messenger cannot be ruled out. The provisions of ND&PS Act provide for stringent provision of conviction. Therefore, the principle of law is that the more stringent the provision for conviction, the more rigorous will be the investigation and trial. In Lalruatpuii Bawitlung Vs. Union of India, (supra) this court held as follows:- “37. The PW-5, the Seizing Officer in his evidence stated that the weight of each tablet that were seized in the case was of 0.105 grams. Further, the PW-4, the Superintendent, AS & NI, Customs Division, Aizawl, who forwarded the samples to the Director of FSL, Aizawl on 28.04.2014 vide Exhibit-P11 also stated that the five packets, weighing 1.05 grams each, containing ten tablets each (i.e. each tablet is of 0.105 gms), were forwarded for testing. But from the deposition of the PW3, the Junior Scientific Officer of the FSL, Aizawl, who conducted the test of the samples sent for examination of seized articles, found that the weight of each such tablet sent for test was of 120 mgs (equivalent to 0.120 gms). As such there is a clear discrepancy with regard to the weight of the tablets of the samples drawn by the Seizing Officer PW-5 and the samples tested by the FSL, by a margin of 15 mgs. Evidence is clear that samples were drawn in the Office of Champhai and before the CJM, Champhai by a weighing scale, which was accurate as it is stated by the Seizing Officer, PW-5. It is worth mentioning that there is no evidence as to where those seized articles of the case were kept on 24.04.2014, 25.04.2014 and 26.04.2014, till it was handed over to the Anti-Smuggling Unit, Customs Division, Aizawl on 26.4.2014. It is seen that the Seizing Officer of the Customs Department, PW 5 at first drawn the samples in the Office of the CPF at Champai and then he re-drawn the samples before the CJM at Champhai. It is seen that the Seizing Officer of the Customs Department, PW 5 at first drawn the samples in the Office of the CPF at Champai and then he re-drawn the samples before the CJM at Champhai. The said Seizing Officer also stated that the weighing scale that he used to measure the said tables was an accurate one and that he made the seizure on 24.04.2014 at CPF Office at Champhai. Considering the places, where the samples were drawn, the seizure was done, which was carried out by an Officer of the Customs Department; such an increase by a margin of 15 mgs of contraband articles, otherwise may make a huge difference of the result of the test of the samples under the NDPS Act. The prosecution during the trial was totally silent on such difference.” The accused in this case was given the benefit of doubt.A similar view was taken by this court in Lalmawia & another vs. The State of Mizoram in Crl. A. No. 38 of 2018 dated 19.09.2019. 22. In the instant case in view of the aforesaid discussions and the decided cases of this court, I am of the considered view that the appellant may be given the benefit of doubt and as such the Judgment & Order dated 18.02.2019 passed by the Special Court, ND&PS Act convicting the appellant under section 21(b) of NDPS Act ’85 is set aside and the appellant is acquitted of the charge under section 21(b) of the ND&PS Act and is to be set at liberty forthwith if not wanted in connection with any other case. 23. The appeal accordingly stands disposed of. The registry shall send back the LCR to the trial court.