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2022 DIGILAW 607 (GAU)

F. C. Valy v. State of Mizoram

2022-06-10

MARLI VANKUNG

body2022
JUDGMENT : Heard Ms. Vanneihsiami, learned Amicus Curiae for the appellant and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State respondent. 2. This is a jail appeal against the Judgment and order dated 19.09.2018 passed by the Addl. District and Session’s Judge in S.R No. 18/2018 whereby the appellant was convicted under section 21(b) ND&PS Act, 1985 and sentenced to undergo R.I 5 yrs. with a fine of Rs. 10,000/- in default another 100 days R.I., vide order dated 20.09.2018. 3. Brief facts of the case is that on 8.4.2018 @ 9:00 P.M at new Siaha, SI Lalsangzuala seized 28(twenty eight) grams of Heroin packed in 2(two) separate polythene and kept in two soap cases. The seized article was apprehended by NRDC duty party and the owners, appellant F.C Valy and his friend Vabeila were detained at MYA Hqrs, office New Saiha. The Excise & Narcotics were immediately informed, who came to the MYA Office. The NRDC duty party then handed over the seized Heroin to SI Lalsangzuala Pachau the same night and the appellant and co-accused were also arrested. The seized articles was weighed, sealed and packed in the presence of two civilian witnesses. Samples of the seized articles was drawn in the presence of Magistrate First class and sent to FSL on 20/4/2018. The FSL report revealed that the Seized Articles were Heroin with purity of about 82%. On finding a prima facie case against the appellant F.C. Valy and the co-accused Vabeila, the charge sheet was filed by the I.O. Charges were framed against the appellant and co-accused under Section 21(b) of the ND&PS Act, 1985 for the violation of section 8 of the ND&PS Act by the learned Trial Court on 03.08.2018. The appellant having pleaded not guilty, the trial proceedings were initiated. After the appellant was examined under Section 313 Cr.P.C on 12.09.2018, the learned Trial Court convicted the appellant under section 21(b) ND&PS Act and co-accused Vabeilia u/s 21(b) r/w 29 of the ND&PS Act vide its Judgment & Order dated 19.09.2018. Thereafter, on 20.09.2018, the appellant was sentenced to undergo R.I 5 (five) years with fine of Rs.10,000/- I.D R.I 100 days. Aggrieved, the appellant has filed the instant appeal. 4. Ms. Thereafter, on 20.09.2018, the appellant was sentenced to undergo R.I 5 (five) years with fine of Rs.10,000/- I.D R.I 100 days. Aggrieved, the appellant has filed the instant appeal. 4. Ms. Vanneihsiami learned Amicus Curiae submits that that the impugned Judgment & Order and Sentence Order has to be set aside as the mandatory provisions of Section 41 & 42 of the ND&PS Act, 1985 was not followed while making the recovery and seizure of the controlled substance. She submits that the appellant was apprehended by the NGO, NRDC who are not authorized to do so and that the seizing officer did not immediately inform his superiors but had belatedly informed the Excise & narcotics about the incident. The learned Amicus curie further submits that the sample of the S.A was drawn on 20/04/2018 and received by the FSL office on 25/4/18 and it is not know where the Seized article was kept during the 4 days before it was received by the FSL office. The learned Amicus Curie has relied on the decisions of this court in the case of Lalsavunga Vs. State of Mizoram reported in (2021) Vol 4 GLT 988. 5. The learned Amicus Curiae also submits that this court in its order dated 30.04.2019 in Crl. A. No. 3 of 2019 had set aside the impugned order dated 20.09.2018 insofar as the co-accused Vabeilai is concerned and he has already been set at liberty. 6. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand, submits that, no doubt the members of the NGO apprehended the appellant, but they were acting as dutiful citizens when they saw the appellant and co-accused transporting the contraband article in his scooter, whereby, they immediately followed them. The Seized article was recovered on being led by the appellant. The members of the NGO then immediately informed the Excise and Narcotics department who came and seized the S.A in the presence of the civilian witnesses and followed all the due provisions of law. The learned Addl. PP further submits that that there was no delay in sending the drawn samples of the seized article to FSL which was drawn on 16.04.2018 at Siaha and took some time to reach the FSL at Aizawl i.e on 20.04.2018 due to the long distance. She accordingly prays for upholding the Judgment & Order of the learned Trial Court. 7. PP further submits that that there was no delay in sending the drawn samples of the seized article to FSL which was drawn on 16.04.2018 at Siaha and took some time to reach the FSL at Aizawl i.e on 20.04.2018 due to the long distance. She accordingly prays for upholding the Judgment & Order of the learned Trial Court. 7. I have heard the learned counsels for the parties. 8. On perusal of the record shows that two independent local inhabitants namely – Mr. S. Lalrelkima and Mr. S. Hmingthanzama were the civilian witness for making seizure and arrest. PW-1 Mr. S. Lalrelkima stated that “being involved in the detection of the seized article as a local NGO leader’s. They found both accused riding a Scooty vehicle, when they tried to stop them the accused drove ahead, and located them near SBI office at Siahavaihpi. They brought the co-accused Vabeila to their MYA office and he showed them the house of appellant F.C. Valy. Thereafter, they proceeded to the house of appellant F.C Valy, on asking him the place of concealment of the seized article, the appellant Mr. F.C. Valy, took out seized article from one tin kept in their verandah which was wrapped in two soap cases. They immediate gave information to Excise & Narcotics, who came and made the seizure in their presence”. During his cross examination, he stated that the appellant F.C. Valy himself took out of the S/A from their tin. He admitted that the Excise & Narcotics took step after they had already made recovery of the S/A and brought both accused into their MYA office. The deposition of PW-2 Mr. S. Hmingthanzama is more or less the similar to the deposition of PW1. During cross examination, he stated that “It is also a fact that we belatedly informed the Excise & Narcotics about incident as we expect to recover other contraband items from accused, the Excise & Narcotics came to our MYA office at @ 6:00 P.M.” 9. PW-3 Mr. Lalsangzuala Pachuau, SI of Excise and Narcotics stated that on receiving information from the local NRDC, he proceeded to the office of MYA, New Siaha, where he made formal seizure and arrest since both accused and seized articles were already brought to the MYA hall by the local NRDC. PW-3 Mr. Lalsangzuala Pachuau, SI of Excise and Narcotics stated that on receiving information from the local NRDC, he proceeded to the office of MYA, New Siaha, where he made formal seizure and arrest since both accused and seized articles were already brought to the MYA hall by the local NRDC. The seized article was weighed in the presence of two civilian witnesses at 9:00 pm, which weighed 28 grams and repacking and sealing was also done in the presence of the witnesses. He reduced the information received in writing and made a report of the seizure and arrest to the O/C Excise and Narcotics Station, Siaha. During cross examination, he admitted that he mainly depend on the statement of raiding party i.e. the member of the NRDC. 10. Likewise, PW-4 Mr. Lalnunfela, SI of Excise and Narcotics who is the case I/o also stated that as endorsed the case to him, he took up the case as case I/o, his investigation is mainly based on recovery already made by NRDC and he mainly affirmed his investigating process. 11. During examination u/s 313 Cr.PC, The evidence of PW 1 and PW 2 who have deposed that the S.A was found kept in a tin in the veranda of the appellant and it was the appellant who led them to the S.A, has been vehemently denied by the appellant on his examination under section 313 Cr.P.C. The appellant under section 313 Cr.P.C. stated that “Local MYA/NRDC members/leaders came to our residence while we were taking dinner, they tied up me and straightly brought me into MYA hall. I deny the allegation against me on illegal possession of the seized article sent to me from Aizawl by Colney Courier service.” He also denied collection of the same with co-accused Mr. Vabeila from Colney service counter and stated that dt.8.4.2018 was Sunday, Colney counter is also often closed. 12. The forensic report of the sample of the seized article exhibited as Ext P-17 in the trial court shows that the S.A was Heroin with purity of about 82%. 13. It is seen from the statements given by the appellant under Section 313 Cr.P.C that the appellant has given a blanket denial with regard to his involvement with the seized articles. 13. It is seen from the statements given by the appellant under Section 313 Cr.P.C that the appellant has given a blanket denial with regard to his involvement with the seized articles. The deposition of the PWs shows that the seized articles were recovered from the verandah of the residence of the appellant by the members of the NGO who were, however, not authorized to do so under section 41 of ND&PS Act. Further, Section 42(1) of the ND&PS Act requires the Excise Officer to take down in writing the information received by him and send the same to his Superior Officer. This is a mandatory provision of law. In the case of F. Vanlalringa vs State of Mizoram, reported in 2010 3 GLT 454, the Division Bench of this Court has relied upon the decision of the Apex Court in the case of Babu Ahmed Rahman vs. State of Kerala, reported in (2002) 4 SCC 229 wherein it has been held that the provision of section 42 of the ND&PS Act, 1985 is mandatory and the non-compliance of the same would render the investigation illegal. In the case of Karnail Singh vs. State of Haryana, reported in 2009 8 SCC 539 , the Apex Court has held in para 35 as follows: “35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.” 14. In the present case, the evidence of Mr. Lalsangzuala Pachuau, SI of Excise and Narcotics mentions that he had reduced in writing the information so received which was exhibited as Ext P - IV in the trial court. On perusal of this exhibit it is seen that the information report is made after he had gone to N. Saiha, MYA office and seized the 28 grams of yellowish powder suspected to be Heroin and also arrested the accused persons in connection with the seized articles. It is seen that the report so made was signed on 9/4/18 while he received the information on 8/4/18. While the Apex court in the above case has clarified that the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. There is also no evidence suggesting that the Seizing officer/PW3 who received the information was not in the police station and did not have sufficient time to immediately record the information in writing before proceeding and acting upon the information so received as required under section 42 ND&PS Act. 15. In view of the above, this Court finds that the information received by PW-3, regarding possession of the contraband goods by the appellants, was not recorded immediately into writing, as required under Section 42(1) of ND&PS Act and no evidence or reason has been given as to why the information could not be writing down before the search/seizure and arrest of the appellant. 16. 16. Thus, considering the fact that section 42(1) has not been fully complied with and the fact that the seizure of the S.A was done by the members of the NGO who are not the authorized persons under section 41 of ND&PS Act. I am compelled to give the benefit of doubt to the appellant for non compliance with the provisions of section 41 & 42 of ND & PS Act and allow this appeal, and set-aside the Judgment & Order passed by the Special Court, ND & PS, Siaha in SR No.18/2018 whereby the appellant F.C Valy was convicted under Section 21(b) ND & PS Act on 19.09.2018 and sentenced to undergo 5 years Rigorous Imprisonment with a fine of Rs.10,000/-, in default Rigorous Imprisonment for 100 days vide Order dated 20.09.2018. 17. The appellant be released forthwith unless his custody is required in connection with any other offence. 18. In appreciation of the services rendered by the Learned Amicus Curie the she may be paid a fee of Rs.7500/- to be borne by the State Legal Services Authority 19. Crl.A. No. 3 of 2021 (J) accordingly stands allowed and disposed of.