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IN THE HIGH COURT OF GAUHATI AT KOHIMA BENCH
Michael Zothankhuma, J.
Tsukjemsowa Longchar – Appellant
Versus
State of Nagaland – Respondent
Criminal Application No. 6 of 2018
Decided On : 24-04-2019
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 21 42 – Code of Criminal Procedure – Section 313 – Appeal Against Conviction Under NDPS Act – The appellant has prayed for setting aside the judgment and order passed by the Special ND and PS, in GR Case by which the appellant has been convicted under section 21(c) of the ND and PS Act, 1985 and sentenced – The appellants counsel submits that the impugned judgment and order and the sentence order should be set aside on the ground that section 42(1) of the ND and PS Act was not followed before making the seizure of the seized drugs – Secondly, though drawing of the sample and the sealing of the sample was done in the presence of the Magistrate on 11.04.2018, the sample was sent to the FSL for examination only on 14.04.2018 –Thirdly, the IO was the complainant and a member of the seizing party which had seized the drugs. Accordingly, the investigation and trial was vitiated as the complainant and IO were the same person – Held, The above extract of the deposition of the evidence (cross-examination) of the IO clearly gives rise to an inference that the information received by him was not taken down in writing by him – However, the Lower Court records show that the information received by the IO from the NCB, was taken down in writing and sent to his superior officer, i.e. the Deputy Commissioner (NC), Nagaland. The information taken down in writing was also exhibited by the learned Trial Court as Exb-8 – Thus, this Court finds that section 42(1) of the ND and PS Act has been complied with – However, there is nothing in the above evidence, which suggests that the sealing of the samples in the Magistrates presence had been disturbed – The evidence of the IO, in his cross-examination, only reflects that the sample does not bear the seal of the Officer-in- charge of the Narcotics Police Station or Station House – The seizure having been made by the Excise Department, there is no requirement of the seal of a Police Officer being stamped on the sample – In any event, there is nothing to show that the sample produced did not bear the seal of the Magistrate, in whose presence the sample was drawn and seized on 11.04.2014 – Further, the evidence shows that the sample A-2, which was drawn and sealed by the Judicial Magistrate, First Class alongwith the remnant of sample A-1 sent back by the FSL was not tampered with – The Apex Court, thus, held that all pending prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be covered by the individual facts of the case – The facts of the present case do not show as to how the investigation done by the IO, who is also the complainant is unfair or that there has been a likelihood of bias – Keeping in view the fact that the seizure of the 150 gms of cocaine had been made on the basis of prior information and the seizure had been made by the Excise Personnel comprising the Deputy Superintendent of Excise (PW-4) who was also a part of the seizure team, amongst other excise personnel/officers, this Court finds that the appellant has not been able to show as to how there has been any bias on the part of the IO during investigation or whether any prejudice has been caused to him by the factum of the IO being the complainant also – In the present case, the fact of the cocaine being seized from the of the appellant is clearly proved – There is also nothing to suggest that there has been any tampering with the samples drawn from the main body of the seized cocaine – Further, as the trial of the case in the Trial Court had concluded prior to the judgment passed in Mohan Lal (supra), and as there is nothing to show that any prejudice has been caused to the appellant by the IO during investigation, this Court does not find any ground to interfere with the impugned judgment and order of the Trial Court – The appeal is, accordingly, dismissed – Appeal Dismissed
JUDGMENT :
Michael Zothankhuma, J.
1. Heard Mr. Sentiyanger, learned counsel for the appellant. Also heard Mr. K. Wotsa, learned P.P.
2. The appellant has prayed for setting aside the judgment and order dated 07.08.2018 passed by the Special ND and PS, in GR Case No. 150/2014, by which the appellant has been convicted under section 21(c) of the ND and PS Act, 1985 and sentenced to undergo rigorous imprisonment for a period of 10 (ten) years with a fine of Rs. 1,00,000/- (One lakh) in default 3 (three) months simple imprisonment vide sentence order dated 09.08.2018.
3. The case involves the seizure of 150 grams (net weight) of cocaine, which was received by the appellant in Dimapur, Nagaland and which was sent from Argentina. The Prosecution case is that on 18.03.2014, the IO received information from NCB, Guwahati informing him that a consignment of cocaine was being smuggled from Argentina and that the expected destination was Dimapur, Nagaland. The address of the cocaine consignment, as given by the NCB, Guwahati was Zopar Fresh Flowers, FF-3, Millennium Building Complex, Old Market, Marwari Patti, Dimapur.
4. The Prosecution's further case is that the information received was reduced into writing and conveyed to the Deputy Commissioner of Excise (Narcotic Cell) (hereinafter NC, in short) on 18.03.2014 itself. Thereafter, the Deputy Commissioner (NC), Nagaland vide detailment order No. EX/NC/JUD-4/90 dated 19.03.2014 constituted a team of 16 (sixteen) members to pursue the said information. The IO was also a part of the 16 (sixteen) member team so constituted.
5. That on 10.04.2014, the Excise Narcotic Cell led by the Superintendent Excise (NC), comprising the IO and other excise personnel waited in close proximity of Zopar Fresh Flowers. The consignment arrived at the above address during day time by courier in an envelope and it was only around 6:30 P.M. that the appellant came to pick up the consignment from the shop whereupon, the appellant was intercepted alongwith the consignment. The appellant admitted that he was the addressee and the recipient of the above cocaine consignment.
6. The initial colour test of the cocaine substance was done at the place of seizure, with the help of the Test kit provided by the NCB, Delhi which gave positive result for cocaine. During investigation, the appellant disclosed that the consignment was meant for him and the same had been sent to him from Argentina with the help of his maternal aunt alongwith one African national, one Mr. Morgan Chemeika. On 11.01.2014, the accused and the seized articles were produced before the Magistrate and samples drawn in the presence of the Magistrate. During the time the appellant was detained, the appellant's Aunt purportedly called the appellant to enquire about the seized article. The Aunt was arrested but the African National could not be traced as he had given a fictitious address.
After charge-sheet was filed and trial was completed, the appellant was convicted under section 21 (c) of the ND and PS Act, vide judgment and order dated 07.08.2018 passed by in GR Case No. 150/2014 by the Special Court, ND and PS, Dimapur and sentenced to undergo 10 (ten) years rigorous imprisonment with a fine of Rs. 1,00,000/- (One lakh) in default 3 (three) months simple imprisonment vide sentence order dated 09.08.2018. The appellant's Aunt was however discharged from the case.
7. The appellant's counsel submits that the impugned judgment and order dated 07.08.2018 and the sentence order dated 08.08.2018 should be set aside on the ground that section 42(1) of the ND and PS Act was not followed before making the seizure of the seized drugs. He submits that the information received by the IO was not taken down in writing by the IO. Secondly, though drawing of the sample and the sealing of the sample was done in the presence of the Magistrate on 11.04.2018, the sample was sent to the FSL for examination only on 14.04.2018. He further submits that the sealed article, which was
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