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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT AIZAWL BENCH
Nelson Sailo, J.
Hlunkhawkhai S/o Thawngngam(L) and ors. – Appellants
Versus
State of Mizoram - Respondent
Crl. A. No. 34 of 2018 (J)
Decided On : 11-02-2021
ND&PS Act - Section 21- Criminal Procedure Code - Section 313 - rigorous imprisonment - Trial Court - prosecution evidence has names of independent witnesses – Claim of compensation - Thereafter, the Trial Court framed charge against the appellants separately under Section 21(b) & 29 of ND&PS Act - Both appellants denied charge and claimed to be tried - Accordingly trial was conducted against appellants - Prosecution examined as many as 5 prosecution witnesses while defiance did not examine any evidence besides cross-examining the prosecution witnesses. After closure of prosecution evidence appellants were examined under Section 313 enable them explain evidence which appeared against them as was led by prosecution witnesses - Answer given by both appellants against questions put to them was basically that of denial –
Finding of the Court: It is further noticed from evidence of prosecution that alleged heroin was recovered upon disclosure statements made by appellants when they were confronted by Excise personnel’s as well as disclosure statement admittedly was not recorded before or even after recovery was made - Apex Court in case of held that exact information given by accused while in custody which led to recovery of articles has to be proved - It is therefore necessary for benefit of both accused and prosecution that information given should be recorded and proved and if not so recorded exact information must be adduced through evidence – Court have already noticed the inconsistencies in evidence given by on one side and other - Apex Court in Mal held that it was a well settled principle that where witnesses make two inconsistent statements in their evidence either at one stage or two stages testimony of such witnesses becomes unreliable and unworthy of credence and in absence of special circumstances no conviction can be based on evidence of such witnesses - It may also be seen that seizing officer n his cross-examination stated that seized article was not recovered from immediate possession of the accused and that it was a fact that accused not go to place where seized article was recovered - On other hand, in their examination-in-chief stated that two suspected persons took out heroin kept in eight soap case from concealing place in bushes near residence - In view of above and upon due consideration of case in its entirety it cannot be said that the prosecution has proved charge against the appellants with proof beyond reasonable doubt –
Result: Appeal disposed of
JUDGMENT :
Heard Mr. C. Lalfakzuala, learned Amicus Curiae for the appellant and Mr. C. Zoramchhana, learned Public Prosecutor.
2. This is an appeal from Jail filed by the 2 (two) accused persons/appellants against the Judgment & Order dated 17.04.2018 passed by the Special Court under the ND&PS Act, Aizawl in Crl. Tr. (Ex) No. 447/2017 whereby, they both were convicted under Section 21(b) of the ND&PS Act and sentenced to undergo 4 (four) years rigorous imprisonment with fine of Rs. 1,000/- and in default, imprisonment for 10 (ten) days in respect of the first appellant. In respect of the second appellant, on his conviction he was to undergo rigorous imprisonment for 4 (four) years and additionally, for another 2 (two) years as enhancement punishment, 6 (six) years of rigorous imprisonment in all with fine of Rs. 10,000/- and in default, a further imprisonment for 1 (one) month.
3. The case of the prosecution in brief is that on 20.01.2017 at 11:30 PM, S.I Lalrinsanga and his party accompanied by YMA (SRS) on duty seized 123 grams of heroin kept in eight soap cases and arrested the two appellants, who were said to be in possession of the heroin at Tuirial, Aizawl on 21.01.2017, the seizing officer submitted his report to the Officer-in-Charge, Anti-Narcotics Squad, Aizawl and accordingly, Ex-N-10/2017 dated 21.01.2017 under Section 21(b) of the ND&PS Act was registered and the case was endorsed to Inspector Lalchansanga Sailo for investigation.
4. The Investigating Officer thereafter, conducted investigation and recorded the statements of the witnesses while visiting the place of occurrence. Consequently, upon finding a prima facie case against the appellants under Section 21(b) of the ND&PS Act, he submitted the charge-sheet before the Court below vide Ex (ANS) 57/2017 dated 16.03.2017.
5. Thereafter, the Trial Court on 16.04.2017 framed charge against the appellants separately under Section 21(b) & 29 of the ND&PS Act. Both the appellants denied the charge and claimed to be tried. Accordingly, trial was conducted against the appellants. The prosecution examined as many as 5 (five) prosecution witnesses while the defence did not examine any evidence besides cross-examining the prosecution witnesses. After the closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C to enable them explain the evidence which appeared against them as was led by the prosecution witnesses. The answer given by both the appellants against the questions put to them was basically that of denial. Thereafter, the Trial Court upon hearing the parties through their respective counsels decided the case vide the impugned Judgment & Order dated 17.04.2018 convicting both the appellants and sentencing them to rigorous imprisonment vide Order dated 17.04.2018 as already stated herein above.
6. Mr. C. Lalfakzuala, learned Amicus Curiae submits that the sealing/packing, etc of the seized contraband substance was not done in the presence of the accused persons and that it was also not produced before the Trial Court during the trial. Referring to the statements made by the PW-3, i.e. the seizing officer, he submits that according to him, the alleged heroin was recovered by his junior officer as directed by him and in front of independent witnesses. However, nowhere in the prosecution evidence has the names of the independent witnesses been mentioned. He submits that the two witnesses, who are named in the seizure memo are the PW Nos. 1 & 2 and that they are only interested witnesses and are not independent witnesses. This is due to the fact that as per the evidence they interrogated one drug addict and who in turn, informed them about the possession of heroin by the appellants. He also told them that they were staying over in the house of one Mr. Lianthangpuia at Tuirial. Therefore, the learned amicus curiae submits that they cannot be termed as independent witnesses. He submits that neither the house owner Mr. Lianthangpuia nor the d
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