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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM & ARUNCHAL PRADESH, AIZAWL BENCH
NELSON SAILO, J.
Sh. C. Lalzarliana & Anr. - Appellant
Versus
State of Mizoram - Respondent
Crl.A No. 23 of 2019 (J)
Decided on : 21-01-2022
Indian Penal Code,1860 - Section 34 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21 (c) and 42 – Criminal Procedure Code, 1973 - Section 313 - Carrying drugs - Charge-sheet - Sub-Inspector (S.I) submitted an Enquiry Report to Officer-in-Charge of Police Station to effect that at around 2 p.m while on duty at Police Station, she received an information in charge of DSB, over phone to effect that they have detained one Maruti 800 car bearing registration No suspected to be carrying drugs at Serkawn - She conveyed information to her superior i.e., SDPO and he issued authorization in her favor to conduct search - After observing formalities, she proceeded to spot where search was conducted in presence of civilian witnesses and 3800 capsules of cipla was seized from car - 10 capsules were taken from each of 19 polythene packets. 5 capsules from each of 19 polythene packets were kept for samples and another 5 capsules kept as duplicate - Packing and sealing was done on spot in presence of witnesses and appellants were apprehended and produced at Police Station - On basis of Enquiry Report P.S Case No. dated under Section 21 (c) of ND&PS Act was registered and investigation conducted - Whether they wanted to be searched before Magistrate or before SDPO, who was a Gazette Officer and to which they declined.
Finding of the Court:
Examination of appellants under section 313 CrPC reveals that PW-1 and party without reducing into writing secret information received by Constable proceeded to intercept vehicle in which contraband substance was alleged to be carried - At Serkawn, they met up with appellants and according to appellant, they asked them to open dickey of car to search for contraband substance - Whereas, as per appellant dickey of car was opened by PW-1 and party and a bag was discovered in it - Whatever be case, it can be seen that Section 42 of ND & PS Act was not complied with before resorting to said action - Thus, upon overall and careful consideration of case, Court find appellants to be entitled to be given benefit of doubt - It is a settled position in law that harsher punishment more is strictness of proof required for prosecution - Burden is always upon prosecution to prove case against the person accused with proof beyond reasonable doubt - In present case, for reasons stated herein above, prosecution cannot be said to have proved their case beyond reasonable doubt - In that view of matter, Court find merit in appeal and impugned judgment and order of conviction and impugned order of sentence are hereby set aside.
Result: Appeal allowed
JUDGMENT :
Heard Mr. C. Lalfakzuala, learned Amicus Curiae for the appellants and Mr. C. Zoramchhana, learned Public Prosecutor for the State of Mizoram.
[2.] This is an appeal against the Judgment & Order dated 11.10.2018 passed by the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (ND&PS Act) Lunglei, Mizoram in Criminal Trial No. 262/2016 convicting the appellants under Section 21 (c) of the ND&PS Act read with Section 34 of the Indian Penal Code (IPC). The appeal is also against the order dated 12.10.2018 passed by the same Court sentencing the appellants to Rigorous Imprisonment for ten (10) years with a fine of Rs. 1 lakh each and in default thereof, to undergo Simple Imprisonment for 1000 days each.
[3.] It may be mentioned herein that the State had earlier approached this Court by filing Criminal Revision Petition No. 5 of 2017 challenging the Judgment & Order dated 21.01.2017 passed by the Addl. Sessions Judge, Lunglei Judicial District in the same case whereby, both the appellants were convicted under the aforementioned Sections of law and sentenced to undergo Rigorous Imprisonment for five (5) years with a fine of Rs. 20,000/-and in default thereof, to further undergo Simple Imprisonment for two (2) months. The Criminal Revision Petition came to be disposed of vide Judgment & Order dated 09.02.2018 by remanding the matter back to the Trial Court from the stage of recording the statements of the accused persons under Section 313 Cr.PC after giving them an opportunity to adduce evidence in their defense. On remand, the case came to be disposed of vide the impugned Judgment & Order dated 11.10.2018 and the order of sentence dated 12.10.2018 in the manner as already stated above. Aggrieved with the same, the appellants are before this Court through the instant appeal.
[4.] The facts of the case according to the prosecution in brief is that on 31.05.2016, Sub-Inspector (S.I) Lalpianpuii submitted an Enquiry Report to the Officer-in-Charge of the Lunglei Police Station to the effect that on 31.05.2016 at around 2 p.m while on duty at the Police Station, she received an information from S.I Tlanghmingthanga in charge of DSB, Lunglei over phone to the effect that they have detained one Maruti 800 car bearing registration No. MZ02/6273 suspected to be carrying drugs at Serkawn. She conveyed the information to her superior i.e., SDPO and he issued authorization in her favor to conduct search. After observing formalities, she proceeded to the spot where search was conducted in the presence of the civilian witnesses and 3800 capsules of cipla was seized from the car. 10 capsules were taken from each of the 19 polythene packets. 5 capsules from each of the 19 polythene packets were kept for samples and another 5 capsules kept as duplicate. Packing and sealing was done on the spot in the presence of witnesses and the appellants were apprehended and produced at the Police Station. On the basis of the Enquiry Report, Lunglei P.S Case No. 120/2016 dated 31.05.2016 under Section 21 (c) of the ND&PS Act was registered and investigation conducted. Upon conclusion of the investigation by the appointed Investigating Officer (I/O), he filed a charge-sheet before the Court of Chief Judicial Magistrate (CJM), Lunglei on 10.08.2016. The case was then committed to the Sessions Court and charge under Section 21 (c) of the ND&PS Act read with Section 34 IPC was framed against both the appellants and to which, they pleaded not guilty and claimed for trial. During the trial, the prosecution examined 8 prosecution witnesses while the appellants examined three (3) defence witnesses in their defense. The appellants were also examined under Section 313 Cr.PC and thereafter, vide the impugned Judgment & Order, the appellants were convicted and sentenced as already stated herein above.
[5.] Mr. C. Lalfakzuala, learned Amicus Curiae submits that S.I. Tlanghmingthanga, who is the PW-1 did not record the information he received fr
Point of Law : Burden is always upon prosecution to prove the case against the person accused with proof beyond reasonable doubt.
Section 52A deals with disposal of seized drugs and psychotropic substances.
Failure to comply with mandatory sampling procedures under Section 52A of the NDPS Act invalidates the prosecution's case, leading to acquittal.
Non-compliance with Section 52A of the NDPS Act, requiring samples to be drawn and certified by a Magistrate, vitiates the trial as it fails to produce primary evidence.
The conviction was set aside due to non-compliance with mandatory procedures under the NDPS Act, specifically Section 52A regarding the presence of a Magistrate during sampling.
The standard of proof for possession under the NDPS Act requires both physical control and knowledge of the substance, which was upheld despite procedural lapses.
The judgment emphasizes the importance of compliance with statutory provisions, the veracity of evidence, and the benefit of doubt in criminal cases.
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