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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MARLI VANKUNG, J.
Lallawmsanga Vengsang, Champhai – Appellant
Versus
State of Mizoram and Anr – Respondents
Crl.A. 13 of 2020, I.A.(Crl.) 14 of 2020
Decided on : 03-11-2023
ND&PS Act - Conviction under Section 8/21(c) - Section 42(1) ND & PS Act - Summary of Acts and Sections: The court discussed the mandatory provisions of Section 42(1) ND & PS Act and the conflicting statements of the accused under Section 313 Cr.P.C. The judgment also highlighted the lack of evidence to prove the ownership of the seized contraband substances, leading to the acquittal of the appellant.
Fact of the Case:
The appellant was convicted under Section 8/21(c) ND&PS Act for possession of contraband substances. The prosecution's case was based on the recovery of heroin from a truck driven by the appellant's co-accused. The appellant denied any knowledge or ownership of the seized articles.
Finding of the Court:
The court found that the prosecution failed to prove the guilt of the appellant under Section 8/21(c) of ND & PS Act due to conflicting statements of the accused and lack of evidence to establish ownership of the seized contraband substances.
Issues: The key issues revolved around the compliance with Section 42(1) ND & PS Act, conflicting statements of the accused, and the lack of evidence to prove ownership of the seized contraband substances.
Ratio Decidendi: The court's decision was influenced by the lack of evidence to establish ownership of the seized contraband substances, as well as the conflicting statements of the accused under Section 313 Cr.P.C. The court also emphasized the importance of complying with mandatory provisions of the ND & PS Act.
Final Decision: The appellant's conviction under Section 8/21(c) ND&PS Act was set aside, and the appellant was acquitted and released. The appeal was allowed and disposed of.
JUDGMENT :
Heard Mr. Lalpianfela Chawngthu, learned counsel for the appellant along with Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor.
2. This is an appeal against the Judgment & Order dated 27.11.2019, passed by the Special Court, ND & PS Act, Champhai wherein the appellant was convicted under Section 8/21(c) ND&PS Act and vide the court’s Order dated 03.12.2019 was sentenced to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs.1 lakh in default rigorous imprisonment for a period of 6 (six) months.
3. The prosecution case in brief is that on 22.02.2018, Mr. Lalsangliana, S.I. of Police submitted a written FIR to the Police Station, Champhai to the effect that at around 2 P.M. he recovered 38 Hawng of heroin weighing 450.8 grams from the Truck bearing registration No.MZ-02A-5102 driven by Vanlaltawka at Khankawn Police Check Post. Accordingly, Champhai Police Station registered a case by CPI PS case No.16/2018 under Section 21(c)/25/29 of ND & PS Act against the accused Vanlaltawka who was arrested on 22.02.2020,and the alleged owner of the seized articles namely Mr. Lallawmsanga/appellant who was arrested on 24.02.2020.
4. After investigation of the case, a prima facie case was found against the accused persons and charge sheet was accordingly filed against the accused persons under Section 21(c)/25/29 of ND & PS, Act. Thereafter the trial court, framed charge against the accused persons on 14.08.2018 under Section 21(c)/25/29 of ND & PS, Act, wherein both the accused persons pleaded not guilty and claimed for trial.During the framing of charge the accused No.1/Vanlaltawka had implicated the co-accused Lallawmsanga/appellant stating that the co-accused had requested him to carry the bag to Aizawl from the residence of his mother-in-law at Champhai. Not knowing that the contents was heroin he had carried the bag, which was discovered at the check point at Khankawn by the police duty.
5. During the trial of the case as many as 6 (six) prosecution witnesses were examined, thereafter, the accused persons were examined under 313 Cr.P.C. In the examination under Section 313 Cr.P.C, the accused No.1/Vanlaltawka denied the evidence against him to the extent that though the seized articles were found in the vehicle driven by him, the seized articles actually belongs to the co-accused/appellant and that he had only picked up the Air bag from the house of the mother-in-law of co-accused/appellant at Vaihmun, Champhai, on the request of the co-accused/ appellant.
6. The appellant on the other hand on his examination under Section 313 Cr.P.C. denied all the incrimination evidence against him. After examination of the accused person under Section 313 Cr.P.C., 2 (two) defence witnesses were examined. The learned trial court after considering the evidence on record and after hearing both the parties, acquitted the accused No.1/Vanlaltawka of all the charges and convicted the appellant under Section 8/21 (c) of ND & PS Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs.1 lakh in default rigorous imprisonment for a period of 6 (six) months.
7. Aggrieved by this conviction and sentence order the instant appeal has been filed.
8. Mr. Lalpianfela Chawngthu, learned counsel for the petitioner submits that the conviction and sentence of the appellant, dated 03.12.2019, by the learned trial court in Special Court of Judge, ND & PS Act, Aizawl Judicial District, Champhai Mizoram is liable to be quashed and set aside since the mandatory provisions of section 42(1) ND & PS Act has not been complied with. He has led this court to the FIR dated 22.02.2018, where it is not mentioned that any written report was made at the time when the information was received. He further led this court to the evidence of PW-1 who is S.I. Lalsangliana. The learned counsel submits that, nowhere in deposition of the seizing officer PW-1 has it been mentioned that he had made a written report as ma
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