Dismissed

Mrs M Thangi v. State of Mizoram and Anr.

Gauhati HC12 Sept 2018I.A.(Crl.)/9/2018

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an appeal challenging a conviction under the NDPS Act. The court held that Section 50 notice was not required as the accused voluntarily handed over heroin. It also found the examination under Section 313 CrPC valid and the sentence appropriate due to the accused being a habitual offender.

What did the court decide?

The appeal was dismissed, and the impugned judgment and sentence orders were upheld.

Mrs M Thangi Vs State of Mizoram and Anr. — Narcotics (NDPS) | Gauhati HC (2018)

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Page No.# 1/8

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GAHC030000452018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (AIZAWL BENCH)

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Case No. : Crl.A. 28/2018

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1:M Thangi W/o Laldinglura, Zokhawthar

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VERSUS

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1:State of Mizoram Aizawl, Mizoram 2:Excise and Narcotics Department Govt. of Mizoram Aizawl Aizawl Mizora

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Advocate for the Petitioner : Mr Zoramchhana

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Advocate for the Respondent : Ms Linda L Fambawl

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Linked Case : I.A.(Crl.) 10/2018

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1:M Thangi Zokhawthar Champhai Dist.

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VERSUS

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1:State of Mizoram and Anr. Aizawl Mizoram

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Page No.# 2/8

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2:SI Benjamin Lalruattluanga Excise and Narcotics Aizawl Mizoram Aizawl Mizoram Advocate for the Petitioner : Mr Zoramchhana Advocate for the Respondent : Ms Linda L Fambawl

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Linked Case : I.A.(Crl.) 9/2018 1:Mrs M Thangi Zokhawthar Champhai VERSUS 1:State of Mizoram and Anr. Aizawl Mizoram 2:SI Benjamin Lalruattluanga Excise and Narcotics Govt. of Mizoram Aizawl Aizawl Mizoram Advocate for the Petitioner : Mr Zoramchhana Advocate for the Respondent : Ms Linda L Fambawl

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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JUDGMENT

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Date : 27-09-2019

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J U D G M E N T & O R D E R (ORAL)

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Heard Mr. Zoramchhana, the learned counsel for the appellant who submits that the

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appellant convict is aggrieved by the impugned Judgment and Order dated 27.03.2018

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Page No.# 3/8 passed by the Special Court, ND&PS Act, Aizawl in Crl. Trial (Ex.) No. 758/2017, by which the appellant was convicted under Section 21 (b) of the ND&PS Act, 1985 and Sentenced to undergo Rigorous Imprisonment for 4 years, with a fine of Rs. 10,000/-, in default, Simple Imprisonment for three months, vide the Sentence Order dated 28.03.2018.

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2. The brief facts of the case is that on 14.03.2017 at around 2.45 pm, at Chhingaveng Saron Road, Aizawl, near the City Bus stand, Sub-Inspector Benjamin Lalruattluanga of the Excise and Narcotics Department seized 63 grams of heroin kept in four plastic soap cases, wrapped in black polythene from the appellant. After charge sheet had been filed and charge under Section 21 (b) of the ND&PS Act, 1985 had been framed against the appellant, the learned Trial Court examined four witnesses. Thereafter, the learned Trial Court, vide the impugned Judgment and Order dated 27.03.2018 passed in Criminal Trial (Ex) No. 758/2017, convicted the appellant and sentenced him to Rigorous Imprisonment for 4 years, with a fine of Rs. 10,000/-, in default, Simple Imprisonment for three months, vide Sentence Order dated 28.03.2018.

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3. The appellant’s counsel submits that the Report of seizure and arrest dated 14.03.2017 made by Benjamin Lalruattluanga, Sub-Inspector, Excise & Narcotics Department, is to the effect that the seized drugs were recovered from the physical possession of the appellant. As the drugs were recovered from the physical possession of the appellant, Section 50 of the ND&PS Act, which required the officer to inform the appellant that she was about to be searched, had not been complied with. He accordingly submits that failure of the Seizing Officer, to inform the appellant about her rights to be searched before a Gazetted Officer or a Magistrate, vitiated the conviction and sentence of the appellant by the learned Trial Court. In support of his submission, he relies upon the Judgment of the Apex Court in the case of State of Punjab Vs. Baldev Singh, reported in (1999) 6 SCC 172.

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Page No.# 4/8

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4. The appellant’s counsel also submits that though the evidence given by the Seizing Officer (PW-1), is to the effect that the appellant herself, obediently took out the heroin packed in transparent polythene and kept in four plastic soap cases from her carrying bag, when the Seizing Officer asked her to bring out the heroin, the said evidence is suspect and not believable.

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5. The learned counsel for the appellant also submits that the learned Trial Court did not examine the appellant in terms of Section 313 CrPC, as the questions put to the appellant amounted to casual statements, which had no relevance to the evidence adduced by the witnesses. He accordingly submits that as the appellant has not been examined in terms of Section 313 CrPC, the learned Trial Court should be directed to re-examine the appellant in terms of Section 313 CrPC. In support of his submission, he relies upon the Judgment of this Court in Temsulemba Vs. State of Nagaland reported in 2017 (3) GLT 380. The last submission made by the appellant is that the sentence imposed upon the appellant is too harsh.

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6. Mrs. Linda L. Fambawl, the Addl. Public Prosecutor, on the other hand submits that, as there was no search conducted upon the appellant by the Seizing Officer, there was no requirement to comply with Section 50 of the ND&PS Act, 1985. She also submits that as question No. 1 put to the appellant, in his examination under Section 313 CrPC, was with regard to the evidence adduced that the appellant had been arrested for possession of 63 grams of heroin, which had been answered positively by the appellant, there was no infirmity in the examination of the appellant under Section 313 CrPC. The Addl. Public Prosecutor also submits that the appellant is a habitual offender and had been arrested and convicted on two previous occasions for possession of heroin in two different cases. Accordingly, the sentence imposed upon the appellant cannot be said to be harsh or severe, as this is the third case in

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Page No.# 5/8

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which the appellant has been apprehended.

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7. I have heard the learned counsels for the parties.

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8. In the case of State of Punjab Vs. Baldev Singh (Supra), the Apex Court has held that when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned, of his rights under sub-section (1) of Section 50 of the ND&PS Act, of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. If the same is not done, the same could cause prejudice to an accused and though it may not vitiate the trial, it would render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused.

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9. In the present case, the evidence of the Seizing Officer (PW-1) is to the following effect:-

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“We saw the suspected person M. Thangi was sitting beside hooker (shop) which was near city bus stand. The said M. Thangi tries to ran away when she saw us. However before she evade from arrest I stopped her. I accordingly asked to take out her heroin from her

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possession. She obediently took out heroin packed in transparent polythene kept in 4 plastic soap cases which were further wrapped in black polythene from her carrying bag.

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Accordingly, I seized the said heroin in presence of reliable civilian witnesses and I arrested her.”

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10. There were two seizure witnesses, i.e. PW Nos. 2 and 3, who have supported the evidence given by the Seizing Officer. They have stated in their evidence that when the Excise Personnel asked the appellant to take out the heroin from her possession, the appellant

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Page No.# 6/8 obediently took out the heroin which was packed in four plastic soap cases, wrapped in black polythene from her carrying bag. The above evidence clearly shows that no search was conducted upon the appellant and there was no requirement for a search to be conducted, as the appellant had herself taken out the seized heroin. In that view of the matter, this Court holds that there was no requirement for invoking Section 50 of the ND&PS Act, 1985 and accordingly, the Judgment of the Apex Court in the case of State of Punjab Vs. Baldev Singh (Supra) is not applicable to the facts of this case.

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11. The examination of the appellant under Section 313 CrPC is reproduced below:-

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“1. The evidence against you is that on 14.03.2017, you were arrested for possession of 63 grams of heroin kept in 4 plastic soap cases. What do you say?

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Answer: Yes, I was arrested with 63 grams of heroin. I was sent by Numawii of Tahan to

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deliver the said heroin so that I would be given Rs. 10,000/- (ten thousand).

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Do you defence witness?

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Answer: No.

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Do you have any other thing to say before the Court?

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Answer: My husband is suffering from diabetes and we have two children aged 12 and 9.

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Hence, I beg the leniency of Court from humanitarian ground.”

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12. A perusal of the questions put forth by the Trial Court, especially question No. 1, clearly

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shows that the evidence adduced against the appellant had been put to the appellant, to explain as to why she was arrested for possession of 63 grams of heroin kept in four plastic

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Page No.# 7/8

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soap cases. The answer of the appellant is an admission that she was being paid to deliver the heroin to some person.

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The above being said, this Court does not find any infirmity with the other two questions put forth by the Trial Court to the appellant. Accordingly, this Court finds that the questions put forth by the Trial Court to the appellant are in consonance with Section 313 CrPC and there is no violation of the Section 313 CrPC as was done in the case of Temsulemba Vs. State of Nagaland (Supra).

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13. With respect to the appellant’s counsel’s submission that the punishment of Rigorous Imprisonment for four years with a fine of Rs. 10,000/- is too harsh, keeping in view that only 63 grams of heroin had been seized, this Court finds that the appellant had been arrested on two previous occasions for possession of heroin and two cases had been registered earlier i.e. Ex.N. 136/2015 dated 07.08.2015 and Ex N. 146/2014 dated 30.08.2014.

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The above is clearly recorded in the evidence given by PW-5, who is the I.O. This evidence has not been rebutted or denied by the appellant during cross examination of PW-5. In view of the fact that the appellant seems to be an habitual offender, this Court does not find the sentence imposed upon the appellant to be harsh.

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14. In view of the reasons stated above, this Court does not find any ground to interfere with the impugned Judgment and Order dated 27.03.2018 and the Sentence Order dated 28.03.2018 passed by the Trial Court in Crl. Ex No. 758/2017.

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15. The appeal is accordingly dismissed.

Send back the LCR.

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JUDGE

Comparing Assistant

Mrs M Thangi v. State of Mizoram and Anr.

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Mrs M Thangi v. State of Mizoram and Anr.

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