Allowed

Krosmawii v. State of Mizoram

Gauhati HC8 Jun 2022CRL.A(J)/12/2020

Case brief

AI extract

What is this about?

The High Court set aside the conviction and sentence of two appellants for narcotics offenses. The court held that the seizure and arrest violated mandatory procedural requirements of the NDPS Act as the civilian committee seized drugs without police presence and written reports were not promptly made. Technical lapses could not be cured by ambiguous pleas.

What did the court decide?

Judgment and Order of conviction and sentencing set aside; appellants released unless custody required for other offences; case disposed.

Krosmawii Vs State of Mizoram — Narcotics (NDPS) | Gauhati HC (2022)

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GAHC030003442020

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

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Case No. : CRL.A(J)/12/2020

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Krosmawii Aizawl VERSUS State of Mizoram Aizawl

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Advocate for the Petitioner : Mr C Lalfakzuala (Amicus Curiae)

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Advocate for the Respondent : Ms Linda L Fambawl (PP/Addl.PP, Mizoram)

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Linked Case : Crl.A./25/2019

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Vankhawneiha Zuangtui Aizawl

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VERSUS

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State of Mizoram R/b Secretary Home Department

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Advocate for the Petitioner : Mr T Lalnunsiama (Amicus Curiae) Advocate for the Respondent : Ms Linda L Fambawl (PP/Addl.PP Mizoram)

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BEFORE HONOURABLE MRS. JUSTICE MARLI VANKUNG

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J U D G M E N T

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Date : 08-06-2022

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Heard Mr. C. Lalfakzuala, learned Amicus Curiae for the appellant Krosmawii in Crl.A. No. 12 of 2020(J) and Mr. T. Lalnunsiama, learned Amicus Curiae for the appellant Vankhawneiha in Crl.A. No.25 of 2019(J) alongwith Mr. C. Zoramchhana, learned Public Prosecutor for the State respondent.

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2] Both the jail appeals in Crl.A. No. 12 of 2020(J) and Crl.A. No.25 of 2019(J) are against the common Judgment & Order passed by the Special Court, ND & PS, Siaha in SR No.21/2018 whereby the appellant Vankhawneiha was convicted under Section 21(b) ND & PS Act and the appellant Krosmawii was convicted under section 21(b) r/w 29 ND&PS Act and section 25 read with section 21(b) of the ND & PS Act, 1985. Both the appellants were sentenced to undergo 5 years Rigorous Imprisonment with a fine of Rs.10,000/-, in default Rigorous Imprisonment for 100 days vide Order dated 15.11.2018, on conviction u/s 21(b) r/w 29 of ND&PS Act and the appellant Krosmawii was also sentenced to undergo 5 years Rigorous Imprisonment with a fine of Rs.10,000/-, in default Rigorous Imprisonment for 100 days u/s 25 r/w 21(b) of ND&PS Act. The terms of sentenced against the appellant Krosmawii is to run concurrently. Since the appeals arise out of a common judgment the appeals are considered and clubbed together.

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3] The prosecution case in brief is that on 13.04.2018, the local leaders of New Siaha known as “New Siaha Ruihhlo Do Committee” (In short – NRDC) recovered 5.3 grams of heroin kept in 14 phials concealed with black polythene bag from under the earth allegedly concealed by the appellant /Krosmawii in her residential compound which was supplied to her by appellant/Mr. Vankhawneiha. After making recovery, the NRDC immediately informed the Excise & Narcotics Station, Siaha and S.I Lalnunfela of Excise & Narcotics thereby proceeded to the PO, seized the said heroin in the presence of reliable local residents, weighed the seized article and arrested the appellants in the presence of the said local residence. He gave the information to the superior officer viz. Officer-in-charge, S.I Lalsangzuala of Excise & Narcotics, who was then endorsed to investigate into the case. On investigation, the case I.O found that seized heroin was supplied to appellant Krosmawii by appellant Mr. Vankhawneiha. When the appellant Vankhawneiha was interrogated by the NRDC members, he had confessed before them that he took the local NRDC members to the house of appellant Krosmawii. The appellant Krosmawii therefore led the New Siaha Ruihhlo Do Committee (NRDC) members to the place of concealment of the seized heroin in her residential compound, while the appellant Vankhawneiha did not know of the place or manner of concealment of the seized article. The Inventory was prepared and certified by the CJM, Sample drawn was also taken before CJM, Siaha on dt.16/04/2018. As per the report of FSL, Aizawl dated 23.05.2018, the seized articles were found to be heroin and its purity was about 84 % w/w. The Case I/O

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therefore found a prima facie case against the appellant Vankhawneiha u/s 21 (b) ND

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& PS Act, 1985 and found prima facie case u/s 25 r/w 21 (b) of ND & PS Act and u/s 21(b)r/w section 29 ND&PS ACT against the appellant Smt. Krosmawii and charge sheeted accordingly.

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4] The learned trial Court on dt.7.9.2018 framed charge u/s 21 (b) of ND & PS Act, 1985 against appellant Mr. Vankhawneih who partially pleaded guilty stating that “After we had concealed the same, recovery of the seized heroin is made”. The learned trial court also framed charge under section 25 r/w 21 (b) of ND & PS Act and u/s 21(b)r/w section 29 ND&PS ACT against the appellant Krosmawii to which the she pleaded not guilty.

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5] The prosecution examined 4(four) nos. of prosecution witnesses to prove their case. No defense witnesses were produced. During examination u/s 313 Cr PC, appellant Krosmawii stated that Vankhawneiha and his friend Mr. Rinchhana brought the seized heroin into her house, she also admitted that when the local NRDC members were brought to her house, she led them to the place where she concealed the seized heroin under the earth.

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6] On examination of the appellant Vankhawneiha under section 313 Cr.P.C he

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stated that although appellant Krosmawii did not purchase the seized heroin, he handed over the seized heroin to her for concealment. He also admitted the evidence that he led the local people to the house of Krosmawii who had concealed the seized heroin in her residential compound under the earth and recovery was of the same was made on being led by accused Krosmawii where she herself took out the seized heroin .

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7] After considering the evidence on record and on hearing both the parties, the learned Trial court convicted the appellant Vankhawneiha under Section 21(b) ND & PS Act and convicted the appellant Krosmawii under section 21(b) r/w 29 ND&PS Act and section 25 read with section 21(b) of the ND & PS Act, 1985. Both the appellants were sentenced to undergo 5 years Rigorous Imprisonment with a fine of Rs.10,000/-, in default Rigorous Imprisonment for 100 days vide Order dated 15.11.2018. Aggrieved by this order, the appellants have filed their appeals against the impugned Judgment and order dated 15.11.2018.

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8] The learned counsel, Mr. C. Lalfakzuala, learned Amicus Curiae for the appellant Krosmawii in Crl.A. No.12 of 2020(J) submits that the quantity seized is a small quantity and exceed the amounts cited as small quantity in the ND&PS Act by only .3 grams which is very less but the sentenced is found to be excessive i.e. R.I. for 5 years Imprisonment with a fine of Rs.10,000/-, in default Rigorous Imprisonment for 100 days vide Order dated 15.11.2018.

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9] Both the learned Amicus Curiae have submitted that the procedure laid down under section 41 &42 ND & PS Act has not been followed. From the FIR it is seen that

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the SA was apprehended by the Ruihhlo Do Committee, they are not authorized to seize, apprehend or effect search. This violation of section 41&42 vitiates the whole trial. The Excise Officer himself mentioned that the S.A was apprehended by the New Siaha Ruihhlo Do Committee (NRDC).

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10] The learned Amicus Curie also submits that from the examination of both the appellants under Section 313 Cr.PC, the S.A was recovered by the members of New Siaha Ruihhlo Do Committee (NRDC) and the provisions of section 27 of the Indian Evidence Act was not followed where for recovery of the S.A the information must come from any accused while in custody of the police.

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11] Mr. C. Lalfakzuala, the Learned Amicus curie submits that PW-1&PW-2 are not independent witnesses since they mentioned that “on receiving information from reliable sources that on 13.4.2018 at @ 3:30 PM and they apprehended the accused Vankhawneiha in the AR junction at Siahatla area, on interrogation he told them that he gave the heroin to the co-accused Smt. Krosmawii”. They did not immediately inform the Excise & Narcotics persons, who are the authorized persons to seize the S.A and the Excise & Narcotics had seized the SA only from the MYA Hall as per the seizure memo. PW 3 is Mr. Lalnunfela, SI, Excise who contradict himself wherein in the

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information report he stated that he received an information from NRDC, New Siahatla that they apprehended some illicit drugs which were at MYA Headquarters Office, New Siaha. Whereas, in his deposition he stated that he and S.I. Lalnunfela proceeded to the PO and enquiry report was submitted.

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12] Mr. T. Lalnunsiama, learned Amicus Curiae for the appellant Vankhawneiha further submits that from the cross examination of the witnesses it is clear that the appellant Vankhawneiha had no knowledge of the seized articles, which was not seized from his custody.

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13] Both the Learned Amicus Curie have submitted that there was clear non compliance of section 41 & 42 of ND&PS Act and thus the appellant should be given the benefit of doubt. They have relied upon the Hon’ble Supreme court’s decisions in the case of Bodhrej alias Bodha and Others .vs. State of Jammu and Kashmir reported in 2002 8 SCC 45 para 18, Sukhdev Singh vs. State of Haryana reported in 2013 Vol 2 SCC 212, Vanlalringa vs. State of Mizoram reported in 2008 Vol 5 GLR 813 para 23, 26 & 29 and in the case of Dilip & Anr vs. State Of M.P reported in 2007 1 SCC 450 para 15.

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14] Mr. C. Zoramchhana, learned Public Prosecutor while admitting that the

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procedure under section 41 & 42 was not strictly followed, submits that appellant Krosmawii in Crl.A. No.12/2020(J), in her examination under section 313 Cr.PC admits that when the local NRDC members were brought to her house, she led them to the place where she concealed the seized heroin under the earth. There was no challenge regarding this fact. In Crl.A No.25/2019(J) on examination of the appellant Vankhawneiha under 313 Cr.PC, all the incriminating evidences are admitted by Vankhawneiha . He had pleaded guilty at the time of framing charge u/s 21(b) ND7PS Act. After all this admission, no prejudice was caused when the NGO’s seized the articles. The learned Public Prosecutor has relied on the Apex court decision in the case of Lallan Rai and Others vs. State of Bihas reported in 2003 1SCC 268 para.

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15] The learned Public Prosecutor further submits that Vankhawneiha in Crl.A No.25/2019(J) had pleaded guilty while the appellant Krosmawii in Crl.A. No.12/2020(J) the prosecution has failed to prove that the appellants were not in conscious possession of the seized heroin, thus the appellants cannot be allow to take advantage of these mere technical short comings when it has been proved that the appellants were guilty of the charge u/s 21(b)/29/25 of the ND & PS Act. He has placed his reliance on the Apex Court decision in Madan Lal And Anr vs. State Of Himachal Pradesh reported in 2003 Vol 7SCC 465 para 22-27, State of H.P. vs. Pawan Kumar with State of Rajasthan vs. Bhanwar Lal reported in 2005

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Vol 4 SCC 350 para 20.

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16] I have considered the submissions made on behalf of both the parties and have perused the documents on record. The evidence of Pw1 Mr. Lalhmingthanga and PW2 Mr. MC Lalrinchhana who are both the members of the New Siaha Ruihhlo Do Committee (NRDC) shows that on 13.4.2018 at @ 3:30 PM, they had apprehended accused Vankhawneiha in the AR junction at Siahatla area and on interrogation, he told them that he gave the heroin to appellant Krosmawii. They then went to the house of Krosmawii who showed them the place where she concealed the S.A and she herself took out the seized article from where she concealed it in the garden under the earth. The members of New Siaha Ruihhlo Do Committee then brought both the appellants and the seized article into MYA office, New Siaha and immediately informed the Excise & Narcotics. PW 1 & PW 2 were made the civilian witness who signed on the seizure memo when the seized articles were seized by PW 3/Mr. Lalnunfela, S.I. Excise & Narcotics.

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17] PW-3 Mr. Lalnunfela is seizing officer, who has deposed that on receiving information he proceeded to the P.O and found both the accused and the seized heroin found in 14 penicillin bottles. Seizure, weighed, packed of seized article was made in the presence of witnesses and the seized heroin was found to be 5.3 grams. The appellant Krosmawii being a female was arrested the next day. The seizure and arrested memo exhibited as Ext P-4 and Ext P-5 show that the S.A was seized from

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the MYA Hall. On cross examination he admitted that he arrived at the P.O at 6:15 pm and he had submitted the report of seizure and arrest to the O/C the next day PW-4 Mr. Lalsangzuala Pachuau is the case I.O who stated that both the accused persons had admitted their guilt and the sample of the S.A was drawn before the CJM and packing of the sample was done in his presence. The S.A was sent to FSL and the report was received that the S.A was heroin accordingly charge sheet was submitted against the accused persons under section 21(b) and 29(1) /25 ND&PS Act.

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18] From the evidence adduced and documents exhibited it is apparent that the S.A was seized by the members of the New Siaha Ruihhlo Do Committee (NRDC) and was kept at MYA hall along with both the accused persons. However, under section 41 of the ND&PS Act the members of the New Siaha Ruihhlo Do Committee (NRDC) did not have the authority to seize the S.A from the appellant Krosmawii, no matter how their good intentions were. It would have been more appropriate for them to immediately inform the Excise & Narcotics before taking such steps themselves.

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19] The evidence of PW3/ seizing officer shows that on receiving the information from NRDC on 13/4/2018 @ 6:30 pm he and party proceeded to the P.O, however there is no evidence showing that this was reduced into writing before the seizure and arrest was made as mandated by section 42 of the ND&PS Act, nor is there any evidence suggesting that when the seizing officer/PW3 received the information he

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was not in the police station and did not have sufficient time to take such action as

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mandated under section 42 ND&PS Act.

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20] With regards the procedure to be followed for seizure and arrest under section

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42 of the ND & PS Act, a Constitution Bench of the Apex Court in Karnail Singh v. State of Haryana[(2009) 8 SCC 539] has held that :

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(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

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(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1)and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

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(c) In other words, the compliance with the requirements of Sections 42(1)and 42(2)in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the

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information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

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(d) While total non-compliance with requirements of sub- sections (1) and (2) of Section 42is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non- sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42of the Act. Whether there is adequate or substantial compliance with Section 42or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42by Act 9 of 2001.”

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21] The same view was taken in the in Sukhdev Singh v. State of Haryana (supra), and this court in Vanlalringa vs. State of Mizoram (supra).

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22] Regarding the submission of the learned PP that the non-compliance of section

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42 of ND&PS Act will not prejudice the appellants since the appellant Vankhawneiha in

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Crl.A 25 of 2019, had pleaded guilty at the time of framing charge and had admitted the incriminating evidence against him on examination under section 313 Cr.P.C and that the appellant Krosmawii in Crl.A no 12 of 2020, has also not denied the evidence against her on examination under section 313 Cr.P.C. I find that the nature of the plea of guilt of the appellant Vankhawneiha vague and not absolute. He has not admitted ownership or possession of the seized heroin. His plea at the time of consideration of charge was “After we had concealed the same, recovery of the seized heroin is made”, when there was no such evidence adduced that he had concealed the seized heroin. The appellant Krosmawii in her examination under 313 Cr.P.C stated that that a Mr. Rinchhana concealed the seized 5.3 grams of heroin though she did not deny the evidence that she led the local NRDC members to the place where she concealed the seized heroin under the earth. Moreover t he statement of an accused under Section 313 Cr.P.C is not treated a substantive piece of evidence and can be used only for appreciating/to lend credence to the evidence led by the prosecution, the Hon'ble Apex Court has clarified in Mohan Singh v. Prem Singh, (2002) 10 SCC 236 has held that “., "[i] if the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 Cr.PC cannot be made the sole basis of his conviction .”

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23] I also find that the circumstances in which the Apex court decided Madan Lal and Anr vs. State of Himachal Pradesh (supra) is different from the instant case wherein Madan Lal and Anr vs. State of Himachal Pradesh (supra) the Apex

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court had observed that :

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“The aforesaid discussion leaves no doubt that non-framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused. As observed in the aforesaid, the trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. CriminalProcedure Codeis a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. In the present case, accused were tried on the prosecution version that all of them went at 3.30 p.m. in the field of the deceased; they picked up the quarrel with him, inflicted injuries to the deceased as narrated by the prosecution witnesses, accused no.3 to 6 participated as stated above; the statements were recorded under Section 313of the Cr.P.C. and the questions were asked to the effect that they jointly came at 3.30 p.m. and caused injuries to the deceased as stated by the prosecution witnesses and the role assigned to accused no.3 to 6 was also specifically mentioned. Hence, it is apparent that no prejudice is caused to the accused who were charged for the offence under Section 302, by not framing the charge for the offence punishable under Section 302read with 149. In this view of the matter, the conviction of the accused no.3 to 6 for the offence punishable under Section 325read with 149 cannot be said to be anyway illegal which require to be set aside ." The circumstance is different and not applicable in the

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instant case.

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24] The circumstances in which the Apex court came to its decision in State of H.P. vs. Pawan Kumar with State of Rajasthan vs. Bhanwar Lal (Supra) is

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also different and not appropriate for application in the instant case, which is with regards to the mandate laid out in section 41 & 42 of the ND&PS Act.

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25] In light of the above reasoning and circumstances, and in view of the decisions of the Hon’ble Apex court, this court is compelled to allow this appeal, and set-aside Judgment & Order passed by the Special Court, ND & PS, Siaha in SR No.21/2018 whereby the appellant Vankhawneiha was convicted under Section 21(b) ND & PS Act and the appellant Krosmawii was convicted under section 21(b) r/w 29 ND&PS Act and section 25 read with section 21(b) of the ND & PS Act, 1985 sentencing both the appellants to undergo 5 years Rigorous Imprisonment with a fine of Rs.10,000/-, in default Rigorous Imprisonment for 100 days vide Order dated 15.11.2018. The appellants be released forthwith unless their custody is required in connection with any other offence.

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26] Crl.A. No. 12 of 2020(J) and Crl. A. No. 25 of 2019(J) accordingly stands disposed of.

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27] In appreciation of the services rendered by the learned Amicus Curiae, Mr. C. Lalfakzuala and Mr. T. Lalnunsiama they shall be paid a fee of Rs.7,500/- each by the State Legal Services Authorities.

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