P.K. Musahary, J.@mdashThe appellant was convicted u/s 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (ND & PS, Act in short) and sentenced to undergo 10(ten) years rigorous imprisonment with a fine of Rs. 1,00,000, in default to suffer another two years imprisonment by judgment and order dated 23.7.2008 passed in Criminal Trial (Customs) No. 1/2006 by the learned Judge, Special Court, ND & PS Act, Mizoram, Aizawl. This appeal has been preferred against the said judgment and order for setting aside the conviction and sentence aforesaid.
2. The prosecution story has been narrated as follows:
Shri G.K. Mang, Inspector (A/S Unit) Customs Division, Aizawl received information on 25.5.2006 that one Mahindra Marshal Jeep in blue, colour with Ganja in secret cavities was proceeding towards Aizawl. He took down the information and forwarded the same to the Superintendent of Custom, Aizawl Division, who endorsed the case to the said Inspector G.K. Mang for taking further necessary action. On 26.5.2006, the Inspector G.K. Mang with his party accompanied by two civilian witnesses proceeded to and intercepted the vehicle at Nuthlawikawi. Two persons jumped out from the said vehicle and ran into the jungle. The VDP and Young Mizo Association (YMA) Seling Branch were requested over phone to come immediately for assistance in search of two persons who fled away from the said vehicle and ran into the jungle. Around 30(thirty) persons from the aforesaid organizations came and assisted the custom party in the search operation. The appellant was apprehended at around 1:30 to 2:00 P.M. on 26.5.2006. The appellant was taken to the place where the blue colour Mahindra Marshal Jeep was standing and while he was asked in presence of other persons, he replied that he was the driver of the said vehicle and he was carrying Ganja in the said jeep. The custom party failed to apprehend the other person and he remained absconder. The vehicle was brought to the custom''s office at Aizawl where the custom party opened the secret cavities of the jeep in presence of the accused appellant, civilian witnesses and the superintendent of custom and recovered 92 packets of ganja in compressed form, different sizes properly wrapped with paper and polythene. The weighment of the Ganja recovered was taken which weighted net 310.246 kgs. On further checking of the said jeep, 03 pairs of number plates bearing No. MN-05A-1175, AS-OIT-7882 and W.B. 74D-2357 along with supporting registration certificates, having same chassis number and engine number, were also recovered. The recovered materials were seized. Representative sample in small quantity from every packet were drawn and mixed together, 50 grams each in three packets which were duly sealed with signature of accused-appellant and witness including gazetted officers of custom department. One sample of the seized Ganja was sent to F.S.L, Mualpui. The appellant was arrested. Inspector G.K. Mang took the statements of civilian witnesses on 29.5.2006. He also took the statements of civilian witnesses on 29.5.2006. The F.S.L report was received. The same was found to be ganja. The appellant was produced before the court of Magistrate, First Class, Aizawl on 27.5.2006 and was remanded to judicial custody on 29.5.2006, After completion of investigation, the Inspector, Shri. G.K. Mang submitted the charge sheet on 5.10.2006 u/s 20(b)(ii)(c) of the ND & PS Act against the accused-appellant and 4 other accused persons who are still absconding. The appellant pleaded not guilty and stood the trial. The prosecution produced and examined 4 witnesses while the appellant produced no witness in his defence.
3. I have heard Mr. S. Satyendra Singh, Learned Counsel for the appellant and Mr. Zothankhuma, learned Special Public prosecutor, appearing on behalf of the respondent.
4. Mr. Singh, Learned Counsel for the appellant assails the impugned judgment and order mainly on the grounds:
(i) Non-compliance with procedures by the prosecution in respect of search, seizure and arrest as provided under Sections 55, 56 and 57 of the ND & PS Act,
(ii) Framing of charge in violation of mandatory provisions under Sections 211/212/213/228/281 Cr.PC,
(iii) Violation of mandatory provisions u/s 279 and 281, 40 Cr.PC in conducting the trial,
(iv) Withholding of vital witness like expert witness who submitted the positive F.S.L, report, (v) Non-compliance of provisions u/s 313 Cr.PC in examining and affording opportunity to the appellant to explain the circumstances appearing in the evidence against him.
(vi) Recording of conviction and pronouncement of sentence on the same day which is not permitted under Criminal Law,
(vii) Failure of the prosecution to prove its case beyond reasonable doubts.
5. A regard non-compliance with procedures in respect of search and seizures, Mr. Singh, Learned Counsel for the appellant submits that the Mahindra Jeep in question was intercept on 26.5.2006 at the place called Nuthlawikawi but it was seized at the said place nor any sketch map of the place of occurrence was prepared, instead it was brought to the customs office at Aizawl and it was seized threat along with 92 packets of ganja as recovered from the secret cavities of the jeep. The seizure memo (Exh.P/2) was prepared by Inspector G.K. Mang, PW4 on 29.5.2006. There is no explanation from the prosecution why the jeep in question was not seized at the place where it was intercepted and it could be seized only at Aizawl customs office. There is a room for entertaining a doubt that the jeep in question was not driven by the accused-appellant. The prosecution has not led any evidence to the effect that the appellant is connected with the jeep from which the Ganja packets were recovered at Customs Office, Aizawl. The Panchanama (Exh.P/7) was prepared only on 29.5.2006 by the Inspector, Shri G.K. Mang, whose signature has been marked as Exh.P/ 7(C). The appellant was arrested on 26.5.2006 at 1930 hrs. at Customs Office, Aizawl as per arrest memo (Exh.P/2). It was the duty of the arresting officer, Inspector G.K. Mang to report the arrest of the appellant and seizure of the Ganja to his immediate superior officer within 48 hrs. with full report of all the particulars of such arrest or seizure. But he failed to do so. Between the date of arrest, 26.5.2006 at 1930 hrs. and preparation of seizure report on 29.5.2006, the time gap is more than 48 hrs. which is in violation of Section 57 of the ND & PS Act. Further the Ganja recovered/seized from the aforesaid jeep were not made over to an officer-in-charge of the police station under whose jurisdiction, the place where the seizure was made falls, for keeping them in safe custody, pending order of the Magistrate concerned. The inventory of goods seized (Exh.P/1), does not bear signature of any custodian and therefore, it is apparent that the seized Ganjas were not kept in safe custody of the officer-in-charge of the concerned police station. The seized goods (Ganja) remained all along with the Inspector, Shri G.K. Mang, without being sealed in presence of the accused-appellant and other independent witnesses which is in flagrant violation of Section 55 of the ND & PS Act. According to Mr. Singh, Learned Counsel for the appellant, non-compliance with provisions under Sections 55 and 57 of the ND & PS Act vitiates the proceedings and any conviction recorded without complying with the aforesaid provision is liable to be quashed. In this regard, in support of his submissions, reference has been made to
6. As regard framing of charges, it is submitted that the charge was not read over and explained in the language known to/understood by the appellant as per mandatory provision u/s 281 Cr.PC. Moreover, the charge u/s 20(b)(ii)(C) of the ND & PS Act was framed by the learned trial court on 16.7.2007 on a cyclostyled sheet, which was merely filled up without inserting the particulars as to the time and place of alleged offence in violation of Section 212 of the Cr.PC. There is no endorsement by the learned trial court that the charges were read over and explained to the appellant in Meitei language. The explanation of charge in Meitei language was necessary for the ends of justice inasmuch as the appellant could hardly put his signature in English and he does not understand English, Hindi or Mizo language. Such non-compliance of provision of law greatly prejudiced the appellant which has vitiated the entire trial and rendered the impugned conviction and sentence unsustainable.
7. Further, it is submitted that the accused read up to Class-III standard as could be ascertained from his reply to the question No. 4 of questionnaire statement of the accused-appellant given before the Custom Officer in presence of two other witnesses. No interpreter who understands and speaks Meitei Lon (Manipuri), mother tongue of the appellant was associated with the appellant in the course of trial, thereby violating the mandatory provisions under Sections 279 and 281(4) of the Code of Criminal Procedure. The appellant does not know/ understand nor can he speak any other language except his own mother tongue i.e., Meitei Lon (Manipuri language) and he was defended by an amicus curiae, Mizo Lawyer, Mr. R. Thangkanglova, who does not know and understand Meitei Lon/Manipuri language.
8. During trial, the prosecution produced number of documents namely, seizure memo (Exh. P/1, arrest memo (Exh. P/2), seizure memo of mobile phone and plastic jarican (Exh. P/3), weighment certificate (Exh. P/4), statement of the accused (Exh. P/6), but the signatures of the accused-appellant on those documents were not exhibited. Similarly the signature of custodian in the seizure Memos (Exh. P/1 and Exh P/ 3) were also not exhibited. Those documents do not stand proved without the signature of the accused-appellant being exhibited and the same cannot be relied upon for conviction of the accused.
9. The Panchanama (Exh. P/7) of PW1 Shri Lalrempuia and PW2 Shri R. Siamliana were recorded on 29.5.2006 at Customs Office, Aizawl by PW4 Shri G.K. Mang (Investigating Officer of the case). The said two witnesses were picked up from Seling by the Inspector, Shri G.K. Mang on his way to Nuthlawikawi to intercept the vehicle on 26.5.2006 and they were halted at Aizawl from 26.5.2006 to 29.5.2006 and the expenditure thereof was borne by the Customs Department as could be found from the deposition of PW2 who stated in his cross-examination that "from 26.5.2006, we halted at Aizawl and the expenditure for us was borne by the Customs Department". These two witnesses are found to be paid and tutored and as such, their evidence cannot be relied upon for conviction of the accused-appellant.
10. It is submitted that the prosecution failed to prove its case beyond reasonable doubt inasmuch as it failed to examine any of the 30 persons from the Village Defence Party (VDP) and Young Mizo Association (YMA), who assisted the Customs officials in the search operation, as independent witnesses and instead, it examined only the aforesaid two tutored and paid witnesses namely, PWs 1 and 2. Moreover, no seizure memo was prepared on the spot, i.e., place of occurrence where the vehicle was intercepted. The seizure memo (Exh. P/l) was prepared in the Customs Office at Aizawl on 26.5.2006 and none of the VDP and YMA was made seizure witnesses. The aforesaid PWs 1 and 2, have been made as seizure witnesses and their signatures were obtained on the seizure memo (Exh. P/1). Apart from this, the prosecution did not make any attempt to examine the Assistant Director (Chemical Division), F.S.L, Mizoram, Aizawl who examined the sample of Ganja and submitted report (Exh. P/11) nor the Dy. Director-cum-Chemical Examiner, F.S.L, Mizoram, Aizawl who forwarded the said report to the Assistant Commissioner (Customs Division), Aizawl vide letter dated 6.6.2006 (Exh. P/10). The failure of the prosecution to examine, particularly, the expert who tested and submitted F.S.L report on the sample of seized Ganja, without offering any reasonable explanation, is a matter of serious doubt and under such circumstances, adverse and unfavourable inference can be drawn against the prosecution u/s 114, illustration (g) of the Indian Evidence Act, 1872.
11. As regard non-compliance of provision u/s 313 Cr.PC, it is submitted by the Learned Counsel for the appellant that the learned trial court failed to put proper question to the accused-appellant for the purpose of enabling him to explain the circumstances appearing in the evidence against him. According to Mr. Singh, no question was asked by the learned trial court to the accused as to the alleged possession of seized Ganja referring to evidence of any prosecution witness. The appellant was, therefore, not given any opportunity to explain the circumstances appearing in any evidence adduced by the prosecution against him. The question to be put by the learned trial court to the accused-appellant u/s 313, Cr.PC are not an empty formality but a legal requirement and a failure on the part of the trial court in examining the accused-appellant in the manner prescribed u/s 313, Cr.PC would be valid ground for setting aside the conviction of the accused. In support of his submission, Mr. Singh, Learned Counsel for the appellant cites the case of Avtar Singh and Ors. v. State of Punjab : AIR 2002 SC 3343.
12. Referring to and relying on the decision of the Delhi High Court in
13. In addition to the aforesaid submissions, it is argued for the appellant that one sealed polythene packet (Exh. P/11) containing ''dried leave with seeds'' weighing about 60.9126 grams marked as C(A)-52 was sent for F.S.L examination. The dried leaves with seeds are not Ganja within the meaning of definition u/s 2(iii)(b) of the ND & PS Act. Under the aforesaid section ''Ganja'' means "the flowering or fruiting tops of the cannabis plant (excluding the seeds and-leaves when not accompanied by the tops), by whatever name they may be known or designated". As per the report (Exh. P/11), the ''dried leave with seeds'' sent by the prosecution was examined and found to be Ganja. The said report is to be ignored inasmuch as the ''dried leave with seeds'' are not covered by the definition u/s 2(iii)(b) of the ND & PS Act and more so, the Assistant Director (Chemistry Division), F.S.L, Mizoram, Aizawl was not examined by the prosecution and no chance was given to the defence to test the veracity of the report by cross-examining him. Hence, Exh. P/11 has no evidentiary value in the present case and the same cannot be relied upon for conviction. Once it is proved that the seized Ganja do not come within the definition of Section 2(iii)(b) of the ND & PS Act, the appellant cannot be held that he was in possession of Ganja and he cannot be convicted and any conviction recorded against the accused-appellant is liable to be interfered and set aside.
14. Per contra, Mr. Michael Zothankhuma learned P.P submits that the charge was read over and explained to the accused in presence of his Counsel and no objection was raised that the accused-appellant could not understand the charges brought against him and he, having fully understood, pleaded not guilty. There was no infirmity in framing the charge and no prejudice was caused to him in any manner. The appellant, at no point of time, during trial, raised any objection to the framing of charge and the same has been made in this appeal only. Regarding F.S.L. report, the appellant raised no objection and the same was exhibited without being objected to by his counsel. The objection has been raised for the first time at the appellate stage. While making objection to the F.S.L report, the appellant has, for the first time, raised further objection on the reliability of the expert opinion as the Assistant Director (Chemistry Division) F.S.L., Aizawl was not examined by the prosecution. In this regard, Mr. Michael submits that the defence, during trial, did not file any application for summoning the said officer/expert although there was a scope for them for making such request. If the defence had any doubt on the F.S.L report and apprehension that the said report would be used as evidence by the prosecution against the accused-appellant, it was the duty of the defence to get the expert summoned for examination. The Apex Court in
15. Having heard the rival submissions made by the Learned Counsel for the parties, it would be proper to consider the same on the basis of the records of the case and evidence on records.
16. First of all, I propose to take up the question of non-compliance with procedure for arrest, search and seizure in the light of provisions under Sections 55, 56 and 57 of the ND & PS Act read with the relevant provision under the Cr.PC which are applicable to ND & PS cases. It is, admittedly, a case where Customs officials on receipt of prior information proceeded to a place to intercept the vehicle in question, and they were successful in intercepting the vehicle and arresting the accused-appellant but the arrest and seizure memos were not prepared at the place of occurrence or at the spot, which are very much clear from the arrest as well as seizure memos. It is not a case of recovery from the "person" of accused-appellant and it was not required to inform or give option to him for being searched in presence of a Magistrate or authorized officer of the Custom, and the provision of Section 50 of the ND & PS Act would have no application. The record as well as the evidence of PW4, Inspector, Shri G.K. Mang, who conducted the search clearly reveal that at the time of search and seizure, a superior officer namely, Shri S.R. Dhar, Superintendent of Customs was present and the same was corroborated by PW3, Shri S.R. Dhar himself and in view of the said position, it was not necessary on the part of the Inspector to inform the higher/superior officer within 48 hrs. It is found from the records as well as the evidence that the said Inspector, although as late as beyond 48 hrs., informed the Superintendent of Customs formally in writing on 29.5.2006. Therefore, there was no total violation of Section 57 of the ND & PS Act and it cannot be treated as a serious violation of the provision of law that may affect the prosecution case. In my considered view the Inspector, PW4, took the step for making the report of arrest and seizure memos after 48 hrs. with bona fide intention that there, was nothing wrong to inform/report his superior officer beyond the prescribed period ad the Superintendent of Customs (PW3) was personally present at the time of arrest and seizure in question and he was well aware about the same. There was a substantial compliance with the provision of Section 57 of the ND & PS Act in as much as the superior officer was personally present at the time of arrest and seizure and the Inspector made the report in writing on 29.5.2006.
17. There is no dispute that the vehicle in question was intercepted by the Customs officials at Nuthlawikawi and the same was not seized at the spot. It was, after apprehension of the appellant, brought to customs office at Aizawl. There is no record or evidence to show that the Inspector/ I.O. prepared any sketch map and index of the place of occurrence i.e., the place where the vehicle in question was intercepted. No explanation is available from the prosecution why no seizure memo in respect of the vehicle was prepared at the spot or why no sketch map or index of the place of occurrence was prepared. As per the evidence of Inspector (PW4), they took the appellant to Aizawl Customs Office along with the vehicle and there they opened the secret cavities of the jeep as per instruction of the appellant, in presence of the civilian witnesses and Superintendent of Customs; where from they recovered 92 packets of Ganja which weighed at 310.246 kgs net. After the weighment of the seized Ganja, the sample was sent to F.S.L. He prepared the inventory of goods seized (Exh. P/1) on 26.5.2006. He also recorded the statement of civilian witnesses, PWs 1 and 2 on 29.5.2006 and thereafter sealed the Ganja on which the Superintendent of Customs (PW3) put his signature. In the deposition of PW4, Investigating Officer/Inspector, there is no mention as to whether the seized Ganjas were kept under the safe custody of the officer-in-charge of the concerned Police Station after it was seized on 26.5.2006 till the same were sealed on 29.5.2006.
18. From the records, particularly, Exh. P/11, it is found that one sealed polythene packet containing the sample of seized Ganja (dried leaves with seeds) weighing about 60.9126 grams was sent to F.S.L. Mualpui, Aizawl only on 30.5.2006. It is, therefore, clear that the sample of seized. Ganja meant for sending to F.S.L. remained in the custody of the Inspector, PW4, form 26.5.2006 to 30.5.2006. It is not understood, nor is there any explanation from the prosecution, why the said Inspector, PW4, kept the Ganja including the sample in his custody without any authority of law. There was, therefore, every possibility of tempering with the seized Ganja before sending it to F.S.L. The manner, in which the seized Ganja were kept and handled by the said Inspector/I.O. is not free from the possibility of manipulating, even replacement, while they were under his custody.
19. u/s 52A(2) of the ND & PS Act, procedure has been laid down for preparation of an inventory of such narcotic drugs of psychotropic substances containing details like description, quality, quantity, mode of packing, marks, numbers and such other identifying particulars etc. and forwarding the same to the officer of the nearest police station or to the officer empowered u/s 53 and making an application to any Magistrate for the purpose of:
(a) certifying the correctness of the inventory so prepared ; or
(b) taking, in the presence of such Magistrate photographs of such drugs or substances and certifying photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in presence of the Magistrate and certifying the correctness of any list of samples so drawn.
The Magistrate has to allow such application as soon a may be. It would be proper for the sake of better appreciation to quote the aforesaid section.
52A. Where any narcotic drug psychotropic substance has been seized an forwarded to the officer-in-charge of the nearest police station or to the office empowered u/s 53, the officer referred to in Sub-section (1) shall prepare an inventory of such narcotic drugs psychotropic substances containing such details relating to their description, quality quantity, mode of packing marks, numbers of such other identifying particulars of the narcotic drugs or psychotropic substancesor the packing in which they are packed country of origin and other particulars as the officer referred to in Sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application to'' any Magistrate for the purpose of-
(a) Certifying the correctness of the inventory so prepared; or
(b) Taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) Allowing to draw representative samples of such drugs or substances, in presence of the Magistrate and certifying the correctness of any list of samples so drawn.
20. The Inspector, Mr. G.K. Mang prepared an inventory (Exh. P/1) of goods seized including Ganja and took the weighment of the seized Ganja on 26.5.2006. The inventory contains particulars in respect of quantity, number of packing and estimated value only. The other particulars namely, description, quality, mode of packing, marks, number of such other identifying particulars have not been inserted. The marked portion for signature of the custodian of the seized goods is found blank and unsigned. Exhibit P.1, inventory of goods seized is, therefore, found to have been prepared in violation of the provision u/s 52A(2):
21. Admittedly, the Customs seized as many as 92 packets of Ganja but there is nothing on record, even in the evidence of PWs, as to whether samples were drawn from each and every packet of the seized Ganja and prepared a separate sample packet for sending the same to the F.S.L. What is on record is that only one packet containing dried leaves with seeds weighing about 60.9126 grams, as sample was sent to the F.S.L. Mualpui. It is not clear from the record and evidence of PWs whether the said sample packet sent to F.S.L. was containing all the samples drawn from the said 92 packets of seized Ganja. It was necessary to draw sample from each and every seized packet of Ganja and make a separate sample packet for sending the same to F.S.L. It would not be proper to put all the samples drawn, if it was done so, fro, all those 92 seized Ganja packets for examination/analysis by the F.S.L. as to whether each and every packet of seized Ganja contained the contraband namely the Ganja. Here in this case, admittedly, the I.O., seat only one sample packet of seized Ganja to the F.S.L. It appears that the I.O., chose to send only one sample packet as he liked to do so. The said sample packet weighed about 60.9126 grams but as per panchanama (Exh. P/7) it is only 50 grams. There is a difference of about 10 grams and there is no explanation to such difference in weight. This gives rise to a doubt that the sample of Ganja sent in a packet to the F.S.L. is not the same Ganja seized by PW4.
22. u/s 55 of the ND & PS Act, the officer-in-charge of a Police Station is to take charge of and keep the seized articles in his safe custody, pending the orders of the Magistrate, and on receipt of such seized articles, the officer-in-charge of the police station should allow the officer, who comes to deposit the seized articles, to affix his seal or to take sample from them and all samples so taken should be sealed with a seal of the officer-in-charge of the police station. As has been stated earlier, the inventory of seized goods does not bear the signature of the custodian i.e., the officer-in-charge of the concerned police station. From the records, it is not found that the Inspector Mr. Mang or any other authorized officer of the Customs Department took the seized Ganja to the police station concerned for keeping them in his safe custody the sample packet/packets. Under this provision of law, the officer-in-charge has been cast with duty to receive and keep the goods and articles seized in his custody and to affix his own seal to all the samples. The object of making such provision is that the senior officer could be trusted to be fair in investigation and not indulging in any dubious practices and thus to prevent tempering and falsely implicating innocent person. For better appreciation, Section 55 of the ND & PS Act is quoted below:
An officer-in-charge of a Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate; all articles seized under this Act within the local area of that police station and which may delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
23. The whole object of provision u/s 55 seems to be that the officer-in-charge of the police station should ensure that the seized articles and the samples extracted therefrom by the seizing authority are not tampered with in any manner. It is, therefore, the duty of the officer-in-charge of the police station, as a custodian, to deposit the seized articles in the "malkhana" after affixing his own seal impression in addition to the seal of the Investigating Officer. No evidence has been led by the prosecution to prove the fact that the seized Ganja were placed in the custody of the officer-in-charge of any police station in compliance with the provisions u/s 55 of the ND & PS Act. The evidence of PW4, I.O., and PW3, Superintendent of Customs is silent about the compliance of the aforesaid provision of law. The Legislature by incorporating Section 55 intended fair investigation by putting the seized materials beyond the reach of the seizing officer and eliminate the possibilities of tampering the sample till the same reaches the hands of the chemical examiner. Looking at the fact that the seizing officer did not place the seized Ganja in the custody of the officer-in-charge concerned in violation of the express provision of Section 55 and without complying with the provision u/s 53A(2) a serious prejudice has been caused to the accused appellant in as much as he has been convicted primarily on the basis of positive report of the chemical examiner who tested sample the seized Ganja sent by the prosecution which was exposed to tampering and manipulation before sending it to F.S.L. In my considered view, non-compliance of such provision of law to the prejudice of the accused-appellant vitiated the trial so much so to reverse the conviction order.
24. It is already found that the seized Ganja including the sample packets v/ere not sealed or kept in the custody of the officer-in-charge of the concerned police station and no application was made before the Magistrate u/s 52A(2) for certifying the correctness of the inventory and allowing to draw representative samples of such drugs of the seized articles/substances in presence of the Magistrate and certifying the correctness of the list of samples drawn. The possibilities of tampering with the sample packets could not be ruled out There was no description about the quality of the seized Ganja as per the inventory (Exh. P/1) and as such, it could not be ascertained whether any ''flowering or fruiting tops of the cannabis plant'' were found from the aforesaid 92 packets of Ganja seized from the vehicle. On the other hand, while sending the sample packet to the F.S.L., it was clearly described, as per Exh. P/11, that it contains "dried leaves with seeds". There is no reason to disbelieve the description given on the sealed polythene packet of sample Ganja sent up for testing to F.S.L. As per the definition u/s 2(ii)(b), the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) come within the definition of Ganja but the sample of seized Ganja sent to the F.S.L. has been described as dried leaves with seeds only which do not come under the definition of ''Ganja''. If it is so'', how the chemical examiner found the materials/articles in the sample packet to be Ganja. This requires explanation by the chemical examiner/expert. In the charge sheet (Exh. P/8), on Shri T. Lalropuia, Assistant Director (Chemistry Division), F.S.L., Mizoram, Aizawl was cited as witness No. 4 as he submitted the aforesaid F.S.L report (Exh. P/11) and he was the best person to explain as to how the dried leaves with seeds contained in the sample packet, which are not Ganja within the definition of Section 2(ii)(b) was found to be "Ganja". This witness has been withheld by the prosecution. It has, therefore, not been proved conclusively that the chemical report (Exh. P/11) is correct, genuine and reliable.
25. The prosecution, as per submissions of the learned P.P., by referring to Phool Kumar''s case (supra), would submit that the defence had a duty to file an application for summoning the chemical examiner and the court, if such application was files, was bound to summon him. In my considered view, the aforesaid case is of no help to the prosecution, as in the present case, the chemical examiner was cited as a witness in the charge sheet itself by the prosecution and there was no question of filing an application by the defence before the trial court for summoning ; the cited witness. Present case is one where the cited witness has been withheld by the prosecution to suit its purpose. It is for the prosecution which of the cited witnesses should be examined to prove its case and the court would not interfere with their exercise of discretion. It may not produce a cited witness if it has a doubt that the witness would not support its case or would not be able to stand cross-examination of the defence Counsel and would destroy the prosecution case. In this case, as discussed earlier, there was enough scope for manipulation/tampering in the drawing of seized Ganja to chemical examiner. The prosecution might have thought it proper to withhold the chemical examiner from appearing before the court for deposition as a witness. Although it was the bounder duty of the prosecution to examine him as a material witness, withholding of such witness casts a serious reflection and provide a chance to draw an adverse inference against the prosecution that the defence did not examine the chemical examiner because the sample of seized material contained dried leaves and seeds only which are not Ganja within the meaning of Section 2(ii)(b) of the ND & PS Act and there was no necessity for it to prove that it was Ganja. It is for the prosecution to prove by examining the chemical examiner who submitted the report that the sample he received was tested and found to be Ganja. The report, Exhibit P/11 having not been proved by its maker, cannot be a piece of reliable evidence to be used for conviction of the appellant. Had it been a case that the sample of seized articles were "flowering or fruiting tops of cannabis plant" which come under the definition of Section 2(ii)(b) of the ND & PS Act, non-examination of the chemical examiner would not have been fatal affecting the prosecution case. It is held in
26. The proved, rather undisputed fact is that the Custom Officials approached PW1 and 2 to act as witnesses and accordingly, they proceeded with these 2(two) witnesses to the place of occurrence. The accused/appellant was apprehended with the help of local members of the V.D.P. and Y.M.A. In fact, the members of the aforesaid 2(two) organizations, numbering about 30, came to the scene/place of occurrence at the request of the Custom Officials but none of the members of the aforesaid organizations were brought to Aizawl Custom Office and only the PW1 and 2 were brought ant they were present at the time of seizure of the Ganja and arrest of the accused/appellant. These 2(two) persons have been made as seizure and arrest witnesses. They put their signatures on the Arrest Memo (Exh. P/1) and inventories of seized goods (Exh. P/2 and P/3). As discussed earlier, the prosecution committed serious irregularities in not seizing the vehicle in question at the place where it was intercepted and in not preparing any seizure memo in presence of any available local witnesses and bringing the said vehicle to Custom Office at Aizawl. The Custom Officials, particularly, PW4, who led the party, as an Investigating Officer, could have brought at least some of the members of the V.D.P. and Y.M.A. to Custom Office, Aizawl, as witnesses to the fact of interception of the vehicle and subsequent acts of seizure and recovery of Ganja from the said vehicle. As per the Panchanama, the secret cavities of the said vehicle were unscrewed/opened, at about 1800 hrs. on 26.5.2006, in presence of Media persons, driver of the said vehicle, Assistant Commissioner of Customs and other Custom Officials but none of the persons from the Media has, been made seizure witnesses. The Investigating Officer also did not make any attempt to gather some of the members of the locality to witness the seizure of the aforesaid vehicle and the Ganja and make them seizure witnesses. It is the established procedure that the search and seizure party should arrange presence of independent local persons and if they fail to do so due to odd time, say night time, place and situation, where it is not possible to find any local person, no fault could be attributed to it. Under such circumstances,'' any person present, including the member of the search party could be a witness. Here, in the present case, the seizure was made admittedly at about 1800 hrs. (6. P.M.) at a public office in presence of some Media persons, and it was not impossible for the Investigating Officer to call some members of the local public to witness the seizure but he chose not to do so for reasons best known to him and he obtained the signatures of PW1 and 2 on the Panchanama and on the seizure list The fact as to why the PW1 and 2 were picked up before hand from their places by the Investigating Officer while proceeding to intercept the vehicle on receipt of some information, and why only these 2(two) persons were made seizure and arrest witnesses, has remained a mystery. There is an admission by PW2 in his evidence that he alongwith PW1 halted at Aizawl from 26.5.2006 to 29.5.2006 and the Custom Department had borne the expenditure for them. The way the PW1 and 2 were picked-up by the Investigating Officer for being witness to interception of the vehicle, seizure of the Ganja, in exclusion of members of the V.D.P. and Y.M.A., Media and local public; and making them only as witnesses for all purposes and that apart, halting them at Aizawl, bearing their expenses by the Custom Department, amply demonstrate that PW1 and 2 are nothing but paid/hired and planted witnesses. Because of this, these 2(two) witnesses cannot be treated as independent witnesses in true sense and their evidence cannot be accepted as so reliable as to form a basis for conviction of the accused/appellant.
27. In order to examine the submissions made by the Learned Counsel for the appellant in regard to examination of the accused u/s 313/281 of Code of Criminal Procedure, 1973, it is necessary to quote the ''Questions and answers'' recorded by the learned trial court, as under:
Q1. As per the available materials on record, you are the driver of vehicle Mahindra Jeep (Marshal) bearing Regd. No. MZ-01-A-9644 which carries about 300 kgs of Ganja. Do you have anything to say in this?
Ans. I am not the driver. The driver is absconding.
Q2. As per the document 310.246 kgs. (Net) of Ganja being concealed in the secret cavities of the jeep were taken out and seized as being shown and indicated by you? Have you anything to say in this?
Ans. No, it is not a fact.
Q3. As per the investigation all the registration number plates kept in your vehicle excepting MN-05-A-1175 are fake ones Do you have anything to say in this ?
Ans. I do not know anything.
Q4. Did you give statements before the customs?
Ans. No, I did not give any statement before the customs.
Q5. As per the deposition of Lalrempuia. PW1, in the court you were admitting the carrying of Ganja in the Mahindra Jeep driven by you. Do you have anything to say in this ?
Ans. I was not driving the vehicle. The driver not the said vehicle was Anin, who absconded.
Q6. As per the deposition of R. Siamliana, PW2, 92 packets of Ganja were taken out from the secret cavities of the vehicle driven by you by the Customs in the presence of civilian witnesses. Do you have anything to say in this ?
Ans. It is not a fact.
Q7. As per the statements of G.K. Mang and S.R. Dhar, your statements were recorded on 26.5.2006 and 27.5.2006. Do you have anything to say in this?
Ans. I do not know anything.
Q8. Do you like to adduce evidence before the court?
Ans. No.
28. I have carefully gone through the questions put to and answers derived from the accused u/s 313/281 of Code of Criminal Procedure, 1973. It is no doubt correct that the learned trial court missed to put certain questions to the appellant/accused on some evidence that goes against him but it is found that the attention of the accused was drawn to almost all the inculpatory materials found in the evidence against him. I do not find that any prejudice has been caused to the accused for not putting some questions and for that purpose, he was not in a position to explain the incriminating circumstances against him. There is no serious defect in the recording of question and answers u/s 313/281 of Code of Criminal Procedure, 1973, in this case and it would not be proper to accept the submission of the appellant accused that the trial has been vitiated and conviction ordered against the accused is liable to be set aside as was done in
29. The ground taken by the Learned Counsel for the appellant at the time of argument that the charge contained no particulars as to time, place, person, etc. as required u/s 212 of Code of Criminal Procedure, 1973, and it caused prejudice to the accused and consequently vitiated the entire proceeding is not tenable inasmuch as the accused was sufficiently informed of the aforesaid particulars and the established procedure of law, by now, is that failure to mention the aforesaid particulars would not invalidate the charge because the basic requirement is that the charge must be so framed as to give the accused a fairly reasonable idea of the case he is to face. In this regard, reference may be made to the case of Chittaranjan Das v. State of West Bengal AIR 1963 SC 1969. I deem it appropriate to extract relevant portion from para-7 of the aforesaid Judgment, as under:
...in this connection, it may be relevant to bear in mind that the requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiates the trial unless it is shown that the contravention in question has caused prejudiced to the accused. This position is made clear by Sections 535 and 537 Cr.PC...
I may also refer to the case of
30. The accused, as could be found from the record, has been represented by a Counsel during the trial and at no point of time, it was represented before the learned trial court that the appellant does not understand the language of the court and that an interpreter should be engaged to interpret the deposition of the witnesses to the language which he understands. It is the usual practice in the trial court that whenever such representation is made, the learned trial court readily concedes for the sake of fair trial and ends of justice. There is nothing on record that such demand was made by the accused and/or his Counsel and the court rejected such demand for engaging an interpreter. This ground has been taken only before the appellate court and as such, I do not find it necessary to deal with this aspect of the matter and to declare the proceedings of the criminal trial vitiated on that ground alone.
31. It is to be examined now as to whether the learned trial court u/s 235(2) of Code of Criminal Procedure, 1973, can record conviction and pronounce sentence on the same day. Admittedly, in this case, the conviction and sentence were pronounced on the same day. Section 235 of Code of Criminal Procedure, 1973, is to be quoted hereinbelow for better appreciation:
235. Judgment of acquittal or conviction. - (1) After hearing arguments and points of law (if any), the Judge shall give the judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
32. There is no specific provision that the sentence cannot be pronounced on the same day. What is provided is that after conviction, the trial court should hear the accused on question of sentence and then pass the sentence according to law. It means a post conviction hearing must be provided unless it releases the accused on probation of good conduct or admonition u/s 360 of Code of Criminal Procedure, 1973. I am not in agreement with the decision rendered by the Delhi High Court in the case of Matloob (supra), on the basis of which the Learned Counsel appearing for the appellant has strenuously argued that the conviction and sentence cannot be pronounced on the same day. I am afraid the Delhi High Court has correctly interpreted and applied the law laid down by the Apex Court in Allauddin Mian v. State of Bihar : AIR 1989 SC 1456, on the basis of the aforesaid case of Matloob (supra) was decided. It was never decided by the Apex Court in the Allauddin''s case (supra) that the conviction and sentence cannot be pronounced on the same day rather, it emphasized on the requirement of hearing the accused on the punishment to be awarded on him. It would be apt to extract and quote the relevant portion from the paragraph - 10 of the aforesaid Judgment, as under:
...if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.... The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the court in determining the correct sentence to be imposed, the Legislature introduced Sub-section d(2) of Section 235. The said provision therefore satisfy the dual purpose; it satisfies the role of natural justice by according the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality....
In view of the aforesaid ruling, I am not in a position to accept the submission made by the Learned Counsel for the appellant accused in this regard.
33. The argument advanced by the Learned Counsel for the appellant that the failure or omission of the prosecution in exhibiting/proving the signatures of the accused on certain documents relied upon by the prosecution, like Exhibits P/1, P/2, P/4, P/5 and P/6 and signature of the custodian in Ext-P/3, has rendered the said exhibits as mere documents without any evidentiary value and could not be relied upon for conviction of the accused, I find this point calls for no further examination in view of the fact that the said documents were proved and exhibited by PW4 (Investigating Officer) without any objection from the defence at the appropriate stage of the proceeding. Moreover, such technical irregularities cannot vitiate the proceeding of the criminal trial as has been discussed earlier.
34. Enough has been discussed earlier and found that the prosecution failed to adduce independent local civilian as witness although it was possible to do so given the fact that the Ganja was seized in presence of some Media persons and the prosecution completely relied upon the evidence of PW1 and 2 only, who are found to be hired/planted witnesses, whose evidence cannot be treated as independent and reliable. The prosecution also failed to prove that the seized Ganja was placed by the Investigating Officer, after being seized, in the custody of the Officer-in-Charge of the concerned police station, samples were drawn and the packets sealed in presence of the Officer-in-Charge concerned and there was no chance of tampering or manoeuvring before sending the sample packets to F.S.L. A reasonable doubt has arisen on the tampering of the sample packets in view of the fact that the Chemical Examiner received ''dried leaves with seeds'', which are not Ganja within the definition of Section 2(iii)(b) of the ND & PS Act, 1985, whereas the Chemical Examiner, as per his report, Exhibit-P/11, found them to be Ganja, which are in conflict between the definition of the statutory provision defining Ganja and the report, coupled with non-examination of the concerned Chemical Examiner in spite of citing him as one of the witnesses in the charge sheet, would lead to a logical conclusion that the prosecution has not been successful in proving its case beyond all reasonable doubts. The aforesaid doubt, having not been removed, the conviction, as recorded by the learned trial court against the accused appellant cannot be upheld and the accused should be given the benefit of doubt and he should be acquitted on benefit of doubt. I give the said benefit of doubt, interfere with the conviction and sentence handed down on the accused appellant and set aside the impugned Judgment dated 23.7.2008 recording conviction and sentence by the learned Judge, Special Court (ND & PS Act), Aizawl, Mizoram. I hereby direct the acquittal and setting the accused appellant at liberty forthwith unless his further detention is required in connection with any other case.
35. The appeal accordingly stands allowed.
36. Send down the LCRs to the court below immediately.
