Page No.# 1/16 GAHC030000612025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A(J) No. 4 of 2025 Zamkhawgin S/o Zamkhanning (L) R/o Lamka, Churachanpur, Manipur ………….Accused/Appellant -versus- State of Mizoram ………….Respondent Advocate for the appellant :Mr. B. Lalramenga, Amicus Curiae. Advocates for the respondent :Mrs. Vanneihsiami, Addl. P.P. for the State. Date of hearing : 16.10.2025. Date of judgment : 27.10.2025. Page No.# 2/16 - BEFORE - HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA JUDGMENT & ORDER (CAV) This Criminal Appeal is directed against the Judgment & Order dated 09.04.2019 passed by the learned Judge, Special Court, ND&PS Act, Aizawl, Mizoram in Crl.Trl.(Ex) No. 713 of 2017 arising out of Excise Case No. N-61 of 2017 under Section 20 (b)(ii) ‘C’ of the ND&PS Act, 1985 (hereinafter referred to as the ND&PS Act), whereby the accused/appellant was convicted and sentenced to undergo 10 (ten) years Rigorous Imprisonment with a fine of Rs. 500/-, in default 10 (ten) days Simple Imprisonment. 2. The prosecution story of the case is that on 17.03.2017 at around 3:00 PM, SI C. Lalbiaktluanga received information from a reliable source that an illicit ganja was to be transferred at Rangvamual. So, he immediately recorded his information report and then formed a team to investigate on the case. While on duty, he suspected two (2) persons doing illegal business at the verandah of the residence of Vanlalhriati without her knowledge. So, the officer recorded grounds of belief as per under Section 42 of ND&PS Actto conduct search. Before conducting search, they called two (2) volunteers as witnesses. On conducting search, they recovered three (3) nylon bags of dried leaves with flowering tops suspected to be Ganja. On interrogation, the two suspects confirm that it belongs to them. So, the Officer weights the suspected ganja which reads 20.150 Kgs in the presence of reliable civilian witnesses. He then Page No.# 3/16 packed and sealed the articles to be produced before the Magistrate. On recovering the illicit articles and from their confessions, the officer then prepared seizure and arrest memo against the accused (1) Zamkhawgin (45) S/o Zamkhanning (L) of Lamka, Manipur (2) Lalsangzuala (31) S/o Laldenlien of N.E. Tlangnuam, Mizoram as being the dual possessors of the illicit ganja. 3. Accordingly, seizure list was prepared and the seized articles were produced before the Magistrate, alongwith application for certification as per Section 52-A of the ND&PS Act. Inventory of the seized articles was also prepared and after further steps in the investigation such as chemical examination of the samples of the seized articles and recording the statement of the witnesses, the Investigating Officer (I.O) submitted the charge-sheet under Section 20 (b)(ii) ‘C’of the ND&PS Actagainst the accused/appellant person. 4. The learned Trial Court after taking cognizance of the offences framed charge under Section 20 (b)(ii) ‘C’of ND&PS Act, for violation of the provisions of Section 8-C of the ND&PS Act against the accused/appellant to which he pleaded not guilty and claimed to be tried. 5. In course of the trial, the prosecution examined 5 (five) witnesses whereafter, the statement of the accused/appellant was recorded under Section 313 Cr.PC. 6. Upon consideration of the materials on record, the learned Trial Court convicted and sentenced the accused/appellant as aforesaid. Hence, this appeal. 7. I have heard Mr. B. Lalramenga, learned Amicus Curiae for the appellant and Mrs. Vanneihsiami, learned Addl. Public Prosecutor for the State respondent. Page No.# 4/16 8. At this stage, it would be apposite to peruse the evidence on record. 9. P.W.-1 i.e.,Hmangaihsanga of Rangvamual deposed that he knows the accused persons who were present before the Court that day. On 17.03.2017 at 10:00 PM, while he was at his residence, the Excise Personnel invited him to witness seizure of ganja. Accordingly, he proceeded to the residence of Vanlalhriati along with the Excise Personnel. When he reached near the residence of Vanlalhriati, he saw the two suspected persons sitting on the verandah near a machine for grinding sugar cane (Fu herna). The Excise Personnel conducted checking the nearby place where the two accused sit and even a bundle of sugar placed near the grinding machine. The Excise Personnel recovered three nylon bags kept above the said bundle of sugar cane which were covered by Silpauline. When opened the said three nylon bags, he saw there were dried leaves with fruiting tops of ganja inside the three bags in his presence. The two suspected persons Lalsangzuala and Zamkhawgin admitted that the three bags containing ganja were belonging to them in his presence and the Excise Personnel. The three bags containing ganja were seized in his presence and the two possessors were arrested. Weighment of the S/A was done in his presence and it was 20.150 kgs. Sealing and packing were also done in his presence. He put his signature on the body of seizure and arrest memo and property seized. Exbt.P-1 is seizure and arrest memo, exbt.P-1(a) is his signature. 10. In his cross-examination by learned Defence counsel of accused Lalsangzuala, he stated that he did not see the S/A before the Court that day. As per the photographs, the S/A were not covered with blue coloursilpauline. He also stated that the owner of the grinding machine (Fu herna) is belonging to Page No.# 5/16 Vanlalhriati, who was the owner of the residence nearby and Vanlalhriati was present at the time of affecting seizure and arrest inside her residence. The S/A was recovered near the grinding machine. He was holding the post of Secretary Rangvamual Branch YMA at that time. He also stated that there are around 5 houses between his residence and the residence of Vanlalhriati and there were some persons in the above mentioned five houses at the time of affecting search and seizure. He denied the suggestion that the Excise Personnel conducted body search. The two Excise Personnel went to his residence so as to invite him to witness the search and seizure of the S/A. When they reached the P.O., there were around four/five Excise Personnel near the grinding machine. He denied the suggestion that that the S/A were already opened by the Excise Personnel when they reached the P.O. The grinding machine mentioned above was located at Vanlalhriati's verandah. He did not know whether the Excise Personnel received prior information. He stated that the accused persons were arrested at around 10:00 PM and the S/A were not seized from the physical possession of the accused persons. The seized three bags were kept on sugar cane and the same were covered with blue coloursilpauline. A single packet of sample was drawn from the S/A and the sample drawn was packed in his presence. He denied the suggestion that Vanlalhriati was the owner of the S/A and also denied that he was deposing it falsely in the Court that day. 11. In the cross-examination by Ld. Counsel for accused Zamkhawgin, he stated that he did not know the accused namely Zamkhawgin prior to this incident. He did not know both the accused were a friend of each other. As per the statement of the accused Zamkhawgin recorded by the Excise Personnel, the S/A's were belonging to the co-accused namely Lalsangzuala. He also stated that he truly believes the statement of the accused Zamkhawginwhich was Page No.# 6/16 recorded by the Excise Personnel. He belief that the S/A were belonging to both the accused. The S/A were owned by Lalsangzuala as per the statement recorded by the Excise Personnel. He did not agree that the accused Zamkhawginwas arrested in connection with this instant case only on the ground that he was accompanied with the accused Lalsangzuala. He did not have any personal knowledge regarding the involvement of the accused Zamkhawgin in this instant case. The accused Zamkhawgin never admitted the ownership of the S/A in his presence. Both the accused were arrested by the Excise Personnel in his presence. He also stated that he was not deposing falsely before the Court that day. 12. In the re-examination by Addl. PP, he stated that he has stated in his cross-examination that a single packet of sample was drawn from the S/A. Butthe fact is that sample was taken from each of three nylon bags and packed in a single packet of sample bag/transparent polythene. 13. P.W.-2 i.e., Vanlalhriati of Rangvamual Mel-3 deposed that she knows the accused persons who were present before the Court that day. On 17.03.2017 at 10:00 PM, while she was asleep, the Excise Personnel knocked at her door and wake her up. They informed her that they apprehended and detained the two accused persons namely Lalsangzuala and Zamkhawginalongwith their three nylon bags which they hid where she kept her sugarcane at her verandah. She had grinding machine of sugarcane at her verandah and she sells sugarcane juice for her living at Rangvamual Mel-3. When she woke up, she opened her front door and she saw some Excise Personnel and the two accused persons at her verandah. The Excise Personnel conducted checking her verandah where the two accused sat and her bundles of sugarcane placed near the grinding Page No.# 7/16 machine. The Excise Personnel recovered three nylon bags kept above her bundles of sugarcane, which were covered by silpouline. When the Excise Officer opened the said three nylon bags, she saw there were dried leaves with fruiting tops of ganja inside the three bags in her presence. The two suspectedpersons Lalsangzuala and Zamkhawgin admitted that the three bags containing ganjas belongs to them in her presence and the Excise Personnel. The three bags containing ganja were seized in her presence and the two possessors were arrested. Weighment of the S/A was done in her presence and it was 20.150 kgs. Sealing and packing were also done in her presence.She put her signature on the body of seizure and arrest memo and property seized. Exbt.P-1 is seizure and arrest memo, exbt.P-1(b) is her signature. 14. In the cross-examination by Defence Lawyer, she stated that she did not see the accused carrying or concealing the S/A at any place. She also stated that the accused No.2 was not known to her before the said date. And the accused No.1 was also not properly known to her even though she had earlier seen him in one occasion. She did not know anything much about the antecedent of the accused persons. She was not aware of the accused involving in any other criminal cases. Nothing was recovered from the physical possession of the accused. Nothing was recovered from the bags carried by the accused. She denied the suggestion that the S/A belongs to her. She was not sure whether the accused claimed the ownership of the S/A or not. She denied the suggestion that the S/A belongs to her relatives. She was not sure what was used forweighing the S/A. She denied the suggestion that she was deposing falsely before the Court that day. 15. P.W.-3 i.e.,S.I. C. Lalbiaktluanga of ANS deposed that he knows the Page No.# 8/16 accused persons who were present before theCourt that day. On 17.03.2017 at 3:00 PM, he received information from his source, which stated that some drug (ganja) trafficker intending to sell ganja at Rangvamual at the night of the cited date, he and his party then prepared to intercept the reported persons. At around 10:00 PM, they detected suspected persons at the verandah (roadside of NH-54) of the residence of Vanlalhriati of Rangvamual Mel-3. After complying mandatory provisions of law, search is conducted at the cited verandah. Three nylon bags, which were recovered between the sugarcane which is covered by Silpouline. The suspected bags were examined in presence of civilian witnesses and found that it was a dried leaves with flowering tops suspected to be ganja. Weightment was taken at the P.O. i.e. 20.150 kgs and he seized the same on the same date at 10:55 PM, he also arrested its possessor namely Zamkhawgin and Lalsangzuala who claimed themselves as the rightful possessor of the seized suspected ganja. He also did packing and sealing in presence of witnesses at the P.O. The S/A were concealed between sugarcane owned by Vanlalhriati Seizure Witness No. 2 which were placed at her verandah of her rented house i.e. Rangvamual Mel-3 beside NH-54.He did not arrest Vanlalhriati as he believed that she had no knowledge about the S/A and he cited her as seizure witness. He then submitted report of seizure and arrest to O/C ANS. Exbt.P-1 is seizure and arrest memo, exbt.P-1(c) is his signature. Exbt.P-2 is information report, Exbt.P-2(a) is his signature. Exbt.P-3 is grounds of beliefs recorded by him, Exbt.P-3(a) is his signature. Exbt.P-4 is report of seizure and Arrest, Exbt.P-4(a) is his signature. 16. In the cross-examination by Ld. Counsel for the accused, he admitted that that they had not seen the accused persons concealing the S/A. Nothing was Page No.# 9/16 recovered from physical possession of the accused persons. The name of the accused does not appear in the information so received. He denied the suggestion that nothing was recovered from the accused persons and also denied that the accused persons claimed the ownership of the S/A. He denied the suggestion that weightment was not taken at the P.O. properly. He further denied the suggestion that he was deposing falsely before the Court that day. 17. P.W.-5 i.e., S.I. Benjamin Lalruattluanga of ANS deposed that he knows the accused persons. On 17.03.2017, in pursuance of information, S.I. C.Lalbiaktluanga seized 20.150Kgs of Ganja packed in three nylon bags from the verandah of the residence of Vanlalhriati of Rangvamualand also arrested the possessors namely Zamkhawgin and Lalsangzuala. He then submitted report of seizure and arrest to O/C, case is registered and he was endorsed for further investigation of the case. During his investigation, he visited the P.O., examined all the available witnesses and recorded their statements. He also interrogated the two accused and recorded their statements. From his investigation, he found that both the accused bought the S/A i.e. Ganja from Manipur at Rs. 500/- per Kg and intended to sell the same at Rangvamual, Aizawl at Rs. 2000/- per Kg. In his further investigation, he found that accused Zamkhawgin accomplice co-accused Lalsangzuala for possessing and selling the S/A even though he did not claim ownership of the S/A. He also found that Zamkhawgin was earlier convicted by theCourt for same nature of offence. Within his investigation, he made an inventory of the S/A before T.Lalhmachhuana, Judicial Magistrate First Class, Aizawl. Sample was sent to FSL, Aizawl and received the report which reveals that the S/A were found to be Ganja. From his investigation, he found a prima facie case against both the accused u/s 20(b)(ii) (c) ND & PS Actand submitted the complaint sheet to the Court. Page No.# 10/16 Exbt.P-1 is seizure and arrest memo. Exbt.P-2 is information report. Exbt.P-3 is grounds of beliefs. Exbt.P-4 is report of seizure and Arrest. Exbt.P-5 is FSL Report. Exbt.P-6 is Statements of accused Lalsangzuala, Exbt.P-6(a) is his signature. Exbt.P-7 is Statements of accused Zamkhawgin, Exbt.P-7(a) is his signature.Exbt.P-8 is application for Inventory photographs and samples of S/A, Exbt.P-8(a) is his signature. Exbt.P-9 is Inventory of S/A, Exbt.P-9(a) is his signature.Exbt.P 10 is List of sample drawn.Exbt.P-11 and P-11A are photographs of S/A. Exbt.P-12 is Complaint Sheet, Exbt.P-12(a) is his signature. 18. In the cross-examination by Id. Defence Counsels, he stated that the weightment of the S/A was 20.150 kgs and he was not present at the time of seizing the S/A and arrested the accused persons. The S/A was recovered from the verandah of Vanlalhriati, resident of Rangvamual Mel-3. He denied the suggestion that he did not prepare inventory of the S/A before the Magistrate First Class. He stated that the S/A was concealed under the bundle of sugarcane at the verandah of Vanlalhriati and Vanlalhriati was not made an accused in the present case, however, they used her as seizure witness. The only adult occupant of the residence where the S/A was recovered was Vanlalhriati. Sample was not drawn at the P.O. However, the same was drawn before the Magistrate First Class on the next day of the seizure of the S/A. He denied that suggestion that the accused persons did not claim the ownership of the S/A. No person saw that the S/A was concealed by the accused persons under the sugarcane at the verandah of Vanlalhriati. Nothing was recovered from physical possession of the accused persons. The name of the accused does not appear in the information so received. He denied the suggestion that the weightmentwas not taken at the P.O. properly. He also denied the suggestion that he was deposing falsely before the Court that day. Page No.# 11/16 19. P.W.-6 i.e.,T.Lalhmachhuana, JMFC, Aizawl deposed that on 18.03.2017, while he took the charge of CJM, Aizawl, he received an application from S.I. Benjamin Lalruattluanga, ANS, E & N for inventory photographs and drawing of samples of seized articles. Then, in his presence, inventory of S/A was done, weighment was also taken and the details are under the following: 1) Name of S/A: Dried leaves with flowering tops suspected to be Ganja. 2) Quantity: 20.150 Kgs. 3) Mode of packing: The S/A are kept in three (3) numbers of Nylon Bags. 4) Marks and numbering: Three Bags of Articles mark as S-1, S-2 and S-3. Sample of the S/A was drawn from each of the bags in my presence. Photographs of the S/A was also taken before him on the same date. Exbt. P-8 is Application for Inventory Photographs and drawing of samples, Exbt.P- 8(b) is his signature. Exbt.P-9 is Inventory of S/A, Exbt.P-9(b) is his signature. Exbt.P-10 is List of sample drawn, Exbt.P-10(b) is his signature. Exbt.P-11 and Exbt.P-11A are Photographs of S/A, Exbt.P-11(a) and 11A(a) are his signatures. 20. In the cross-examination by Id. D/Ls, he denied the suggestion that no S/A was produced before him. He also denied the suggestion that no inventory and other things mentioned in his in chief were conducted by him. He stated that he did not know the exact weight of the sample drawn in the present case. The seizure witnesses shown in Seizure Index were not present in his office at the time of preparing inventory. He denied the suggestion that he was deposing falsely before the Court that day. Page No.# 12/16 21. At the end of the trial, the accused was examined under Section 313 Cr.P.C. and it is stated as follows:- “Accused Zamkhawgin: Q. It is in evidence that you were arrested in connection with seizure of 20.150 kgs of Ganja - How do you explained yourself? Ans: The Ganja belongs to the father-in-law of co-accused Lalsangzuala. We carried it from N.E. Tlangnuam in a pick-up Truck uptoThanglailung village. From Thanglailung village, we hire a Taxi uptoRangvamual, Aizawl. Before we sold the Ganja, the Excise people seized the Ganja and arrested us. The Ganja does not belong to me, but we carried/transported with Lalsangzuala. Q. Do you have any other thing to say before the court? Ans: Yes, I wanted to say that I had a similar case before, so co-accused claimed ownership.” 22. From the above, it is seen that although as many 5 (five)Prosecution Witnesses deposed in this case and almost all of them in their evidence brought out incriminating circumstances of some sort against the accused person, the learned Trial Court did not think it fit to put a single question with reference to any specific witnessregarding any such incriminating circumstance. The only question put to the accused was regarding his arrest in connection with the aforesaid case and calling for his explanation. 23. The Hon'ble Supreme Court in (i) In ShivajiSahabraoBobade&Anr.v.State of Maharashtra, reported in (1973) 2 SCC 793: (AIR 1973 SC 2622), the Court considered the fallout of the omission to put a question to the accused on vital Page No.# 13/16 circumstance appearing against him and the Court has held that the Appellate Court can question the counsel for the accused as regards the circumstance omitted to be put to the accused and held as under:- "...It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C., the omission has not been shown to have caused prejudice to the accused..." 24. However, in other decisions, it has held that although a pleader authorized to appear on behalf of the accused does a lot of work for the accused and makes statements on his behalf like in bail petitions and other applications. The Page No.# 14/16 proposition that a Pleader authorized to appear on behalf of the accused can do all acts which the accused himself can do, is too wide. When the prosecution evidence is closed, the accused must be questioned for the incriminating evidence against him and his pleader cannot be examined in his place. [BibhutiBhusan Das Gupta v. State of W.B.; AIR 1969 SC 381: 1969 CrLJ 654: Basavraj R. Patil v. State of Karnataka; AIR 2000 SC 3214: 2000 CrLJ 4604: 2000(4) Crimes 79: (2000) 8 SCC 740; Usha K. Srinivas; AIR 1993 SC 2090: 1993 CrLJ 2669 (SC); Keya Mukherjee v. Magma Leasing Ltd.; 2008 CLJ 2597 (2602): AIR 2008 SC 1807: (2008) 8 SCC 447]. 25. In Nar Singh v. State of Haryana, reported in AIR 2015 SC 310, the Supreme Courtlaid down:- "...Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. In so far as non-compliance of mandatory provisions of S. 313, it is an error essentially committed by the Trial Court, the same has to be corrected or rectified in the appeal." In the above case, the Court observed that:- "The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of S. 313 has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under S. 313 it cannot be inferred that any prejudice had been caused to the Page No.# 15/16 accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice..." "...Hence, if all the relevant questions were not put to accused by the trial court and when the accused has shown that prejudice was caused to him, the appellate court is having power to remand the case to examine the accused again under 5. 313 and may direct remanding the case again for re-trial of the case from that stage of recording of statement under 5. 313 and the same cannot be said to be amounting to filling up lacuna in the prosecution case." 26. In the instant case, the entire material brought into the evidence through the mouth of the witnesses, based on which the learned Trial Court has convicted the accused has been left out and omitted to be put to the accused and therefore, prejudice to the accused is self-evident and implicit.It is not as if the learned Trial Court has relied solely on the admission of the accused under Section 313 CrPC to convict him, which itself would have been of doubtful permissibility, given the fact that it has been consistently held that since such statements are not evidence, a conviction cannot be solely based on such a statement. The learned Trial Court may have been swayed by the inculpatory nature of the statement of the accused under Section 313 CrPC, thereby being persuaded to dispense with the need to put any further questions. But such an approach would be impermissible in law. Hence, it is a fit case for remanding the matter back to the Trial Court for the limited purpose of furnishing the Page No.# 16/16 requisite opportunity to the accused/appellant to answer or explain the incriminating circumstances appearing in the evidence against him that were left out while recording the defence statement. His earlier statement will remain a part of the entire defence statement. 27. Consequently, this impugned judgment and sentence is set aside and the case is remanded to the learned Trial Court for the limited purpose as indicated above, whereafter, the learned Trial Court shall pronounce judgment afresh, subject to the observations made in this appellate judgment. 28. The appeal stands partly allowed. 29. Send back the Trial Court Record. JUDGE Comparing Assistant