Radhakishore Wahengbam v. The State of Manipur

HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR Mr. M. Gunedhor, Advocate : For the petitioners Mr. S. Nepolean, Public Prosecutor : For the respondent 24.11.2022 : Date of Hearing Date of Judgment & Order :

08.12.2022 2 JUDGMENT AND ORDER [1] Arising out of the same order, these two criminal petitions, filed under Section 482 Cr.P.C., are amenable to a conjoined disposal. By order dated 20.11.2020 passed in Spl. T. Case No. 13 of 2020, the learned Special Judge (ND&PS), Thoubal, framed charges under Section 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ‘the NDPS Act’), against Accused Nos. 2, 3, 4, 5, 6 & 7 in F.I.R No. 33(3)2019 on the file of Lilong Police Station. Aggrieved thereby, Accused Nos. 6 & 7 are before this Court. Cril. Petn. No. 7 of 2021 was filed by Radhakishore Wahengbam, Accused No. 6, and Cril. Petn. No. 8 of 2021 was filed by Laishram Sanjoy Singh, Accused No. 7. [2] Heard Mr. M. Gunedhor, learned counsel for the petitioners in the criminal petitions; and Mr. S. Nepolean, learned Public Prosecutor, appearing for the State. [3] The case of the prosecution was that, on 11.03.2019 at about 11:00 pm, the Officer-in-Charge of Lilong Police Station and his team were patrolling in the jurisdiction of Lilong Police Station. When the police team arrived at Chingkham Mamang Leikai at about 11:45 pm, they apprehended and detained five individuals from a parked Maruti Alto Car. Four of them were members of the Village Defence Force (VDF). The polythene bag found in the possession of Md. Ferosh Khan (VDF No. V113194), Accused No.4, contained 9,800 W.Y. tablets. He stated that the car and the tablets belonged to him and that the tablets were given to him by Radhakishore Wahengbam, Accused No.6, a Sub-Inspector in Manipur Police Department, attached with NAB, Manipur, to sell the same and share the sale 3 proceeds thereof. He further stated that he contacted three associates in the VDF and they conspired to sell the tablets to the 5th detained individual, Md. Nawaj Khan, Accused No.5. The five persons were arrested at 01:10 am on 12.03.2019. [4] Thereupon, Radhakishore Wahengbam, Accused No. 6, was arrested at his residence at 02:30 am on 12.03.2019. He is alleged to have stated that the seized drugs were brought by Laishram Sanjoy Singh, Accused No.7, a constable of Imphal East District Police, attached with NAB-PS, Manipur. The subject First Information Report was registered and two seizure memos were prepared by the Officer-in- Charge, Lilong Police Station. It is, however, an admitted fact that though mobile handsets were seized from the accused persons on the day of their arrest, the same was not reflected in the seizure memos. The handsets were thereafter recovered from the Officer-in-Charge, Lilong Police Station. [5] Report dated 12.03.2019 was submitted by the Officer-in-Charge, Lilong Police Station, under Section 57 of the NDPS Act to the Superintendent of Police, Thoubal District. Scrutiny Report dated 20.07.2020 of the Additional Superintendent of Police (Prosecution), Manipur, noted that the charges against Accused Nos. 6 & 7 were supported only by the evidence given by the other accused and the same needed to be corroborated with other evidence. The Additional Superintendent further noted that the source of the WY tablets had to be ascertained and the circumstances in which they were obtained also had to be detailed. Lastly, the Additional Superintendent observed that the reasons for conducting/not conducting an analysis of call records etc. had to be noted in the case diary. 4 [6] Charge-sheet dated 01.10.2020 was laid before the learned Special Judge against Accused Nos. 1 to 13. Supplementary Charge-sheet dated 12.10.2020 was filed thereafter and Accused No. 14 was also included. In this regard, it may be noted that the F.I.R named only Accused Nos. 1 to 7 and the others were added subsequently during the course of the investigation. [7] Significantly, the case of the prosecution was that Laishram Sanjoy Singh, Accused No. 7, had disclosed during his interrogation that he had taken the WY tablets from one Thangneo Haokip, a well-known drug trafficker from Moreh. As Thangneo Haokip was already in judicial custody in connection with another case, he was formally arrested in connection with the present case and interrogated. However, he stated that the seized 9,800 WY tablets were not given by him to Laishram Sanjoy Singh. Again, Laishram Sanjoy Singh and Radhakishore Wahengbam, Accused No. 6, were interrogated and they disclosed that the seized tablets were obtained from one Pinky Kumari Das, who was in judicial custody in connection with another case. She was formally arrested on 20.04.2019 and interrogated. However, she also stated that she had no idea about the case or about Radhakishore Wahengbam and Laishram Sanjoy Singh. [8] At that stage, the Superintendent of Police, Imphal West, entered into the picture and claimed that Laishram Sanjoy Singh had not revealed the truth. He implicated one Irengbam Rabikumar and Head Constable Gotimayum Priyojit Sharma and they were arrayed as Accused Nos. 8 & 9 in the case. During their interrogation, they stated that they, along with Laishram Sanjoy Singh, had apprehended one 5 K. Sanatomba, a drug seller, in November with 10,000 WY tablets. In turn, K. Sanatomba stated that he had two accomplices, Kh. Shyamkumar and S. Himat, who were the owners of the WY tablets. Irengbam Rabikumar and Head Constable Gotimayum Priyojit Sharma allegedly extorted money from the wife of K. Sanatomba to let him off. The packet containing the WY tablet was handed over to Laishram Sanjoy Singh and they parted ways. Kh. Shyamkumar, K. Sanatomba and S. Himat were thereupon arrayed as Accused Nos. 10, 11 & 12 respectively in this case. They allegedly corroborated the statements given by Gotimayum Priyojit and Irengbam Rabikumar. Thereafter, on further investigation, two other police officers, Addl. S.P. Thounaojam Brinda and B. Rishikesh Sharma, were arrayed as Accused Nos. 13 & 14 respectively in the case. [9] The impugned order dated 20.11.2020 passed by the learned Special Judge, in exercise of power under Sections 227 & 228 Cr.P.C, records the aforestated facts in detail. What is patently evident therefrom is that the only incriminating material against Radhakishore Wahengbam, Accused No. 6, and Laishram Sanjoy Singh, Accused No. 7, are the statements made against them by their co-accused. Nothing was recovered from their possession and no corroborating material was gathered against them by the prosecution, be it by examination of their call records or through some other evidence. So much so that the source of the tablets is not even pinpointed or linked to them. Thangneo Haokip and Pinky Kumari Das were never arrayed as accused persons in the case on hand as they denied having given the WY tablets to Laishram Sanjoy Singh. In fact, this is what weighed with the 6 learned Special Judge in limiting the framing of charges to only some of the accused in the case and discharging the others. [10] Pertinent to note, the learned Special Judge observed in the second sub-paragraph of para 31 as follows: ‘……The I.O. of the case has failed to collect not even remotely sufficient to raise strong suspicious against the accused persons, materials rendered the charge groundless. As such, there is (sic, no) good ground and prima facie case for framing of charge against the accused persons No. 6 to 12’. The error in missing out the ‘no’ in the aforestated sub-paragraph is clear and apparent as Accused Nos. 8 to 12 were ‘discharged from the liabilities of the case’ by the learned Special Judge. Similarly, Accused No.1 along with Accused Nos. 13 & 14 were also discharged. However, losing sight of what was stated by her in the aforestated sub-paragraph of para 31, the learned Special Judge observed in para 35 that she was inclined to hold that there was a prima facie case and grave suspicion of committing the offence of unauthorized possession of contraband drugs and having culpable mental state of mind against Accused Nos. 2, 3, 4, 5, 6 & 7. As noted earlier, the learned Special Judge had specifically clubbed Accused Nos. 6 & 7 also with Accused Nos. 8 to 12 in para 31 to hold that there was no good ground or prima facie case for framing of charges against them. [11] Notably, the discharge of Accused Nos. 8, 9, 10, 11 & 12 would mean that the story built up by the prosecution with regard to how Laishram Sanjoy Singh, Accused No. 7, obtained possession of the WY tablets also stood nullified. Further, as the earlier version that Laishram Sanjoy Singh had obtained these tablets from 7 Thangneo Haokip or Pinky Kumari Das also stood negated, no source for the drugs was offered by the prosecution so as to link the tablets either with Laishram Sanjoy Singh, Accused No. 7, or Radhakishore Wahengbam, Accused No. 6. As this was one of the main issues to be investigated by the police even in terms of the Scrutiny Report of the Additional Superintendent of Police (Prosecution), Manipur, this lacuna is fatal. That apart, as already noted supra, there is no material worth the name to implicate either Radhakishore Wahengbam, Accused No. 6, or Laishram Sanjoy Singh, Accused No. 7. The solitary statement of the co-accused cannot be treated as evidence in the light of Section 25 of the Evidence Act, 1872. No independent corroborating material has been gathered by the police to support the charges framed against either of them. In Union of India Vs. Prafulla Kumar Samal and another [(1979) 3 SCC 4], the Supreme Court pointed out that, while exercising jurisdiction under Section 227 Cr.P.C, the Court must sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing a charge against that accused under Section 228 Cr.P.C. This edict was again reiterated in Dilawar Balu Kurane Vs. State of Maharashtra [(2002) 2 SCC 135] and it was pointed out that the Court cannot act merely as a post office or a mouthpiece of the prosecution and has to sift and weigh the evidence for the purpose of finding out whether a prima facie case has been made out against the accused. Thus, what is required is a grave suspicion against the accused for the 8 Court to frame a charge and carry the matter forward to trial. Reference may also be made to the judgment of the Madhya Pradesh High Court in Pradeep Sharma Vs. State of Madhya Pradesh [CRR No. 1789 of 2020, decided on 14.08.2020]. This was also a case that arose under the NDPS Act. Noting the law laid down by the Supreme Court in Hari Charan Kurmi Vs. State of Bihar [AIR 1964 SC 1184] to the effect that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence, so as to support the conclusion deducible from the said evidence, the Madhya Pradesh High Court found that in the case before it there was no material except for the disclosures made by the co-accused and nothing had been recovered from the petitioner therein. [12] In the case on hand also, except for the incriminating statement made against Radhakishore Wahengbam, Accused No. 6, by one co-accused, Md. Ferosh, Accused No.4, who was actually found with the tablets in his possession, and the incriminating statement allegedly made by Radhakishore Wahengbam, Accused No. 6, against Laishram Sanjoy Singh, Accused No. 7, there is no other evidence to link either of them with the case or the charges that have now been framed against them. All the more so, when the so-called sources from whom they are stated to have secured the tablets have all been let off. In effect, there is no material available with the prosecution to account for how they could have come into possession of the tables whereby they could have asked Md. Ferosh, Accused No.4, to sell them and share the sale proceeds. Except for Md. Ferosh, Accused No.4, none of the other co-accused 9 against whom charges have been framed even claimed to have met either Radhakishore Wahengbam or Laishram Sanjoy Singh. The entire case therefore rests only upon the statement of Md. Ferosh, Accused No. 4. [13] On the above analysis, this Court finds no suspicion, much less a grave suspicion, that can be laid against Radhakishore Wahengbam, Accused No. 6, and Laishram Sanjoy Singh, Accused No. 7, for the learned Special Judge to proceed against them on the charges framed. They were, therefore, equally entitled to be discharged with the other accused who were let off by the learned Special Judge. The order dated 20.11.2020 passed by the learned Special Judge (ND&PS), Thoubal, in Spl. T. Case No. 13 of 2020, in so far as it pertains to framing of charges against Radhakishore Wahengbam, Accused No. 6, and Laishram Sanjoy Singh, Accused No. 7, is accordingly set aside. They shall stand discharged under Section 227 Cr.P.C. Cril. Petn. Nos. 7 and 8 of 2021 are accordingly allowed. FR/NFR Indrajeet CHIEF JUSTICE