Sh. Rohluma vs State of Mizoram

B.B. Deb, J.—By this petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. the petitioner assailed the order of conviction dated 30.8.2001 passed by the learned court of Magistrate 1st Class, Aizawl District, Aizawl in Criminal Trial (Ex) No. 174 of 2001 u/s 8(1) of MLTP Act, 1995 and also the revision order dated 13.9.2001 passed by the learned court of Additional District Magistrate (J), Aizawl in Criminal Revision No. 47 of 2001.

Briefly, the petitioner was apprehended by the Excise personnel on 23.2.2001 at about 6.30 P.M. from his residence with sixteen polythene packs of rakzu (country-made liquor) having no permission for possessing the same. Prosecution was launched. The learned Magistrate vide order dated 12.3.2001 framed charge against the accused-petitioner who pleaded guilty. The learned Magistrate instead of recording conviction on that day itself, allowed the petitioner to be released on bail fixing 26.3.2001 for examination of the accused-petitioner u/s 313 Cr.P.C. The copy of the order sheet dated 12.3.2001 is reproduced below: -

"Charged framed

against accd. u/s (1) MLTP Act to which the accd. pleaded guilty stating that he -along with his friends obtained the S/A for own consumption and the same were seized before consumption."

The case was adjourned time to time and on 11.5.2001. the accused-petitioner was examined u/s 313 Cr.P.C. The question and answer available form the L.C. record are reproduced below:-

"Q. It is alleged that on 23.2.2001, you was arrested possessing 16 polythene packs of rakzu each containing about 300 ml. of rakzu. Is it true or false?

Ans. Yes"

On 30.8.2001, the learned Magistrate recorded the conviction of the petitioner u/s 8( 1) of MLTP Act and sentenced him to suffer S.I. for three months and to pay a fine of Rs. 1,000/-. in default further S.I. for ten days.

The accused-petitioner preferred a futile revision which was dismissed on 13.9.2001. Hence the present petition.

Mr. Vanlalenmawia, learned counsel for the petitioner vehemently argued that for following reasons the impugned order of conviction and sentence cannot be sustained under any valid law: -

(a) The accused-petitioner was not provided with any lawyer;

(b) He was not supplied with the copies of the allegation and related papers;

(c) He did never make any plea of guilt; and

(d) No conviction could be recorded relying upon the answer to question u/s 313 Cr.RC.

Mr. T. Vaiphei, learned Public Prosecutor appearing on behalf of the respondent submits that all the formalities required under law have been followed.

On perusal of the L.C. record, it appears that the petitioner engaged a lawyer of his choice to defend himself and the said lawyer "Pu Lallianzuala Sailo" also filed vokalatnama duly executed by the petitioner and as such the first ground fails.

From L.C. record it appears that on 26.2.200.1 copies of the documents, etc., have been delivered to the petitioner in compliance of the provision of Section 207 Cr.P.C,

Learned counsel for the petitioner submits that the learned Magistrate wrongly recorded the plea of guilt of the petitioner. The petitioner never pleaded guilt to the charge framed against him. Such type of wild allegation against a Judicial Officer cannot be entertained in absence of any petition promptly filed by the petitioner before the court concerned seeking correction of any inadvertant recording in the judicial file. In this respect, profitable reference may be had to a reported case in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, In the aforesaid case, the Hon''ble Apex Court held that "the Judge''s record was conclusive, none can claim to contradict It except before the Judge himself.

In the present case, the learned Magistrate recorded the plea of guilt on 12.3.2001 fixing the next date on 26.3.2001 and granted adjournment subsequently till the conviction was recorded on 30.8.2001. The accused-petitioner got enough opportunity to approach the learned Magistrate to remove the wrong recording had it been actually there, but that was not done and as such in this stage, the aforesaid plea cannot be encouraged In order to maintain the judicial discipline.

It is correct that the learned Magistrate ought to have recorded the conviction on accepting the plea of guilt on 12.3.2001 itself instead of posting the case for examination u/s 313 Cr.P.C. The provision u/s 313 Cr.P.C. could be resorted to only if there is any incriminating evidence recorded during trial against the accused, but in the present case, since the accused pleaded his guilt, recording of evidence became redundant and as such the learned Magistrate committed mistake in positing the case on a different date for examination u/s 313 Cr.P.C. instead of convicting the accused on his plea of guilt. However, this mistake has no way caused prejudice to the petitioner nor it is fatal to a criminal trial. Since the petitioner pleaded his guilt, he was rightly convicted which requires no interference.

So far sentence is concerned, in view of Section 8(1) of the MLTP Act, it appears that the learned Magistrate imposed the minimum sentence prescribed under the statute and as such I am not in a position to reduce the sentence contrary to the mandatory provision prescribed under the aforesaid Section 8(1) of the Act.

In the result, the petition fails. The conviction and sentence recorded by the learned court below are upheld.