1. By this application, the State of Mizoram has challenged the order dated 18.9.2013 issued by the learned Special Judge, Aizawl in Crl.Tr.Ex. No. 1278/2013 whereby charge has been framed against the accused under section 21 (a) of the NDPS Act against seizure of 3960 capsules of Parvon spas although charge sheet was submitted under section 21 (c) of the NDPS Act.

2. The case was initiated on the basis of a charge sheet submitted by Sub-Inspector, Excise & Narcotics, Anti-Narcotics Squad, Mizoram on 23.7.2013 alleging that the Anti-Narcotics Squad seized 3960 maroon coloured Parvon spas capsules suspected to contain Dextropropoxyphene from the accused, namely, Smt Hauhliri, daughter of one Thangawia (L) of Vaivakawn, Zohnuai at Tukhuahtlang in presence of civilian witnesses. The seizing officer submitted the report of seizure and arrest to the Officer-in-charge, Anti-Narcotics Squad whereupon the instant case was registered and further investigation was conducted. In course of investigation it was found that strips of Parvon spas capsules were kept in 20 polythene bags. The prosecution sent a sample of 5 capsules to the Forensic Science Laboratory for chemical examination to see as to whether the tablets contained Dextropropoxyphene. The result from the chemical examination was given on 23.7.2013 and thereupon it was found that the sample contained propoxyphene. Having so found and upon completion of the investigation, the Anti-Narcotics Squad submitted charge sheet before the Special Court leading to registration of the case in question. The learned court after consideration of the materials including the report passed the impugned order dated 18.9.2013 holding that a charge under section 21 (a) of the NDPS Act is liable to be drawn against the accused although prosecution submitted charge sheet under section 21(c) of the NDPS Act. The learned Court found that since prosecution sent only 5 capsules for examination, it is not possible to hold that all the 3960 capsules would contain the specified contraband. It is this order which has been challenged by the State before this court.

3.1 have heard Mr. A.jC Rokhum, learned Additional Advocate General-cum-Public Prosecutor on behalf of the petitioner. I have also heard Mr. Zochhuana, learned amicus curiae who was appointed by this court to assist the court in regard to point of law since the opposite party accused has not put up appearance by engaging any counsel. I have perused the lower courts records.

4. Mr. A.K. Rokhum, learned Public Prosecutor would argue that all the capsules were identical in shape, colour and size and merely because these strips of capsules were kept in 20 polythene bags, that itself is not sufficient to raise a reasonable doubt that all the capsules would not contain the same content. According to the learned counsel, there is nothing on record to come to a finding that capsules were not sealed in strips and that they were not identical by their appearance and marks imprinted on it. Drawing attention of this court to the FSL report, the learned Public Prosecutor would argue that the capsules were found to be labelled as Parvon spas. Such a finding is discernible from description of the exhibit given by the FSL, Aizawl. With these submissions, the learned Public Prosecutor would argue that all the capsules being labeled with the same name and they being of identical colour, size and shape and all of them being placed in same strips merely because they were kept in 20 different polythene bags would not necessitate sending of all the capsules to the Forensic Science Laboratory for individual test.

5. Per contra, Mr. Zochhuana, learned amicus curiae would argue that framing charge against an accused also has to be on the basis of the materials available on record and in so doing, only that part of the records which is beyond reasonable doubt can be taken into consideration. The learned amicus curiae has placed reliance on the case of Gaunter Edwin Kircher v. S

Click Here to Read the rest of this document