JUDGMENT :

1. Heard Mr. B. Lalramenga, the learned counsel for the appellant and Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor for the State respondent. None appears for the respondent No. 2.

2. Notice was deemed served upon the respondent No. 2 vide Order dated 05.04.2019 and therefore, this case is taken up for final disposal.

3. The appellant has filed the present appeal against the Judgment & Order dated 19.09.2018 passed by the learned Judge, Special Court under the ND&PS Act, 1985, Siaha Mizoram in SR No. 18/2018, whereby the appellant and the co- accused have been convicted and sentenced by way of a common order. The appellant was convicted under Section 21(b) read with Section 29 of the ND&PS Act, 1985. On such conviction, he was sentenced to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs. 5000/- with a default clause vide Order dated 20.09.2018.

4. Mr. B. Lalramenga, the learned counsel for the appellant submits that the appellant was convicted and sentenced on the ground of alleged recovery of 28 grams of Heroin from the residence of the co-accused. As the appellant was seen with the co-accused, he has been convicted and sentenced for abetment under Section 29 of the ND&PS Act, 1985. The learned counsel submits that though there are irregularities in the manner in which, recovery of the seized articles was made but for the purpose of the present appeal, he submits that the appellant is mainly aggrieved for having been convicted for abetment under Section 29 of the ND&PS Act, 1985. The learned counsel by referring to the evidence led by the prosecution witnesses submits that the appellant on 08.04.2018 was said to be driving a Scooty with the co-accused as the pillion rider. When they were asked to stop by the local NGO representatives, they failed to do so and later on, the appellant was brought to the MYA Office whereupon, he informed the NGO representatives about the residential address of the co-accused and from where the seized drug was recovered. The learned counsel submits that such evidence can in no way be constituted to be sufficient to convict the appellant.

5. Referring to the deposition of the Prosecution Witness No. 4, who was the case Investigating Officer, Mr. B. Lalramenga, the learned counsel submits that the said witness deposed that he examined certain civilian witnesses who saw the co-accused collecting material from Colney counter while the appellant was driving a Scooty carrying the co-accused as a pillion rider. However, no civilian witnesses who saw the collection of the seized material from the Colney counter were examined by the prosecution. The said witness in his cross examination also admitted that no verification was made from Colney counter as to whether the name of the co-accused person was available in the counter. He also deposed that seizure of the seized article was made on the basis of the recovery already made by the local NGO representatives. He therefore submits that under the given facts and circumstances, the impugned Judgment & Order convicting the appellant under Section 21(b) read with Section 29 of the ND&PS Act, 1985 cannot be sustained and likewise, the impugned Order dated 20.09.2018 sentencing him to 3 years Rigorous Imprisonment with fine cannot be sustained and should be set aside and quashed.

6. In support of his submission, Mr. B. Lalramenga relies upon the following authorities:-

(1) Sorabkhan Gandhkhan Pathan & Another Vs State of Gujarat, reported in (2004) 13 SCC 608.

(2) Amarsingh Ramjibhai Barot Vs State of Gujarat, reported in (2005) 7 SCC 550.

7. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor submits that there is nothing wrong with the Judgment & Order dated 19.09.2018 as well as the Order of Sentence passed on 20.09.2018. Referring to the prosecution witnesses and their depositions, the learned Addl. Public Prosecutor submits that it was obvious that the appellant and the co-accused person were transporting the seized artic