JUDGMENT :

Nelson Sailo, J.

Heard Mr. A.R. Malhotra, the learned counsel for the appellants as well as Mr. C. Zoramchhana, the learned Public Prosecutor, Mizoram for the State respondents.

2. This is an appeal under Section 374 of the CrPC preferred by the appellants against the Judgment & Order dated 11.10.2018 as well as against the order of Sentence dated 12.10.2018 by which, they were convicted under Section 21 (c) of the ND&PS Act, 1985 (ND&PS Act) and sentenced to undergo RI for 15 years and to pay a fine of Rs. 1,00,000/- each and i.d. thereof, another RI for 1,000 days each.

3. The case of the prosecution in brief is that 318 grams of suspected heroin was recovered and seized from the possession of both the appellants at around 4:00 P.M on 03.08.2017 in the outskirts of Pukpui, near the Nursery of Environment & Forest Department, which was transported in a Motor Cycle bearing registration No. MZ-06/5272. The appellants were therefore arrested and the contraband substance suspected to be heroin was seized in front of civilian witnesses. Samples were drawn for examination in the Forensic Science Laboratory before the Magistrate and in the presence of civilian witnesses. Both the appellants were also alleged to have entered into India (Mizoram) from Myanmar without valid passport, visa or permit and thereby, attracting clause 3 of the Foreigners Order, 1948 and Section 14 of the Foreigners Act, 1946. As a result, Lunglei Police Station Case No. 115/2017 dated 03.08.2017 was registered and investigations conducted. Upon completion of the investigation, the Investigating Officer, found a prima facie case against the appellants under Section 21 (c) of the ND&PS Act and also under Section 14 of the Foreigners Act, 1946 and therefore, filed a Charge-sheet before the Trial Court below.

4. Charge under the aforesaid Section of law was framed against both the appellants on 27.10.2017 and to which, both of them pleaded not guilty and claimed for trial. During the trial, the prosecution examine 8 (eight) prosecution witnesses while the defence examine 2 (two) witnesses. Consequently, the Trial Court vide the impugned Judgment & Order dated 11.10.2018 convicted both the appellants under Section 21 (c) of the ND&PS Act, 1985 while acquitting them of the charge under Section 14 of the Foreigners Act, 1946. Thereafter, vide the impugned Order dated 12.10.2018, both the appellants were sentenced as already mentioned herein above.

5. Mr. A.R. Malhotra, the learned counsel for the appellants submits that PW-3 Mr. Michael Ramdinthara, a Sub-Inspector of Police deposed that he received a phone call from his known source on 02.08.2017 at 5:00 P.M, while he was at his residence to the effect that heroin will be transported on that day by taking the route from Serchhip passing through Dawn Village to reach Lunglei. However, no recovery was made on that day. The next day, i.e., on 03.08.2017 at around 3:00 P.M, he received another phone call from the same informant to the effect that the suspected drugs was being transported in a Motor Cycle coming from Lunglei to Pukpui side. The description of the Motor Cycle was also informed to him whereafter, he proceeded to Pukpui after conveying the information to the Officer-in-charge of Lunglei Police Station. Since it was heavily raining, they proceeded to the spot by hiring a Taxi.

6. Mr. A.R. Malhotra submits that the PW-3, who is the informant did not reduced the information he received in writing before proceeding to the spot, which therefore is in violation of the mandatory provisions provided under Section 42 of the ND&PS Act, 1985. He submits that PW-1, who is the Inquiry Officer, deposed that he got the information over phone from PW-3. However, PW-3 nowhere stated that he telephoned PW-1 to give the information. Therefore, there is no doubt that Section 42 of the ND&PS Act is clearly violated. In support of his submission, the learned counsel relies upon the case of Karnail Singh Vs. State of Haryan