Point of Law : Provision of section 42 of the ND&PS Act, 1985 is mandatory and the non-compliance of same would render the investigation illegal.

JUDGMENT :

Heard Ms. Vanneihsiami, learned Amicus Curiae for the appellant and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State respondent.

2. This is a jail appeal against the Judgment and order dated 19.09.2018 passed by the Addl. District and Session’s Judge in S.R No. 18/2018 whereby the appellant was convicted under section 21(b) ND&PS Act, 1985 and sentenced to undergo R.I 5 yrs. with a fine of Rs. 10,000/- in default another 100 days R.I., vide order dated 20.09.2018.

3. Brief facts of the case is that on 8.4.2018 @ 9:00 P.M at new Siaha, SI Lalsangzuala seized 28(twenty eight) grams of Heroin packed in 2(two) separate polythene and kept in two soap cases. The seized article was apprehended by NRDC duty party and the owners, appellant F.C Valy and his friend Vabeila were detained at MYA Hqrs, office New Saiha. The Excise & Narcotics were immediately informed, who came to the MYA Office. The NRDC duty party then handed over the seized Heroin to SI Lalsangzuala Pachau the same night and the appellant and co-accused were also arrested. The seized articles was weighed, sealed and packed in the presence of two civilian witnesses. Samples of the seized articles was drawn in the presence of Magistrate First class and sent to FSL on 20/4/2018. The FSL report revealed that the Seized Articles were Heroin with purity of about 82%. On finding a prima facie case against the appellant F.C. Valy and the co-accused Vabeila, the charge sheet was filed by the I.O. Charges were framed against the appellant and co-accused under Section 21(b) of the ND&PS Act, 1985 for the violation of section 8 of the ND&PS Act by the learned Trial Court on 03.08.2018. The appellant having pleaded not guilty, the trial proceedings were initiated. After the appellant was examined under Section 313 Cr.P.C on 12.09.2018, the learned Trial Court convicted the appellant under section 21(b) ND&PS Act and co-accused Vabeilia u/s 21(b) r/w 29 of the ND&PS Act vide its Judgment & Order dated 19.09.2018. Thereafter, on 20.09.2018, the appellant was sentenced to undergo R.I 5 (five) years with fine of Rs.10,000/- I.D R.I 100 days. Aggrieved, the appellant has filed the instant appeal.

4. Ms. Vanneihsiami learned Amicus Curiae submits that that the impugned Judgment & Order and Sentence Order has to be set aside as the mandatory provisions of Section 41 & 42 of the ND&PS Act, 1985 was not followed while making the recovery and seizure of the controlled substance. She submits that the appellant was apprehended by the NGO, NRDC who are not authorized to do so and that the seizing officer did not immediately inform his superiors but had belatedly informed the Excise & narcotics about the incident. The learned Amicus curie further submits that the sample of the S.A was drawn on 20/04/2018 and received by the FSL office on 25/4/18 and it is not know where the Seized article was kept during the 4 days before it was received by the FSL office. The learned Amicus Curie has relied on the decisions of this court in the case of Lalsavunga Vs. State of Mizoram reported in (2021) Vol 4 GLT 988.

5. The learned Amicus Curiae also submits that this court in its order dated 30.04.2019 in Crl. A. No. 3 of 2019 had set aside the impugned order dated 20.09.2018 insofar as the co-accused Vabeilai is concerned and he has already been set at liberty.

6. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand, submits that, no doubt the members of the NGO apprehended the appellant, but they were acting as dutiful citizens when they saw the appellant and co-accused transporting the contraband article in his scooter, whereby, they immediately followed them. The Seized article was recovered on being led by the appellant. The members of the NGO then immediately informed the Excise and Narcotics department who came and seized the S.A in the presence of the civilian witnesses and followed all the due provisions of law. The learned Addl. PP further submits that that