Point of law : NDPS Act – Appeal against conviction -It would be risky and impermissible to leave the samples with the special messenger for a long gap of time. Chances of tampering when there is lack of evidence about the safe custody of the sample packets in the hands of the Special messenger cannot be ruled out.

JUDGMENT :

Heard Mr. Lalpianfela Chawngthu, learned counsel for the appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor.

2. This is an appeal under Section 374 Cr.P.C against the impugned Judgment & Order dated 18.02.2019 passed by the Special Court, ND&PS Act, 1985, Champhai, Mizoram in Session Registration No. 1351/2017 arising out of Crl.Tr. No. 1266/2017, by which the appellant was convicted under Section 21(b) ND&PS Act and sentenced to undergo Rigorous Imprisonment for a period of 8 (eight) years and to pay a fine of Rs.50,000/-, on default Rigorous Imprisonment for 1 (one) month.

3. The brief facts of the case is that on 23.06.2017 at around 5:45 pm, Champhai Excise & Narcotics under the command of Sub-Inspector Mr. J. Laltlanmawia while performing random checking at Mualkawi, and while checking one of the Maxi cabs had seized 212.6 grams of heroin kept in 15 soap cases from the bag of Mrs. Lalpekhlui, 23 years of age, daughter of Mr. Thanliana, Permanent resident of Tahan, Myanmar. On her arrest by Champhai Excise & Narcotics a case vide Excise Case No.EXN-112/17/17/CPI dated 24.06.2017 under Section 21 (b) ND&PS Act was against the accused Lalpekhlui.

4. The Officer-in-Charge, Champhai Excise & Narcotics Station had entrusted Ms. C. Zodinpuii, SI of Excise & Narcotics to investigate the case. She visited the place of occurrence and examined the seizing Officer with other witnesses and recorded their respective statements. She had interrogated the accused person and sent representative samples of the seized contraband substances to Forensic Science Laboratory (FSL in short), Aizawl for chemical analysis. The FSL report confirmed that the seized substances suspected to be heroin were found to be heroin with purity of 83% w/w & 85% w/w respectively at the time of examinations. After having found strong evidences in the case against the accused, the case I.O submitted the complaint sheet against the accused under Section 21 (b) ND&PS Act and sent up the accused to the court to face her trial.

5. The Court had framed formal charge under Section 21 (b) ND&PS Act against the accused person. The charge was read over and explained to her in her own vernacular language to which she pleaded not guilty and claimed to be tried.

6. The prosecution has cited as many as 5 witnesses and examined four of them while the accused person examined only one defence witness. The Court had framed the following points for determinations:-

(i) Whether the Excise & Narcotics Officer had seized the contraband substances from the possession of the present accused person?

(ii) Whether the seized substances were contraband substances (heroin)?

(iii) Whether the Excise & Narcotics Officer had duly followed the mandatory procedures in searching, arresting etc in this case?

(iv) Whether the accused is liable to be convicted and sentenced under the charged section of law?

All the above points were decided against the appellant and the court held that the place of occurrence being a public place, grounds of belief was not needed to be prepared for the purpose of search and since the accused was not searched in person, section 50 of the Act was need not be complied with. The Special Court concluded that the seizing officer had followed all the mandatory procedures and the FSL reported confirmed that the seized articles was heroin. The Special Court, ND&PS Act passed its Judgment & Order dated 18.02.2019 and convicted the appellant under section 21(b) of NDPS Act ’85 and sentenced her to undergo Rigorous Imprisonment for a period of 8 (eight) years and to pay a fine of Rs.50,000/- on default Rigorous Imprisonment for 1 (one) month hence the instant appeal.

7. Mr. Lalpianfela Chawngthu, learned counsel for the appellant submits that the prosecution had no independent witness to support the search and recovery of the S/A. It is well settled that on account of non-joining of an independent witness at the time of the alleged search and seizure, the ca