The burden of proof lies with the prosecution to establish the guilt of the accused beyond reasonable doubt, and adherence to statutory duties is crucial in proving the case against the accused.

JUDGMENT :

Heard Mr. Jonathan Lalrintluanga, learned counsel for the appellant along with Ms. Mary L. Khiangte, learned Additional Public Prosecutor for the State respondent.

2. This appeal under Section 374 Cr.P.C., 1973 r/w Section 36B of ND&PS Act, 1985 is against the Judgment & Order dated 29.06.2022 and the Sentence Order dated 01.07.2022, passed by the learned Judge, Special Court, ND&PS Act, Aizawl in SR No. 88/2019 Ref: Special Narcotics P.S. Case No. 4/2019 under Section 21 (c) ND&PS Act, whereby the appellant was convicted and sentenced to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs. 1 lakh, in default to undergo Rigorous Imprisonment for another 1 year.

3. The prosecution case in brief is that on 13.02.2019, an FIR was submitted to the Officer-in-charge, Special Narcotic Police Station, CID (Crime), Aizawl to the effect that on 13.02.2019, the informant received information of some persons were seen within the area of Chawnpui, Aizawl strongly suspected of committing an offence under the provision of ND&PS Act, 1985.The O.C. Narcotic P.S. was informed and the informant was authorized to enquire into the matter. On enquiring into the matter, the informant seized 273.9 grams of suspected Heroin from the possession of the appellant/Zorampari. Accordingly, Special Narcotic Police Station Case No. 4/2019 dated 13.02.2019 under Section 21 (c) ND&PS Act was registered and duly investigated into. During investigation, the case I.O found prima facie case against the appellant/accused and accordingly, charge sheet was submitted against the accused under Section 21 (c) ND&PS Act. Thereafter, the learned Trial Court framed charge under Section 21 (c) ND&PS Act, to which the appellant/accused pleaded not guilty and claimed for Trial. During Trial as many as 6 (six) prosecution witnesses were examined, the appellant on examination under Section 313 Cr.P.C. where she denied all the incriminating evidence made out against her. Thereafter, three number of defense witnesses were examined. The learned Trial Court after hearing both the parties passed the impugned Judgment & Order dated 29.06.2023 and the Sentence Order dated 01.07.2022.Aggrieved by the above said orders, the appellant has filed the instant criminal appeal.

4. Mr. Jonathan Lalrintluanga, learned counsel for the appellant submits that the provisions of Section 41(2) has not been fully complied with in this case. He submits that the PW1 SI Lalbeithangi had taken down in writing the information received by her to which she received the authorization letter from the concerned O.C however section 41(C) requires that the grounds of belief should be recorded by the person issuing the authorization letter which has not been done so in the instant case. The learned counsel further submits that authorization letter was issued by the concerned was made on 23.02.2019 after the arrest of the appellant on 13.02.2019, while as per the provisions of Section 41(2) ND&PS Act, authorization cannot be made after the arrest of the accused. He further submits that as per the evidence of PW-3, on his cross examination, he has admitted that no authorization letter was shown to him.

The learned counsel further submits that it is seen that the seized article was said to be kept in a bag, however, the inventory does not mention anything about the bag in which the seized article was said to be kept. The learned counsel also submits that the possession of the bag has not been established as per the evidence of PW-1, PW-2 and PW-3. In their cross examination it shows that the appellant was not in actual possession of the bag where the seized articles were seized, but that the bag was seized from the table.

5. The learned counsel submits that the Officer who did the test of the sample was not examined as a witness under such circumstances the FSL report purportedly prepared by him is not admissible and thus the seized articles have not been proved to be contraband substances. He fu