IMPORTANT POINT
The burden of proof shifts to the accused to prove his innocence once the prosecution establishes the possession of contraband substances and compliance with the ND&PS Act provisions.

JUDGMENT :

Heard Mr. Lalbiaknunga Hnamte, learned counsel for the appellant along with Mrs. Mary L. Khiangte, learned Additional Public Prosecutor for the State respondents.

2. This is an appeal filed under Section 374(2) Cr.P.C against the conviction Order dated 29.11.2021 passed in SR No. 166/2016 arising out of Criminal Trial No. 1434/2017 passed by the Special Judge, ND&PS Act, Aizawl, wherein the appellant on his conviction under Section 21(c) of the ND&PS Act, 1985, was sentenced to undergo 10 years Rigorous Imprisonment with a fine of Rs. 1 lakh, in default Rigorous Imprisonment for another 1 (one) year.

3. The prosecutor story in a nutshell is that on 09.06.2017 at 2:14 PM, the appellant was arrested by the respondent authorities at Muanna Veng, Thlanmual road, Aizawl, while he was riding on his Rodeo Scooty bearing Registration No. MZ-01/M-4630. On conducting search of the Scooty, the excise and narcotics personnel seized 266 grams of Heroin kept in 21 soap cases which was kept in a bag. The appellant was arrested and the involved Scooty vehicle was also seized. Accordingly, Ex-N-92/2017 under Section 21(c) of ND&PS Act, 1985 was registered against the appellant and duly investigated into. During investigation, inventory photographs and drawing of samples of seized Heroin under Section 52-A(2) of ND&PS Act was done in the presence of a Judicial Magistrate 1st Class on 10.06.2017. The statements of all available witnesses were recorded. FSL report dated 07.07.2017 was also received, which confirmed the purity of the seized Heroin to be 86% w/w at the time of the examination. 3 (three) other persons namely, Khaikhanlian, Liankhatpiang and Kamlang were also found to be involved and were arrested and made the co-accused. A primafaciecase under Section 21(c)/23(c) of ND&PS Act was found well established against the appellant and the 3 (three) accused persons and accordingly, charge sheet was submitted to the Special Court, ND&PS Act, Aizawl for the trial against Mr. Khaikhanlian and under Section 21(c) against the co-accused Paulamchin/appellant and under Section 29(1) r/w 21(c) of ND&PS Act against the co-accused Liankhatping and Kamlang.

4. On 23.03.2018, charges were framed against the accused persons under the said sections of law to which they pleaded not guilty and asked for trial. During trial, as many as 8 (eight) prosecution witnesses were examined. However, during the trial of the case, the 3 (three) co-accused persons had absconded and were said to flee to Myanmar. The instant appellant therefore, faced his trial alone and the Trial Court convicted the appellant into its Judgment & Order dated 29.11.2021 and vide its Order dated 30.11.2021. The appellant was sentenced to undergo Rigorous Imprisonment for 10 years and pay a fine of Rs. 1 lakh with default clause. Aggrieved, the appellant has approach this Court on trial.

5. Mr. Lalbiaknunga Hnamte, learned counsel for the appellant submitted that from the evidence, it is seen that the Seizing Officer as per the FIR submitted, had prior information with regard to the possession of the contraband substances and therefore, had ample time to obtain authorization and under Section 41(1) ND&PS Act. However, there is no authorization or warrant under Section 41(1) of the ND&PS Act found in the record. Thus, the mandatory provisions of Section 41(1) ND&PS Act was not followed at the time of the arrest of the appellant. Further, the Seizing Officer had not recorded the grounds of belief mandated under Section 42(2) of the ND&PS Act when he conducted the search, seizure and arrest of the appellant. He further submits that the samples were seized from a private vehicle since it was seized from the Scooty bearing Registration No. MZ01/M/4630 and not public vehicle and therefore, cannot enjoy the benefits under Section 43 ND&PS Act by not following the provisions mandated under Section 42 of the ND&PS Act.

6. The learned counsel for the appellant further submits that PW-1 and PW-2