Search and seizure conducted by an unauthorized officer under the NDPS Act renders the conviction illegal; prosecution must prove compliance with mandatory provisions.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. Sentiyanger, the learned counsel for the appellant. Also heard Mr. K. V. Angami, the learned Public Prosecutor for the State of Nagaland.

2. This appeal under Section 374 of the Code of Criminal Procedure, 1973, has been filed by the appellant, namely, Pfonyi Khoza, impugning the judgment and order dated 03.04.2023, passed by the learned Special Judge (NDPS) Phek, in Sessions (Special) Case No.03/2022, corresponding to G.R. Case No. 05/2022 in connection with Pfutsero P.S. Case No.0001/2022, whereby, the appellant was convicted under Section 20(b)(ii)(C) of the NDPS Act, 1985 and was sentenced to undergo rigourous imprisonment for 10(ten) years and to pay fine of Rs.1,00,000/-and in default of payment of fine to undergo rigourous imprisonment for 6(six) months.

3. The facts relevant for consideration of the instant appeal, in brief, are as follows:

(i) On 19.01.2022, one UBC Kedukro Tero had lodged an FIR before the Officer-In-Charge of Pfutsero Police Station Phek, inter-alia, alleging that with reference to DGP order No. vide PHG(CON-II)72/AE/2021/1789 dated 11.01.2022 and Superintendent of Police, Phek Order No. DEF/PK/CB- 110/2022-23/77 dated 13.01.2022, on that day (19.01.2022), at around 1600 hrs, Mobile Vehicle Check Post (MVCP) was conducted at Razeba Welcome Gate Pfutsero. At around 1750 hours, a white Maruti Gypsy (Unregistered) was intercepted. Upon frisking, 360 kgsapproximately, of suspected contraband Ganja was recovered from the vehicle. The driver, namely, Mr. Pfonyi Koza (the appellant) of Khezhakeno Village was arrested and was produced before the Pfutsero Police Station for further necessary legal action.

(ii) Upon receipt of the aforesaid FIR, Pfutsero P. S. Case No.0001/2022 under Section 20(b)(ii)(C) of the NDPS Act, 1985 was registered. An S. I. Seyielhouca Kehie, who is S.I. of Police was entrusted with the investigation.

(iii) The contraband (suspected Ganja) was seized and the appellant was furnished with the arrest memo. The inventories of the seized contraband was prepared by the Officer-In-Charge of Pfutsero Police Station and produced before the learned Judicial Magistrate First Class, Phek and samples were also drawn from the contraband before the learned Judicial Magistrate First Class, Phek for obtaining expert opinion of the Forensic Laboratory, Kohima.

4. Thereafter, on receipt of the FSL report from the Forensic Science Laboratory, whereby the samples sent to the Forensic Laboratory, Kohima were found to be cannabis (Ganja). On completion of the investigation, the charge-sheet was laid against the above-named appellant under Section 20(C) of the NDPS Act, 1985.

5. The appellant faced the trial remaining in custody. On 19.07.2022, the Trial Court framed the charges under Section 20(b)(ii) and Section 20 (C) of the NDPS Act, 1985 against the appellant. It is pertinent to note that there appears to be error in framing of charges and in mentioning the penal provision in the form of charges. The same was however, rectified by order dated 17.01.2023 by the Trial Court and correct penal provision i.e., Section 20(b)(ii)(C) of the NDPS Act, 1985 was mentioned in the form of charges. The charges were read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried.

6. To bring home the charge against the appellant, the prosecution side examined as many as six (06) prosecution witnesses including the Investigating Officer. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 and during which, though, he admitted that he was driving the vehicle from which seized contraband was recovered, however, he pleaded his ignorance about the fact that he was carrying Ganja in the said vehicle.

7. Before considering the rival submissions of the learned counsel for both the sides, let us go through the evidence of prosecution witnesses, which is available on record.

8. The PW-1, namely, Vekhwutsu Veswu, has deposed t