Non-compliance with procedural safeguards under the ND&PS Act and CrPC during narcotics search can invalidate convictions.

JUDGMENT :

NELSON SAILO, J.

Heard Mr. Aldrin Zothanmawia, learned counsel for the appellant and Ms. Vanneihsiami, learned Addl. Public Prosecutor, Mizoram for the State respondents.

[2.] This is an appeal under Section 415(2) of the Bharatiya Nagarik S uraksha Sanhita, 2023 read with Section 36B of the ND&PS Act, 1985 filed by the appellant against the Judgment and Order dated 17.05.2024 and the Sentence Order dated 22.05.2024 passed by the learned Judge, Fast Track Court, Kolasib in Sessions Case (K) No. 6 of 2023 corresponding to Crl. Tr. (Ex) No. 3 of 2023, convicting the appellant under Section 21 (b) of the ND&PS Act, 1985 and sentencing him to undergo Rigorous Imprisonment for a period of 5 (five) years and to pay fine of Rs 5,000/- (Rupees Five Thousand) and with a default clause.

[3.] The case of the prosecution in brief is that on 11.12.2022 at around 12:45 (Noon), Mr. Zohmingliana, ASI of Excise & Narcotics, Kolasib and his party arrested the appellant in connection with the recovery/seizure of 149.97 grams of suspected heroin from his residence at Venglai East, Kolasib. The arrest and seizure was made pursuant to receipt of a secret information from a reliable informant. As a result, Kolasib Excise & Narcotics Case No. EX-KLB/183/2022 dated 11.12.2022 under Section 21 (b) of the ND&PS Act, 1985 was registered and investigated into. Upon conclusion of the investigation, charge-sheet was submitted against the appellant. Charge was then framed against him under Section 21 (b) of the ND&PS Act, 1985 and to which, he pleaded not guilty and claimed for trial. Accordingly, trial was held and in which, the prosecution examined as many as 5 (five) prosecution witnesses while the appellant did not examine any witness in his defence. Upon the conclusion of the trial, the learned Trial Court after hearing the parties, convicted and sentenced the appellant in the manner as has already been stated earlier.

[4.] Mr. Aldrin Zothanmawia, learned counsel submits that there are 5 (five) main grounds for filing the instant appeal, which are:-

(i) Section 50 of the ND&PS Act, 1985 has been violated.

(ii) Section 100 Cr.PC has been violated.

(iii) Conscious possession of the recovered substance was not proved.

(iv) Section 52A of the ND&PS Act, 1985 has been violated and

(v) Standing Order No. 1 of 1989 issued by the Ministry of Finance on 13.06.1989 has been violated.

[5.] Substantiating the above grounds, the learned counsel submits that prior to conducting search upon the person of the appellant, he was not asked as to whether he would like to be searched before a Gazetted Officer or a Magistrate and as such, Section 50 of the ND&PS Act, 1985 has been violated. In support of his submission, the learned counsel has relied upon the case of Vijay Singh Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC 609 .

[6.] The learned counsel further submits that Section 52A of the ND&PS Act, 1985 provides for the manner in which the seized Narcotic Drugs & Psychotropic Substance has to be disposed. In the absence of the rules in this regard at the relevant time, compliance of the procedures laid down vide Standing Order No. 1 of 1989 dated 13.06.1989 was necessary. Referring to the Standing Order, which is annexed as Annexure - 3 to the Memorandum of Appeal, the learned counsel submits that the quantity to be drawn in each sample for chemical test should be not less than 5 grams in respect of Narcotic Drugs & Psychotropic Substance. However, in the instant case from the cross examination of PW-5, the FSL had received only 4.8 grams of suspected heroin for conducting the test. Referring to clause 2.4 and clause 2.9 of the Standing Order, the learned counsel submits that samples for chemical test is to be drawn from each packages and that test memo has to be duly prepared which was not done in the instant case. Further, referring to clause 3.4 and clause 3.6 of the Standing Order, the learned counsel submits that the go-down receipt and go-d