IMPORTANT POINT
The main legal point established in the judgment is the significance of compliance with mandatory provisions of the ND&PS Act, 1985, particularly regarding the presence of independent witnesses during search and seizure, and the taking down of information in writing. Non-compliance with these provisions can impact the trial and conviction of the accused persons.

JUDGMENT

1. Heard Mr. H. Kenajit, learned counsel appearing for the applicant and Mr. Y. Ashang, learned PP appearing for the respondent.

2. The present application had been filed on behalf of the above-named accused person, Mr. Sougaijam Robindro Singh, by his brother in law with a prayer for suspending the operation of the impugned conviction order dated 27.11.2020 and sentence order dated 07.12.2020 and to release the above name convicted person on bail during the pendency of the connected appeal.

3. The learned Special Judge (ND&PS), Manipur passed the impugned judgment and order dated 27.11.2020 in Special Trial Case No. 13 of 2019, holding the above name accused person guilty and convicted him under section 29 read with section 21 (b)/ 22 (c) of the ND&PS Act, 1985 and passed the order dated 07.12.2020 sentencing him to undergo twelve years R.I. with a fine of Rs. 1,00,000/- (Rupees one lakh only).

4. In support of the prayer made in the present application, the learned counsel for the applicant raised the following two grounds:-

(a) the prosecution has totally failed to prove the alleged seizure of the contrabands from the possession or at the instance of the aforesaid convicted person inasmuch as, the independent witnesses did not corroborate with the statements of the PWs No. 1 & 2, who are interested witnesses;

(b) search and seizure was carried out without complying with the mandatory provisions of section 41 (2) and 42 (1) & (2) of the ND&PS Act, 1985, inasmuch as, the information obtained by the concerned officers about commission of the offence was not taken down in writing and produced before the Trial Court during the course of the Trial.

5. In connection with the first ground raised by the learned counsel for the applicant, it has been submitted that as per the prosecution story two independent witnesses were present at the time of search and seizure of the contrabands from the possession of the convicted persons. However, during the Trial, the prosecution produced only one of the independent witness, viz, Lemapokpam Michael (PW No. 3), who clearly stated in his cross-examination that he puts his signature in the seizure memo dated 04.05.2018 at the NAB Police Station, Imphal and that he had never visited Moreh in his life.

The learned counsel further submitted that the said PW No. 3 was not declared by the prosecution as a hostile witness and accordingly, the statements given by the said independent witness cannot be ignored and that on consideration of the statements given by the said PW No. 3, it is crystal clear that he was never present at the time of search and seizure of the contraband from the possession of the convicted person.

Mr. H. Kenajit submitted that section 100 (4) & (5) of the CrPC mandates that a search should be carried out in the presence of two independent witnesses and the list of all things seized in the course of such search should be signed by two independent witnesses, however, in the present case no independent witnesses were present at the time of the search and seizure and accordingly, the prosecution had totally failed to establish the seizure of the contrabands from the possession of the convicted persons. According to the learned counsel, such lapses on the part of the prosecution vitiates the trial and the conviction of the accused persons is liable to be set aside.

6. It has also been submitted by the learned counsel for the applicant that the learned Special Judge (ND&PS), Manipur convicted the accused persons solely on the testimony of the PW No. 1 and PW No. 2, who are both Police Officers and interested witnesses and accordingly, the impugned judgment and order passed by the learned Special Judge (ND&PS), Manipur is not sustainable in the eyes of law and deserves to be quashed and set aside. In support of his contentions, the learned counsel cited the following judgments of the Hon'ble Apex Court:-

(1) 'Naresh Kumar Alias Nitu v. State of Himachal Pradesh' reported in (2017) 15 SCC