Procedural non-compliance with the ND&PS Act can undermine a conviction, necessitating strict proof beyond a reasonable doubt by the prosecution.

JUDGEMENT

Date : 21-01-2022

Heard Mr. A.R Malhotra, learned counsel for the appellant and Mr. C. Zoramchhana, learned Public Prosecutor for the State respondents.

[2.] This is an appeal against the Judgment & Order dated 09.03.2020 passed by the learned Special Court under the Narcotic Drugs & Psychotropic Substances Act, 1985 (ND&PS Act), Aizawl Judicial District, Champhai in Sessions Registration No. 50/2015 A/o Crl. Tr. No. 292/2015 whereby, the accused/appellant was convicted under Section 21 (b) of the ND&PS Act and thereafter, sentenced to Rigorous Imprisonment for a period of 8 (eight) years with a fine of Rs. 90,000/- and a default clause vide Order dated 11.03.2020.

[3.] Be it stated herein that the appellant was earlier acquitted by the learned Trial Court vide Judgment & Order dated 07.09.2015 by giving him the benefit of doubt. Aggrieved, the State preferred Criminal Appeal No. 11/2017 and vide Judgment & Order dated 25.01.2018 the case was remanded back for retrial with a direction to examine the concerned officer- in-charge of the Excise Station, Champhai and the Superintendant of Excise, who had sent the samples for examination in the Forensic Science Laboratory (FSL). On remand, the evidence of the aforesaid 2 (two) witnesses were taken and they were also cross-examined by the defence. Thereafter, the learned Trial Court passed the impugned Judgment & Order of conviction and the Order of sentence as already stated herein above.

[4.] The case of the prosecution in brief is that on 27.11.2014 at about 6:00 P.M, Sub-Inspector Lalengmawia seized 138 grams of contraband substance suspected heroin kept in 10 (ten) soap cases and which was wrapped in polythene and concealed in a bag from the possession of the appellant in the presence of 2 (two) civilian witnesses in a place called ‘dumping ground’, while the appellant was travelling in a mini-bus and enroute to Champhai from Tiau/Zokhawthar. As a result, the appellant was arrested and the suspected heroin kept in the 10 (ten) soap cases was seized and Case No. Ex.N-198/14/CPI dated 28.11.2014 under Section 21 (b) of the ND&PS Act was registered and investigated into. After the investigation was completed, the case Investigating Officer (Case I.O), upon finding a prima facie case under Section 21 (b) & 23(b) of the ND&PS Act well established against the appellant, filed the charge-sheet before the Court. Charge was then framed against the appellant under Section 8(c), 21(b) & 23(b) of the ND&PS Act and to which, he pleaded not guilty and claimed for trial. Trial against the appellant commenced and in the process, the prosecution examined 5 (five) prosecution witnesses. However, after the matter was remanded back for retrial, the prosecution examined 2 (two) more witnesses i.e. PW-6 & PW-7. The appellant was also examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C). The appellant, however, did not examine any witness in his defence. Thereafter, the learned Trial Court upon hearing the parties, convicted and sentenced the appellant in the manner as already stated herein above.

[5.] Mr. A.R Malhotra, learned counsel for the appellant submits that the prosecution violated Section 52A of the ND&PS Act, inasmuch as, no inventory was prepared and samples drawn before the Magistrate. He submits that the same is clear before the statements given by PW-6 in his cross-examination. The learned counsel submits that according to the learned Addl. Public Prosecutor during the earlier round of appeal, the Superintendant of Excise sent the samples to the FSL since the officer-in-charge of Excise Station, Champhai was on leave. However, the officer-in-charge of Champhai, Excise & Narcotics Station on being examined as PW-6 stated that the seizing officer produced the accused and the seized c