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Gauhati High Court · body

2008 DIGILAW 59 (GAU)

F. Vanlalringa v. State of Mizoram

2008-01-25

P.K.MUSAHARY, R.B.MISRA

body2008
JUDGMENT R.B. Misra, J. 1. The present appeal has been preferred against the judgment and order dated 12.3.07 passed by the Special Court under Narcotic Drugs and Psychotropic Substances Act. 1985 (for short, N.D. and P.S. Act) as amended in Mizoram in Criminal Case No. T.R.399 of 2005 and case No. 5 of 2005 on 22.2.05 in reference to the offences under Section 20(b)(i)(C) of N.D. and P.S. Act. By the said impugned order, the accused-Appellant F. Vanlalringa had been convicted and sentenced to suffer rigorous imprisonment for ten years and a fine of Rs. 1 lakh and in default, simple imprisonment for another two years. 2. The prosecution story is that on the night of 21.2.2005 at about 9.00 p.m., one Sub Inspector (SI) Lalthantluanga O/C Darlawn received information from the President Joint YMA Chalfilh Group to the effect that one person is reportedly proceeding to Darlawn from Ratu side with some quantity of Ganja by boarding the Sinlung Hill Night Super MZ-01A/4808. As such party left Police Station for Darlawn Kawanveng side to intercept the said night bus. On checking they recovered about 25 kgs of dried Ganja packed in a white jute bag from the top carrier of the said bus and the owner of the incriminating item namely F. Vanlalringa aged about 36 years, son of Thanglura (L) of Champhai Kahrwat Veng was arrested and the said Ganja was also seized. Darlawn P.S. case No. 5/2005 dated 22.2.2005 under Section 20(b)(i) N.D. and P.S. Act was registered and investigated. The Forensic Science Laboratory (FSL) examination of the sample of seized article (S.A.) revealed positive test for Ganja. In the course of investigation a prima facie case was established against the accused and accordingly chargesheet No. 8 of 2005 dated 8.4.2005 under Section 20(b)(ii)(C) N.D. and P.S. Act was submitted on 12.4.2005. 3. The copies of chargesheet and connected papers were furnished to the accused F. Vanlabinga on 12.5.2005. As the accused was not having sufficient means to engage pleader, Pu. R. Thangkanglova. Advocate was appointed to defend him at the expense of the State as required under Section 304 Code of Criminal Procedure. 4. Charge framed on 8.7.05 under Section 20(b)(ii)(C) of N.D. and P.S. Act. As the accused was not having sufficient means to engage pleader, Pu. R. Thangkanglova. Advocate was appointed to defend him at the expense of the State as required under Section 304 Code of Criminal Procedure. 4. Charge framed on 8.7.05 under Section 20(b)(ii)(C) of N.D. and P.S. Act. 1985 was read over and explained to the accused in Mizo language in presence of his learned defence counsel to which the accused pleaded not guilty and claimed to be tried. 5. In order to prove the case the prosecution has examined four witnesses, namely, (1) R. Lalpianmawia, (2) R. Manliana, (3) R. Sangzela (4) S.I. Lalthangluanga. The following documents were also exhibited to prove the prosecution case viz. (i) Property search and seizure Memo (Ex. P-1); (ii) Final form or chargesheet (Ext. P-2); (iii) Report of FSL (Ext. P-3); (iv) FIR (Ext. P-4); (v) Arrest Memo (Ext. 5) and (vi) Seize Article. (M. Ext. 1) 6. Whereas the accused has examined two defence witnesses, namely, (1) Ngurchnuanthanga and (2) Lalnimmawii, the co-passengers travelling in the bus/vehicle in question. 7. (P.W. 1) R. Lalpianmawia stated, "I know the accused F. Vanlalringa who is present in the Court. On 21.2.2005 we had YMA Kumpuan duty. During the relevant time I was Vice President Joint YMA Darlawn and Vice President i/c Darlawn. At around 7 p.m. we had received information from Ratu YMA through Telephone that a bag of Ganja was loaded in the Sakawrdasi night bus and proceeded towards Aizawl and the owner of the Ganja was also in the Bus. Then, we informed O/C Darlawn P.S. The O/C and his party immediately came near SBI Office at Darlawn and we were also present there with Police. At about between 8-9 p.m. the said night bus arrived Darlawn and the Police halted/stopped the bus and they had recovered one bag containing suspected Ganja from the roof-top of the bus and the accused F. Vanlalringa who was in the bus claimed ownership and he slated that he is trying to sell it for educational fees of his children." In the cross-examination (P.W. 1) stated that he did not know who telephoned him from Ratu. According to him, there was nothing written on the bag to denote the owner of the seized article, he also heard body of accused suffering from pain but did not know who assaulted the accused. According to him, there was nothing written on the bag to denote the owner of the seized article, he also heard body of accused suffering from pain but did not know who assaulted the accused. According to (P.W. 1) the Police recovered a bag of suspected Ganja from the roof-top of the Bus. 8. (P.W. 2) R. Manliana slated that, "I know the accused F. Vanlalringa who is present is the Court today. During the year 2005, I was President YMA Darlawn and a member of V/C Darlawn. On 21.2.2005 we were on YMA duty (Kumpuan duty). At about 7 p.m. we had received telephone information from Ratu YMA stating that a bag of Ganja was loaded in the Sakawrdai night bus and the said bus was proceeding towards Aizawl and the owner of the Ganja was also in the bus. Then we informed O/C Darlawn PS and the Police also came immediately and we assembled with the Police in front of SBI's Office, Darlawn. The said night bus arrived Darlawn between 8 pm to 9 pm and the said night bus was stopped by the Police. Then, the Police recovered one bag containing suspected Ganja from the roof-top of the bus. The accused F. Vanlalringa claimed ownership of the suspected Ganja and prayed for forgiveness." In the cross-examination (P.W. 2) stated that he was not aware of keeping of seized article by anybody. According to him there is nothing written in the seized article denoting the name of the owner. According to (P.W. 2) one bag was recovered by Police from the roof-top of the bus. 9. (P.W. 3) Sangzela in his testimony has stated that on 21.2.2005 he was at home at Darlawn. On that night at about 9 p.m. YMA personnel and Police personnel came to their house and wanted to take the spring balance for taking the weight of Ganja which they had seized. Accordingly, he lent spring balance to them. After an hour the spring balance was returned back to him. In the cross-examination (P.W. 3) has staled that he had not seen taking of weight of Ganja, (P.W. 3) further revealed that he did not know whether actually weight of Ganja was taken or not? 10. Accordingly, he lent spring balance to them. After an hour the spring balance was returned back to him. In the cross-examination (P.W. 3) has staled that he had not seen taking of weight of Ganja, (P.W. 3) further revealed that he did not know whether actually weight of Ganja was taken or not? 10. (P.W. 4) S.I. Lalthantluanga stated that: I am S.I. of Police posted at Darlawn P.S. as O/C since 2003, I had received information (Telephone) from the YMA Darlawn stating that the had received information from YMA Ratu that a Sakawrdai night bus proceeding towards Aizawl was carrying a bag of a Ganja and I had been requested by the YMA Darlawn to take necessary action. The bus was about to pass through Darlawn town. I along with my subordinates immediately proceeded to SBI Office near the main road. When I reached there YMA Darlawn were also there near the SBI Office. At about 8 to 9 p.m. the Sakawrdai night bus arrived I then halted the said bus and I had requested the conductor of the said bus permission to search the bus. I had informed the conductor that we had received information that the bus was carrying Ganja. Accordingly, I was allowed by the conductor to search the bus. On checking the bus I found one bag containing suspected Ganja on the carrier of the bus in presence of witnesses. The accused F. Vanlalringa was one of the passenger in the said bus. When we asked the passengers traveling in the said bus as to whom the said suspected Ganja belonged, the accused F. Vanlalringa claimed ownership of the said Ganja. I took weighment of the S.A. in the presence of the witnesses by using PU Sangzela spring balance and it was 25 kgs. I took samples of the S.A. in the presence of the witnesses. I then prepared seizure and arrest memo at about 9.15 p.m., I then brought the S.A. and accused F. Vanlalringa to Darlawn P.S. and I submitted FIR to O/C Darlawn P.S. As I am the only S.I. of Policc posted at Darlawn P.S. the case was endorsed to me for investigatioa I During my investigation I recorded the statement of the accused and witness, I also sent sample of the S.A. to F.S.L. Mualpui and I received back the said report and the result gave positive test for Ganja. I had found prima facie case well established under Section 20(b)(ii)(C) of N.D. and P.S. Act against the accused F. Vanlalringa. In the cross-examination, the P.W. 4 stated that the seized article (S.A.) was recovered from the bus carrier and it was taken down by member of 'YMA' and one constable. There was nothing written on S.A. denoting the owner of S.A., the passengers in the bus were about 30/40. According to the statement of (P.W. 4) in his cross-examination, the accused did not claim ownership of S.A. at initial stage and he claimed ownership of S.A. after 10/15 minutes after seizure of the S.A. 11. (D.W. 1), Ngurchhuanthanga has stated in his deposition, "I know the accused F. Vanlalringa who is present in the Court today. On the night of 21.2.2005, I boarded a bus from Sakawrdai to go to Aizawl. When we reached Darlawn many people stopped our bus and the accused F. Vunlalringa was pulled out from the bus and the people immediately assaulted the accused severely and he was taken to one house by the Police. Because of the said assault the face of the accused was swollen and one tooth was blown off. He was not wearing white shirt. One bag of Ganja was thrown out from the top of the bus and the said Ganja was seized by the Police. Signal was sent to Darlawn village and they said that the content of the signal was that the owner of the Ganja was wearing a white shirt but the present accused was not wearing a white shirt on that night. I heard that two men wearing white shirt left the bus at Forest Check Gate at Darlawn. I have nothing more to say. In cross-examination (D.W. 1) stated that when the Bus stopped at Darlawn, the people were searching for the owner of the Ganja travelling in the Bus. I was present when the Ganja was seized from the top of the bus. Among the 30/40 travellers in the bus, none of the passenger was assaulted or abused by the Darlawn people excepting the accused. 1 strongly presume that the accused who was travelling in the same bus with us was the real owner of the Ganja seized as he has been assaulted by the people. Personally, I do not see the blowing of the tooth of the accused. 1 strongly presume that the accused who was travelling in the same bus with us was the real owner of the Ganja seized as he has been assaulted by the people. Personally, I do not see the blowing of the tooth of the accused. It is not a fact that the accused was not assaulted by the Darlawn people. It is not a fact that I deposed falsely. 12. (D.W. 2) Lalnunmawii has stated in his deposition, "I know the accused F. Vunlalrings. who is present in the Court today. On 21.2.2005 I boarded a bus from Khawpuar to go to Aizawl. When we reached Darlawn the accused was assaulted by the people severely. At the same time, one Ganja bag was lifted from the top of the bus and thrown it down to the ground. I do not know who was the owner of the Ganja and the people asked the accused as to whether the Gania was his or not and he replied in the negative and he was assaulted severely. As the bus was detained long due to this incidence and the passengers also requested the accused to say that he is the owner of the Ganja bag. At the same time, they still continue to assault the accused. After that I dare not to look at the accused as I saw the blood was oozing out from the mouth of the accused professedly. I know that the Gania was not belonging to him but he stated that the Gania was belonging to him due to severe abusement/assault. In the cross-examination (D.W. 2) deposed, "However, I presume that the seized Ganja was not belonging to the accused as he was assaulted. It is not a fact that the accused was not assaulted on that night. It is also not a fact that Ganja was belonging to the accused. It is also not a fact that I deposed at the instance of the accused as I was instructed by the defence counsel to say this in order to save the accused. 13. The defence had examined two witnesses to prove the innocence of the accused, and the two defence witnesses did not corroborate the statement of (P.W. 1), (P.W. 2) and (P.W. 4). 13. The defence had examined two witnesses to prove the innocence of the accused, and the two defence witnesses did not corroborate the statement of (P.W. 1), (P.W. 2) and (P.W. 4). On 21.2.2005 when they were with the accused in the bus, it was stopped by the Police and the Police also seized the Ganja from the bus. The gist of the statements of both the defence witnesses were that because of the assault the fact of the accused F. Vanlalringa became swollen and one tooth was blown off and out of fear the accused-Appellant has stated that the seized article belonged to him. According to D.W. 1 and D.W. 2 when the bus was stopped at Darlawn the people and the Police were searching for the owner of the Ganja none of the passengers were assaulted or abused by the Darlawn Police and people except the accused. 14. Relying on the testimonies of P.W. 1, P.W. 2 and P.W. 4 and ignoring the testimonies of D.W. 1 and D.W. 2 and the available materials, the prosecution has held the Appellant guilty of offence under Section 20(b)(ii)(C) of N.D. and P.S. Act saying that the guilt is beyond doubt and has convicted to suffer rigorous imprisonment for 10 years and a fine of Rs. 1 lakh and in default, simple imprisonment for two years by the impugned order. 15. Mr. A.R. Malhotra, learned Amicus Curiae has submitted as below: (i) The Police Officer after receiving information allegedly on telephone from YMA persons that 'Ganja' was being carried had, however, not taken down the same in writing as required under Section 42(1) of the N.D. and P.S. Act. (ii) The arresting authority (P.W. 4) had not recorded ground and reasons for his belief as statutorily required under the proviso to Section 42(1)(d) of the N.D. and P.S. Act before making search and seizure of article. (iii) The Police Officer arresting the accused-Appellant violated the mandatory requirement and the provisions of Section 42(1) and (2) of N.D. and P.S. Act by not reducing into writing the information about alleged carrying of Ganja and for not sending forthwith a copy of such writing to his immediate superior. (iv) The seized article was not connected with the accused-Appellant as the same was recovered from the roof-top of the bus and not from the possession of the accused-Appellant. (iv) The seized article was not connected with the accused-Appellant as the same was recovered from the roof-top of the bus and not from the possession of the accused-Appellant. (v) There is no any mark on the bag to indicate that the bag containing seized article was belonging to the accused-Appellant and no evidence to that effect was brought by the prosecution. (vi) The statement of accused-Appellant was obtained by the Police after he was severely assaulted by Police and people even to the extent that the blood was blowing from his nose and one of his tooth was blown off and under fear, the Appellant replied to the Police in the positive, whereas, Ac physical assault testified by the two defence witnesses was ignored illegally without any reason. (vii) The report sent to Darlawn YMA by the Ratu stated that the owner of the Ganja was wearing white shirt, whereas, the accused was not wearing a white shirt on that fateful night, whereas, the two defence witnesses asserted that the two men wearing white shirts left the bus at Forest Check Gate at Darlawn before the bus stopped by the Police. (viii) The statutory and mandatory requirement of sending a report of arrest and seizure to his immediate superior official by the arresting authority was not complied with as required under the provisions of Section 57 of the N.D. and P.S. Act. (ix) The information was received by S.I. Lalthantluanga who is said to have seized the suspected Ganja, arrested accused-Appellant in presence of the related witnesses and sent the sample for chemical analysis and also submitted FIR with the O/C, Darlawn P.S. i.e. he endorsed the case to himself for investigation and during the course of investigation, he had examined witnesses and as such the same individual O/C submitting FIR, arresting the accused by himself. endorsing the case to himself and prosecuting the case as witness cannot be relied upon and treated as trustworthy. endorsing the case to himself and prosecuting the case as witness cannot be relied upon and treated as trustworthy. (x) The testimony of defence witnesses who were co-passengers of the accused were not to be disbelieved by merely saying that the documentary proof was not available in support of the evidence of the defence witnesses in view of the facts and circumstances when the D.W. 1 stated before the Court, "The accused Vanlalringa was pulled out from the bus and the people immediately assaulted him severely and because of the said assault the face of the accused F. Vanlalringa was swollen and one of his tooth was blown off and the other D.W. also deposed before the Court as, "As the accused was assaulted by the people I dare not to look at the accused as I saw the blood was oozing out from his mouth. I know that the Ganja was not belonging to him but he admitted ownership of the S.A. due to severe assault. (xi) The impugned judgment and sentence are bad in law as the Special Judge did not consider the evidence of the defence witnesses in true perspective and did not appreciate that the prosecution could not examine the bus conductor, the driver or any independent witness including the co-passengers. 16. For convenience, the relevant provisions of N.D. and P.S. Act is reproduced below: 42. Power of entry, search, seizure and arrest without warrant or authorization. 16. For convenience, the relevant provisions of N.D. and P.S. Act is reproduced below: 42. Power of entry, search, seizure and arrest without warrant or authorization. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any documents or other article which may furnish evidence of holding any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property or any document or or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter-VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset. (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter-VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under Sub-section (I) or records ground for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 57. Report of arrest and seizure Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official. 17. (P.W. 1) and (P.W. 2) are witness of seized article also. On perusal of the testimony of the P.W. 1 R. Lalpianmawia, it reveals that a bag containing suspecting Ganja was recovered from the roof-top of the bus and the accused-Appellant was in the bus who claimed ownership of the same and stated that he was trying to sell it for education and for fees of his children. On perusal of the testimony of the P.W. 1 R. Lalpianmawia, it reveals that a bag containing suspecting Ganja was recovered from the roof-top of the bus and the accused-Appellant was in the bus who claimed ownership of the same and stated that he was trying to sell it for education and for fees of his children. Such statement is contradicted by P.W. 2 R. Manliana, when he deposed that the Police recovered one bag containing suspected Ganja from the roof-top of the bus and the accused-Appellant after some time claimed ownership of the suspected Ganja and prayed for forgiveness, whereas, according to (P.W. 4) the recovery of bag was from roof-top of the bus by YMA persons and constables. (P.W. 4) S.I. of Police who has divulged that he had received information over telephone at about 7.30 on 21.2.05 from YMA Ratu that one Sakawrdai night bus proceeding towards Aizawl was carrying a bag of Ganja and he had been requested by YMA to the necessary action; accordingly, when the bus was stopped the P.W. 4 S.I. of Police sought to have indicated that he requested the conductor of the said bus to search the bus and the conductor was told that the Police had received information that the bus was carrying Ganja Accordingly, P.W. 4 was allowed by the conductor of the bus to search the bus and on checking of the bus P.W. 4 found a bag containing suspected Ganja on the carrier of the bus in presence of the witnesses. As argued by learned Amicus Curiae the bus conductor and the driver though relevant and material persons on the spot were not examined. According to the Amicus Curiae, it is also suspicious that how the identity of the accused-Appellant was ascertained with the bag alleged to contain Ganja According to him, the passengers were never asked to identify their luggage and bags are none of the co-passengers were examined which created a serious doubt about the credibility of the prosecution case. In the cross-examination, P.W. 4 revealed that the seized article was recovered from the bus carrier and it was taken down by the member of YMA and one constable, but he did not remember the exact person who took it down as such the recovery of the suspected bag containing Ganja from the roof-top of the bus became contradictory; 18. In the cross-examination, P.W. 4 revealed that the seized article was recovered from the bus carrier and it was taken down by the member of YMA and one constable, but he did not remember the exact person who took it down as such the recovery of the suspected bag containing Ganja from the roof-top of the bus became contradictory; 18. According to the D.W. 1, the accused-Appellant was not wearing a white shirt on that night and according to him, two men wearing white shirts left the bus in Forest Check Gate where Police were searching the bus. According to D.W. 1, because of the assault on the face of the accused his one tooth was blown off and when the bus in question reached Dirlawn many people stopped the bus and the accused-Appellant was pulled out from the bus and after stopping the bus people and Police assaulted the accused-Appellant severely and he was taken to one house by the Police and because of such assault his face was swollen and a tooth was blown off. According to D.W. 2, the Ganja was not belonging to the accused-Appellant, however, the accused statement that the Ganja was belonging to him due to severe abusement/assault over him by the people and the Police cannot be true statement. According to him, none else other than the accused was humiliated and assaulted by the Darlawn people and the Police. According to the Amicus Curiae, the P.W. 4 S.I. of Police had not mentioned the name of the accused and has also not mentioned that after receiving the information for suspected Ganja being carried on 21.2.05 by the night bus he ever put it into writing, or he even recorded reasons or grounds of belief before search and had not sent any information to his superior officer. No information of seizure and arrest even was sent to the superior officer, whereas, in view of the decision of Hon'ble Supreme Court in (2002) 4 SCC 229 : Backodan Abdul Rahman v. State of Kerala non-compliance of the mandatory provisions contained in Section 42(2) and 50 of the N.D. and P.S. Act, the conviction of the accused-Appellant could be set aside. The Constitution Bench of the Hon'ble Supreme Court has also held that the provisions of Sections 42 and 50 of ND and PS Act are mandatory and their non-compliance would render the investigation illegal. 19. The Constitution Bench of the Hon'ble Supreme Court has also held that the provisions of Sections 42 and 50 of ND and PS Act are mandatory and their non-compliance would render the investigation illegal. 19. A Constitution Bench of the Hon'ble Supreme Court in State of Punjab v. Baldev Singh (1999) 6 SCC 172 has held that while conducting search and seizure in addition to the safeguards provided under the Act are also required to be followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance with the safeguards. In that case the Court observed; (SCC pp 183-84, para 4). Prior to the passing of the NDPS Act, 1985 control over narcotic drugs was being generally exercised through certain Central enactments through some of the States also had enacted certain statutes with a view to deal with illicit traffic in drugs. The Opium Act, 1857 related mainly to preventing illicit cultivation of poppy, regulating cultivation of poppy and manufacture of opium. The Opium Act 1878 supplemented the Opium Act 1857 and made possession, transportation, import, export, sale, etc of opium also an offence. The Dangerous Drugs Act, 1930 was enacted with a view to suppress traffic in contraband and abuse of dangerous drugs particularly derived from opium. Indian hemp and coca leaf etc. The Act prescribed maximum punishment of imprisonment for three years with or without fine, insofar as the first offence is concerned and for the second or the subsequent offence the punishment could go up to four years R.I. These Act, however, failed to control illicit drug traffic and drug abuse on the other hand exhibited an upward trend. New drugs of addiction known as psychotropic substances also appeared on the sence posing serious problem. It was noticed that there was an absence of comprehensive law to enable effective control over psychotropic substances in the manner envisaged by the International Convention on Psychotropic Substances 1971. The need for the enactment of some comprehensive legislation on narcotic drugs and psychotropic substances was, therefore felt. Parliament with a view to meet a social challenge of great dimensions, enacted the N.D.P.S. Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences. The N.D.P.S. Act. 1985 provides stringent penalties for various offences. Parliament with a view to meet a social challenge of great dimensions, enacted the N.D.P.S. Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences. The N.D.P.S. Act. 1985 provides stringent penalties for various offences. Enhanced penalties are prescribed for the second and subsequent offences. The NDPS Act. 1985 was amended in 1988 w.e.f. 29.5.89. Minimum punishment of 10 years' imprisonment which may extend upto 20 years and a minimum fine of Rs. 1 lakh which may extend upto Rs.2 lakhs have been provided for most of the offences under the N.D.P.S. Act. 1985. For the second and subsequent offences. minimum punishment of imprisonment is 15 years which may extend to 30 years while minimum fine is Rs. 1.5 lakhs which may extend to Rs.3 lakhs. Section 31(a) of the Act, which was inserted by the Amendment Act of 1988 has even provided that for certain offences. After previous convictions, death penalty shall be imposed, without leaving any discretion in the Court to award imprisonment for life inappropriate cases. Another amendment of considerable importance introduced by the Amendment Act 1988 was that all the offences under the Act were made triable by a Special Court. Section 36 of the Act provides for constitution of Special Courts manned by a person who is a Sessions Judge or an Additional Sessions Judge. Appeals from the orders of the Special Courts lie to the High Court. Section 37 makes all the offences under the Act to he cognizable and non-bailable and also lays down stringent conditions for grant of bail. However, despite the stringent provisions of the NDPS Act, 1985 as amended in 1988 drug business is booming; addicts are rapidly rising; crime with its role in narcotics is galloping and drug trafficking network is evergrowing. While interpreting various provisions of the statute the objection of the legislation has to be kept in view but at the same time the interpretation has to be reasonable and fair. 20. While interpreting various provisions of the statute the objection of the legislation has to be kept in view but at the same time the interpretation has to be reasonable and fair. 20. Learned Single Judge of this Court in (2004) 1 GLT 430 (Asem Ningol Longlam Onghi Tharongouhi Devi v. Slate of Manipur) has held that empowered officer taking down in writing the prior information given by a person about commission of an offence under Chapter-IV of N.D. and P.S. Act has to put the information into writing and is required to be sent the same to the superior official as the compliance of provisions of Section 42 of N.D. and P.S. Act are mandatory and non-compliance thereto affects prosecution case and in the relevant case of Asem Ningol Longjam Ongbi Tharongoubi Devi (supra) there was a complete absence of evidence to show that the arresting authority on the basis of prior information had ever reduced to same into writing and had sent a copy of the same to his superior as the FIR was also silent on that aspect and general diary was not produced in the Court. Learned Single Judge referred and followed the decision of Hon'ble Supreme Court in State of Punjab v. Baldev Singh (1994) 2 SCC 229 and (2002) 4 SCC 229 Backodan Abdul Rahman v. State of Kerala. 21. In State of Punjab v. Balhir Singh (1994) 3 SCC 229 it was held by Hon'ble Supreme Court that under Section 42(2) of the N.D. and P.S. Act the empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(2) should forthwith send a copy thereof to his immediate official superior. If there is a total non-compliance with the provisions the same affects the prosecution case as the provisions of Section 42(2) are mandatory. In Saiyad Mohd. Umar Saiyad v. State of Gujarat (1995) 3 SCC 610 , similar view was earlier taken by Hon'ble Supreme Court. 22. In (2007) 1 SCC 450 : Dilip and Anr. If there is a total non-compliance with the provisions the same affects the prosecution case as the provisions of Section 42(2) are mandatory. In Saiyad Mohd. Umar Saiyad v. State of Gujarat (1995) 3 SCC 610 , similar view was earlier taken by Hon'ble Supreme Court. 22. In (2007) 1 SCC 450 : Dilip and Anr. v. State of M.P. it was held by the Hon'ble Supreme Court that the provisions of Section 42(2) is mandatory, where, the requirement of empowered officer is that after having received prior information given by any person about information of offence under Chapter-IV of N.D. and P.S. Act, a copy of such information is to be recorded in writing and to be sent to the immediate superior official and non-compliance of such provisions affect the prosecution case. In para 6 of the said judgment of Dilip (supra) it has been observed as under: 6. It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefore in terms of Sections 41, 42 and50 of the N.D. and P.S. Act should be complied with. 23. It has been held in Dilip (supra) that procedural safeguards provided in Sections 41 and 42 of N.D. and P.S. Act are to be complied with and search carried out in violation of the provisions of law would have a bearing of the credibility of the evidence of the official witnesses being considered in the facts and circumstances of each case. It was specifically laid down by the Supreme Court in case of Dilip (supra) that if two views are possible, the benefit of doubt should be given to the accused in respect of the case of criminal trial under N.D.P.S. Act. 24. We have also noticed that in view of the decision of Hon'ble Supreme Court in (2004) 5 SCC 230 : S Jeevanantham v. State through Inspector of Police, T.N. the same person or the official may make search, recover contraband article as part of his official duty and may register the FIR and may investigate the case and may submit the chargesheet and the functioning of such sole official in process of investigation cannot be said to be biased. 25. 25. Relying on the P.W. 1, P.W. 2 and P.W. 4 and ignoring the contradictions which are vital in their testimonies the trial Court conducted the case and without proper appraisal of evidences the testimonies of D.W. 1 and D.W. 2 were ignored by the learned Special Court in its order dated 12.3.07. The Special Court without any analysis and proper appraisal of the evidences including prosecution as well as defence has decided that the prosecution has proved the guilt of the accused under Section 20(b)(ii)(C) of the ND and PS Act and found the Appellant guilty beyond doubt. 26. We have heard Mr. A.R. Malhotra, learned amicus curiae for the accused-Appellant and Mr. N. Sailo, learned Public Prosecutor for the State and have perused the documents available. 27. We are of the considered view that the submissions of learned amicus curiae are carrying force. We are also of the considered view that the statutory provisions and procedural safeguards as provided to the accused-Appellant under N.D. and P.S. Act in reference to the Sections 42(1), 42(2)and 57 of the N.D. and P.S. Act have not been complied with properly. Nothing has been revealed that P.W. 4 the Investigating Officer the person who registered the FIR and who apprehended the accused and seized the suspected article/material has after receiving the information has put the same into writing and has sent the same to the superior officer. Nothing is also divulged that even after seizure and arrest any information was ever given to the superior official. The mandatory requirements of Sections 42(2) and 57 of N.D. and P.S. Act since have not been complied with, therefore, the prosecution case itself on this point alone cannot be said to be legally sustainable. Apart from these, there is apparent contradiction in the testimonies of P.W. 1 and P.W. 2 in respect of claim by the accused-Appellant about identification of the seized article. Apart from these, there is apparent contradiction in the testimonies of P.W. 1 and P.W. 2 in respect of claim by the accused-Appellant about identification of the seized article. In the facts and circumstances the testimonies of the two defence witnesses, D.W. 1 and D.W. 2 have been ignored as both of them have coherently indicated that the accused-Appellant was taken out from the bus and was beaten by the Darlawn people and the Police and was taken to a house and due to such assault his face was swollen and one tooth had blown off and due to assault and under fear the accused-Appellant had stated that the seized article was belonging to him. Such testimony of defence witnesses was not to be ignored in the facts and circumstances, more so, when no other independent co-passenger was ever examined. The driver or the conductor was completely dissociated from search and seizure. In the facts and circumstances a positive doubt has been created regarding the involvement of the accused-Appellant, therefore, the benefit has to be given to the accused-Appellant. In our considered view the prosecution has not been able to prove its case against the Appellant beyond all reasonable doubt. 28. For non-compliance of statutory requirements of Sections 42(2) as well as Section 57 of the N.D. and P.S. Act. The impugned judgment dated 12.3.07 and sentence are not legally sustainable and is therefore, being set aside. 29. In view of the above analysis and observations, we are of the considered view that the prosecution has failed to prove the case against the accused/Appellant beyond all reasonable doubt. In the facts and circumstances the accused/Appellant is liable to be given benefit of doubt and consequently, the criminal appeal is liable to be allowed. Accordingly, the impugned judgment and order dated 12.03.2007 passed by the learned Judge, Special Court under Narcotic Drugs and Psychotropic Substances Act, Mizoram, Aizawl in Crl. TR 399/2005 is hereby set aside and the Criminal Appeal is allowed. The accused/Appellant shall be released forthwith from the jail custody if he is not otherwise wanted in any other case(s) in view of the verdict of any competent Court of law.