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Gauhati High Court · body

2017 DIGILAW 546 (GAU)

Lalruatpuii Bawitlung v. Union of India

2017-05-05

M.R.PATHAK

body2017
JUDGMENT : 1. This criminal appeal has been preferred from jail by the accused-appellant, Smt. Lalruatpuii Bawitlung, resident of Khawmawi Village, Chin State, Myanmar against the Judgment of conviction and order of sentence dated 11th May, 2015 passed by learned Judge, Special Court, NDPS Act, Aizawl in Criminal Trial No. 744/2014 arising out of S.R. No. 107/2014, Customs NDPS Case No. 01 (CL/IMP/NDPS/AS-AIZ) 14-15, wherein the appellant has been convicted under section 22(c) of the NDPS Act and sentenced her to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000 only, in default of payment of fine, to undergo simple imprisonment for another 6 months. 2. Heard Mr. Zochhuana, learned amicus curiae for the accused-appellant and Mrs. Dorothy Lalrinchhani, learned standing counsel, Customs Department, Aizawl for the respondent. 3. It is seen from the records of the case that acting on specific information the officers of Anti-Smuggling Unit, Customs Division, Aizawl along with the Officers of the Department of Revenue Intelligence (‘DRI’), Aizawl and Customs Preventive Force (‘CPF’), Champhai and Land Customs Station (‘LCS’), Zokhawthar and two independent witnesses rushed towards Melbuk, and at about 15:00 hours of 23.4.2014, the said officers detected and intercepted a motor cycle at Melbuk Cemetery, which coordinated with the information received. The said motorcycle was driven by one, Sri Lalnunpuia Bawitlung, son of Shri Vangura, resident of Khawmawi, Chin State, Myanmar and was accompanied by the accused-appellant. On being satisfied, the officers requested them that they wanted to check the motorcycle and their belongings, to which they readily agreed. On thorough examination and searching of the motorcycle in presence of the two independent witnesses and said driver and the rider of the motor cycle, the enquiry as to where they were travelling to, and what goods they possessed, they replied that they were going to Champhai for some marketing and not officers detected one packet wrapped in a black polythene bag hidden in the cavity below the seat of the driver of the said motorcycle. On the further examining the said package the Officers detected maroon coloured tablets having peculiar odour believed to be Methamphetamine tablets concealed in blue coloured polythene sachets wrapped with brown paper and over with black polythene bag. The tablets along with said two persons and the motorcycle were brought to the Customs Office, CPF, Champhai accompanied by the witnesses for further examinations. The tablets along with said two persons and the motorcycle were brought to the Customs Office, CPF, Champhai accompanied by the witnesses for further examinations. At the Customs Office, CPF, Champhai when thorough examinations were made by the officers concerned, it led to recovery of 50 polythene sachets containing 10,000 tablets believed to be Methamphetamine which were accordingly seized along with the motorcycle bearing registration plate having inscription in Myanmarese script, under section 43(b) read with section 42 of the NDPS Act. It is also stated that the quantitative weight of said seized 10,000 tablets, believed to be Methamphetamine, was approximately 1050 grams (net weight). 4. Simultaneously, representative samples in duplicate each weighing 5 grams in 49 tablets were drawn from homogenous mixer of the tablets from all the 50 sachets by the officers in presence of those 2 persons/owners and the two independent witnesses and marked them S1P1 and S1P2, produced the seized materials and the motorcycle before the learned Chief Judicial Magistrate, Champhai and on being insisted by the learned CJM, Champhai, samples in duplicate were drawn in her presence, to her satisfaction, which were marked as Exhibit-I S1, Exhibit-II S2 to Exhibit-V S1, Exhibit-V S2 and those were packed in polythene sachets to retain the chemical property of the tablets, packed those samples in two envelopes marked as Sample SI (original) and Sample S2 (duplicate) before the said Magistrate, in presence of the those two witnesses and its owners, by obtaining their signatures on the packages after sealing and the Sample marked S1 (original) was sent to the Forensic Science Laboratory (‘FSL’) for its chemical examination on 28.4.2014. 5. After making voluntary statement regarding their involvement in the case, both the persons were arrested on 24.4.2014 under section 42, read with section 43(b) of the NDPS Act, 1985 for violation of the provisions of the said Act, punishable under sections 22, 23, 24 and 29 of the said NDPS Act and further, the motorcycle involved in the case was also seized under the said Act, which is liable to be confiscated under section 60 of the said NDPS Act. The Officer in-Charge of Champhai Police Station was accordingly informed about such arrest and seizure; both the arrested persons were produced before the learned CJM, Champhai on 24.4.2014 and as prayed for, custody of those two persons were granted to the Custom Department for 24 hours only and by order dated 25.4.2014, learned CJM, Champhai remanded both the arrested accused persons in to judicial custody. Further, at the request of the Customs authority, the CJM, Champhai allowed the seized articles and the motorcycle to be kept in the safe custody of the Customs Department. Thereafter, the seized article and the motorcycle were deposited into the Divisional Disposal Unit of the Customs Department at Aizawl on 26.5.2014. 6. The Superintendent, Anti-Smuggling and Narcotics Intelligence (AS&NI) of the Customs Division, Aizawl on 25.4.2014 appointed one Mr. Jebulon Luophul, an Inspector (AS&NI) of the Customs Division, Aizawl as the Investigating Officer of the case to investigate the same. The FSL report dated 20.5.2014 confirmed that maroon coloured tablets sent for examination contain Methamphetamine. 7. As the matter relates to NDPS Act. learned CJM, Champhai by order dated 23.5.2014, committed the said case to the court of learned Special Judge, NDPS Act, Mizoram, Aizawl. 8. After completion of the investigation, finding sufficient incrementing materials, the said Investigating Officer by his report dated 30.5.2014 submitted the complaint under section 190(1)(a) of the Code of Criminal Procedure, and charged the accused-appellant, Smt. Lalruatpuii Bawitlung under sections 8(c), 22(c) and 23(c) of the NDPS Act, 1985 as she had committed offence punishable under Chapter-IV of the said 1985 Act and on the other hand charged other accused Sri Lalnunpuia Bawitlung, the driver of the motorcycle under sections 8(c), 22(c), 23(c) and 29 of the NDPS Act, 1985 as he had committed offence punishable under Chapter-IV of the said 1985 Act and also seized the Methamphetamine tablets and the motorcycle of foreign origin bearing registration number in Myanmarese script for confiscation under sections 60 and 61 of the NDPS Act. The said final complaint submitted by the case Investigating Officer in connection with Customs NDPS Case No. 01(CLI/IMP/NDPS/AS-AIZ) 14-15 under section 190(1)(a) of the Cr.PC was forwarded to the Special Judge, NDPS Court, Aizawl, Mizoram by the Superintendent (AS&NI) of Customs Division, Aizawl on 5.6.2014 and prayed for taking necessary actions against both the accused persons under the NDPS Act, 1985. 9. 9. Learned Special Judge, NDPS, Aizawl after going through the said complaint under section 190(1) of the Cr.PC in presence of the accused persons, took cognizance of the offences. 10. On 20th August, 2014 learned Special Judge, NDPS Act, Mizoram, Aizawl framed charge under section 22(c) of the NDPS Act, 1985 against both the accused persons, including the present appellant, for their involvement in the said Customs NDPS Case No. 01 (CL/IMP/NDPS/AS-AIZ) 14-15, that were read over and properly explained to them in the language which they are well versed with, where both the accused persons pleaded guilty and not claimed to be tried. But the Trial Judge considering the seriousness of the offence, by order dated 20.8.2014 proceeded for the trial of the case and accordingly the trial commenced. 11. The prosecution in order to bring home the charges against the accused persons has examined 6 witnesses, including the Investigating Officer of the case. Junior Scientific Officer of the FSL, the Seizure Witnesses on its behalf to prove the guilt of the accused persons, who were cross-examined by the defence on behalf of the accused persons. But the defence did not adduce any evidence from the side of the accused. During the trial the prosecution also Exhibited 13 relevant documents including the seizure list, arrest memos of the accused persons, appointment order of Customs Officer as the Investigation Officer of the case, FSL report of the seized goods, voluntary statements of the accused persons and the questionnaires and the statement of the accused. 12. After completion of the evidence of the prosecution witnesses, the learned Trial Judge on 13.2.2015 recorded the statement of the accused-appellant under section 313, Cr.PC in which she denied to adduce any evidence from her side. Thereafter, the learned Special Judge, NDPS, Aizawl hearing the submissions of the parties, on appreciation of the evidence, adduced by the prosecution, recorded the impugned judgment of conviction on 11.5.2015. 13. Mr. Zochhuana, learned amicus curiae, appearing for the accused-appellant contended that the search, seizure of the materials and arrest of the appellant was in violation of the provisions of section 42 of the NDPS Act, 1985. 13. Mr. Zochhuana, learned amicus curiae, appearing for the accused-appellant contended that the search, seizure of the materials and arrest of the appellant was in violation of the provisions of section 42 of the NDPS Act, 1985. In this regard, he placed reliance on the judgment of the hon'ble Supreme Court in the case of Roy V.D. vs. State of Kerala, (2000) 8 SCC 590 as well as in the case of Manik Debnath vs. State of Assam, decided by this High Court reported in (2008) 2 GLR 17 : 2008 (1) GLT 205. 14. Mr. Zochhuana, learned amicus curiae also submitted that body search of the accused-appellant was made in violation of the provisions of the section 50 of the NDPS Act and in that regard he placed reliance on the judgments of the hon'ble Supreme Court in the case of Ali Mustaffa Abdul Rahman Nessa vs. State of Kerala, (1994) 6 SCC 569, Dilip vs. State of M.P. (2007) 1 SCC 450 and Myla Venkateswarlu vs. State of Andhra Pradesh, (2012) 5 SCC 226 . It is also submitted that the concerned officer, who conducted her body search, seizure of the goods and arrested her, did not inform her about the same, as required under section 50 of the NDPS Act. 15. It is also submitted on behalf of the appellant that the materials seized in the case was not kept in conformity with the provisions of the NDPS Act, as those were not kept in the concerned police station as provided in section 55 of the said Act. In this regard Mr. Zochhuana placed reliance on the judgment of this court reported in the case of Bhim Ram vs. State of Assam, (2012) 4 GLR 573 : 2012 (1) GLT 416. 16. Mr. Zochhuana, learned amicus curiae citing the judgment of the hon'ble Supreme Court in the case of Roy V.D. (supra) submitted that the arrest of the accused-appellant and seizure of the materials involved in the case was in violation of the provisions of section 57 of the NDPS Act. 16. Mr. Zochhuana, learned amicus curiae citing the judgment of the hon'ble Supreme Court in the case of Roy V.D. (supra) submitted that the arrest of the accused-appellant and seizure of the materials involved in the case was in violation of the provisions of section 57 of the NDPS Act. He stated that after arrest of the appellant and after making such seizure under the said 1985 Act, the authority concerned ought to have produced the accused-appellant within 48 hours from the date of arrest before the court and seizure and further, a full report regarding her arrest and seizure along with all the particulars should have been made to the superior officer by the concerned person who arrested the accused-appellant. 17. Mr. Zochhuana also contended that the concerned officer of the case before whom the police report about the constituting the offences under sections 8(c), 22(c), 23(c), 29,60 and 61 of the NDPS Act was submitted, was in fact, not a duly authorised officer, either under the Central Government or the State Government, for taking cognizance of the offences noted above and for all these reasons the conviction and punishment imposed upon the accused-appellant being bad in law, should be set aside and quashed and accordingly, she should be set at liberty forthwith. 18. Referring the impugned judgment of conviction passed by the learned trial court, learned amicus curiae submitted the prosecution has failed to bring home the charges levelled against the appellant beyond all reasonable doubt and there being no proved incriminating evidence against the appellant, the trial court ought not to have convicted the appellant and, therefore, the judgment of conviction and sentence imposed by the trial court upon the appellant needs to be set aside and quashed. 19. On the other hand, Ms. Dorothy Lalrinchhani, learned standing counsel and public prosecutor for the Customs Department, supporting the impugned Judgment of conviction has submitted that the learned Special Court (NDPS), Aizawl after hearing the parties, on thorough examination of the evidence and materials placed before it and after considering the entire aspects of the matter found the accused-appellant guilty of the offence committed by her under section 22(c) of the NDPS Act, 1985 and also found that she violated the provisions of section 8(c) of the said Act and, therefore, she was sentenced to suffer rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/- in default to pay the fine, to undergo simple imprisonment for one more year, setting off the detention period as under trial prisoner. The learned counsel for the Customs Department submitted that the evidence is clear that the accused-appellant was in full control of the NDPS materials that were seized in the case and the learned trial court has rightly recorded the Judgment of conviction. Relying on the decision of the hon'ble Supreme Court in the case of N. Mani vs. Sangeetha Theatre, (2004) 12 SCC 278 , Mrs. Dorothy submitted that in the case of said N. Mani (supra) the hon'ble Supreme Court observed as follows: “It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provisions of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.” 20. The submissions advanced by the learned counsels appearing for the High Court parties have been considered and also perused the evidence on record, apart from the judgment of conviction recorded by the trial court. Also considered the judgments cited by the parties. 21. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned judgment and order of conviction, it will be appropriate to briefly scrutinize the evidence on record. 22. The PW-1, L.Z. Gina in his evidence before the trial court deposed that on 23.4.2014 they proceeded towards Melbuk and while waiting near Melbuk Cemetery, they saw two people riding in a motorcycle and when they were checked by the Customs Officials, a black polythene bag placed underneath the driver seat of the motorcycle were taken out and while opening the package something acquainted to be drugs could be seen and when they were taken to the office of the Customs at Champhai along with the accused persons, on counting the tablets, it was found 10,0 in numbers. In his cross-examination said PW-1 stated that on being called by the Inspector of Customs, Aizawl, he accompanied the said Inspector and the team of Aizawl Unit of the Customs Department to Champhai and on 23.4.2014 while sitting in the Office of the Customs at Champhai it was informed that the specific information that had been received could be detected at Melbuk and he along with the Customs team proceeded to the concerned area and at Melbuk Cemetery, the Customs Officials stopped the foreign bike coming from Zokhawthar towards Champhai. He also stated that the tablets were recovered underneath the seat of the bike that were packed in a black polythene and, when it was brought to the Office of Customs at Champhai, 10,000 numbers of suspected tablets containing drugs were counted. He also stated that seizure, weighment of the seized articles, drawing of samples and sealing were done in the Customs Office at Champhai and that he is a signatory to such samples. The said PW-1 in his cross-examination admitted that body search of the accused person Sri Lalnunpuia Bawitlung, the driver of the motorcycle was conducted but stated that nothing was recovered from him and that he drove back the eco-motor bike of the accused person to Aizawl. He further stated that both the accused persons were detained in the Excise lock-up on the night of 23.4.2014. 23. PW-2, Nengkhan is also a seizure witness and in his evidence deposed similar statement as that of the PW-1, noted above. In his cross-examination said PW-2 stated that seizure of the articles, drawing of samples, weighing of the articles seized and sealing were done by the Customs Officials at the Customs Office, Champhai in presence of both the accused persons and other witnesses, including him. He also stated that both the accused persons were detained in the Excise lock-up, the night of 23.4.2014. 24. He also stated that both the accused persons were detained in the Excise lock-up, the night of 23.4.2014. 24. PW-3, Lalmuanawma, Junior Scientific Officer, Forensic Laboratory Aizawl in his evidence deposed that 5 Exhibits packed in polythene packets and enclosed in a paper envelop, marked as SI (original), sealed with wax seal and each package contained 10 numbers of maroon coloured tablets, each weighting about 120 mgs, marked as C (AZL) 209(A) to C (AZL) 209(E), which were analysed by various scientific methods and all the five exhibits were found to contain Methamphetamine and that the Exhibit-P1 is the FSL report dated 20.4.2014 containing his signature. In his cross-examination he stated that along with another person he conducted the test of the samples and admitted the fact that he does not know the chemical formula of Methamphetamine, but he specifically stated that the samples were tested by using thin layer chromatography and high performance liquid chromatography. He also clarified that he does not know the quantity of Meth in the samples, since he conducted the test as to whether the said samples contain Methamphetamine or not. He denied the suggestion that sample seal was not sent to the FSL and that he did not remember whose signature was in the sample sent to FSL. The PW-3 reiterated that each tablet of the sample that they tested weighed about 120 mgs. 25. PW-4, L. Sailo, Assistant Commissioner of Customs Division, Aizawl submitted that while she was posted as Superintendent (AS&NI) of the Customs Division, Aizawl, seized 10,000 tablets of Methamphetamine on 23.4.2014 and she forwarded the samples drawn from the said seized articles to the Directorate of FSL, Aizawl on 28.4.2014 and also forwarded the said seizure report of the said seizure to various officers on 28.4.2014. She also deposed that it is she who on 25.4.2014 appointed, PW-4, Sri Jebulon Luophul, Inspector, AS&NI Unit, Customs Division, Aizawl as Investigating Officer to investigate the case and that the said Inspector submitted the complaint in the case, which she forwarded to the Special Judge, NDPS Court, Aizawl. In her cross-examination, she stated that at the time of drawing of the samples of the seized articles before the CJM Court at Champhai, she was not present and that she does not know when the samples were drawn. In her cross-examination, she stated that at the time of drawing of the samples of the seized articles before the CJM Court at Champhai, she was not present and that she does not know when the samples were drawn. She admitted that she did not send the sample seal to the Directorate of FSL along with the samples sent for the test. She also admitted that she is not the competent person to make the appointment of the Investigating Officer of the case. In her cross-examination, she also stated that the FSL report did not indicate the exact percentage of Methamphetamine and she does not know the weight of the samples sent for FSL. 26. PW-5, G. Nangchinkhup, Inspector (Anti-Smuggling), Customs Division, Aizawl Unit, in his evidence deposed that he is the Seizing Officer of the case and that the Officers of the Anti-Smuggling Unit of Aizawl Customs Division along with the Officers of the DR1, Aizawl and CPF, Champhai and LCS, Zokhawthar and two independent witnesses on obtaining specific information, rushed to Melbuk and around 15:00 hours on 23.4.2014, the motorcycle involved in the case was detected by the Customs Officers and both, the rider as well as the pillion rider, i.e., both the accused persons were enquired and on their thorough examination and rummaging of the motorcycle in presence of the two independent witnesses, the maroon coloured tablets, having peculiar odour, wrapped in black polythene bag, believed to be Methamphetamine were detected and recovered from the hidden cavity, below the seat of the driver of the motorcycle. Said PW-5 also stated that both the accused persons, the motorcycle and the seized articles were brought to the Customs Office, CPF, Champhai accompanied by the two independent witnesses, PWs 1 and 2, where thorough examination of those two bike riders was done, resulting into recovery of 50 numbers of polythene sachets containing 10,0 maroon coloured tablets, weighing about 1050 grams, believed to be Methamphetamine and he seized those articles, drawn the samples, sealed them in presence of those persons and also seized the motorcycle bearing registration of Myanmar inscription under section 43(b) read with section 42 of ND and PS Act. In his evidence, said PW-5 also deposed that along with the seizure memo and obtaining signatures of the witnesses therein, he also arrested the two accused persons including the accused-appellant, prepared the arrest memo that were furnished to the accused persons and that both the accused persons, the seized materials including the motorcycle were placed before the Chief Judicial Magistrate, Champhai and at the instance of the said CJM, in her presence, samples in duplicate were redrawn from each sachet marked as Exhibit-1 SI, Exhibit-1 S2 to Exhibit-V SI, Exhibit-V S2, packed them in polythene sachets, to retain the chemical property of the tablets. Further, the PW-5 in his cross-examination denied that body search of the accused persons were done, stated that the present accused-appellant told that the seized motorcycle belongs to the other accused Sri Lalnunpuia Bawitlung, stated that the materials were seized at Melbuk Cemetery on 23. 4.2014 and samples were drawn at Office of the CPF at Champhai on 23. 4.2014, Seizure Memo was prepared on 24.4.2014 and those samples were re-drawn before the CJM, Champhai District on 25.4.2014 and that on being measured, each tablet was found to be of 0.105 gms. He deposed that the weighing scale used by him was accurate. He also stated that seized articles were put in the office of the CPF, Champhai, the night of 23.4.2014 and it was sent to the Superintendent, Anti-Smuggling Unit, Customs Division, Aizawl on 26.4.2014 and that there is no such documents available in the Charge Sheet to prove that the Customs Officer was allowed to keep the seized articles in their custody for the period from 25.4.2014 to 26.4.2014, till it was deposited with the disposal of the Anti-Smuggling Unit, Customs Division, Aizawl on 26th April 2014. In his cross, he further stated that Seizure List of the seized articles in presence of the seizure witnesses were recorded by him; whereas the questionnaires and the statement of the accused-appellant was recorded by Stephen M.S. Thang, Inspector and the questionnaires and the Statement of the other accused Sri Lalnunpuia Bawitlung was recorded by J.K. Thang, Inspector. He also admitted that both the accused persons were put inside the lock-up at Champhai on the night of 23.4.2015. He also admitted that both the accused persons were put inside the lock-up at Champhai on the night of 23.4.2015. On his re-examination PW-5 stated that the Custom Case No. 01/CL/IMP/NDPS/AS-AZL/14-15 was registered on 23.4.2014 and the date appearing in the arrest memo, as the date of registering the case on 24.4.2014 was only a typographical error. 27. PW-6, Jebulon Luophul, Inspector, Anti-Smuggling, Customs, Division, Aizawl, Investigating Officer of the case, in his evidence deposed as that of PW-5, the Seizing Officer. He also stated that both the accused persons in their voluntary statements, stated that they are residents of Khawnmai Villgae, Chin State, Myanmar and that they were arrested on 24.4.2014 under section 42, read with section 43(b) of the NDPS Act, 1985 for violation of the provisions of the Act, punishable under sections 22, 23, 24 and 29 of the NDPS Act and that the said motorcycle involved in the case was also seized under the said Act. He also stated that the accused-appellant Smt. Lalruatpuii Bawitlung in her voluntary statement stated that the seized tablets were concealed in the motorcycle by one Pianga who is the owner of those seized tablets and it is he who directed her to deliver them to one M.C. Lura at Melbuk for which she would pay her Rs. 20,000 and on reaching Melbuk Cemetery, Customs Officials intercepted them. Said PW-6 also deposed that the other accused of the case Sri Lalnunpuia Bawitlung in his voluntary statement stated that he is the driver of the motor bike-taxi at Khawmai, Myanmar and the said bike was hired by said Smt. Lalruatpuii Bawitlung upto Melbuk, Mizoram for Rs. 200 and placed the packet under the seat of his bike and rode with her upto Melbuk Cemetery, till they were apprehended. While he was cross-examined on behalf of the accused persons, said PW-6 submitted that the Superintendent (AS&NI), Customs Division, Aizawl (PW-4) appointed him as the Investigating Officer of the case. He admitted that he did not visit Melbuk, the place of occurrence to do the investigation of the case, did not record the statement of the accused persons as well as the witnesses. Said PW-6 admitted that he prepared the charge sheet of the case on the basis of the documents prepared by other Officers of the Customs Department and filed the complaint under section 190(1)(a), Cr.PC before the court. Said PW-6 admitted that he prepared the charge sheet of the case on the basis of the documents prepared by other Officers of the Customs Department and filed the complaint under section 190(1)(a), Cr.PC before the court. In his re-examination by the prosecution, said PW-6 admitted that he saw the packing of the seized articles after sealing and that it is the Assistant Commissioner, Customs Division, Aizawl (PW-4) who sent the samples of the seized articles to the FSL, Aizawl. 28. In her statement under section 313, Cr.PC the accused-appellant deposed before the learned trial court that the seized Methamphetamine does not belongs to her and she does not know how it came into the bike and who planted said drugs at the bike. She also stated that it belongs to one Pianga who asked her to ride on the bike upto Melbuk to count money amounting to Rs. 800,000 and that she was promised Rs. 20,000 by him, as such she came to Melbuk with the co-accused Lalnunpuia Bawitlung. 29. Mrs. Dorothy Lalrinchhani, learned standing counsel, Customs Department placed the following notification and orders of the Government of India, Ministry of Finance before the court for necessary consideration - (i) Notification No. SG 822, dated 14.11.1985, (ii) Notification No. SO 823(E), dated 14.11.1985 and (iii) Order under No. SO 763(E) dated 27.9.1989. 30. By the Notification No. SO 822, dated 14.11.1985, the Central Government, Ministry of Finance (Department of Revenue), in exercise of the powers conferred by sub-section (2) of section 41 of the NDPS Act, 1985, empowered the officers of and above the rank of Superintendent (being officers of gazetted rank and working in the executive field), in the Departments of Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Bureau and Narcotic Control Bureau to exercise the powers specified in sub-section (2) of section 42 of the said 1985 Act, within the area of their respective jurisdiction. [Published in the Gazette of India (Extraordinary, Part-11, Section 3 dated 14.11.1985]. [Published in the Gazette of India (Extraordinary, Part-11, Section 3 dated 14.11.1985]. By this Notification the officers of and above the rank of Superintendent (being officers of gazetted rank and working in the executive field), in the Departments of Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Bureau and Narcotic Control Bureau have been empowered for entry, search, seizure and arrest without warrant or authorization as prescribed under sections 42 and 43 of the NDPS Act. 31. Similarly by the Notification No. SG 823(E), dated 14.11.1985 the Central Government, Ministry of Finance (Department of Revenue), in exercise of the powers conferred by sub-section (1) of section 53 of the NDPS Act, 1985, after consultation with all the State Governments, invested the officers of and above the rank of Inspector in the Departments of Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau, with the powers specified in Sub-section (1) of section 53 of the said 1985 Act within the area of their respective jurisdiction. [Published in the Gazette Of India (Extraordinary, Part-II, Section 3 dated 14.11.1985]. Accordingly, by the said Notification No. SO 823(E), dated 14.11.1985 the officers of and above the rank of Inspector in the Departments of Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau have been entrusted with the power of an Officer in-Charge of a Police Station for investigation of the offences under the NDPS Act, 1985. 32. Again by Order No. SO 763(E) dated 27.9.1989, the Central Government in the Ministry of Finance (Department of Revenue), in exercise of the powers conferred by Clause (d) of Sub-section (a) of section 36A of the NDPS Act, 1985, the Central Government authorised the officers of and above the rank of Inspector in the Departments of Customs, Central Excise, Narcotics, Revenue Intelligence, Central Economic Intelligence Bureau and the Narcotic Control Bureau under the Ministry of Finance, Government of India for filing of complaints relating to an offence under the said 1985 Act before the Special Court. [Published in the Gazette of India (Extraordinary, Part-II, Section 3 dated 27.9.1989]. [Published in the Gazette of India (Extraordinary, Part-II, Section 3 dated 27.9.1989]. By this Order the officers of and above the rank of Inspector in the Departments of Customs, Central Excise, Narcotics, Revenue Intelligence, Central Economic Intelligence Bureau and the Narcotic Control Bureau under the Ministry of Finance, Government of India have been empowered to file complaints relating to an offence under the NDPS Act, 1985. 33. Therefore, PW-5, the Inspector of Customs Department, Aizawl Unit, the Seizing Officer of the case was fully empowered to comply with the provisions of sections 42 and 43 of the NDPS Act, 1985 in the present case. Similarly, the PW-6, Inspector, Anti-Smuggling, Customs, Division, Aizawl, Investigating Officer of the case was duly empowered to investigate the case pertaining to the Customs NDPS Case No. 01/CU/IMP/NDPS/AS-AIZ/14-15 and to file Complaint of the said case under section 190(1)(a) of the Cr.PC, that was duly forwarded by the PW-4, Superintendent of the Anti-Smuggling and Narcotics Intelligence, Customs Division, Aizawl to the Special Judge, NDPS Act, Mizoram, Aizawl. Therefore, there was no such illegality and infirmity with the provisions of the NDPS Act, 1985 with regard to search and arrest of the accused persons of the case; in seizing the articles recovered from their possession, believed to be NDPS; in drawing the samples from the seized articles and in filing the complaint of the case under section 190, Cr.PC. 34. In the case of Noor Aga vs. State of Punjab, (2008) 16 SCC 417 hon'ble Supreme Court have held that:- “Justness and fairness of a trial is also implicit in article 21 of the Constitution. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well-known legal principles governing the same; where for the provisions of the Code of Criminal Procedure and the Evidence Act must be followed. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial. Such rights are enshrined in our constitutional scheme being article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land. It is one thing to say that even applying the well-known principles of law, they are found to be guilty of commission of offences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience or otherwise.” 35. From the evidence of the independent witnesses PW-1 and PW-2 and the Seizing Officer PW-5, it can be seen that the accused persons were kept in the lock-up on the night of 23.4.2014 and they were arrested on 24.4.2014 and that the alleged voluntary statement of the accused persons were recorded on 23.4.2014, whether after they were put up in the lockup or before, to that extent there is no such evidence. Moreover, the PW-5, the Inspector, Anti-Smuggling, Customs Division, Aizawl Unit, in his evidence did not state that he recorded such voluntary statement of the accused-appellant on 23.4.2014; rather he stated that it is Mr. Stephen M.S. Thang, Inspector, who recorded the Questionnaire Statement of the accused-appellant, but he was not examined by the prosecution and further the independent prosecution witnesses PW-1 and PW-2 in their evidence also did not state anything about the recording of such voluntary statement of the accused-appellant recorded by the PW-5 or about recording of such Questionnaire Statement by an another Inspector. As such, in such circumstances, the submission on behalf of the prosecution that from the voluntary statement and/or Questionnaire Statement made by the accused-appellant before the PW-5 and the Inspector of Anti-Smuggling Unit of Customs Division, Aizawl that the accused-appellant was in the conscious possession of the seized Methamphetamine cannot be considered. 36. As such, in such circumstances, the submission on behalf of the prosecution that from the voluntary statement and/or Questionnaire Statement made by the accused-appellant before the PW-5 and the Inspector of Anti-Smuggling Unit of Customs Division, Aizawl that the accused-appellant was in the conscious possession of the seized Methamphetamine cannot be considered. 36. From the evidence of PW-5, the Seizing Officer of the case it is clear that seized articles were kept in the Office of the Customs Preventive Force at Champhai on 23.4.2014, samples were drawn on 23.4.2014, articles were seized on 24.4.2014, samples were redrawn before the learned Chief Judicial Magistrate, Champhai on 25.4.2014. But there is no evidence as to where those seized articles and samples were kept on 24.4.2014, 25.4.2014 and 26.4.2014 till it was deposited with the disposal of the Anti-Smuggling Unit, Customs Division, Aizawl on 26.4.2014. Further, PW- 4, the Superintendent, Anti-Smuggling and Narcotics Intelligence Unit, Customs Division, Aizawl, who forwarded the samples to the Director of FSL, Aizawl on 28.4.2014 vide Exhibit-P11 for its chemical examination in her evidence clearly deposed that she did not send the sample seal to the FSL along with the sample. 37. The PW-5, the Seizing Officer in his evidence stated that the weight of each tablet that were seized in the case was of 0.105 grams. Further, the PW-4, the Superintendent, AS & NI, Customs Division, Aizawl, who forwarded the samples to the Director of FSL, Aizawl on 28.4.2014 vide Exhibit-P11 also stated that the five packets, weighing 1.05 grams each, containing ten tablets each (i.e. each tablet is of 0.105 gms.), were forwarded for testing. But from the deposition of the PW-3, the Junior Scientific Officer of the FSL, Aizawl, who conducted the test of the samples sent for examination of seized articles, found that the weight of each such tablet sent for test was of 120 mgs. (equivalent to 0.120 gms.). As such there is a clear discrepancy with regard to the weight of the tablets of the sample drawn by the Seizing Officer PW-5 and the samples tested by the FSL, by a margin of 15 mgs. Evidence is clear that samples were drawn in the Office of Champhai and before the CJM, Champhai by a weighing scale, which was accurate as it is stated by the Seizing Officer, PW-5. Evidence is clear that samples were drawn in the Office of Champhai and before the CJM, Champhai by a weighing scale, which was accurate as it is stated by the Seizing Officer, PW-5. It is worth mentioning that there is no evidence as to where those seized articles of the case were kept on 24.4.2014, 25.4.2014 and 26.4.2014, till it was handed over to the Anti-Smuggling Unit, Customs Division, Aizawl on 26.4.2014. It is seen that the Seizing Officer of the Customs Department, PW-5 at first drawn the samples in the Office of the CPF at Champhai and then he re-drawn the samples before the CJM at Champhai. The said Seizing Officer also stated that the weighing scale that he used to measure the said tablets was an accurate one and that he made the seizure on 24.4.2014 at CPF Office at Champhai. Considering the places, where the samples were drawn, the seizure was done, which was carried out by an Officer of the Customs Department; such an increase by a margin of 15 mgs. of contraband articles, otherwise may make a huge difference of the result of the test of the samples under the NDPS Act. The prosecution during the trial was totally silent on such difference. 38. As there is no evidence under whose safe custody the seized articles, including the samples that were drawn were kept on 24.4.2014, 25.4.2014 and 26.4.2014, till it was handed over to the Anti-Smuggling Unit, Customs Division, Aizawl on 26.4.2014, this dearly gives rise to a doubt that there might have been a possibility of tampering which cannot be ruled out. Moreover, it is evident from the deposition of the PW-4 that the sample seal was not sent to the FSL with the sample vide Exhibit-P11, nor it was produced during the trial by the prosecution. It is also seen from the records of the case that the Annexure to the Exhibit-P11, the forwarding of the samples made by the PW-4 to the Director of FSL, Aizawl on 28.4.2014 was not exhibited before the trial court nor there is any mention about it by the PW-4 or by the PW-3 and further, in the said forwarding dated 28.4.2014, there is no mention about it. Further there is also no evidence as to whether, the samples drawn and sent to the FSL for chemical examination contained the signatures of the independent witnesses and the accused persons or not. 39. From the above it cannot be said with certainty that there was no manipulation with regard to the samples drawn from the seized articles and the samples sent to the FSL for its chemical examination. Moreover, though sought for, the FSL report did not state the percentage of Methamphetamine in the samples that it has tested. 40. Aforesaid facts clearly reveals that prejudice has been caused to the appellant. The prejudice in our opinion is apparent if the seized articles are different from the articles sent to the Chemical Examiner which in this case we cannot say with certainty that the said manipulation has not happened. Therefore, on this ground alone this appeal succeeds and is allowed and the appellant is acquitted. His bail bonds stand discharged. 41. For the reasons above, though the FSL Report dated 20.5.2014, Exhibit-P1 reveals that the Exhibits tested by the sad laboratory were found to contain Methamphetamine but the prosecution failed to prove beyond reasonable doubt that the samples tested by the FSL as per the said report dated 20.5.2014 are the same tablets that were drawn from the articles seized from the cavity of the bike, below the seat of the driver, the bike that she had taken on rent, in which the accused-appellant was coming to Melbuk on 23.4.2014 as a pillion rider, with those seized 10,000 marooned coloured tablets, believed to be Methamphetamine. 42. In view of the aforesaid discussion, this court is of the considered view that the accused-appellant should be given the benefit of doubt. As such the impugned judgment of conviction and sentence dated 11.5.2015 passed by learned Judge, Special Court, NDPS Act, Aizawl in Criminal Trial No. 744/2014 arising out of S.R. No. 107/2014, Customs NDPS Case No. 01(CL/IMP/NDPS/AS-AIZ) 14-15, wherein the appellant has been convicted under section 22(c) of the NDPS Act and sentenced her to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000 only, in default of payment of fine, to undergo simple imprisonment for another 6 months with regard to the accused-appellant, Smt. Lalruatpuii Bawitlung is hereby set aside and quashed and she is acquitted from the charge levelled against her in the aforesaid case and is directed to be released forthwith, if not required in any other case. 43. Registry shall inform the Special Superintendent of the Central Jail, Aizawl to release the accused-appellant Smt. Lalruatpuii Bawitlung, forthwith in the above noted case, with a copy of the judgment. 44. The valuable assistance rendered by Mr. Zochhuana, learned amicus curiae, appearing for the accused-appellant, Smt. Lalruatpuii Bawitlung and also Mrs. Dorothy Lalrinchhani, learned standing counsel, Customs Department are highly appreciated. The learned a.micus curies Mr. Zochhuana is entitled to Rs. 7,500 towards his hearing fees from the State Legal Services Authority, Mizoram, Aizawl. 45. Registry shall send down the records along with copy of the judgment.