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2020 DIGILAW 521 (GAU)

Lalthansangi v. State Of Mizoram

2020-05-22

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. Lalremtluanga, learned counsel for the appellant. Also heard Mrs. Linda L. Fambawl, learned Additional Public Prosecutor. 2. This appeal had been filed by the appellant, Smt. Lalthansangi against the Judgment & Order dated 18.02.2019 passed by the Special Court, ND&PS, Champhai in Sessions Registration No. 91/2017, arising out of Criminal Trial No. 928/2017, by which the appellant had been convicted under Section 21(c) of the ND&PS Act, 1985, for possession of 555 grams of heroin and sentenced her to undergo R.I. for a period of 15 years and to pay a fine of Rs. 50,000/-, i.d. R.I. for 1 month. 3. The prosecution story in brief is that the S.I. of police, Sh. Zirthanga Pachuau (PW-1) received information on 09.02.2017 that some smugglers were intending to transport a large quantity of heroin from Zokhawthar to Champhai. After taking down the information in writing and sending the same to his superior, S.I. Zirthanga Pachuau and his team went towards Zokhawthar and stopped two persons riding on a motorcycle without any registration number on their motorbike between Mualkawi Village and Melbuk Village near Tarmat Camp. One airbag which was placed between the bike driver and the pillion rider was opened in front of witnesses, wherein 42 number of soap cases containing heroin were found. The seized articles were weighed and the heroin weight was found to be 555 grams. Champhai Police Case No. 13/2017 dated 09.02.2017, under Section 21(c)/29 ND&PS Act was registered against the two persons, namely, the appellant herein and the driver of the bike i.e., Lalhmunsiama, S/o Lalropuia. After taking the samples of the heroin, the same was sent to the FSL for examination. The FSL report stated that the heroin was of high purity having a percentage of 80% and above. 4. After investigation was completed, the I.O. having found a prima facie case against the appellant and the co-accused under Section 21(c)/29 of the ND&PS Act, 1985, submitted a charge sheet. The learned Trial Court framed the charge under Sections 21(c)/29 of the ND&PS Act, 1985 against the appellant and co-accused Lalhmunsiama on 02.06.2017 and to which, they both pleaded not guilty. Accordingly, trial commenced against the appellant. 5. During the trial, 5 prosecution witnesses were examined. The learned Trial Court framed the charge under Sections 21(c)/29 of the ND&PS Act, 1985 against the appellant and co-accused Lalhmunsiama on 02.06.2017 and to which, they both pleaded not guilty. Accordingly, trial commenced against the appellant. 5. During the trial, 5 prosecution witnesses were examined. Thereafter, examination of the appellant and co-accused was done under Section 313 Cr.P.C. After final arguments, the learned Trial Court came to a finding that while the appellant was guilty of possessing the seized heroin, the co- accused Lalhmunsiama was not guilty of the offence charged, as it could not be proved that he was in conscious possession of the seized heroin. Accordingly, the learned Trial Court convicted the appellant under Section 21(c) of the ND&PS Act and sentenced him to undergo imprisonment and fine as stated earlier, while the co-accused Lalhmunsiama was acquitted from the charge. 6. The appellant being aggrieved by his conviction and the sentence imposed upon him by the learned Trial Court, vide the impugned judgment and order, has filed the present appeal. The learned counsel for the appellant submits that the impugned judgment and order has to be set aside as there has been non-compliance with Section 42 of the ND&PS Act. He submits that while the initiation of the case started with the prior information received by the S.I. Zirthanga Pachuau, the same was not recorded in writing by the said Police Officer. He also submits that the bike, on which the appellant and the co-accused were riding on, at the time they were detained by the police, did not have any registration number. Accordingly, it could not be said that the bike was a public conveyance. As grounds of belief were not recorded, prior to search of the bike before sunrise, Section 42 of the ND&PS Act was doubly violated. As there has been violation of the mandatory provisions of law, the search and seizure of the seized article was vitiated. 7. The learned counsel for the appellant also submits that as there were two accused persons, the learned Trial Court should have framed charges against the appellant and the co-accused Lalhmunsiama separately and not jointly. 8. The learned counsel for the appellant also submits that prosecution witness No. 6 i.e., Sh. 7. The learned counsel for the appellant also submits that as there were two accused persons, the learned Trial Court should have framed charges against the appellant and the co-accused Lalhmunsiama separately and not jointly. 8. The learned counsel for the appellant also submits that prosecution witness No. 6 i.e., Sh. J.H. Sanghmingthanga, who was the Officer-in- charge of Champhai Police Station, was a part of the Police team that recovered the heroin, arrested the appellant, besides being the case I.O. The appellant''s counsel submits that in the case of State Vs. Rajangam, (2010) 15 SCC 369 , the Apex Court has reiterated the earlier judgment of the Apex Court in Megha Singh Vs. State of Haryana, (1996) 11 SCC 709 , wherein it was held that the complainant, who had arrested the accused should not have proceeded with the investigation of the case. In Megha Singh Vs. State of Haryana (Supra) the head Constable had arrested the accused and on a search being conducted by him, a pistol and cartridges were recovered from the accused. It was on his complaint that a formal FIR was registered. He also carried on with the investigation and examined the witnesses under Section 161 Cr.P.C. The Apex Court in Megha Singh Vs. State of Haryana (Supra) held that such practice should not be resorted to, so that there may not be any occasion to suspect fair and impartial investigation. 9. The learned counsel for the appellant also submits that the learned Trial Court could not have come to a finding that the appellant was in conscious possession of the seized heroin, as the evidence adduced to that effect had not been put to the appellant, while examining him under Section 313 Cr.P.C. 10. The appellant''s counsel also submits that the seizure of the heroin has been vitiated, inasmuch as, the appellant was not searched by a female as required under Section 50(4) of the ND&PS Act, 1985. He also submits that while the FSL report speaks of the colors of the 42 heroin samples as yellow powder and off-white powder, the evidence of PW-3 (Civilian witness) speaks of the colour of the heroin as brown and yellow colour. He submits that this discrepancy in the colour of the heroin shows that the contraband seized and the samples sent to the FSL were different materials. 11. He submits that this discrepancy in the colour of the heroin shows that the contraband seized and the samples sent to the FSL were different materials. 11. The learned counsel for the appellant also submits that the evidence regarding the opening of the seized airbag in which the heroin was found was contradictory. He submits that while PW-1, who is the S.I. of Police stated that they opened the airbag in the presence of the accused persons and two civilian witnesses, PW-6 (I.O.) deposed that he had instructed the two accused persons to open the airbag. The counsel for the appellant thus prays that the impugned judgment and order should be set aside, as there was no proof that the seized heroin belonged to the appellant and as there was violation of the mandatory provisions of law. 12. Mrs. Linda L. Fambawl, the Additional Public Prosecutor submits that the provisions of Section 42 of the ND&PS Act, 1985 had been complied with and that the information received by S.I. Zirthanga Pachuau had been recorded and sent to his superior Officer. She also submits that the evidence of PW-6 (I.O.) is to the effect that he was accompanied by one woman constable to deal with the appellant, as they had been informed prior to reaching the place of detention of the accused persons that one of the detained persons was a lady. 13. The Additional Public Prosecutor also submits that there was no violation of Section 50(4) of the ND&PS Act, as the heroin was seized from a airbag, which was placed between the body of the biker and the pillion rider. She also submits that the difference in colour of the seized heroin (samples), as reflected in the FSL report and the evidence of PW-3 could be due to the fact that the colour off-white and brown are more or less similar. She also submits that the appellant was asked with regard to the seizure of heroin from the appellant''s possession, to which the appellant admitted to the same, on the ground that they belonged to Ms. Maluaii and Ms. Sangi of Tahan, Myanmar, who entrusted the appellant to carry the same to Bethel Veng, Champhai for a sum of Rs. 40,000/-. She also submits that the appellant was asked with regard to the seizure of heroin from the appellant''s possession, to which the appellant admitted to the same, on the ground that they belonged to Ms. Maluaii and Ms. Sangi of Tahan, Myanmar, who entrusted the appellant to carry the same to Bethel Veng, Champhai for a sum of Rs. 40,000/-. She submits that the appellant was accordingly examined with regard to her conscious possession of 555 grams of seized heroin and thus there being no infirmity with the impugned judgment and order, the same should be upheld. 14. We have heard the learned counsels for the parties and perused the Lower Court Records as well. 15. A perusal of the Lower Court Records shows that prior information, regarding the intention to transport a large quantity of heroin from Myanmar to India through Zokhawthar to Champhai road, was received by S.I. Zirthanga Pachuau (PW-1) on 09.02.2017 at 2:00 A.M. The said information was recorded by him in writing and is exhibited as Ext P-9, while his signature has been exhibited as Ext P-9 A. The seizure memo shows that the seizure of the heroin was made on 09.02.2017 at around 8:30 A.M. The records also show that the arrest of the appellant and the co-accused was made in terms of Arrest Memos dated 09.02.2017 at 12:30 P.M, which is around noontime. wxyz The Motor Cycle (R-15) was stopped by the Police on the Zokhawthar to Champhai road, between Mualkawi and Melbuk Village and the seized heroin was found in 42 soap cases, which were in turn kept in an airbag and placed between the body of the bike rider, namely Lalhmunsiama and the appellant, who was a pillion rider. The airbag, which was not in an enclosed place, was opened and 555 grams of suspected heroin was seized, which were kept in 42 soap cases. The facts as stated above show that no seizure of heroin was made from the body or clothes of the appellant, so as to attract Section 50 of the ND&PS Act, 1985. Thus, there has been no violation of Section 42 of the ND&PS Act, 1985 in our considered opinion. zyxw 16. The facts as stated above show that no seizure of heroin was made from the body or clothes of the appellant, so as to attract Section 50 of the ND&PS Act, 1985. Thus, there has been no violation of Section 42 of the ND&PS Act, 1985 in our considered opinion. zyxw 16. With regard to the contention of the learned counsel for the appellant that PW-6 could not have been the case I.O, as he was also the arresting officer, who participated in the recovery of the seized articles in view of the judgment of the Apex Court in State Vs. Rajangam (Supra), this Court finds that the judgment of the Apex Court in State Vs. Rajangam (Supra), relies upon the earlier decision of the Apex Court in the case of Megha Singh Vs. State of Haryana, (1996) 11 SCC 709 , wherein in paragraph No. 4 of Megha Singh Vs. State of Haryana, the Apex Court has held as follows:- wxyz "4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of PWs 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW 3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 CrPC. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." zyxw 17. Thus, the Apex Court in the case of State Vs. Rajangam (Supra) has not interfered with the acquittal of the accused by the High Court, on the ground that the Officer who had registered the crime in the case also investigated the said crime. This decision had been made on the basis of the earlier judgment of the Apex Court in Megha Singh Vs. Rajangam (Supra) has not interfered with the acquittal of the accused by the High Court, on the ground that the Officer who had registered the crime in the case also investigated the said crime. This decision had been made on the basis of the earlier judgment of the Apex Court in Megha Singh Vs. State of Haryana (Supra), which held that the complainant should not be investigating the case. The Judgment of the Apex Court in State Vs. Rajangam (Supra) has been relied upon by a 3 Judges Bench of the Apex Court in the case of Mohan Lal Vs. State of Punjab, (2018) AIR SC 3853 , where it has laid down the law that fair investigation, which is the very foundation of a fair trial, necessarily postulates that the informant and the investigator must not be the same person. Accordingly, the Apex Court in the above case, which was with regard to the ND&PS Act, 1985 held that the prosecution was vitiated because a fair trial investigation could not be done. wxyz In this regard, this Court, in the case of Sh. Romanga Vs. State of Mizoram, in Criminal Appeal No. 10/2018, which was disposed of vide Judgment & Order dated 08.08.2018, had also followed the judgment of the Apex Court in State Vs. Rajangam (Supra), as the I.O in the said case was also the complainant. zyxw wxyz Prior to the crystallization of the law in Mohan Lal Vs. State of Punjab (Supra) that a complainant should not be the Investigating Officer, there was conflict of opinion with regard to the above issue as the Apex Court in the case of Hardip Singh Vs. State of Punjab, (2008) 8 SCC 557 repelled the contention that the complainant could not be the Investigating Officer, by relying upon another Apex Court Judgment, i.e., State represented by Inspector of Police, Vigilance and Anti- corruption, Tiruchirapalli, Tamil Nadu Vs. V. Jayapaul, (2004) 5 SCC 223 . zyxw wxyz "16. In the case of Mohan Lal vs State of Punjab, (2018) AIR SC 3853 , which was disposed of by a 3 (three) Judges Bench of the Apex Court on 16.08.2018, it has been held at para 25 as follows: zyxw wxyz "25. V. Jayapaul, (2004) 5 SCC 223 . zyxw wxyz "16. In the case of Mohan Lal vs State of Punjab, (2018) AIR SC 3853 , which was disposed of by a 3 (three) Judges Bench of the Apex Court on 16.08.2018, it has been held at para 25 as follows: zyxw wxyz "25. In view of the conflicting opinions expressed by different Judges Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 or the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof." zyxw wxyz As per the law laid down in State Vs. Rajangam (Supra) and Mohan Lal (supra), the investigation and trial of the present case has to be considered to be vitiated, as the IO (PW 6) is also the registering authority. The above being said, there is a clarification of the law laid down in Mohan Lal (supra), in as much as another three judges of the Apex Court in a subsequent judgment, i.e. Varinder Kumar Vs. State of Himachal Pradesh, Crl. Appeal Nos. 2450-2451/2010, which was disposed of on 11.02.2019, have held that a proper administration of the criminal justice delivery system requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a springboard for acquittal in prosecutions prior to the same, irrespective of all other considerations. 2450-2451/2010, which was disposed of on 11.02.2019, have held that a proper administration of the criminal justice delivery system requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a springboard for acquittal in prosecutions prior to the same, irrespective of all other considerations. The Apex Court, thus, held that all pending prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be covered by the individual facts of the case. zyxw wxyz 17. It would also be profitable to quote paras 12, 15, 16, 17 and 18 of Varinder Kumar (supra), which are as follows: zyxw wxyz "12. Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society - be it the law-abiding citizen or the potential offender. "Human rights" are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole. zyxw wxyz 15. Societal interest therefore mandates that the law laid down in Mohan Lal (supra) cannot be allowed to become a springboard by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous. Criminal jurisprudence mandates balancing the rights of the accused and the prosecution. If the facts in Mohan Lal (supra) were telling with regard to the prosecution, the facts in the present case are equally telling with regard to the accused, there is a history of previous convictions of the appellant also. We cannot be oblivious of the fact that while the law stood nebulous, charge sheets have been submitted, trials in progress or concluded, and appeals pending all of which will necessarily be impacted. zyxw wxyz 6. In Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570 , it was observed as follows: zyxw wxyz "37.......A large number of trials have been held during the period between 4.8.2005 and 18.9.2014. Electronic records without a certificate might have been adduced in evidence. zyxw wxyz 6. In Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570 , it was observed as follows: zyxw wxyz "37.......A large number of trials have been held during the period between 4.8.2005 and 18.9.2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 has to be retrospective in operation unless the judicial tool of "perspective Overruling" is applied. However, retrospective application of the judgment is not in the interest of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage. Attempts will be made to reopen cases which have become final." zyxw wxyz 17. That subsequent events noticed, may require revisiting of an earlier decision, to save actions already taken was considered in Harsh Dhingra vs. State of Haryana and Others, (2001) 9 SCC 550 , observing as follows: zyxw wxyz ''6. Further, when the decision of the High Court in S.R. Dass case,1993 3 SCC 362 had held the field for nearly a decade and the Government, HUDA and the parties to whom the allotments have been made have acted upon and adjusted their affairs in terms of the said decision, to disturb that state of affairs on the basis that now certain other rigorous principles are declared to be applied in Anil Sabharwal case, (1997) 116 PunLR 7 would be setting the rules of the game after the game is over, by which several parties have altered their position to their disadvantage. Therefore, we think that in the larger public interest and to avoid the discrimination which this Court had noticed in the order dated 5.12.1997 [ (1998) 8 SCC 373 ] the decision of the High Court in Anil Sabharwal should be made effective from a perspective date and in this case from the date on which interim order had been passed on 23.4.1996. Therefore, it would be appropriate to fix that the date from which the judgment of the High Court would become effective. Therefore, it would be appropriate to fix that the date from which the judgment of the High Court would become effective. If this course is adopted, various anomalies pointed out in respect of different parties referred to above and other instances which we have not adverted to will be ironed out and the creases smoothened so that discrimination is avoided.'' zyxw wxyz 7. Prospective declaration of law is a device innovated by this Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty-bound to apply such dictum to cases which would arise in future. Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation. These principles are enunciated by this Court in Baburam vs. C.C. Jacob,1993 3 SCC 362 and Ashok Kumar Gupta vs. State of U.P., (1997) 5 SCC 201 " zyxw wxyz 18. The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case." zyxw 18. In the present case, the charge was framed against the appellant by the Trial Court on 02.06.2017, while the law laid down by the Apex Court in Mohan Lal Vs. State of Punjab (Supra) was on 16.08.2018. In the present case, the charge was framed against the appellant by the Trial Court on 02.06.2017, while the law laid down by the Apex Court in Mohan Lal Vs. State of Punjab (Supra) was on 16.08.2018. In view of the judgment of the Apex Court in Varinder Kumar Vs. State of Himachal Pradesh (Supra) in paragraph No. 18, the facts of the present case will have to be seen, to come to a decision as to whether the investigation made by the I.O., who had registered the complaint could be considered to be fair. Prior to the above exercise, it would be fruitful to go into the facts of the case in Mohan Lal Vs. State of Punjab (Supra). In the said case, the Police Officer (PW-1), while on patrolling duty was accompanied by one Darshan Singh, Sarpanch and ASI, Balwinder Singh. Though the Sarpanch was an illiterate person, the consent memo for search of the accused was signed by Darshan Singh. The complaint was filed by the Police Officer (PW-1), who was also made the I.O. PW-1 did not deposit the seized narcotics in the Malkhana. Darshan Singh, Sarpanch and ASI, Balwinder Singh were not examined by the prosecution. Thus, not only was their some lapses in the investigation in the case of Mohan Lal Vs. State of Punjab (Supra), but the informant was also the Investigating Officer-in-charge. In the present case, the evidence adduced by the prosecution witnesses go to show that there is no denial of the fact that the 555 grams of heroin was seized from the airbag, which was placed between the body of the bike driver and the pillion rider of the bike. There is also no denial of the fact that the airbag was to be delivered to some person in Champhai. The only stand taken by the appellant was that she did not know that the airbag contained heroin. The evidence with regard to the recovery of heroin from the seized airbag is not in doubt. As the evidence of the civilian witnesses goes to show that the said airbag contained 555 grams of heroin, we do not find any reason to take the view that the investigation made by the I.O. (PW-6) was not fair. It is also not the case of the appellant in the Trial Court that the investigation by the I.O. was not fair. It is also not the case of the appellant in the Trial Court that the investigation by the I.O. was not fair. The appellant has also not been able to show that there has been any bias on the part of the I.O. during the investigation of the case and whether any prejudice has been caused to her by the I.O. being the complainant. Further, a perusal of the record shows that the complainant herein is S.I. Zirthanga Pachuau (PW-1) and not the I.O. (PW- 6), who only registered the FIR. Though the law laid down in State Vs. Rajangam (Supra) and Mohan Lal (supra) could also cover this case, the direction passed in Varinder Kumar Vs. State of Himachal Pradesh (Supra) with regard to individual facts governing this case would have to be taken into consideration as the trial was progress before the judgment of the Apex Court in Mohan Lal (supra) was delivered. Thus, the direction passed in Varinder Kumar Vs. State of Himachal Pradesh (Supra) on the issue of the complainant being the Investigating Officer would also apply to a case where the registering authority is also the Investigating Officer. We have also noted that the Judgment dated 08.08.2018 passed by this Court in Criminal Appeal No. 10/2018 did not have the occasion to consider the case of Varinder Kumar Vs. State of Himachal Pradesh (Supra), as the same was delivered only on 11.02.2019. On considering the facts of this case and the evidence adduced and as permitted by the judgment of the Apex Court in the case of Varinder Kumar Vs. State of Himachal Pradesh (Supra), we hold that the judgment of the Apex Court in Mohan Lal Vs. State of Punjab (Supra), is not attracted to the facts of this case, as there is nothing to show that the investigation was not fair and neither has any submission been made on that issue. 19. With respect to the submission of the learned counsel for the appellant that the appellant was not questioned under Section 313 Cr.P.C., with regard to the evidence that she was in conscious possession of the seized drugs, this Court finds that the said submission of the learned counsel for the appellant does not hold any water, inasmuch as, question and answer Nos. 3 & 4 of the examination of the appellant under Section 313 Cr.P.C. by the learned Trial Court is as follows:- wxyz "Q. 3. The evidence against you is that the contraband substances seized from your possession was belonging to you. Is it correct? zyxw wxyz Ans:- The seized contraband substances (heroin) did not belong to me but belonged to Ms. Maluaii and Ms. Sangi both resident of Tahan, Myanmar who entrusted me to receive the heroin which they consigned from Tahan to Zokhawthar and also entrusted me to further consigned it to Bethel Veng Champhai for which they offered me Rs. 40,000/- as a consideration. The consignment (Heroin) was carefully kept inside one air airbag and carefully kept under lock and key. I just carried/transported it with the help of accused No. 2 on his motor bike who totally have no knowledge about the contents of the airbag. The said airbag was secured with lock and I did not possess the key for it. zyxw wxyz Q. 4. The evidence against you is that you carried/consigned the said airbag containing the contraband substances knowingly that it contained such contraband substances. Is it correct? zyxw wxyz Ans:- I was not aware of the contents of the said airbag." zyxw 20. With regard to the appellant''s counsel submission that there was violation of Section 50(4) of the ND&PS Act, 1985 as the appellant could only be searched by a lady and not by a male person, this Court does not have any quarrel with the above provision of law. However, the seizure of the heroin was not made from the clothes/body of the appellant. It was made from an airbag, which was kept in between the bike rider and the appellant (pillion rider). As nothing was recovered from the body of the appellant, there cannot be any violation of Section 50(4) of the ND&PS Act, 1985. 21. In respect of the stand of the appellant''s counsel that there was a difference in the colour of the heroin, as per the FSL report and the evidence of PW-3 (civilian witness), it is seen that the FSL report (Exhibit P-7) describes 42 exhibits, which were made up of 42 samples of heroin. While 39 of the 42 samples of heroin had been described as yellow powder, 3 of the samples had been described as off-white powder in the FSL report. While 39 of the 42 samples of heroin had been described as yellow powder, 3 of the samples had been described as off-white powder in the FSL report. PW-3 on the other hand, in his evidence states that the colours of the contraband articles were brown and yellow colour. On considering the above and keeping in view the submission made by the learned Addl. Public Prosecutor, it is very plausible that the off-white colour reflected in the FSL report is brownish in colour, due to which PW-3 had described the same to be brown. The minor discrepancy in the colour with regard to the 3 samples out of the 42 samples taken out from 555 grams of heroin contained in 42 soap cases, does not in our opinion, vitiate the case of the prosecution or cast any doubt on the seizure of heroin made by the Police from the appellant. 22. With regard to the submission made by the learned counsel for the appellant that the learned Trial Court should not have framed the charge under Section 21(c)/29 of the ND&PS Act jointly against the appellant and co-accused Lalhmunsiama, the appellant has not been able to show as to how the same has caused any prejudice to the appellant or vitiated the trial. In view of the above reasons, the said contention of the learned counsel for the appellant does not have any bearing to the case in hand. 23. The further submission taken by the learned counsel for the appellant is that PW-1 and PW-6 contradicted one another with regard to the opening of the airbag, which contained the seized heroin. While PW-1 stated that "we opened the said air airbag in presence of the 2 accused persons and in presence of 2 civilian witnesses", PW-6 deposed that "we instruct the 2 accused persons to open the airbag". This minor discrepancy in the statement of PW-1 and PW-6 does not vitiate the trial or weaken the case of the prosecution, inasmuch as, there is no denial of the fact that the said airbag containing the heroin was opened in the presence of civilian witnesses, the Police and the accused persons. Just because there is a discrepancy as to which actual person(s) had opened the airbag does not, in our view, disprove the fact that the airbag did contain the seized heroin. 24. Just because there is a discrepancy as to which actual person(s) had opened the airbag does not, in our view, disprove the fact that the airbag did contain the seized heroin. 24. In view of all the reasons stated above, we have no hesitation in holding that the prosecution has been able to prove its case against the appellant. Accordingly, we do not find any reason to interfere with the impugned judgment & order. 25. The appeal is accordingly dismissed. Send back the LCR.