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2020 DIGILAW 649 (GAU)

Lenpu v. State Of Mizoram

2020-08-28

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. A.R. Malhotra, learned counsel for the appellant. Also heard Mr. C. Zoramchhana, learned Public Prosecutor appearing for the State. 2. This is an appeal filed against the Judgment & Order dated 06.12.2017 passed by the Special Court, ND&PS Act, Champhai in Sessions Case No. 83/2017 (Criminal Trial No. 886/2017) arising out of CPI Excise Case No. 10/2017, by which the appellant has been convicted under Section 22(c) ND&PS Act, 1985 and sentenced to undergo 15 years Rigorous Imprisonment with a fine of Rs. 1 lakh, in default Rigorous Imprisonment for 1 (one) year. 3. The prosecution story of the case in brief is that on 14.01.2017 at around 10:30 PM, Champhai Excise & Narcotics team led by Mr. J. Laltlanmawia, SubInspector recovered and seized 2200 tablets of Methamphetamine, weighing about 222.2 grams from the possession of the appellant in the outskirts of Champhai town. The accused was travelling in one Maxi Cab Sumo bearing registration No. MZ-01-K-1057 from Zokhawthar village to Champhai town and the seized articles were recovered, when the Excise & Narcotics team performed random checking of vehicles and their passengers plying on the main road between Zokhawthar village and Champhai. 4. After the seizure and arrest of the appellant, the appellant was produced before the Magistrate 1st Class, Champhai. The inventory of the seized articles was prepared by the Officer-in-charge of the Excise & Narcotics Station, Champhai which was produced before the Magistrate 1st Class along with the seized articles. Weighment was done and samples were taken from the seized articles and sealed. Samples were then sent to the FSL, Aizawl for examination. 5. After the investigation was completed and the FSL report was received, a final report/complaint was submitted by the Excise, as the I.O. had found a prima facie case under Section 22(c) ND&PS Act, 1985 against the appellant. 6. Charge was framed under Section 22 ND&PS Act against the accused, to which the appellant pleaded guilty. Notwithstanding the above, trial proceedings were started and 7 (seven) prosecution witnesses were examined. Thereafter, the statement of the appellant was taken under Section 313 Cr.P.C. on 28.11.2017. The learned Trial Court thereafter passed the impugned Judgment & Order dated 06.12.2017, by which the appellant was convicted under Section 22(c) of the ND&PS Act and sentenced to undergo Rigorous Imprisonment for 15 years with a fine of Rs. Thereafter, the statement of the appellant was taken under Section 313 Cr.P.C. on 28.11.2017. The learned Trial Court thereafter passed the impugned Judgment & Order dated 06.12.2017, by which the appellant was convicted under Section 22(c) of the ND&PS Act and sentenced to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 1 lakh, i.d. Rigorous Imprisonment for 1 (one) year. 7. The appellant being aggrieved by the conviction and sentence imposed upon him, has filed the present appeal. 8. The learned counsel for the appellant submits that while the evidence of the prosecution witnesses shows that the prosecution witness No. 5 i.e., the Seizing Officer, had exhibited (1) the seizure and arrest memo as Exhibit P-1, (2) Report of seizure and arrest as Exhibit P-2 and (3) grounds of belief under Section 42 of the ND&PS Act, 1985 as Exhibit P-3; PW-7, who is the case I.O. had exhibited (1) the complaint sheet as Exhibit P-4, (2) statement of accused as Exhibit P-5 and (3) detailed particulars of accused as Exhibit P-6. No other prosecution witnesses had exhibited any other document during recording of evidence by the Trial Court. However, the learned Trial Court has in the "Table case index", which forms a part of the impugned Judgment & Order dated 14.12.2017 showed the documents exhibited during the trial proceedings to be Exhibit P-1 to P-12. The appellant''s counsel submits that though the "Table case index" does not indicate that the certificate of "search of a person under Section 50 of the ND&PS Act, 1985" had been exhibited, the records show that the said certificate had been exhibited as Exhibit P-13. The appellant''s counsel submits that the learned Trial Court could not have relied upon Exhibit P-7 to 13 to come to any finding against the appellant during the trial, as the same were never exhibited by the prosecution witnesses or by the Court. He submits that the use of Exhibit P-7 to 13 by the Trial Court to come to a finding of guilt against the appellant is vitiated and is against the principles of natural justice, as the appellant has not been given the opportunity to deny the correctness/admissibility of Exhibit P-7 to 13. 9. He submits that the use of Exhibit P-7 to 13 by the Trial Court to come to a finding of guilt against the appellant is vitiated and is against the principles of natural justice, as the appellant has not been given the opportunity to deny the correctness/admissibility of Exhibit P-7 to 13. 9. The learned counsel for the appellant also submits that Section 50 of the ND&PS Act has been violated, as the appellant has been searched without the excise personnel giving an option to the appellant to be searched before a Gazetted Officer or a Magistrate. In support of his submission that violation of Section 50 of the ND&PS Act vitiated the trial and that the appellant should be acquitted, he has relied upon the judgments of the Apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609 and Suresh & Ors. Vs. State of Madhya Pradesh, (2013) 1 SCC 550 . 10. The appellant''s counsel also submits that there is a contradiction with regard to the number of packets of drugs seized from the appellant, as per the evidence given by the different prosecution witnesses. He submits that while PW- 1, 2 & 5 have stated that one polythene packet containing the seized articles had been recovered from inside the jacket of the appellant, the evidence of PW-3 & 4 is to the effect that 11 polythene packets were recovered. 11. The appellant''s counsel also submits that while Exhibit P-7, which is the FSL report, shows that the samples sent for examination had been sent vide Memo No. C.30013/3/14-EX(C) dated 17.01.2017, the record shows that the recovery of the seized articles (SA) had been made on 14.01.2017 and produced before the Magistrate on 15.01.2017. However, there is no explanation as to who had kept custody of the SA between 15.01.2017 and 17.01.2017. He accordingly submits that the chances of tampering with the SA cannot be ruled out. In this regard, he has relied upon the judgment of the Apex Court in State of Rajasthan Vs. Gurmail Singh, (2005) 3 SCC 59 and the judgment of a Single Judge of this Court in the case of Bhim Ram & Ors. Vs. State of Assam, (2012) 1 GauLT 416 . 12. In this regard, he has relied upon the judgment of the Apex Court in State of Rajasthan Vs. Gurmail Singh, (2005) 3 SCC 59 and the judgment of a Single Judge of this Court in the case of Bhim Ram & Ors. Vs. State of Assam, (2012) 1 GauLT 416 . 12. The learned counsel for the appellant also submits that even though the statement of the appellant under Section 313 Cr.P.C. is to the effect that he admitted that the drugs were seized from the appellant, the same cannot be used in evidence against the appellant. He submits that the statement given by an accused under Section 313 Cr.P.C. can only be used to corroborate other evidence and cannot be the basis for coming to a finding of guilt by the Trial Court. In this regard, he has relied upon the judgment of the Apex Court in Edmund S. Lyngdoh Vs. State of Meghalaya, (2016) 15 SCC 572 . 13. The counsel for the appellant also submits that the bulk quantity of the seized articles were never produced during the Trial and no explanation for the same was given. He accordingly submits that conviction on this count cannot be sustained and in support of his submission, he has relied upon the judgment of the Apex Court in Mohinder Singh Vs. State of Punjab, (2018) 18 SCC 540 . 14. The learned counsel for the appellant also submits that there is no evidence to show that the inventory of seized articles had been made or produced before the Magistrate concerned. He also submits that in view of Exhibit P-7 to 13 not being exhibited by any prosecution witness, the evidence linking the seizure of drugs with the appellant is missing and accordingly, drugs could not be said to have been recovered from the appellant. The learned counsel for the appellant also submits that even if the appellant was found to be guilty of the offence, the learned Trial Court should have imposed the minimum punishment, as he was a first time offender. In this regard, the learned counsel has relied upon the judgment of the Apex Court in Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat, (2013) 1 SCC 570 . 15. In this regard, the learned counsel has relied upon the judgment of the Apex Court in Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat, (2013) 1 SCC 570 . 15. The learned counsel for the appellant also submits that though at the time of framing of charge, the Trial Court had recorded the appellant as having pleaded guilty to the charge under Section 22(c) of the ND&PS Act, the appellant did not plead guilty to the said charge as the appellant did not understand the Mizo language. As the charge under Section 22(c) of the ND&PS Act was read over and explained to the appellant in Mizo, which the appellant did not understand, it could not be said that the appellant understood the nature of the allegation made against him. As such, the recording of guilt during the framing of charge could not be a ground for coming to a finding that the appellant was guilty under Section 22(c) of the ND&PS Act. In support of his submission, the learned counsel has relied upon the Division Bench judgment of this Court in the case of State of Mizoram Vs. Sh. Ramengmawia, (2006) 1 GauLT 762 . 16. The learned Public Prosecutor, on the other hand submits that though the evidence does not show that the FSL report (Exhibit P-7) had been exhibited by any of the prosecution witnesses, Section 293 Cr.P.C. allows for any document purporting to be an examination report/analysis under the hand of a Government Scientific expert, to whom Section 293 Cr.P.C. applies, to be used as evidence in any enquiry, trial or other proceeding under the Cr.P.C. He accordingly submits that in view of Section 293 Cr.P.C., there is no requirement of the FSL report/analysis of the samples of drugs sent, to be exhibited. Thus, even if this Court were to hold that the FSL report was not exhibited, the FSL report per se was admissible as evidence. 17. The learned Public Prosecutor also submits that Exhibit P-13 clearly shows that Section 50 of the ND&PS Act, 1985 had been complied with. In support of his pleadings, the learned Public Prosecutor has relied upon the judgment of the Apex Court in the case of State of H.P. Vs. Pirthi Chand & Anr., (1996) 2 SCC 37 and Dehal Singh Vs. State of Himachal Pradesh, (2010) 9 SCC 85 . 18. In support of his pleadings, the learned Public Prosecutor has relied upon the judgment of the Apex Court in the case of State of H.P. Vs. Pirthi Chand & Anr., (1996) 2 SCC 37 and Dehal Singh Vs. State of Himachal Pradesh, (2010) 9 SCC 85 . 18. He submits that the statement of the appellant under Section 313 Cr.P.C. has corroborated the admission of guilt made by the appellant recorded during framing of charge. Also the same has corroborated the evidence adduced showing that the appellant was guilty of possession of the seized Methamphetamine. 19. The learned Public Prosecutor also submits that the Excise Department had kept custody of the seized articles in the Malkhana. As such, the appellant cannot be allowed to make a submission stating that no explanation has been made by the Excise Department, with regard to who kept custody of the seized articles from 15.01.2017, thereby insinuating that the same allowed chances for tampering with the SA. He submits that the appellant in fact has not made any such averment in his pleadings in the appeal. Also no such suggestion had been put to the prosecution witnesses during the Trial. He accordingly prays that the impugned judgment and order should be up-held, as there was no infirmity with the same. 20. We have heard the learned counsels for the parties and have also perused the records of the Trial Court. 21. The records of the Trial Court goes to show that while PW-5 had exhibited three documents, which were Exhibit P-1 to P-3, PW-7 had also exhibited only three documents, which were from Exhibit P-4 to P-6. However, the "Table case index" annexed to the impugned judgment and order shows that besides Exhibit P-1 to P-6, there are Exhibits 7 to 12 also. The "Table case index" annexed to the impugned judgment and order is reproduced below:- "T a b l e c a s e i n d e x The prosecution exhibited the followings:- 1. Exhibit P 1 is copy of arrest & seizure Memo. 2. Exhibit P 1 (a) is signature of seizure witness. 3. Exhibit P 1 (b) is signature of seizure witness. 4. Exhibit P 1 (c) is signature of seizing officer. 5. Exhibit P 2 is copy of report of seizure and arrest. 6. Exhibit P 2 (a) is signature of reporting officer. 7. 2. Exhibit P 1 (a) is signature of seizure witness. 3. Exhibit P 1 (b) is signature of seizure witness. 4. Exhibit P 1 (c) is signature of seizing officer. 5. Exhibit P 2 is copy of report of seizure and arrest. 6. Exhibit P 2 (a) is signature of reporting officer. 7. Exhibit P 3 is copy of grounds of belief. 8. Exhibit P 3 (a) is signature of seizing officer. 9. Exhibit P 4 is copy of complaint sheet. 10. Exhibit P 4 (a) is signature of case I.O. 11. Exhibit P 5 is copy of statement of Accused. 12. Exhibit P 5 (a) is signature of recording officer. 13. Exhibit P 6 is copy of detailed particulars of Accused. 14. Exhibit P 6 (a) is signature of arresting officer. 15. Exhibit P 7 is copy of report from Forensic Science Laboratory, Aizawl in respect of chemical examination of the seized contraband methamphetamine. 16. Exhibit P 8 is photo copy of samples packets drawn and packed in front of Chief Judicial Magistrate, Champhai. 17. Exhibit P 9 is photo of the contraband methamphetamine duly sealed in front of CJM, Champhai. 18. Exhibit P 10 is photo of accused Lenpu (28), S/o Hlaswe, R/o Tamu, Myanmar. 19. Exhibit P 11 is copy of inventory of seized methamphetamine duly certified by Ld. CJM, Champhai. 20. Exhibit P 12 is list of samples drawn duly signed by CJM, Champhai. ______________________________________________________ Defence/Accused exhibited no documents." Besides the above "Table case index", the records show that a certificate titled "search of a person" made by PW-5 has been exhibited as Exhibit P-13, which is to the following effect:- "SEARCH OF A PERSON (u/s 50 of NDPS Act 85) On 14.01.2017 at 7:00 pm, we performed random checking of vehicles at Zokhawthar road near Zonunsanga's firm. While checking a Sumo Maxicab MZ-01-K-1507 plying from Zokhawthar, I suspected one passenger to be keeping some quantity of contraband drugs. So after asking him his preference to conduct search on his body before Gazetted Officer/Magistrate or on the spot by me. As per his wish, I conducted body search upon him on the spot, and also hereby recorded search memo on this 14th day of January 2017 at 10:55 pm in compliance with the provision of section 50 of NDPS Act 850." 22. The contents of the impugned judgment and order nowhere mentions the words Ex. As per his wish, I conducted body search upon him on the spot, and also hereby recorded search memo on this 14th day of January 2017 at 10:55 pm in compliance with the provision of section 50 of NDPS Act 850." 22. The contents of the impugned judgment and order nowhere mentions the words Ex. P-7 to Ex. P-12, though the FSL report, which is Exhibit P-7 in the "Table case index" finds mention in the impugned judgment and has been relied upon by the Trial Court. Interestingly, Exhibit P-13 has been mentioned by the Trial Court in paragraph No. 9 of the impugned judgment and order. However, the evidence of all the prosecution witnesses show that none of them had exhibited Exhibit P-7 to P-13. When documents are not exhibited by witnesses, it is not understood as to how the Trial Court had exhibited the said documents in the "Table case index". As Exhibit P-7 to P-13 were not exhibited, the said documents cannot be admissible as evidence and relied upon by the Trial Court to come to any finding. In the case of Alamelu & Another v. State, represented by Inspector of Police, (2011) 2 SCC 385 , the Apex Court agreed and relied upon its earlier decisions rendered in the case of Birad Mal Singhvi Vs. Anand Purohit, (1988) Supp1 SCC 604 and Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, (2003) 8 SCC 745 , wherein it was held mere production and marking of a document as exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. As no prosecution witness had exhibited Ext. P- 7 to P-13, it cannot be said that the contents of Ext. P-7 to P-13 has been proved by the prosecution. Thus, though the learned Trial Court has recorded Ext. P-7 to P-13 as exhibited documents, the same does not make it admissible as evidence. 23. Though the learned counsel for the appellant has stated that there is no inventory of the seized articles being made or produced before the Magistrate, Exhibit P-8, 9, 11 & 12 mentioned in the "Table case Index" implies that the seized articles had been produced before the Magistrate concerned and inventory made. 23. Though the learned counsel for the appellant has stated that there is no inventory of the seized articles being made or produced before the Magistrate, Exhibit P-8, 9, 11 & 12 mentioned in the "Table case Index" implies that the seized articles had been produced before the Magistrate concerned and inventory made. Further, the Order dated 15.01.2017 passed by the Court of the Magistrate 1 st Class in the order sheet shows that the contraband had been brought before the Magistrate and inventory had been prepared soon after seizure of the same. The Order dated 15.01.2017 passed by the Court of the Magistrate 1st Class in the order sheet is as follows:- "Seen and received Excise N. 10/17/CPI u/s 22(c) of ND&PS Act''85 Dt. 15.1.2017 against Lenpu, S/o Hlaswe of Myanmar with a prayer for judicial remand of accused. Also seen is a prayer for certifying the correctness of the inventory, for taking photographs of seized articles and for drawing of samples for examination. Accused Lenpu is produced before the court, seized articles are also produced. On inspection of seized articles, it is found that the inventory prepared by the Officer-in-charge of Excise and Narcotics Station, Champhai. Mizoram is found to be correct that seized articles are red tablets suspected to be Methamphetamine and are packed in 11 (eleven) blue coloured polythenes with a picture of a Globe on one side and a ship on the other side and is weight 222.2 grams. Samples of five tablets from each eleven packets are drawn, packed and sealed in my presence and marked as Samples, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 to be forwarded to FSL, Aizawl for examination. Photograph of seized articles is also taken. Prayer for judicial remand of accd is allowed. Let him be remanded till 27.1.2017 for further proceeding." 24. Thus, from a perusal of the Trial Court''s Order dated 15.01.2017 as abstracted above, it can be seen that the inventory of the seized articles had been made. However, as stated earlier, as there is nothing to show in the records that the said document had been exhibited by the prosecution witnesses, the learned Trial Court could not have relied upon the said document to come to any finding with regard to the contraband goods. However, as stated earlier, as there is nothing to show in the records that the said document had been exhibited by the prosecution witnesses, the learned Trial Court could not have relied upon the said document to come to any finding with regard to the contraband goods. However, on the other hand, the cross examination of the prosecution witnesses clearly show that no suggestion had been put to them by the appellant that the seized articles were not recovered from the appellant, thereby giving rise to an inference that the seized articles had been recovered from the appellant. However, speculation cannot take the place of proof. 25. With regard to the stand taken by the learned counsel for the appellant that the bulk quantity of the seized articles were never produced during the Trial, we find that there is nothing in the evidence to show that the seized articles or the samples were ever produced during the Trial. Further, no explanation has been given by the prosecution witnesses for the failure of the prosecution to produce the seized articles during the evidence stage. Also, there is no statement made in the evidence of any of the prosecution witness with regard to the inventory of the seized Methamphetamine, though Exhibit P-11 is supposedly a copy of the inventory of the seized Methamphetamine. As stated earlier, no prosecution witness had exhibited the said inventory (Exhibit P-11) and it is not understood as to how the Trial Court showed the same to be exhibited in the "Table case index". There is nothing in the order sheet of the Trial Court or in the impugned judgment and order to show as to how the said documents Exhibit P-7 to P-13 have been exhibited. In the case of Mohinder Singh Vs. State of Punjab (Supra) , the Apex Court has held that the best evidence to prove the offence under the ND&PS Act would be the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the documents showing destruction of the contraband. 26. In the case of State of Rajasthan Vs. Sahi Ram, (2019) 10 SCC 649 , the Apex Court has held that the non-production of the entire contraband is not a ground for acquittal by itself. 26. In the case of State of Rajasthan Vs. Sahi Ram, (2019) 10 SCC 649 , the Apex Court has held that the non-production of the entire contraband is not a ground for acquittal by itself. It held that if seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the Court. Further, the Apex Court has held in paragraph Nos. 15, 16 & 18 of the said judgment as follows:- "15. It is true that in all the aforesaid cases submission was advanced on behalf of the accused that failure to produce contraband material before the Court ought to result in acquittal of the accused. However in none of the aforesaid cases the said submission singularly weighed with this Court to extend benefit of acquittal only on that ground. As is clear from the decision of this court in Jintendra, apart from the aforesaid submission other facets of the matter also weighed with the Court which is evident from paras 7 to 9 of the decision. Similarly in Ashok, the fact that there was no explanation where the seized substance was kept (para 11) and the further fact that there was no evidence to connect the forensic report with the substance that was seized, (para 12) were also relied upon while extending benefit of doubt in favour of the accused. Similarly, in Vijay Jain, the fact that the evidence on record did not establish that the material was seized from the appellants, was one of the relevant circumstances. In the latest decision of this Court in Vijay Pandey, again the fact that there was no evidence to connect the forensic report with the substance that was seized was also relied upon to extend the benefit of acquittal. 16. It is thus clear that in none of the decisions of this Court, non- production of the contraband material before the court has singularly been found to be sufficient to grant the benefit of acquittal. 18. If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the court. 18. If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kg that it may not be possible and feasible to produce the entire bulk before the court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out". 27. Coming to the present case, besides the seized articles/samples not being produced before the Trial Court, Exhibit P-7 to P-12, mentioned in the "Table case index", were also never exhibited by any witness. As such, it can be implied that the prosecution had not proved the recovery/seizure of the contraband from the appellant. However, the above being said, the evidence of the prosecution witnesses shows that no suggestion was ever put to them by the appellant''s counsel that the seized articles had not been recovered from the appellant. The evidence recorded during the cross examination of the prosecution witnesses by the appellant''s counsel in the Trial Court, shows that the prosecution witnesses were questioned, only with regard to whether the procedure mandated under the ND&PS Act, 1985 had been followed, while affecting the recovery and seizure of the seized articles. Thus, while the cross examination of the witnesses had been done only with regard to whether the procedure had been correctly followed during the time of seizure, there is nothing to show that there was any doubt or dispute with regard to the recovery of the seized articles from the appellant. 28. Thus, while the cross examination of the witnesses had been done only with regard to whether the procedure had been correctly followed during the time of seizure, there is nothing to show that there was any doubt or dispute with regard to the recovery of the seized articles from the appellant. 28. The evidence of PW-1, PW-2 & PW-4 in their cross examination is to the effect that the appellant/accused was not asked whether he was required to be searched before the Magistrate or a Gazetted Officer, prior to the Excise personnel searching the appellant. However, the evidence of PW-3 is that the appellant was asked whether he wanted to be searched before the Magistrate or any Gazetted Officer by the Duty Officer, to which the appellant nodded his head. The Duty Officer (PW No. 5) also explained the requirements of Section 50 of the ND&PS Act to the appellant in the Mizo language. The evidence of PW-7 is that the Seizing Officer asked the appellant whether he wanted to be searched before the Magistrate or the Gazetted Officer in the Mizo language. Thereafter, the contraband was recovered from the appellant. 29. The above contradictory statements of the prosecution witnesses makes it ambiguous as to whether Section 50 of the ND&PS Act had been followed. The above being said, the evidence of the PW-5 is to the effect that the appellant had been asked by him if he wanted to be searched before a Magistrate or a Gazetted Officer which declined and agreed to be searched on the spot itself. The evidence given by PW-3 (Excise Constable) and PW-7, who is the Sub-Inspector of Excise & Narcotics, Champhai is to the effect that the appellant was asked if he wanted to be searched before a Magistrate or Gazetted Officer in the Mizo language. The evidence of the Seizing Officer, PW-5 in his cross examination is to the following effect:- "It is a fact that the accused did not know mizo language. I informed the content of grounds of belief to the accused to which he replied to me "ok" but later on when I came to know that he did not understand mizo language, still I did not even translate the content in English. When I asked the accused if he wanted to be search before a magistrate or any gazetted officer my medium of communication was mizo. When I asked the accused if he wanted to be search before a magistrate or any gazetted officer my medium of communication was mizo. After recovery was done and civilian witnesses are called upon I came to know that the accused did not understand Mizo language. At the time of seizure on the spot I did not give a copy of it to the accused." 30. Thus, what transpires from the evidence recorded is that the appellant did not understand the Mizo language. If the appellant did not understand the Mizo language, it can be clearly inferred that even if the appellant had been informed of the requirement of Section 50 of the ND&PS Act in the Mizo language, the appellant would not have understood the same. Accordingly, if the appellant was not in a position to understand what was told to him, it can be inferred that Section 50 of the ND&PS Act had not been complied with, prior to the search of the appellant. However, the factum of the appellant not having understood the Mizo language could have been communicated by the appellant to PW-5 by sign language. The appellant not having done so and having nodded his head as per the evidence of PW No. 3, it can also be inferred that though there was compliance with Section 50 ND&PS, the same had also been unintentionally violated as the appellant did not understand the question put to him in the Mizo language. In the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat (Supra) and Suresh & Ors Vs. State of Madhya Pradesh (Supra) , the Apex Court has held that it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazette officer or a Magistrate. It also held that it was not necessary that the information required to be given under Section 50 of the ND&PS Act should be in a prescribed form or in writing. However, insofar as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act was concerned, it was mandatory and required strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction. However, insofar as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act was concerned, it was mandatory and required strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction. In the case of Dehal Singh v. State of Himachal Pradesh (supra) , the Apex Court has held that when the authorized officer apprises the person about to be searched, if he wants to be taken to the nearest Gazetted Officer or Magistrate, the communication of the said option satisfies the requirement of Section 50 of the ND&PS Act. 31. In the case of State of H.P. Vs. Pirthi Chand & Anr., (1996) 2 SCC 37 , the Apex Court has held that every deviation from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that the search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence, nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on the facts and circumstances in each case. In the present case, having regard to the peculiar facts and circumstances surrounding the search of the appellant, we are of the view that Section 50 of the ND&PS Act seems to have been substantially complied with. 32. We also notice that there is no discrepancy or contradiction in the evidence of the prosecution witnesses with regard to the number of polythene packets/packages seized, which contained the Methamphetamine tablets. While PW-1, 2 & 5 have stated that only one polythene packet had been seized, PW-3 & 4 have stated that 11 polythene packages had been seized. The above alleged discrepancy has been clarified by PW-4, as he has stated in his evidence that "one male excise personnel recovered 11 polythene packages from inside the pocket of his jacket containing 2200 tablets of Methamphetamine which kept inside a black polythene". Thus, it is clear that the seized articles were wrapped in 11 packages, which were in turn all kept inside one polythene packet. 33. Thus, it is clear that the seized articles were wrapped in 11 packages, which were in turn all kept inside one polythene packet. 33. With regard to the issue as to whether the appellant could have been convicted due to the admission of guilt at the time of framing of charge under Section 22(c) of the ND&PS Act, we have to keep in mind the fact that the Special Court ND&PS Act is deemed to be a Sessions Court under Section 36-C of the ND&PS Act, 1985. Accordingly, Section 229 Cr.P.C. under Chapter XVIII would apply. In the case of State of Mizoram Vs. Sh. Ramengmawia, (2006) 1 GauLT 762 , a Division Bench of this Court has held that while the provisions of Section 229 Cr.P.C allows for a Sessions Court to convict a person on his own plea of guilt, the said discretionary exercise should not be arbitrary. It further held that the plea of the accused must be clear and the Court must be satisfied that the accused understood the nature of the allegations made against him before admitting them. In the above case, which was a murder case, the Division Bench held in paragraph Nos. 7 and 9 as follows:- "7. A careful analysis of the provision of Section 229 Cr. P. C. makes it clear that though there is no legal impediment on the part of the Court of Sessions, to convict a person on his own plea of guilt, discretion does vest in the Court to convict or not to convict an accused based entirely on his plea of guilt. Since no discretion an be exercised by a Court arbitrarily, the exercise of the discretion to convict or not to convict an accused on his plea of guilt can also not be arbitrary and is, in fact, governed by sound judicial principles and precedents." "9. Consequently, imperative. It is for the Sessions Court, before whom an accused pleads guilty to a charge of such serious an offence as murder, that the Judge makes all endeavors to satisfy himself that the accused admits the facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unequivocal and the Court must be satisfied that the accused has understood the nature of the allegations made against him and admits them accordingly. The plea of the accused must, therefore, be clear, unambiguous and unequivocal and the Court must be satisfied that the accused has understood the nature of the allegations made against him and admits them accordingly. The Court must act with caution and circumspection before accepting the plea or before acting upon such a plea." 34. In the present case, we find that the learned Trial Court during the framing of charge had read over and explained the charge under Section 22(c) of the ND&PS Act to the appellant in the Mizo language. It is also recorded by the Trial Court that the appellant understood the charge and he pleaded guilty. However, the evidence of PW-5, who is the Seizing Officer, in his cross examination had stated that the appellant at the time of seizure of the contraband did not understand the Mizo language, the extract of which has already been reproduced in the foregoing paragraphs. If the evidence of PW-5 is to be accepted, it is difficult to accept the plea of guilt made by the appellant during framing of charge. However, keeping in view the fact that the seizure and arrest had been made on 14.02.2017 and the charge had been framed on 28.06.2017, it is possible that the appellant had learnt the Mizo language within six months as a under trial prisoner. However, the above being said, the order passed by the Trial Court on 28.06.2017 in the order sheet puts a spanner in the works, as the following has been recorded by the Trial Court:- "Accused Lenpu is produced from jail with his Ld Defence Counsel Mrs. Vinty Vamuchiang is present. Ld APP present. Charge u/s 22(c) of ND&PS Act is framed read over and replaced to him, to which he pleaded not guilty and claims to be trial. Fixed 12.07.2017 for P/E." 35. What can be noticed from the foregoing paragraph is that there is a contradiction between the contents of the Order dated 28.06.2017, passed by the Trial Court, wherein it is recorded that the appellant pleaded not guilty and the recording of plea of guilt during the framing of charge by the Trial Court. The above being the position, we find that the learned Trial did not apply Section 229 Cr.P.C. and instead initiated the trial proceedings. The above being the position, we find that the learned Trial did not apply Section 229 Cr.P.C. and instead initiated the trial proceedings. In view of the above, the guilt or otherwise of the appellant would have to be decided on the basis of the evidence adduced. 36. In the case of State of Rajasthan Vs. Gurmail Singh (Supra) which was followed by this Court in the case of Bhim Singh & Ors. Vs. State of Assam (Supra) , the Apex Court upheld the acquittal of the accused person by the High Court, on the ground that the malkhana register had not been produced to prove that the seized articles had been kept in the malkhana and as such, the link evidence had not been properly explained. In the present case, no suggestion had been put to any of the prosecution witnesses that the seized articles had not been put in the malkhana, so as to enable the prosecution witnesses to meet the challenge raised on the aforesaid issue. As such, this Court is unable to take a decision on this issue in this appeal and accordingly this Court also cannot allow the appellant to raise the said issue in the appeal. However, if the said issue has to be decided, the present case would have to be remanded back to the learned Trial Court to allow the appellant to raise the issue afresh in the Trial Court. 37. In the case of Edmund S. Lyngdoh v. State of Meghalaya,2016 5 SCC 572, the Apex Court held that statements made under Section 313 Cr.P.C are not evidence. In the case of Bishnu Prasad Singh v. State of Assam, (2007) 11 SCC 467 , the Apex Court held that conviction of an accused cannot be based merely on his statement recorded under Section 313 Cr.PC, which cannot be regarded as evidence. The statement made under Section 313 Cr.PC must be considered not in isolation but in conjunction with other prosecution evidence. In the present case, though the appellant had admitted to the recovery of the seized articles from his possession, the same cannot be the sole basis for conviction and the said admission under Section 313 Cr.PC has to be read in conjunction with the other prosecution evidence. In the present case, though the appellant had admitted to the recovery of the seized articles from his possession, the same cannot be the sole basis for conviction and the said admission under Section 313 Cr.PC has to be read in conjunction with the other prosecution evidence. We find that the learned Trial Court has committed glaring inconsistencies, as can be seen from the recording of the plea of the appellant during framing of charge vis- -vis the order passed by the Trial Court on 28.06.2017. Further, though the seized articles/samples were not produced and the inventory of the seized articles was not exhibited by any witness, the appellant, while cross examining the prosecution witnesses did not put any suggestion to the effect that the seized articles were not recovered from the appellant. 38. In view of the peculiar facts and circumstances of this case and after due consideration, we are of the view the case should be remanded back to the learned Trial Court and trial should be started denovo from the stage of framing of charge, so as to enable the learned Trial Court to come to a proper finding based on facts. 39. Consequently, the impugned Judgment & Order dated 06.12.2017 passed by the Special Court, ND&PS Act, Champhai in Sessions Case No. 83/2017 (Criminal Trial No. 886/2017) arising out of CPI Excise Case No. 10/2017 is set aside. Send back the LCRs.