JUDGMENT : Heard Mr. C. Lalfakzuala, learned Amicus Curiae for the appellant and Mr. C. Zoramchhana, learned Public Prosecutor. 2. This is an appeal from Jail filed by the 2 (two) accused persons/appellants against the Judgment & Order dated 17.04.2018 passed by the Special Court under the ND&PS Act, Aizawl in Crl. Tr. (Ex) No. 447/2017 whereby, they both were convicted under Section 21(b) of the ND&PS Act and sentenced to undergo 4 (four) years rigorous imprisonment with fine of Rs. 1,000/- and in default, imprisonment for 10 (ten) days in respect of the first appellant. In respect of the second appellant, on his conviction he was to undergo rigorous imprisonment for 4 (four) years and additionally, for another 2 (two) years as enhancement punishment, 6 (six) years of rigorous imprisonment in all with fine of Rs. 10,000/- and in default, a further imprisonment for 1 (one) month. 3. The case of the prosecution in brief is that on 20.01.2017 at 11:30 PM, S.I Lalrinsanga and his party accompanied by YMA (SRS) on duty seized 123 grams of heroin kept in eight soap cases and arrested the two appellants, who were said to be in possession of the heroin at Tuirial, Aizawl on 21.01.2017, the seizing officer submitted his report to the Officer-in-Charge, Anti-Narcotics Squad, Aizawl and accordingly, Ex-N-10/2017 dated 21.01.2017 under Section 21(b) of the ND&PS Act was registered and the case was endorsed to Inspector Lalchansanga Sailo for investigation. 4. The Investigating Officer thereafter, conducted investigation and recorded the statements of the witnesses while visiting the place of occurrence. Consequently, upon finding a prima facie case against the appellants under Section 21(b) of the ND&PS Act, he submitted the charge-sheet before the Court below vide Ex (ANS) 57/2017 dated 16.03.2017. 5. Thereafter, the Trial Court on 16.04.2017 framed charge against the appellants separately under Section 21(b) & 29 of the ND&PS Act. Both the appellants denied the charge and claimed to be tried. Accordingly, trial was conducted against the appellants. The prosecution examined as many as 5 (five) prosecution witnesses while the defence did not examine any evidence besides cross-examining the prosecution witnesses. After the closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C to enable them explain the evidence which appeared against them as was led by the prosecution witnesses. The prosecution examined as many as 5 (five) prosecution witnesses while the defence did not examine any evidence besides cross-examining the prosecution witnesses. After the closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C to enable them explain the evidence which appeared against them as was led by the prosecution witnesses. The answer given by both the appellants against the questions put to them was basically that of denial. Thereafter, the Trial Court upon hearing the parties through their respective counsels decided the case vide the impugned Judgment & Order dated 17.04.2018 convicting both the appellants and sentencing them to rigorous imprisonment vide Order dated 17.04.2018 as already stated herein above. 6. Mr. C. Lalfakzuala, learned Amicus Curiae submits that the sealing/packing, etc of the seized contraband substance was not done in the presence of the accused persons and that it was also not produced before the Trial Court during the trial. Referring to the statements made by the PW-3, i.e. the seizing officer, he submits that according to him, the alleged heroin was recovered by his junior officer as directed by him and in front of independent witnesses. However, nowhere in the prosecution evidence has the names of the independent witnesses been mentioned. He submits that the two witnesses, who are named in the seizure memo are the PW Nos. 1 & 2 and that they are only interested witnesses and are not independent witnesses. This is due to the fact that as per the evidence they interrogated one drug addict and who in turn, informed them about the possession of heroin by the appellants. He also told them that they were staying over in the house of one Mr. Lianthangpuia at Tuirial. Therefore, the learned amicus curiae submits that they cannot be termed as independent witnesses. He submits that neither the house owner Mr. Lianthangpuia nor the drug addict were produced by the prosecution as prosecution witnesses although they are the primary witness. Therefore, in absence of their evidence, the evidence of the prosecution suffers from a serious lacuna. The learned Amicus Curiae also submits that in the 313 statements of both the appellants, they have said that seized articles belong to the house owner i.e. Shri. Lianthangpuia. Therefore, it was crucial to examine him as a witness during the trial and that he would have been the best witness for the prosecution. 7. The learned Amicus Curiae also submits that in the 313 statements of both the appellants, they have said that seized articles belong to the house owner i.e. Shri. Lianthangpuia. Therefore, it was crucial to examine him as a witness during the trial and that he would have been the best witness for the prosecution. 7. The learned Amicus Curiae further submits that Section 52-A(2) of the ND&PS Act provides for the preparation of inventory. Although, the Investigating Officer prepared the inventory but it is nowhere to be seen that the same was prepared in the presence of the accused persons. 8. The learned Amicus Curiae submits that there are serious inconsistencies in the version of the prosecution witnesses. He submits that according to the PW-1 & 2, it was the appellants who took out the suspected heroin kept in 8 (eight) soap cases from the concealed place in the bushes near the house of Shri. Lianthangpuia. On the other hand, according to PW-3, the alleged heroin was recovered from the concealed place by his junior colleague on his instructions and in presence of reliable civilian witnesses. However, as already stated earlier, the civilian witnesses has not been identified nor named in any of the documents exhibited by the prosecution. As such, the conviction and sentence of the appellants cannot be sustained and the impugned judgment & order as well as the order of conviction may be set aside. In support of his submission, the learned Amicus Curiae relies upon the following authorities:- (i) Suraj Mal vs. State (Delhi Administration) (1979) 4 SCC 725 . (ii) Bodh Raj & Ors. vs. State of Jammu & Kashmir, (2002) 8 SCC 45 . (iii) Ganesh Chhetry & Anr. vs. State of Assam, 2012 (3) GLT 401. (iv) Jitendra & Anr. vs. State of Madhya Pradesh, (2004) 10 SCC 562 . (v) Vijay Jain vs. State of Madhya Pradesh, (2013) 14 SCC 527 . 9. Mr. C. Zoramchhana, learned Public Prosecutor appearing for the State respondent, on the other hand, submits that the deposition of the prosecution witnesses during the trial has neither been rebutted effectively nor falsified by the defence and therefore, the Trial Court is fully justified in passing the order of conviction and sentence. He submits that if the appellants had any evidence to adduce in their defence, they had the golden chance to do so during the Trial. He submits that if the appellants had any evidence to adduce in their defence, they had the golden chance to do so during the Trial. In fact, they could also have examined themselves as defence witnesses, if they wanted to but they did not do so. Therefore, he submits that having regard to the evidence led by the prosecution, the conviction of the appellants is sustainable. He further submits that the various points raised by the Amicus Curiae particularly with regard to non-production of seized articles, the same was never raised by the defence during the trial. There was in fact no dispute from the defence during trial about the recovery of heroin from the accused persons. Therefore, it is not open for the appellants to raise such plea at this stage. Referring to the statements made by the appellants under 313 Cr.P.C, the learned Public Prosecutor submits that the appellants have nowhere denied possession of the alleged heroin. They have only denied the ownership of the same. He submits that possession and ownership are two different things under the ND&PS Act. The fact of possession is sufficient for invoking Section 21 of the ND&PS Act. The learned Public Prosecutor further submits that non-production of the house owner or the drug addict from whom the information was received by the prosecution witnesses is not fatal, inasmuch as, the prosecution could prove its case on the basis of the evidence led by the five prosecution witnesses. He further submits that even if there are minor inconsistencies in the investigation or even during the trial, the same is not sufficient to vitiate the conviction and the sentence imposed upon the appellants. He submits that even if there is an instance where illegal search has been made but that by itself cannot be fatal to the prosecutions’ case and that the over-all consideration of the evidence would be the deciding factor. The acceptability of the evidence being led would also depend on the facts and circumstances of each case. In other words, there is no hard and fast rule that an illegal search will automatically vitiate conviction. In this connection, he relies upon the Apex Court decision rendered in State of H.P vs. Pirthi Chand & Anr., reported in (1996) 2 SCC 37 . 10. Mr. In other words, there is no hard and fast rule that an illegal search will automatically vitiate conviction. In this connection, he relies upon the Apex Court decision rendered in State of H.P vs. Pirthi Chand & Anr., reported in (1996) 2 SCC 37 . 10. Mr. C. Zoramchhana, learned Public Prosecutor further submits that although there was no written disclosure statement but from the evidence led by the prosecution witnesses, one can be well assured that they were able to establish the fact that recovery was made as per the statements given by the appellant themselves. He thus submits that on an over-all consideration of the evidence led by the prosecution, the impugned judgment and order convicting the appellants and sentencing them to imprisonment is sustainable and may not be interfered with by this Court. The appellant No. 2, in particular, being an habitual offender, his release would not be in the interest of the society. He therefore prays that the appeal may be dismissed. 11. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Records as well as the authorities relied by them. 12. In criminal jurisprudence, it is well settled that the prosecution has to proof their case beyond reasonable doubt and that the prosecution cannot take the advantage of the weakness of defence to defend themselves effectively. In the present case, it is the case of the prosecution that 123 grams of heroin kept in eight soap cases were recovered from the appellants. PW-1 & 2, who were said to be YMA SRS on duty in their examination-in-chief during the trial deposed that the two suspected persons took out heroin kept in eight soap cases from the concealing place in the bushes near the residence of Lianthangpuia. However, the PW-3, the seizing officer in his examination-in-chief, on the other hand, stated that after interrogating the accused appellants, Shri. Hlunkhawkhai, one of the accused appellant told him that he had concealed heroin outside the residence of Lianthangpuia and that he directed him to the place where he concealed the heroin. Accordingly, on being led by them, PW-3 recovered the heroin kept in eight soap cases from the place of their concealment near the residence of Lianthangpuia. Accordingly, on being led by them, PW-3 recovered the heroin kept in eight soap cases from the place of their concealment near the residence of Lianthangpuia. He instructed his junior colleague to take out the heroin in the presence of reliable independent civilian witnesses. PW-3 exhibited the seizure and arrest memo as Exhibit P-1 besides the written opinion, the grounds of belief recorded and report of seizure and arrest as Exhibit P-2, P-3 & P-4 respectively. A perusal of Exhibit P-1 goes to show that the witness to the seizure and arrest are PW-1 and PW-2. It may be seen that according to the PW-1 and PW-2, they were on duty on 20.01.2017 and they interrogated one drug addict at Rangvamual who informed them about the persons who brought the heroin i.e. two persons who were guest of one Mr. Lianthangpuia and staying in his residence at Tuirial airfield. They informed the Excise personnels through telephone while they proceeded towards the residence of Lianthangpuia. However, the prosecution did not examine Mr. Lianthangpuia, the owner of the house at Tuirial airfield. The identity of the drug addict whom the PW-1 and PW-2 interrogated has also not been disclosed. Moreover, as already noticed, there are no independent civilian witnesses who have witnessed the seizure and arrest of the appellants. Having regard to the nature of duty said to have been performed by the PW-1 & 2, they cannot be considered to be independent civilian witnesses since the arrest and alleged recovery of heroin was made on the basis of the information given by them to the Excise personnels. 13. In the case of Ganesh Chhetry & Anr. (supra), this Court on the given facts of that case had allowed the appeal filed by the appellants/convicts and one of the ground for allowing the appeal was that the prosecution was silent about the presence of the accused persons and independent witnesses at the time of drawing and packing samples from the seized contraband substance. It may be seen that even in the present case, there is no evidence to show that the appellants as well as independent civilian witnesses were present at the time of drawing the sample. 14. It may be seen that even in the present case, there is no evidence to show that the appellants as well as independent civilian witnesses were present at the time of drawing the sample. 14. The Apex Court in Vijay Jain (supra) held that the best evidence to prove the case of the prosecution about the seizure of contraband materials was production of the same during the trial as material exhibits. When there is no explanation for the failure to produce the contraband materials, mere oral evidence that the materials were seized from the accused persons would not be sufficient to make out an offence under the ND&PS Act. In the present case as well, the seized material i.e. heroin was not produced as material evidence before the Court during the trial and that there is no explanation as to why the same was not produced. 15. The Apex Court in Jitendra (supra) also held that mere oral evidence regarding the seizure of the contraband substance without any explanation was not enough to discharge the heavy burden cast upon prosecution particularly when the offence is punishable with a stringent sentence under the ND&PS Act. 16. It is further noticed from the evidence of the prosecution that the alleged heroin was recovered upon the disclosure statements made by the appellants when they were confronted by the Excise personnels as well as PW-1 & 2. The disclosure statement admittedly was not recorded before or even after the recovery was made. The Apex Court in the case of Bodh Raj (supra) held that the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is therefore necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. We have already noticed the inconsistencies in the evidence given by PW-1 & 2 on one side and PW-3 on the other. The Apex Court in Suraj Mal (supra) held that it was a well settled principle that where witnesses make two inconsistent statements in their evidence either at one stage or two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on evidence of such witnesses. The Apex Court in Suraj Mal (supra) held that it was a well settled principle that where witnesses make two inconsistent statements in their evidence either at one stage or two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on evidence of such witnesses. It may also be seen that the seizing officer PW-3 in his cross-examination stated that the seized article was not recovered from the immediate possession of the accused and that it was a fact that accused No. 2 did not go to the place where the seized article was recovered. On the other hand, PW-2 in their examination-in-chief stated that the two suspected persons took out heroin kept in eight soap case from the concealing place in bushes near the residence of Lianthangpuia. Therefore, the evidence of the prosecution witnesses lacks consistency which otherwise is the basic requirement to achieve conviction under a special law such as the ND&PS Act. 17. In view of above and upon due consideration of the case in its entirety, it cannot be said that the prosecution has proved the charge against the appellants with proof beyond reasonable doubt. As such, the impugned Judgment & Order cannot be sustained and the same is hereby set aside. 18. At this stage, it has come to light that one of the accused appellant i.e. Hlunkhawkhai, who was sentenced to 4 (four) years rigorous imprisonment with fine after being convicted under Section 21(b) of the ND&PS Act has completed his imprisonment and was released on 20.01.2021. As such, no separate order will be required for his release from jail. In respect of the appellant Khenthang, it is hereby directed that he be released immediately from jail, if he is not wanted in connection with any other case. 19. For the valuable assistance rendered by Mr. C. Lalfakzuala, the learned Amicus Curiae, he will be paid a sum of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only by the Mizoram State Legal Services Authority, on production of a copy of this order. 20. Office to send back the LCR. Criminal appeal stands accordingly disposed of.