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2022 DIGILAW 60 (GAU)

C. Lalzarliana v. State of Mizoram

2022-01-21

NELSON SAILO

body2022
JUDGMENT : Heard Mr. C. Lalfakzuala, learned Amicus Curiae for the appellants and Mr. C. Zoramchhana, learned Public Prosecutor for the State of Mizoram. [2.] This is an appeal against the Judgment & Order dated 11.10.2018 passed by the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (ND&PS Act) Lunglei, Mizoram in Criminal Trial No. 262/2016 convicting the appellants under Section 21 (c) of the ND&PS Act read with Section 34 of the Indian Penal Code (IPC). The appeal is also against the order dated 12.10.2018 passed by the same Court sentencing the appellants to Rigorous Imprisonment for ten (10) years with a fine of Rs. 1 lakh each and in default thereof, to undergo Simple Imprisonment for 1000 days each. [3.] It may be mentioned herein that the State had earlier approached this Court by filing Criminal Revision Petition No. 5 of 2017 challenging the Judgment & Order dated 21.01.2017 passed by the Addl. Sessions Judge, Lunglei Judicial District in the same case whereby, both the appellants were convicted under the aforementioned Sections of law and sentenced to undergo Rigorous Imprisonment for five (5) years with a fine of Rs. 20,000/-and in default thereof, to further undergo Simple Imprisonment for two (2) months. The Criminal Revision Petition came to be disposed of vide Judgment & Order dated 09.02.2018 by remanding the matter back to the Trial Court from the stage of recording the statements of the accused persons under Section 313 Cr.PC after giving them an opportunity to adduce evidence in their defense. On remand, the case came to be disposed of vide the impugned Judgment & Order dated 11.10.2018 and the order of sentence dated 12.10.2018 in the manner as already stated above. Aggrieved with the same, the appellants are before this Court through the instant appeal. [4.] The facts of the case according to the prosecution in brief is that on 31.05.2016, Sub-Inspector (S.I) Lalpianpuii submitted an Enquiry Report to the Officer-in-Charge of the Lunglei Police Station to the effect that on 31.05.2016 at around 2 p.m while on duty at the Police Station, she received an information from S.I Tlanghmingthanga in charge of DSB, Lunglei over phone to the effect that they have detained one Maruti 800 car bearing registration No. MZ02/6273 suspected to be carrying drugs at Serkawn. She conveyed the information to her superior i.e., SDPO and he issued authorization in her favor to conduct search. After observing formalities, she proceeded to the spot where search was conducted in the presence of the civilian witnesses and 3800 capsules of cipla was seized from the car. 10 capsules were taken from each of the 19 polythene packets. 5 capsules from each of the 19 polythene packets were kept for samples and another 5 capsules kept as duplicate. Packing and sealing was done on the spot in the presence of witnesses and the appellants were apprehended and produced at the Police Station. On the basis of the Enquiry Report, Lunglei P.S Case No. 120/2016 dated 31.05.2016 under Section 21 (c) of the ND&PS Act was registered and investigation conducted. Upon conclusion of the investigation by the appointed Investigating Officer (I/O), he filed a charge-sheet before the Court of Chief Judicial Magistrate (CJM), Lunglei on 10.08.2016. The case was then committed to the Sessions Court and charge under Section 21 (c) of the ND&PS Act read with Section 34 IPC was framed against both the appellants and to which, they pleaded not guilty and claimed for trial. During the trial, the prosecution examined 8 prosecution witnesses while the appellants examined three (3) defence witnesses in their defense. The appellants were also examined under Section 313 Cr.PC and thereafter, vide the impugned Judgment & Order, the appellants were convicted and sentenced as already stated herein above. [5.] Mr. C. Lalfakzuala, learned Amicus Curiae submits that S.I. Tlanghmingthanga, who is the PW-1 did not record the information he received from constable Zothansanga. He submits that since he was the first person to receive the information, he ought to have recorded the information in writing. Referring to the evidence of PW-2 i.e. S.I Lalpianpuii, the learned Amicus Curiae submits that counting of the seized drugs was not done in front of the accused persons which leads not only to suspicion of the recovery but also violation of the relevant provisions of the ND&PS Act. The learned Amicus Curiae further submits that since the alleged seizure was made from the Maruti 800 car, Section 43 of the ND&PS Act will not be applicable and instead Section 41 & 42 of the same Act will apply. The learned Amicus Curiae further submits that since the alleged seizure was made from the Maruti 800 car, Section 43 of the ND&PS Act will not be applicable and instead Section 41 & 42 of the same Act will apply. Since the information received was not reduced to writing, the investigation conducted is only illegal and therefore, the conviction and sentence clearly vitiated. The learned Amicus Curiae submits that the nylon bag from where the polythene packets containing the drugs were kept was not produced before the Court and therefore, the impugned conviction is again vitiated on this ground. He further submits that PW-8 who is the I/O did not make an application to the Magistrate for making an inventory for sending the seized drugs for expert examination in the Forensic Science Laboratory (FSL). The I/O also did not exhibit the written information and the bag from where the drugs was seized and as such, the impugned conviction and sentence cannot be sustained. The learned Amicus Curiae in support of his submission relies upon the following authorities:- (1) State of Rajasthan Vs. Jag Raj Singh (2016) 11 SCC 687 (2) Union of India Vs. Mohanlal & Anr (2016) 3 SCC 379 (3) Directorate of Revenue & Anr Vs. Mohammed Nisar Holia (2008) 2 SCC 370 (4) Judgment & Order dated 17.05.2019 in Criminal Appeal No. 23/2018 (J.H. Goldena & Anr Vs. State of Mizoram) (5) Judgment & Order dated 11.02.2021 in Criminal Appeal No. 34/2018 (J) (Hlumkhawkhai & Anr Vs. State of Mizoram) [6.] Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram submits that there has been substantial compliance of Section 42 of the ND&PS Act. Referring to the deposition of the Officer-in-Charge of the Police Station i.e., PW-7, he submits that he entered information in writing in the General Diary against Serial No. 13 on 31.05.2016 at 2 p.m and he also obtain authorization from the SDPO. He then assigns the case to S.I Lalpianpuii. He submits that S.I Lalpianpuii also recorded the grounds of belief before conducting search of the appellants and the Maruti 800 car concerned. He then assigns the case to S.I Lalpianpuii. He submits that S.I Lalpianpuii also recorded the grounds of belief before conducting search of the appellants and the Maruti 800 car concerned. He further submits that although the case of the defense is that Section 50 of the ND&PS Act has been violated, the same will not apply to the case, inasmuch as, recovery of the illicit drugs was not from the body search conducted upon the appellants but from the Maruti 800 car in which they were travelling. He submits that at any rate, the illegality committed during the investigation will not render the investigation to be inadmissible. Since the illicit drugs was recovered from the possession of the appellants, the presumption of culpable mental state has to be drawn against the appellants in terms of Section 35 of the ND&PS Act. It will be then the burden of the defense to proof that they did not have any such mental state in respect to the act, charged as an offence by the prosecution. Under the circumstance, he submits that the prosecution has otherwise been able to prove the charge against the appellants with proof beyond reasonable doubt and the appeal therefore should be dismissed. The learned Public Prosecutor in support of his submission has relied upon the following authorities:- (i) State of Himachal Pradesh Vs. Pawan Kumar (2005) 4 SCC 350 (ii) Jarnail Singh Vs. State of Punjab (2011) 3 SCC 521 (iii) State of Himachal Pradesh Vs. Pirthi Chand & Anr (1996) 2 SCC 37 (iv) Baldev Singh Vs. State of Haryana (2015) 17 SCC 554 [7.] I have heard the learned counsels for the rival parties and I have perused the materials available on record including the records requisitioned from the Trial Court. [8.] As the appellants have preferred the instant appeal against their conviction and sentence, let us examine the evidence led during the trial. PW1 Tlanghmingthanga, Sub-Inspector of Police, DSB, Lunglei in his examination-in-chief stated that he knows both the accused persons present in the Court. On 31.05.2016, Constable Zothansanga received a telephonic information from a reliable person that the appellants suspected to be involved in drug trafficking were coming to Lunglei from Thiltlang village. According to the informant, they would be coming in a Maruti 800 bearing Registration No. MZ02 6273. On 31.05.2016, Constable Zothansanga received a telephonic information from a reliable person that the appellants suspected to be involved in drug trafficking were coming to Lunglei from Thiltlang village. According to the informant, they would be coming in a Maruti 800 bearing Registration No. MZ02 6273. He and his party therefore proceeded to Serkawn and intercepted the said vehicle on 31.05.2016 during the noon. The vehicle along with the appellants, were detained on the spot and he gave telephonic information to the officer-in-charge, Lunglei Police Station. The police team along with the leaders of the YMA, Serkawn Branch arrived on the spot. The police team was headed by SDPO namely B. Laldinngheta and S.I Lalpianpuii was also there. The latter gave option to the appellants whether they wanted to be searched before the Magistrate or before the SDPO, who was a Gazette Officer and to which they declined. They said that search could be conducted on the spot. Search was then conducted on the person of the appellants but nothing was recovered. Thereafter, the vehicle was thoroughly searched and on the back of the vehicle there was a bag containing vegetables. About 3800 capsules of cipla was found in the said bag. The capsules were counted in the presence of civilian witnesses and after a seizure memo was prepared, the capsules were formally seized. [9.] PW-1 in his cross-examination stated that it was a fact that the telephonic information received by constable Zothansanga was not reduced into writing. He denied giving information to the O.C of Lunglei Police Station only after he was sure that there were capsules in the vehicle. He stated that it was a fact that when they intercepted the vehicle, they told the 2 (two) appellants to come out of the vehicle and then conducted the search. It was a fact that the contraband drugs kept in the bag could not be seen from the outside. The contraband drugs was not visible from outside and no person other than the one who kept them could have known. PW-1 also stated that it was a fact that no written record was maintained by him regarding the search option. No recovery was made from the physical possession of the appellants. The contraband drugs was not visible from outside and no person other than the one who kept them could have known. PW-1 also stated that it was a fact that no written record was maintained by him regarding the search option. No recovery was made from the physical possession of the appellants. On being re-examined, PW-1 stated that as soon as the vehicle was intercepted, he gave verbal information to the O.C, Lunglei Police Station who reduced the same into writing. [10.] PW-2 Lallianpuii, S.I of Police in her examination-in-chief stated that she knows both the appellants present in the Court. On 31.05.2016 at around 2:00 PM, a telephonic information was received from S.I Tlanghmingthanga, in-charge, DSB, Lunglei to the effect that they have detained one Maruti car at Serkawn which was suspected to be carrying drugs. She then gave verbal information of what she received to the SDPO, Lunglei. Authorization was received from the SDPO and she also gave written information to the O.C. The O.C then made request to some civilian to stand as witness. Thereafter, they proceeded to the spot. Since there was no time to obtain a search warrant, she recorded the ‘grounds of belief’. She gave option to the appellants, asking them as to whether they wanted to be searched before a Magistrate and to which, they declined. Body searched was then conducted but nothing was recovered. Thereafter, they were made to open their vehicle bearing Registration No. MZ-02 6273 (Maruti 800 white colour). Upon searching the dickey/trunk of the car, they found one nylon bag containing vegetables and among the vegetables, there was a polythene packet containing loose capsules suspected to be cipla. The capsules were then counted in the presence of witnesses and it was found to be 3800 capsules in all. The capsules were seized by him in the presence of the witnesses. 10 capsules were taken from the 19 polythene packets, 5 capsules from each 19 polythene packets were kept for samples and another 5 capsules from each of the 19 packets were kept for duplicate. Packing and sealing was done on the spot in the presence of the witnesses. He also prepared a rough sketch map of the place of the occurrence and seized the vehicle, the documents and the key. Packing and sealing was done on the spot in the presence of the witnesses. He also prepared a rough sketch map of the place of the occurrence and seized the vehicle, the documents and the key. The 2 (two) appellants were apprehended and he produced them in the police station and submitted an enquiry report to the O.C with a prayer for registering a regular case. PW-2 exhibited the information, his signature, the authorization and the grounds of belief as Exhibit P-I, P-I (a), P-II & P-III respectively. He also exhibited his signature, the sketch map of the place of occurrence, his signature, the seizure memo in respect of the Maruti car, his signature, the seizure memo of 3800 cipla capsules, his signature, the enquiry report, his signature, the report of seizure, his signature and the seized article containing 19 packets as Exhibited P-III(a), P-IV, P-IV(a), P-V, P-V(a), P-VI, P-VI(a), PVII, P-VII(a), P-VIII, P-VIII(a) and Exhibit-I respectively. In his cross-examination, PW-2 stated that he entered the information he received from S.I Tlanghmingthanga, in the General Diary of the Police Station and it was not a fact that he simply seized the contraband which was already recovered by the DSB personnel. He also stated that it is not a fact that recovery was made from the bag and the contents of which could not be seen from outside. The recovery was made from a private car. It is not a fact that the appellants did not claim ownership of the seized articles. [11.] PW-3 H. Lalduhthanga in his examination-in-chief stated that he knows both the appellants. On 31.05.2016, he was in his workplace i.e. Bookroom of BCM, Serkawn. Just before 12:00 PM Mr. Eric Zomuanpuia came to the bookroom and told him that the police suspected illegal trafficking of drugs in their locality and they require witness for the same and so he requested him to stand as a witness. He along with Mr. Eric Zomuanpuia then proceeded to the spot and on reaching he saw one white Maruti car, a man who appeared to be a police personnel, the driver and another man. Shortly thereafter, the police team arrived and one of them showed the authorization letter and requested them to put their signature. Accordingly, he and Mr. Eric Zomuanpuia put their signatures. Eric Zomuanpuia then proceeded to the spot and on reaching he saw one white Maruti car, a man who appeared to be a police personnel, the driver and another man. Shortly thereafter, the police team arrived and one of them showed the authorization letter and requested them to put their signature. Accordingly, he and Mr. Eric Zomuanpuia put their signatures. The same lady police thereafter took out another letter and asked them to put their signatures and to which they complied. The said officer gave search option to the appellants and as desired by them, search was conducted on the spot. Body search was done but nothing was recovered. The driver of the car was instructed to open the car and take out the nylon bag kept in the dickey/trunk of the car. On being instructed, he opened the bag and inside the bag there were vegetables and one packet. When the packet was opened, there were 19 polythene packet containing drugs which appeared to be cipla. The capsules were counted in his presence and it was found to be 3800 capsules in all. From the 19 polythene packets, 10 capsules each were taken out and 5 capsules each were packed separately. The packets were sealed in his presence and he put his signature. PW-3 exhibited the authorization and his signature as Exhibit P-II and P-II (a) respectively. In his cross examination PW-3 re-iterated what he stated in his examination-in-chief. PW-4 Mr. Eric Zomuanpuia, who was also a seizure witness made similar deposition like the PW-3. [12.] PW-5 F. Malsawmtluanga ASI of Police in his examination-in-chief stated that on 31.05.2016, he was on duty at Lunglei Police Station as Sherista. At about 4:00 PM, the appellants along with cipla capsules numbering 3800 kept in 19 polythene packets which was seized from them was produced at the police station. The Maruti 800 car was also produced. After registering the seized polythene of cipla in the Malkhana register of the Police Station against Serial No. 86, he put the same in the Malkhana. The vehicle was also registered under the same number and kept in the lawn of the Police Station. The vehicle was produced before the Court along with the 2 (two) appellants at the time of their first production. The seized capsules were sent to the Court along with charge-sheet. The vehicle was also registered under the same number and kept in the lawn of the Police Station. The vehicle was produced before the Court along with the 2 (two) appellants at the time of their first production. The seized capsules were sent to the Court along with charge-sheet. In his cross-examination, PW-5 besides re-iterating what he stated in his examination-in-chief stated that information was received at the Police Station from source at about 2:00 PM. In his re-examination by the Addl. Public Prosecutor, PW-5 stated that he was not the one who received information at the Police Station and as such, he could have made a mistake regarding the time of receiving information. [13.] PW-6 B. Laldinngheta SDPO, Lunglei in his examination-in-chief stated that he knows the accused appellants present in the Court. On 31.05.2016, he received a phone call from the officer-in-charge, Lunglei Police Station stating that one Maruti 800 bearing Registration No. MZ-02 6273 driven by C. Lalruatfela and with another occupant C. Lalzarliana was suspected to carry some contraband drugs. On receiving the information and as authorized by Section 41 of the ND&PS Act, he issued an authorization to conduct search of the said vehicle. He also accompanied the search party at Serkawn and witnessed the seizing of the suspected contraband item. He exhibited the authorization issued by him and his signature as Exhibit P-II and P-II(c) respectively. In his cross-examination, he stated that when he reached the spot, the two appellants with their vehicle were already detained by the DSB personnel. He received telephonic information at about 2:00 PM. Besides this, he re-iterated what he stated in his examination-in-chief. [14.] PW-7 A. Zatluanga, Inspector of Police in his examination-in-chief stated that he knows the appellant present in Court. On 31.05.2016 at about 2:00 PM a telephonic information was received from S.I Tlanghmingthanga DSB to the effect that they have detained one Maruti car bearing registration No. MZ 02-6273 suspected to be carrying drugs at Serkawn. He entered the information in writing in the General Diary again in Seriel No. 13, dated 31.05.2016 at 2:00 PM and he also obtained authorization from the SDPO. He assigned S.I Lalpianpuii as the enquiry officer. They went to the spot and the enquiry officer recovered and seized 3800 capsules suspected to be cipla and produced by the appellants in the Police Station. He assigned S.I Lalpianpuii as the enquiry officer. They went to the spot and the enquiry officer recovered and seized 3800 capsules suspected to be cipla and produced by the appellants in the Police Station. On 31.05.2016 at 4:48 PM, the enquiry officer submitted the enquiry report to him as O.C of the police station. On the basis of the enquiry report, Lunglei P.S Case No. 120 dated 31.05.2016 under Section 21 (c) of the ND&PS Act was registered and endorsed to S.I Rodingliana Sailo for investigation. PW-7 exhibited the enquiry report and his signature as Exhibit P-VII and P-VII (b) respectively. In his cross-examination, PW-7 re-iterated what he stated in his examination-in-chief. [15.] PW-8 Rodingliana Sailo S.I of Police in his examination-in-chief stated that he knows the appellants present in the Court. On 31.05.2016, S.I Lalpianpuii submitted enquiry report to the O.C, Lunglei Police Station on the basis of which Lunglei P.S Case No. 120/2016 dated 31.05.2016 under Section 21(c) of the ND&PS Act was registered and the case endorsed to him for investigation. During investigation, he arrested both the appellants on 31.05.2016. The next date on 01.06.2016, he made a prayer for 48 hours remand in police custody to the learned CJM and which was allowed. On that day, he forwarded the exhibit samples to FSL, Aizawl and interrogated the appellants. Appellant C. Lalruatfela denied involvement stating that he does not have any knowledge about the seized contraband drugs. On the other hand, accused C. Lalzarliana admitted involvement by stating that he borrowed the vehicle of the co-accused C. Lalruatfela with his personnel belongings i.e. a bag containing vegetables and the seized capsules of cipla. He recorded their statements on 02.06.2016, the appellants in fact wrote their own statements by themselves. On 03.06.2016 they were produced before the Court and the prayer for judicial remand was allowed. The remaining seized capsules numbering 3610 along with the seized vehicle with keys were produced before the Court of CJM, Lunglei. On 08.07.2016, he received the FSL report which showed that the samples contained dextro-propoxyphene. He also recorded the statements of available witnesses. Attempt was also made to arrest one Sauju named by the appellant C. Lalzarliana as the person from whom he procured the seized drugs. However, the attempt was futile and they could not reach him through the telephone number given by the accused C. Lalzarliana. He also recorded the statements of available witnesses. Attempt was also made to arrest one Sauju named by the appellant C. Lalzarliana as the person from whom he procured the seized drugs. However, the attempt was futile and they could not reach him through the telephone number given by the accused C. Lalzarliana. They also tried to apprehend one Lalnunpuii named by the accused C. Lalzarliana as the prospective buyer of the seized item but she too could not be found. He submitted the charge-sheet against the accused C. Lalruatfela also though he denied his involvement. Since they were both travelling together, he found prima facie case under Section 21 (c) of the ND&PS Act r/w Section 34 IPC against both the accused and he submitted the charge-sheet. PW-8 exhibited the arrest memo in respect of C. Lalzarliana, his signature, the arrest memo in respect of C. Lalruatfela, his signature, the medical report of C. Lalruatfela and C. Lalzarliana, FSL report containing 3 pages, zimanama, charge-sheet and his signature as Exhibit P-I, P-IX(a), P-X, P-X(a), P-XI and P-XV and P-XV(a) respectively. In his cross-examination PW-8 re-iterated what he stated in his examination-in-chief. [16.] The appellants examined 3 witnesses in their defence. DW-1 P.C Lalramliana, a driver by occupation in his examination-in-chief stated that he knows the appellants and they are his close neighbors at Thiltlang village. He shifted to Lunglei from Thiltlang due to his profession. On the date of making arrest and seizure, he saw the appellants at Serkawn and they had tea together in one of the tea-stall at Serkawn. After some time, 2 (two) persons came and took the appellants towards their vehicle. In his cross-examination, DW-1 stated that he did know whether the seized articles was recovered and seized from the accused or from their vehicle. [17.] DW-2 F. Lalinmawii a farmer by occupation in her examination-in-chief stated that she knows both the appellants who are father and son and hailing from their village. Being the Vice-President of MHIP, Thiltlang Branch, she was well acquainted with the family of the appellants. Appellant C. Lalzarliana was actively involved in Church service and as a committee member of BMP, BCM Thiltlang. The co-accused C. Lalruatfela is known to be of a good character and reputed youth of their locality. Being the Vice-President of MHIP, Thiltlang Branch, she was well acquainted with the family of the appellants. Appellant C. Lalzarliana was actively involved in Church service and as a committee member of BMP, BCM Thiltlang. The co-accused C. Lalruatfela is known to be of a good character and reputed youth of their locality. During the detention of the appellants in Prison, their family were in bad condition and were surviving only on the contribution of the community. The daughter of the accused Lalzarliana is a differently abled person who cannot looked after herself and besides her, the old aged father of the accused C. Lalzarliana was having a low vision and could not look after himself as well. Being a society leader in MHIP, she did not believe that both the appellants are involved in dealing with the contraband items. The appellants were original occupier of Thiltlang village and they are not known to be involved with contraband items since the time of their ancestors. In her cross-examination, DW-2 denied that the accused C. Lalruatfela is not the biological son of C. Lalzarliana. It was a wrong information claiming that the father of accused C. Lalruatfela is C. Lalthanzuala (L) of Thiltlang. She admitted that she was not present at the place of occurrence at the time of alleged recovery and seizure at Serkawn. As such, she did not know whether the appellants were involved in the case or not. She also admitted that except for the family condition of the accused persons and their character in society, she did not have any knowledge of the instant case. [18.] DW-3 Lalbiakkima, a driver by occupation in his examination-in-chief stated that he knows both the appellants who are father and son and hailing from their village. On 31.05.2016, he and his wife were also travelling from Thiltlang village to Lunglei in the Maruti car of the accused. As it was a secondhand car, they sometimes repaired the said car during the journey to Lunglei and he also helped them. Even on arrival at Chandmari, he took out his belongings from the said car and he did not see anything in the car which was otherwise alleged to have been recovered. He was sitting in the front seat while his wife was sitting in the back seat during the journey from Thiltlang to Lunglei. Even on arrival at Chandmari, he took out his belongings from the said car and he did not see anything in the car which was otherwise alleged to have been recovered. He was sitting in the front seat while his wife was sitting in the back seat during the journey from Thiltlang to Lunglei. While travelling, there was no loading of any goods in the car. He believed that the seized article was manipulated by others while the appellants took tea. The Maruti car being an old car, the door-lock system was perhaps not secure and could be opened by others. In his cross-examination, DW-3 stated that it was a fact that in the back side cabin of the vehicle of the appellant, he found only one bag belonging to him at the time of their journey. It was a fact that since he left the alleged involved vehicle at Chandmari, Lunglei, he was not present at the place of occurrence in Serkawn where alleged recovery and seizure of the contraband substance was made. As such, he cannot say whether the accused persons were involved or not except for his belief of their innocence. [19.] It may, however, be seen that although PW-5 had stated that on 31.05.2016, he was on duty at Lunglei Police Station as Sherista. At about 4:00 PM, the appellants along with cipla capsules numbering 3800 kept in 19 polythene packets which was seized from them was produced at the police station. The Maruti 800 car was also produced. After registering the seized polythene of cipla in the Malkhana register of the Police Station against Serial No. 86, he put the same in the Malkhana. However, the Malkhana register has not been exhibited by him or any of the prosecution witnesses. There is also no mention about the samples drawn being kept in the office Malkhana in particular. It, therefore, appears that there is no explanation as to where the samples were kept before it was produced before the court as contended by PW-5. Besides this, from the evidence of the prosecution witnesses, the admitted position is that no inventory was made on the item/items that was seized from the alleged possession of the appellants. Section 52A of the ND&PS Act provides as follows:- “52A. Besides this, from the evidence of the prosecution witnesses, the admitted position is that no inventory was made on the item/items that was seized from the alleged possession of the appellants. Section 52A of the ND&PS Act provides as follows:- “52A. Disposal of seized narcotic drugs and psychotropic substances- (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.” [20.] From the above abstract, it may be seen that when any narcotic drugs or psychotropic substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest Police Station or to the officer empowered under Section 53, the officer-in-charge is required to prepare an inventory of the seized items with details and thereafter, make an application to any Magistrate for certifying the correctness of the inventory so prepared and for allowing to draw samples of such psychotropic substances in his presence. This process admittedly has not been carried out by the officer-in-charge concerned. The Apex Court in Union of India vs. Mohanlal & Anr. (2016) 3 SCC 379 held that when there is a conflict between the statutory provision governing taking of samples and standing orders issued by the Central Government, the same will have to be resolved in favour of the statute. The Apex Court, while examining the importance of Section 52A of the ND&PS Act at paragraph Nos. 15 to 19 and 31.1 observed and held as under:- “15. The Apex Court, while examining the importance of Section 52A of the ND&PS Act at paragraph Nos. 15 to 19 and 31.1 observed and held as under:- “15. It is manifest from Section 52A (2)(c) (supra) that upon seizure of the police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction. 19. Mr. Sinha, learned Amicus, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions. .............. .............. .............. 31.1 No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub-Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading ‘seizure and sampling’. The sampling shall be done under the supervision of the magistrate as discussed in paras 15 and 19 of this order.” [21.] From the above abstract, it may be seen that the Apex Court held that when there is a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government, such conflict shall have to be resolved in favour of the statute. It may be seen that Section 52-A was inserted by Act 2 of 1989 w.e.f. 29.05.1989. It may be seen that Section 52-A was inserted by Act 2 of 1989 w.e.f. 29.05.1989. Section 52A(2) of the ND&PS Act as already stated herein above, provides that where any narcotic drugs, psychotropic substances, controlled substances or conveyance has been seized and forwarded to the officer-in-charge to the nearest Police Station or officer empowered under Section 53 of the same Act, the officer concerned shall prepare an inventory of the seized items giving in details the description of the seized articles and make an application to the Magistrate for the purpose of certifying the correctness of the inventory and for allowing the trial of representative samples in the presence of the Magistrate amongst others. However, in the present case, the same has undisputedly not been done. Besides, no standing instruction or authority of any sort has been produced to show that compliance of Section 52A of the ND&PS Act is/was not necessary. This apart, the Malkhana register was not exhibited to show that the samples collected were safely kept in the Malkhana before the same was sent to FSL, Aizawl. This Court in Thounaojam Punima Singh vs. Union of India & Anr., 2021 (1) GLT 790 held that sample must be taken under the direct supervision of the Magistrate. In the given facts of that case, neither was the contraband seized at the place of recovery nor sample taken at the place of recovery. Rather, the contraband along with the accused was taken to the office where after taking sample, the contraband was seized. Sample was taken at the custom office in total disregard to the provision of law and the mandate of the Apex Court in Mohanlal’s case (Supra). As such, the entire process of search, seizure and taking sample being highly doubtful, the conviction and sentence of the appellant was set aside. [22.] This Court in Bhim Ram & Ors. vs. State of Assam, 2012 (1) GLT 416 in the given facts of that case held that safe custody of samples is important and due care is required to be taken otherwise, the accused person will be entitled to be given the benefit of doubt. [22.] This Court in Bhim Ram & Ors. vs. State of Assam, 2012 (1) GLT 416 in the given facts of that case held that safe custody of samples is important and due care is required to be taken otherwise, the accused person will be entitled to be given the benefit of doubt. Also in Lalruatpuii Bawitlung vs. Union of India, 2017 (5) GLT 29, this Court in the given facts of that case came to a finding that there was no evidence as to where the seized articles and samples which were drawn were kept till it was deposited with the Antismuggling Unit, Customs Division, Aizawl. Under the circumstance, the benefit of doubt was given to the accused person. In the case of Sh. Lalthuama Vs. State of Mizoram, 2019 (3) GLT 537, this Court in the given facts of this case came to a finding that samples of the seized articles admittedly were not drawn in the presence of a Magistrate but it was contended that the materials were seized as per the standing order of 1989. Standing order of 1989 was however not produced before the Court and therefore, it was held that Section 52A of the ND&PS Act having not been complied with, the impugned judgment & order could not be sustained and accordingly, the same was set aside. In the present case as well, there is uncertainty as to where the samples claimed to have been drawn were kept before production in the court and sent for examination in the FSL. The officer-in-charge of the Lunglei Police station concerned also did not follow the provisions of Section 52A of the ND&PS Act which otherwise was found to be essential by the Apex Court in Union of India vs. Mohanlal (supra). [23.] Further, the examination of the appellants under section 313 CrPC reveals that PW-1 and party without reducing into writing the secret information received by Constable Zothansanga proceeded to Serkawn to intercept the vehicle in which the contraband substance was alleged to be carried. At Serkawn, they met up with the appellants and according to appellant C. Lalzarliana, they asked them to open the dickey of the car to search for the contraband substance. Whereas, as per appellant C. Lalruatfela, the dickey of the car was opened by PW-1 and party and a bag was discovered in it. At Serkawn, they met up with the appellants and according to appellant C. Lalzarliana, they asked them to open the dickey of the car to search for the contraband substance. Whereas, as per appellant C. Lalruatfela, the dickey of the car was opened by PW-1 and party and a bag was discovered in it. Whatever be the case, it can be seen that Section 42 of the ND & PS Act was not complied with before resorting to the said action. Thus, upon overall and careful consideration of the case, I find the appellants to be entitled to be given the benefit of doubt. It is a settled position in law that the harsher the punishment more is the strictness of proof required for the prosecution. The burden is always upon prosecution to prove the case against the person accused with proof beyond reasonable doubt. In the present case, for the reasons stated herein above, the prosecution cannot be said to have proved their case beyond reasonable doubt. In that view of the matter, I find merit in the appeal and the impugned judgment and order of conviction and the impugned order of sentence are hereby set aside. [24.] Having come to the above conclusion, I do not find it necessary to dwell upon other issues raised by the rival parties and the authorities relied upon. The appeal accordingly stands disposed of as allowed. The appellants are directed to be released immediately, if not wanted in connection with any other case. Registry shall send back the LCR immediately. [25.] For the valuable assistance rendered by Mr. C. Lalfakzuala the learned Amicus Curiae, he shall be paid a sum of Rs.7,500/-(Rupees seven thousand and five hundred) only by the Mizoram State Legal Services Authority.