JUDGMENT : Heard Mr. A.R Malhotra, learned counsel for the appellant and Mr. C. Zoramchhana, learned Public Prosecutor for the State respondents. [2.] This is an appeal against the Judgment & Order dated 09.03.2020 passed by the learned Special Court under the Narcotic Drugs & Psychotropic Substances Act, 1985 (ND&PS Act), Aizawl Judicial District, Champhai in Sessions Registration No. 50/2015 A/o Crl. Tr. No. 292/2015 whereby, the accused/appellant was convicted under Section 21(b) of the ND&PS Act and thereafter, sentenced to Rigorous Imprisonment for a period of 8 (eight) years with a fine of Rs. 90,000/-and a default clause vide Order dated 11.03.2020. [3.] Be it stated herein that the appellant was earlier acquitted by the learned Trial Court vide Judgment & Order dated 07.09.2015 by giving him the benefit of doubt. Aggrieved, the State preferred Criminal Appeal No. 11/2017 and vide Judgment & Order dated 25.01.2018 the case was remanded back for retrial with a direction to examine the concerned officer-in-charge of the Excise Station, Champhai and the Superintendent of Excise, who had sent the samples for examination in the Forensic Science Laboratory (FSL). On remand, the evidence of the aforesaid 2 (two) witnesses were taken and they were also cross-examined by the defence. Thereafter, the learned Trial Court passed the impugned Judgment & Order of conviction and the Order of sentence as already stated herein above. [4.] The case of the prosecution in brief is that on 27.11.2014 at about 6:00 P.M, Sub-Inspector Lalengmawia seized 138 grams of contraband substance suspected heroin kept in 10 (ten) soap cases and which was wrapped in polythene and concealed in a bag from the possession of the appellant in the presence of 2 (two) civilian witnesses in a place called ‘dumping ground’, while the appellant was travelling in a mini-bus and enroute to Champhai from Tiau/Zokhawthar. As a result, the appellant was arrested and the suspected heroin kept in the 10 (ten) soap cases was seized and Case No. Ex.N-198/14/CPI dated 28.11.2014 under Section 21(b) of the ND&PS Act was registered and investigated into. After the investigation was completed, the case Investigating Officer (Case I.O), upon finding a prima facie case under Section 21(b) & 23(b) of the ND&PS Act well established against the appellant, filed the charge-sheet before the Court. After the investigation was completed, the case Investigating Officer (Case I.O), upon finding a prima facie case under Section 21(b) & 23(b) of the ND&PS Act well established against the appellant, filed the charge-sheet before the Court. Charge was then framed against the appellant under Section 8(c), 21(b) & 23(b) of the ND&PS Act and to which, he pleaded not guilty and claimed for trial. Trial against the appellant commenced and in the process, the prosecution examined 5 (five) prosecution witnesses. However, after the matter was remanded back for retrial, the prosecution examined 2 (two) more witnesses i.e. PW-6 & PW 7. The appellant was also examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C). The appellant, however, did not examine any witness in his defence. Thereafter, the learned Trial Court upon hearing the parties, convicted and sentenced the appellant in the manner as already stated herein above. [5.] Mr. A.R Malhotra, learned counsel for the appellant submits that the prosecution violated Section 52A of the ND&PS Act, inasmuch as, no inventory was prepared and samples drawn before the Magistrate. He submits that the same is clear before the statements given by PW-6 in his cross-examination. The learned counsel submits that according to the learned Addl. Public Prosecutor during the earlier round of appeal, the Superintendent of Excise sent the samples to the FSL since the officer-in-charge of Excise Station, Champhai was on leave. However, the officer-in-charge of Champhai, Excise & Narcotics Station on being examined as PW-6 stated that the seizing officer produced the accused and the seized contraband substances along with the representative samples to him on 27.11.2014 at around 8:00 PM. He then kept the same in the office of Malkhana for safe custody under lock and key. The next day, he endorsed the case to Mr. B. Lalengmawia, the case I.O for investigation. He also handed him over the samples kept in the Malkhana. The case I.O then prepared a test memo for sending the samples to the FSL and submitted the same to the Superintendent of Excise & Narcotics, Champhai. The Superintendent, in turn, forwarded the samples with the test memo to the FSL for chemical analysis. The learned counsel therefore submits that there is clear contradiction in the submission made by the learned Addl. Public Prosecutor and the evidence given by the PW-6 making the case of the prosecution unreliable. The Superintendent, in turn, forwarded the samples with the test memo to the FSL for chemical analysis. The learned counsel therefore submits that there is clear contradiction in the submission made by the learned Addl. Public Prosecutor and the evidence given by the PW-6 making the case of the prosecution unreliable. [6.] Mr. A.R Malhotra, the learned counsel further submits that Section 42 of the ND&PS Act has been violated, inasmuch as, according to the seizing officer, who was examined as PW-3, he recorded his ‘grounds of belief’ on 27.11.2014 which was to the effect that as per the information from his source, he suspected transportation of some quantity of narcotic drugs in the mini-bus plying from Zokhawthar to Champhai and that there was no time to obtain a search warrant. However, in his examination-in-chief, he stated that he received reliable information from his source that some quantity of beer was being transported from Zokhawthar towards Champhai. Therefore, PW-3 has only contradicted what he had written on 27.11.2014 in his ‘grounds of belief’ prior to conducting search of the mini-bus. The learned counsel by further referring to Sub-section (2) of Section 42 of the ND&PS Act submits that whenever the officer takes down any information in writing under Subsection (1) of Section 42, he is required to send a copy to his immediate officer superior within 72 hours. However, there is no evidence on record to show that the seizing officer sent the information in writing to his superior officer and for this reasons, Section 42 of the ND&PS Act has clearly been violated. As such, the impugned Judgment & Order of Conviction and Sentence cannot be sustained. The learned counsel also submits that although the officer-in-charge of Excise & Narcotics Station, Champhai as PW-6 had stated in the examination-in-chief that he received the seized contraband substance along with representative samples from the seizing officer on the night of 27.11.2014 and that he kept the same in the office Malkhana under lock and key but however, the Malkhana register exhibited by PW-6 does not reflect the keeping of representative samples received and kept by PW-6 in the Malkhana. Therefore, there is no explanation as to where the representative samples were kept on the night of 27.11.2014. Therefore, there is no explanation as to where the representative samples were kept on the night of 27.11.2014. Even for this reason, the learned counsel submits that the impugned Judgment & Order of Conviction and Sentence cannot be sustained and should be set aside. In support of his submissions, the learned counsel relies upon the following authorities:- (i) Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379 . (ii) Karnail Singh vs. State of Haryana, (2009) 8 SCC 539 . (iii) Thounaojam Punima Singh vs. Union of India & Anr., 2021 (1) GLT 790. (iv) Mukesh Singh vs. State (Narcotic Branch of Delhi), (2020) 10 SCC 120 . (v) Gangadhar Alias Gangaram vs. State of Madhya Pradesh, (2020) 9 SCC 202 . (vi) Gorakh Nath Prasad vs. State of Bihar, (2018) 2 SCC 305 . [7.] Mr. C. Zoramchhana learned Public Prosecutor, on the other hand, submits that Section 42 of the ND&PS Act was duly complied with by the Investigating Agency. The same can be seen from the deposition of the officer-in-charge of Excise & Narcotics Station, Champhai as PW-6. He also submits that even assuming for a moment without admitting that Section 42 was not complied with, the investigating authority has otherwise complied with Section 43 of the ND&PS Act, inasmuch as, recovery was made from a public transport vehicle i.e. the mini-bus. He further submits that even though Section 52A may not have been strictly complied with but the articles were seized in front of the 2 (two) witnesses who clearly affirmed seizure of the drugs from the possession of the appellant. As such, non compliance of Section 52A does not vitiate the conviction of the appellant. He further submits that Section 52A is primarily a provision for disposal of the seized drugs and to prevent recycling of the illicit drugs back in the society. Therefore, non-compliance of the same cannot be a good ground for acquitting the accused person. [8.] Mr. C. Zoramchhana referring to Section 35 and Section 54 of the ND&PS Act submits that there is always a presumption of culpable mental state against the accused person. Once possession is established by the prosecution, it is then the burden of the accused person to establish that he was not in conscious possession of the contraband substance. If he fails to discharge such burden, Sections 35 & 54 will apply against him. Once possession is established by the prosecution, it is then the burden of the accused person to establish that he was not in conscious possession of the contraband substance. If he fails to discharge such burden, Sections 35 & 54 will apply against him. Referring to the examination of the appellant under Section 313 Cr.P.C, the learned Public Prosecutor submits that the appellant clearly admitted that he was in possession of the seized drugs but maintained that he did not know that they were illicit drugs. Under the circumstance, he submits that the possession and guilt of the appellant having been established by the prosecution, the impugned Judgment & Order of Conviction and Sentence may therefore be not interfered with by this Court. In support of his submission, the learned Public Prosecutor relies upon the following authorities:- (i) Baldev Singh vs. State of Haryana, (2015) 17 SCC 554. (ii) SK Raju @ Abdul Haque Alias Jagga vs. State of West Bengal, (2018) 9 SCC 708 . (iii) Abdul Hossain Mahammad @ Abdul Hossain Mohammad @ Md Abdul Hossain vs. Department of Customs, 2020 SCC OnLine Cal 521. [9.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. [10.] As the appellant has challenged the conviction and sentence imposed upon him, let us examine the evidence led during the trial. PW-1 C. Lalfakmawia, who was the driver of the mini-bus bearing Registration No. MZ-04/7673, plying between Champhai and Zokhawthar in his examination-in-chief deposed that he knows the appellant who was present in Court. On 27.11.2014, while they were proceeding towards Champhai from Tiau, on reaching a place known as ‘dumping ground’, the Excise personnels checked the vehicle and the luggage of the passengers. On checking the luggage carried by the appellant, they found 10 (ten) soap cases suspected to contain heroin which were wrapped in black polythene bag and kept in the bag carried by the accused. They opened the bag and the polythene and found 10 (ten) soap cases i.e. 3 (three) red colour, 3 (three) pink colour, 2 (two) light blue, 1 (one) green and 1 (one) light green suspected to contain heroin. The Excise personnels seized the articles and arrested the appellant. They also drew samples from each packet and on taking the weighment, it was found to be 138 grams. The Excise personnels seized the articles and arrested the appellant. They also drew samples from each packet and on taking the weighment, it was found to be 138 grams. The suspected heroin was packed and sealed in their presence on the spot and he stood as one of the witness by putting his signature on the body of the seizure and arrest memo. PW-1 exhibited the seizure and arrest memo as Exhibit P-1 & P-1A respectively. He also exhibited the seized article as Exhibit M-1 and his signature as Exhibit M-1 (a) respectively. [11.] PW-1 in his cross-examination deposed that he drove the mini-bus for about 6 (six) months and on 27.11.2014, they were proceeding towards Champhai from Tiau. He stated that it was a fact that before the vehicle was searched, the Excise personnels did not produce any search warrant or connected documents before him. The seized article was recovered from the vehicle which was placed under the seat of the appellant and it was covered by a black polythene. The weighment was done inside the vehicle before him but sample was taken in the office of the Excise Department at Mualbawk, Champhai District. He again exhibited his signature which he subscribed in the Office of Excise & Narcotics Station, Champhai as Exhibit P-1. On being re-examined by the Addl. Public Prosecutor, PW-1 deposed that the appellant stated that the seized article did not belong to him but to his mother-in-law. He carried the same for a reward of Rs. 5,000/-and the Excise personnel recovered it. [12.] PW-2 Zoremtluangi, who was a passenger of the mini-bus in her examination-in-chief, stated that on 27.11.2014 at around 6:00 PM, while they were travelling from Tiau towards Champhai in a bus named Mapuia, they were stopped by Excise personnel near Hringlangtlang peng waiting shed. They checked their luggages and recovered yellowish powder suspected to be heroin which was kept in 10 (ten) soap cases from the bag of the appellant. They took weighment of the same and it was 138 grams. They draw samples from each packet and then packed and sealed the same in their presence at the spot. The appellant admitted that the seized article belongs to him and that his mother-in-law asked him to obtain the same from Tiau. The appellant was arrested at the spot in their presence on his admissions of guilt. They draw samples from each packet and then packed and sealed the same in their presence at the spot. The appellant admitted that the seized article belongs to him and that his mother-in-law asked him to obtain the same from Tiau. The appellant was arrested at the spot in their presence on his admissions of guilt. As she was present at the time of recovery, seizure, weighing of the seized article, drawing of sample, packing and sealing of seized article, she was cited as one of the witnesses and she put her signature on the seizure and arrest memo. She exhibited the seizure and arrest memo and her signature as Exhibit P-1 & Exhibit P-1(c) respectively. She also exhibited the seized article and her signature as Exhibit M-1 & M-1(c) respectively. [13.] PW-2 in her cross-examination reiterated what she stated in her examination-in-chief. She also stated that the seized article was not recovered from the physical possession of the accused. On being reexamined by the Addl. Public Prosecutor, PW-2 stated that while the seized article was recovered, it was on the floor beside the appellant in his seat and the appellant also admitted that it belonged to him. [14.] PW-3 Lalengmawia, Sub-Inspector of Excise and who was the seizing officer in his examination-in-chief deposed that he knows the appellant who is present before the Court. He received reliable information from their source that some quantity of beer was being transported from Zokhawthar towards Champhai. They immediately proceeded towards the dumping ground and saw one mini-bus bearing Registration No. MZ-04/7673 coming from Zokhawthar and they stopped the said vehicle. As he had no time to obtain search warrant from the competent authority to check the vehicle and the luggages, he wrote down the ‘grounds of belief’. On checking the bus and the luggages, they found 10 (ten) soap cases containing heroin which was wrapped in 5 (five) polythene bag and kept inside one bag carried by the appellant. He arrested the appellant, seized the 10 (ten) soap cases suspected to contain heroin, drew samples from each bag and took the weighment in the presence of reliable witnesses on the spot. The weight of the seized suspected heroin was 138 grams. The appellant stated that he purchased 10 (ten) pack of heroin from Tiau. He arrested the appellant, seized the 10 (ten) soap cases suspected to contain heroin, drew samples from each bag and took the weighment in the presence of reliable witnesses on the spot. The weight of the seized suspected heroin was 138 grams. The appellant stated that he purchased 10 (ten) pack of heroin from Tiau. He thereafter submitted report to the officer-in-charge, Excise & Narcotics, Champhai while presenting the accused and all the seized articles before him as well. PW-3 exhibited the seizure and arrest memo and his signature as Exhibit P-1 & P-1(b) respectively. He exhibited the grounds of belief recorded and his signature as Exhibit P-4 & Exhibited P-4(a) respectively. He also exhibited the report of seizure and arrest and his signature as Exhibit P-3 & P-3(a) respectively. He further exhibited the seized article and his signature as Exhibit M-1 & Exhibit M-1(b) respectively. In his cross-examination, PW-3 stated that he was the seizing officer who seized the articles at the ‘dumping ground’, Tiau road and not from any other place. The seized article was not recovered from the physical possession of the appellant. When he arrested the appellant, he did not have the arrest warrant from the competent authority. He did not search the appellant physically because he did not find it necessary. He reported the seizure and arrest memo to his superior officer within 1 (one) day. The weighment of the seized article was done by him on the spot and it was found to be 138 grams. [15.] Pw-4 Lalhmachhuana, Asst. Director, FSL in his examination-in-chief stated that on 01.12.2014, one parcel containing 10 (ten) exhibit packets in polythene and enclosed in another polythene pack sealed with a wax seal in connection with EXN-198/14/CPI dated 28.11.2014 under Section 21(b) of the ND&PS Act was received by the FSL, Mizoram. The case was endorsed to him by the Joint Director, FSL. Upon examining the exhibits through various scientific methods and instruments available in the FSL, he found the exhibits to be heroin of 77.6%, 75.8%, 76.6%, 77.1%, 75.7%, 75.9%, 77.4%,76.9%, 77.2% & 75.5% respectively. He exhibited his examination report and his signature as Exhibit P-2 & Exhibit P-2(a) respectively. In his cross-examination, he re-iterated what is stated in his examination-in-chief. Upon examining the exhibits through various scientific methods and instruments available in the FSL, he found the exhibits to be heroin of 77.6%, 75.8%, 76.6%, 77.1%, 75.7%, 75.9%, 77.4%,76.9%, 77.2% & 75.5% respectively. He exhibited his examination report and his signature as Exhibit P-2 & Exhibit P-2(a) respectively. In his cross-examination, he re-iterated what is stated in his examination-in-chief. [16.] PW-5, B. Lalengmawia Sub-Inspector of Excise, who was the case I.O in his examination-in-chief, deposed that he knows the appellant who is present in the Court. On 27.11.2014, at around 6:00 PM, S.I Lalengmawia recovered and seized 138 grams of suspected heroin kept in 10 (ten) soap cases and wrapped in 5 (five) polythene bags from the bag of the appellant which was being carried in the mini-bus in a place called ‘dumping ground’, Champhai. The case was registered as EXN-198/2014/CPI dated 28.11.2014 under Section 21(b)/23(b) of the ND&PS Act and the case was endorsed to him for further investigation. He prepared test memo for examination of the samples of the seized article. He examined the seizing officer, the appellant and reliable witnesses while recording their statements except the statements of the seizing officer. He stated that the seizing officer followed proper procedure and observed formality for recovery and seizure. He also stated that the appellant told him that he had gone to Zokhawthar for purchasing heroin and he purchased 10 (ten) packs of heroin kept in 10 (ten) soap cases for his mother-in-law Laithanthuami of Champhai. On his way back to Champhai, the Excise personnel recovered and seized the heroin while arresting the appellant. He therefore found a prima facie case against the appellant under Section 21(b)/23(b) of the NS&PS Act for violation of Section 8(c) of the same Act and he submitted the complaint accordingly. He exhibited the complaint submitted by him and his signature as Exhibit P-5 & P-5(a) respectively. In his cross-examination, PW-5 re-iterated what he stated in his examination-in-chief. He also stated that the seized article was not recovered from the physical possession of the appellant. The grounds of belief were prepared by the seizing officer on 27.11.2014 at 5:45 PM and he received the seizure and arrest memo on 28.11.2014. He did not send the sample to the FSL but it was the Superintendant of Excise, Champhai who sent it. The grounds of belief were prepared by the seizing officer on 27.11.2014 at 5:45 PM and he received the seizure and arrest memo on 28.11.2014. He did not send the sample to the FSL but it was the Superintendant of Excise, Champhai who sent it. [17.] PW-6 Ngurthanzama Sailo, who was the officer-in-charge of Champhai Excise & Narcotics Station at the relevant time in his examination-in-chief deposed that on 27.11.2014 at around 6:00 PM, S.I Lalengmawia seized contraband substance weighing 138 grams from the possession of the appellant at the place called ‘dumping ground’ along the Tiau road. The said officer produced the appellant with the seized contraband substance along with the representative samples to him on the same night at around 8:00 PM. Being the officer-in-charge of the station, he received the seized contraband substances along with samples which were already drawn by the seizing officer on the place of the occurrence and he kept them in the office Malkhana for safe custody under lock and key. The following day, he endorsed the case to S.I B. Lalengmawia for investigation. He took out the samples from the Malkhana and handed it over to the case I.O. The case I.O prepared test memo for sending the samples to the FSL, Aizawl for chemical analysis. The case I.O submitted the samples drawn with the accompanying documents, titled “Test Memo” to the Superintendant of Excise & Narcotics, Champhai who then forwarded the samples along with the test memo to FSL, Aizawl for chemical analysis. He exhibited the forwarding letter written by the Superintendant of Excise & Narcotics, Champhai dated 28.11.2014 as Exhibit P(CPI-1). He also exhibited photocopy of Malkhana register as Exhibit P-2(CPI-2). Under the examination-in-chief of PW-6 “Test Memo” is explained as a document maintained by the Excise & Narcotics Station, Champhai depicting the name and address of the accused, alleged offence, seized contraband substances, date and place of its seizure, weight, samples drawn and markings etc., bearing official seal of the sender, facsimile seal of the sender office addressing to the FSL, Aizawl. In his cross-examination, PW-6 stated that it was a fact that inventory was not done in the present case. It was a fact that the samples were drawn by the seizing officer Mr. Lalengmawia and he produced the samples and the seized contraband substances to him. The samples were sent by Mr. In his cross-examination, PW-6 stated that it was a fact that inventory was not done in the present case. It was a fact that the samples were drawn by the seizing officer Mr. Lalengmawia and he produced the samples and the seized contraband substances to him. The samples were sent by Mr. B. Zoliana, the then Superintendant of Excise Station, Champhai to FSL, Aizawl. [18.] PW-7 B. Zoliana, who was the Superintendant of Excise Station, Champhai during the relevant time in his examination-in-chief stated that on 27.11.2014, the seizing officer Sh. Lalengmawia S.I of Excise seized the contraband substances from the appellant. Mr. B. Lalengmawia, S.I of Excise, who was the case I.O prepared test memo and took out the representative sample from the officer-in-charge, who had kept the same in the Malkhana. The case I.O came to him and produced the samples with the said test memo for further necessary action. He prepared a forwarding letter for sending the samples drawn by the seizing officer in presence of 2 (two) civilian witnesses on the place of occurrence, which was seized from the appellant, to the Joint Director-cum-Chemical Examiner, FSL, Aizawl dated 28.11.2014. He exhibited the photocopy of the Letter dated 28.11.2014 and his signature as Exhibit P(CPI-1) and Exhibit P(CPI(a)) respectively. In his cross-examination, PW7 stated that the then officer-in-charge as per usual practice forwarded the sample and the test memo to him and he came to his office. It was a fact that Mrs. H. Lalzikpuii, LDC of his office and who was the dealing assistant in FSL matters posted the letter under confidential cover. [19.] From the above evidence led by the prosecution, it may be noticed that 138 grams of suspected heroin was recovered from the possession of the appellant on 27.11.2014, while he was travelling in a mini-bus bearing Registration No. MZ-04/7673 proceeding towards Champhai from Zokhawthar/Tiau. The suspected heroin was kept in 10 (ten) soap cases which were wrapped with polythene and kept inside the bag of the appellant underneath his seat in the mini-bus. As deposed by PW-3, who was the seizing officer, he received certain information about some quantity of beer being transported from Zokhawthar to Champhai, he and the party proceeded towards the ‘dumping ground’ near Champhai and found the mini-bus in which the appellant was travelling. As deposed by PW-3, who was the seizing officer, he received certain information about some quantity of beer being transported from Zokhawthar to Champhai, he and the party proceeded towards the ‘dumping ground’ near Champhai and found the mini-bus in which the appellant was travelling. Before conducting search, he wrote down the ‘grounds of belief’ as he had no time to obtain a search warrant and he then proceeded to search the bus and the luggage of the passengers. Upon conducting the search, he and his party discovered the suspected heroin being carried inside the bag of the appellant. It is true that in the grounds of belief recorded by PW-3, he had written that there was a strong belief that the mini-bus was transporting some quantity of narcotic drugs according to the information from his source, while in his evidence during the trial he stated about the suspicion of beer being carried from Zokhawthar to Champhai. The same in my considered view cannot have an adverse bearing or impact on the case of the prosecution, inasmuch as, it is only a suspicion recorded in anticipation that there was a movement of illegal goods. Besides, what is important is that some recovery was made after search was conducted. [20.] PW-1 and PW-2, who are the seizure witnesses have deposed before the Court that 138 grams of suspected heroin was recovered from the possession of the appellant by the Excise personnel. According to them, samples were drawn from the seized article after weighment was taken. Thereafter, it was packed and sealed in their presence on the spot. The contraband substance may not have been seized or recovered from the physical possession of the appellant but the fact remains that it was recovered from his bag which was kept under his seat in the mini-bus. From the statement of the appellant during his examination under Section 313 Cr.P.C, the appellant did not deny having carried the suspected heroin. According to him, he did not know that it was heroin that he was carrying and that he was merely carrying it for others. [21.] Insofar as compliance of Section 42 of the NS&PS Act is concerned, it may be seen that the seizing officer recorded the ‘grounds of belief’ and thereafter, conducted the search and seizure on 27.11.2014 at about 5:45 & 6:00 PM. [21.] Insofar as compliance of Section 42 of the NS&PS Act is concerned, it may be seen that the seizing officer recorded the ‘grounds of belief’ and thereafter, conducted the search and seizure on 27.11.2014 at about 5:45 & 6:00 PM. As per the evidence of PW-6, who was the officer-in-charge of the Excise & Narcotic Drugs, Champhai and an officer who was superior to the seizing officer, the seizing officer produced the appellant with the sized contraband substance along with the representative samples to him on 27.11.2014 itself at about 8:00 PM. Upon receiving the same, he kept the seized contraband substance in the office Malkhana for safe custody under lock and key. The following day, Excise Case No. EXN-198/14/CPI dated 28.01.2014 under Section 21(b) of the ND&PS Act was registered and S.I B. Lalengmawia was endorsed to conduct investigation. The case I.O then prepared test memo and got the samples ready by receiving it from the officer-in-charge of Excise & Narcotics Station, Champhai and forwarded the same to the Superintendant of Excise & Narcotics, Champhai. The Superintendant of Excise & Narcotics, Champhai then forwarded the sample along with the test memo to the FSL, Aizawl. [22.] It may, however, be seen that although PW-6 had stated that he received contraband substance along with the representative samples from the seizing officer on 27.11.2014 itself at around 8:00 PM and thereafter, kept them in the office Malkhana, the Malkhana register exhibited by him as Exhibit-2 (CPI-2) otherwise shows that besides 138 grams of brown powder suspected to be heroin packed in 10 (ten) transparent polythene bags, there is no mention about the representative samples also being kept in the office Malkhana. It, therefore, appears that there is no explanation as to where the 10 (ten) representative samples were kept on the night of 27.11.2014. Besides this, from the evidence of the officer-in-charge of the Excise & Narcotics Police Station, the admitted position is that no inventory was made when he received the contraband substances from the seizing officer. Section 52A of the ND&PS Act provides as follows:- “52A. Besides this, from the evidence of the officer-in-charge of the Excise & Narcotics Police Station, the admitted position is that no inventory was made when he received the contraband substances from the seizing officer. 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.” [23.] 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 concerned 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. (supra) has 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.” [24.] 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 as can be seen from the cross-examination of the officer-in-charge of Champhai Excise & Narcotics station who was examined as PW-6. 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 also does not show that the representative samples were safely kept in the Malkhana on the night of 27.11.2014 before it was forwarded to the Superintendant of Excise & Narcotics by the case I.O for sending the same to FSL, Aizawl. This Court in Thounaojam Punima Singh (supra) held that sample must be taken under the direct supervision of the Magistrate. However, 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. As such, the entire process of search, seizure and taking sample being highly doubtful, the conviction and sentence of the appellant was set aside. In the present case as well, PW-1 in his examination-in-chief stated that the Excise personnel drew sample from each pack, took weighment and thereafter, packed and sealed the suspected drugs in their presence on the spot. As such, the entire process of search, seizure and taking sample being highly doubtful, the conviction and sentence of the appellant was set aside. In the present case as well, PW-1 in his examination-in-chief stated that the Excise personnel drew sample from each pack, took weighment and thereafter, packed and sealed the suspected drugs in their presence on the spot. However, in his cross-examination, he stated that weighment was done inside the vehicle before him but sample was taken in the office of the Excise and Narcotics at Mualbawk, Champhai District. This Court in Bhim Ram & Ors. vs. State of Assam, reported in 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. In Lalruatpuii Bawitlung vs. Union of India, reported in 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 Anti-smuggling 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, reported in 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. Accordingly, the same was set aside. In the present case as well, having regard to the contradiction noticed herein above, the failure to give an explanation as to where the representative samples was kept on the night of 27.11.2014, and the failure on the part of the officer-in-charge of the Excise & Narcotics station concerned to adhere to the provisions of Section 52A of the ND&PS Act in view of Mohanlal’s case (supra), the appellant in my considered view is only 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. However, in the present case, for the reasons stated herein above, the prosecution cannot be said to have proven the case beyond reasonable doubt. In that view of the matter, I find merit in the appeal. 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. [25.] In the result, the impugned judgment and order of conviction dated 09.03.2020 and the impugned order of sentence dated 11.03.2020 are hereby set aside. The appeal accordingly stands disposed of as allowed. The appellant is directed to be released immediately, if not wanted in connection with any other case.