JUDGMENT : MRIDUL KUMAR KALITA, J. 1. Heard Mr. Sentiyanger, the learned counsel for the appellant. Also heard Mr. K. V. Angami, the learned Public Prosecutor for the State of Nagaland. 2. This appeal under Section 374 of the Code of Criminal Procedure, 1973, has been filed by the appellant, namely, Pfonyi Khoza, impugning the judgment and order dated 03.04.2023, passed by the learned Special Judge (NDPS) Phek, in Sessions (Special) Case No.03/2022, corresponding to G.R. Case No. 05/2022 in connection with Pfutsero P.S. Case No.0001/2022, whereby, the appellant was convicted under Section 20(b)(ii)(C) of the NDPS Act, 1985 and was sentenced to undergo rigourous imprisonment for 10(ten) years and to pay fine of Rs.1,00,000/-and in default of payment of fine to undergo rigourous imprisonment for 6(six) months. 3. The facts relevant for consideration of the instant appeal, in brief, are as follows: (i) On 19.01.2022, one UBC Kedukro Tero had lodged an FIR before the Officer-In-Charge of Pfutsero Police Station Phek, inter-alia, alleging that with reference to DGP order No. vide PHG(CON-II)72/AE/2021/1789 dated 11.01.2022 and Superintendent of Police, Phek Order No. DEF/PK/CB- 110/2022-23/77 dated 13.01.2022, on that day (19.01.2022), at around 1600 hrs, Mobile Vehicle Check Post (MVCP) was conducted at Razeba Welcome Gate Pfutsero. At around 1750 hours, a white Maruti Gypsy (Unregistered) was intercepted. Upon frisking, 360 kgsapproximately, of suspected contraband Ganja was recovered from the vehicle. The driver, namely, Mr. Pfonyi Koza (the appellant) of Khezhakeno Village was arrested and was produced before the Pfutsero Police Station for further necessary legal action. (ii) Upon receipt of the aforesaid FIR, Pfutsero P. S. Case No.0001/2022 under Section 20(b)(ii)(C) of the NDPS Act, 1985 was registered. An S. I. Seyielhouca Kehie, who is S.I. of Police was entrusted with the investigation. (iii) The contraband (suspected Ganja) was seized and the appellant was furnished with the arrest memo. The inventories of the seized contraband was prepared by the Officer-In-Charge of Pfutsero Police Station and produced before the learned Judicial Magistrate First Class, Phek and samples were also drawn from the contraband before the learned Judicial Magistrate First Class, Phek for obtaining expert opinion of the Forensic Laboratory, Kohima. 4. Thereafter, on receipt of the FSL report from the Forensic Science Laboratory, whereby the samples sent to the Forensic Laboratory, Kohima were found to be cannabis (Ganja). 4. Thereafter, on receipt of the FSL report from the Forensic Science Laboratory, whereby the samples sent to the Forensic Laboratory, Kohima were found to be cannabis (Ganja). On completion of the investigation, the charge-sheet was laid against the above-named appellant under Section 20(C) of the NDPS Act, 1985. 5. The appellant faced the trial remaining in custody. On 19.07.2022, the Trial Court framed the charges under Section 20(b)(ii) and Section 20 (C) of the NDPS Act, 1985 against the appellant. It is pertinent to note that there appears to be error in framing of charges and in mentioning the penal provision in the form of charges. The same was however, rectified by order dated 17.01.2023 by the Trial Court and correct penal provision i.e., Section 20(b)(ii)(C) of the NDPS Act, 1985 was mentioned in the form of charges. The charges were read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. 6. To bring home the charge against the appellant, the prosecution side examined as many as six (06) prosecution witnesses including the Investigating Officer. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 and during which, though, he admitted that he was driving the vehicle from which seized contraband was recovered, however, he pleaded his ignorance about the fact that he was carrying Ganja in the said vehicle. 7. Before considering the rival submissions of the learned counsel for both the sides, let us go through the evidence of prosecution witnesses, which is available on record. 8. The PW-1, namely, Vekhwutsu Veswu, has deposed that he was serving as the Officer-in-Charge of the Pfutsero Police Station on 19.01.2022. On that day, at about 1750 hours, the Motor Vehicle Check Post (MVCP) was conducted at Razeba Welcome Gate, Pfutsero by I.R and UBC Kedukhro. He has deposed that he received a phone call from the UBC Kedukhro stating that during the checking one person carrying 36 packets of Ganja in one white Maruti Gypsy (unregistered) was intercepted. On this, the PW-1 along with the police party were rushed to the spot and formally he arrested the accused (the appellant) and seized the Ganja and brought it to the Pfutsero Police Station. On this, the PW-1 along with the police party were rushed to the spot and formally he arrested the accused (the appellant) and seized the Ganja and brought it to the Pfutsero Police Station. The PW-1 has further stated that the driver (the appellant) stated that he is from Manipur and he was told to deliver the Ganja to Kohima and was promised Rs.10,000/- in lieu of that. He exhibited the FIR as P-1 and his signatures thereon as Exhibit -P-1(a). 9. During his cross-examination, the PW-1 has deposed that the Ganja was intercepted at about 17:50 hours. He has also deposed that the owner of the Ganja could not be identified. He has also deposed that there was no mark or seal on the seized Ganja produced before the Court and the Ganja, which was produced before the Court was not in any packaging. 10. The PW-2, Kedukhro has deposed that he was the I.R guide and on 19.01.2022, while on MVCP duty along with 5 IRB police personnel at Razeba Gate, they intercepted one gypsy vehicle. He has deposed that he has informed the driver about checking the vehicle and the driver agreed to the same. He deposed that the vehicle was covered with tarpaulin and on suspicion of Ganja, he informed the Officer-in-Charge of Pfutsero Police Station, who reached at the spot and the Ganja and the vehicle was taken to the Police Station. During search of the vehicle, about 300 Kg of Ganja in about 10 kg in each packet numbering 36 packets were found. He exhibited the seized Ganja as Exhibit P-2. 11. During his cross-examination, the PW-2 has deposed that he was posted as a constable at Pfutsero Police Station. He has also deposed that at the time of investigation no Police Officer was available, however, after the arrest was made, the Officer-in- Charge of Pfutsero Police Station along with one jawan came to the spot. The PW-2 has further deposed that the Officer-in-Charge of Pfutsero Police Station empowered him to conduct raid and seize the contraband. He has also deposed that the Exhibit-P-2 did not have any mark and seal and was not packed properly. 12. During his re-examination, the PW-2 has deposed that when the vehicle was intercepted, the appellant was the only person in the vehicle and he was driving the said vehicle. 13. He has also deposed that the Exhibit-P-2 did not have any mark and seal and was not packed properly. 12. During his re-examination, the PW-2 has deposed that when the vehicle was intercepted, the appellant was the only person in the vehicle and he was driving the said vehicle. 13. The PW-3, Zao Domeh, has deposed that he was serving as LC posted at Pfutsero Police Station and on 19.01.2022, at about 5.00 p.m., he accompanied the Officer-in-Charge of Pfutsero Police Station to Razeba Welcome Gate on getting the information that one person along with his gypsy and Ganja has been intercepted during MVCP checking. 14. During cross-examination, he has deposed that the arrest memo was prepared at Pfutsero Police Station and he also appended his signature thereon. He has also deposed that he wrote the FIR and the complainant (PW-2) appended his signatures in the FIR. 15. The PW-4, Sekhotso Medeo, has deposed that on 19.01.2022, at about 6:30 p.m., he was at Pfutsero Police Station for his personal work. At that time, the Ganja, which was seized from the appellant in the Gypsy was shown to him and on seeing, it was told there were 36 packets and a seizure list was prepared, wherein he appended his signatures as witness. He exhibited the seizure memo as Exhibit P-3 and his signatures thereon as the Exhibit P-3(a). 16. During his cross-examination, he has deposed that he was not present at the spot at the time of seizure of the contraband. He has deposed that the seizure memo was signed at the police station. 17. The PW-5, Neikhwetso Mero, has deposed that he was serving as President of Khezha Area Public Organization and his residence is located near the Pfutsero Police Station. He has deposed that on 19.01.2022, at around 7.00-8.00 p.m., he was called by the Officer-in-Charge of Pfutsero Police Station to the Police Station, accordingly, when he went there, he saw one white color gypsyvehicle with no registration number there. When he went nearby, he found 36 packets containing Ganja were seized there. A seizure list was prepared and his signatures was put on the seizure list. 18. During cross-examination, the PW-5, has deposed that he was not sure whether the exhibit produced in the Court were seized on the particular date, when the seizure list was prepared. 19. When he went nearby, he found 36 packets containing Ganja were seized there. A seizure list was prepared and his signatures was put on the seizure list. 18. During cross-examination, the PW-5, has deposed that he was not sure whether the exhibit produced in the Court were seized on the particular date, when the seizure list was prepared. 19. The PW-6, Sevielhouca Kehie has deposed that he was serving as Officer-in-Charge of Chizami Police Station. He has deposed that on 19.01.2022 at around 16:00 hours, MVCP was conducted under the command of UBIC Yiepekhro at Razeba Welcome Gate. During the checking one white Maruti gypsy was intercepted carrying 360 kgs of suspected Ganja. The driver was arrested along with the seized vehicle and the seized substance brought to the Pfutsero Police Station. He has deposed that the arrest and the seizure intimation was forwarded to the Superintendent of Police, Phek. He has deposed that on 24.01.2022, one day police remand of the appellant was granted by Sub-Divisional Magistrate, Pfutsero. He has deposed that the inventory list was prepared by the Officer-in- Charge of Pfutsero Police Station and produced before the Court. The sealing and sampling were done before the Magistrate and the photographs were also taken in presence of Magistrate. He has further deposed that on 28.04.2022, the FSL report was received and the result was positive for cannabis Ganja. Accordingly, the charge-sheet was submitted before the Court. He exhibited the FSL report as Exhibit-P4 and the photographs of the seized contraband before the Magistrate as Exhibit-P-5. 20. During his cross-examination, he submitted that the samples were drawn in presence of Magistrate on 25.01.2022. He has also deposed that the seized contraband was not shown to him. 21. Though, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, by the learned Special Judge, (NDPS), Phek, it appears that during the said examination, the Trial Court had put only eight questions to him during which, the appellant admitted that though, he was driving the vehicle from which the contraband was recovered, however, he was not aware about the fact that the goods, which he was carrying was Ganja. He has also stated that the goods which he was carrying in the vehicle did not belong to him. He has also stated that the goods which he was carrying in the vehicle did not belong to him. It was at the insistence of one Kakho who asked him to carry the goods from Manipur to TCP Gate Kohima and he promised that he will be paying Rs. 10,000/- to the appellant. It is also stated by the appellant that the vehicle belongs to one cousin sister by the name Kasuni. 22. Mr. Sentiyanger, the learned counsel for the appellant has submitted that in the instant case, the search of the vehicle from which the contraband was seized as well as arrest of the appellant was made by the PW-2 namely, Kedukero who was posted as a constable at Pfutsero Police Station. He submits that the search and seizure of the contraband in this case was done by the PW-2, who is neither an empowered Officer under Section 41 of the NDPS Act, 1985, nor he was authorised to conduct search and seizure as well as to arrest the appellant, as there is a clear embargo in the statutory provision regarding such authorization of a constable to conduct search and seizure as well as arrest in connection with an offence under the NDPS Act, 1985. He submits that as the search of the vehicle driven by the appellant and arrest of the appellant was in violation of Section 41 and 42 of the NDPS Act, 1985, any such arrest, search and seizure gets vitiated and thereby, adversely effecting the prosecution?s case and on that ground the impugned judgment is liable to be set aside. 23. The learned counsel for the appellant has also submitted that the search and arrest done by the PW-2, who is a constable in the Pfutsero Police Station, is also in violation of the Notification issued by the Government of Nagaland bearing Notification No. CON- 72/85 dated 11.07.2013, whereby the Government of Nagaland empowered all the Officers of the rank of Assistant Sub Inspector of Police and above to exercise all powers mentioned in Section 42(1) of the NDPS Act, 1985. He submits that in the instant case, the first informant who conducted the search and arrested the appellant, acted in violation of the statutory provisions contained in Section 41 and 42 of the NDPS Act, 1985 as well as the aforementioned Government Notification. 24. He submits that in the instant case, the first informant who conducted the search and arrested the appellant, acted in violation of the statutory provisions contained in Section 41 and 42 of the NDPS Act, 1985 as well as the aforementioned Government Notification. 24. The learned counsel for the appellant submits that when the search and arrest are per se illegal, it vitiates not only the conviction and sentence based on such material but the trial also. In support of his submission, the learned counsel for the appellant has cited a ruling of the Apex Court in the case of “ Roy V.D. Vs. State of Kerala” reported in (2000) 8 SCC 590 , wherein the Apex Court has observed as follows: “18. It is well settled that the power under Section 482 CrPC has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.” 25. Mr. Sentiyanger, the learned counsel for the appellant has also submitted that the provisions of Section 42 of the NDPS Act, 1985 are mandatory and its non-compliance would render the conviction illegal. He submits that the harsh provisions of the NDPS Act, 1985, cast a duty upon the prosecution side to strictly follow the procedural requirements mandated under the NDPS Act, 1985, and not following the same would vitiate any finding. He has cited a ruling of this Court in the case of “Sh. F. Vanlalringa Vs. State of Mizoram” reported in 2010 (3) GLT 454. 26. He has cited a ruling of this Court in the case of “Sh. F. Vanlalringa Vs. State of Mizoram” reported in 2010 (3) GLT 454. 26. The learned counsel for the appellant has also submitted that in the instant case, the FSL report is itself defective in as much as the FSL report which has been exhibited as Exhibit P-4 by the prosecution side mentions the reference of the test memo accompanying the sample sent to the Forensic Laboratory as Memo No. DEF/PK/CB-68/2022-23/195 dated 04.01.2022. The learned counsel for the appellant submits that though, the date of the test memo accompanying the sample has been mentioned as 04.01.2022, however, in the instant case, the seizure was made on 19.01.2022, i.e., 15 days after the date mentioned in the test memo of the sample sent to the Forensic Laboratory, and therefore, it is clear that the samples sent to the Forensic Laboratory does not pertains to the seized contraband of this case and therefore, the Forensic Laboratory report, which is exhibited as Exhibit P-4 by the prosecution side cannot be relied upon. 27. The learned counsel for the appellant has also submitted that in the description of the samples mentioned in the Forensic Laboratory report exhibited as Exhibit P-4, it has been stated that the samples contain some plant material packed in yellow colour envelops. However, it has not been specifically stated therein that the plant materials were the flowering and fruiting top of the cannabis plant. 28. The learned counsel for the appellant submits that the forensic expert, who conducted the examination of the sample was also not called as a prosecution witness and therefore, the appellant was prejudice in not being able to cross examine him and bring on record the infirmities and contradictions, which are apparent in the Forensic Laboratory report which is exhibited as Exhibit P-4. 29. The learned counsel for the appellant has also submitted that for the sample to be categorized as Ganja, it has to contain more than 25% of Tetrahydrocannabinol. However, in the instant case, no such indication is there in the Forensic Laboratory report, which only mentions the result of the test that the exhibit marked as 'C' 97/2022 were found to be cannabis Ganja. 30. In support of his submissions, the learned counsel for the appellant has cited following rulings of the Trial Court of Madhya Pradesh: (i) Dayaram Vs. 30. In support of his submissions, the learned counsel for the appellant has cited following rulings of the Trial Court of Madhya Pradesh: (i) Dayaram Vs. The State of Madhya Pradesh through Excise Inspection Zone (Misc. Criminal Case No.7965 of 2011) (ii) Dinesh Rajod and Others Vs. Union of India (Criminal Appeal No. 544/2024 decided on 23.07.2024) 31. The learned counsel for the appellant has also submitted that in this case the prosecution side has miserably failed to prove that the chain of custody of the seized contraband was properly maintained from the time of its recovery and seizure till sending of the sample to the Forensic Laboratory and receipt of the Forensic Laboratory report back. 32. The learned counsel for the appellant has also submitted that the Malkhana Register in respect of the seized contraband was also not exhibited in this case. Neither the remnant of the sample, which were returned by the Forensic Laboratory has been exhibited by the prosecution side before the Trial Court. 33. The learned counsel for the appellant has also submitted that the PW-1, who was the Officer-In-Charge of the Pfutsero Police Station on the day of the incident has stated during his cross examination that when the seized contraband Ganja was produced before the Trial Court there was no mark or seal on the same. The learned counsel for the appellant has also submitted that it shows that the chain of custody of the seized Ganja was not properly maintained and a possibility of tampering with the contraband may not be ruled out in this case. 34. He submits that it was the burden of the prosecution side to prove the foundational facts in respect of the allegations made against the appellant in this case, which include proper maintenance of chain of custody of the seized contraband till receipt of the reports of Forensic Laboratory regarding the samples drawn from the said contraband, which the prosecution side has not done in this case. In support of his submission, the learned counsel for the appellant has cited the ruling of Apex Court in the case of “N oor Aga Vs. State of Punjab” reported in (2008) 16 SCC 417 35. The learned counsel for the appellant has also submitted that the examination of the appellant under Section 313 of the Code of Criminal Procedure, 1973 was perfunctorily conducted by the Trial Court. State of Punjab” reported in (2008) 16 SCC 417 35. The learned counsel for the appellant has also submitted that the examination of the appellant under Section 313 of the Code of Criminal Procedure, 1973 was perfunctorily conducted by the Trial Court. He submits that only 08 (eight) questions were posed to the appellant by the Trial Court and all the incriminating circumstances, which were relied upon by the Trial Court in coming to the conclusion of the guilt of the appellant were not put to him during his examination under Section 313 of the Code of Criminal Procedure, 1973. 36. He submits that the circumstances, which were not put to the appellant by the Trial Court, while he was examined under Section 313 of the Code of Criminal Procedure, 1973 cannot be taken into consideration at the time of determining the guilt of the appellant. In support of his submission, the learned counsel for the appellant has cited a ruling of the Division Bench of this Court in the case of “State of Nagaland Vs. Lipok A O and Others ” reported in (2007) 3 GLT 786 , wherein it was observed as follows: “21. Section 313, Cr.P.C. aims at enabling the accused to personally explain circumstances appearing in the evidence against him. Examination of an accused under Section 313(1)(b), Cr.P.C. is, therefore,, not an empty formality, but a solemn act of every trial Court. 22. As observed by the Apex Court, in State of Maharashtra v. Sukhdeo Singh, Section 313, Cr.P.C. is a statutory provision, which embodies the fundamental principle of a fair trial based on the maxim audi alteram partem and that attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances, laid on record, with a view to giving the accused an opportunity to offer his explanation if he chooses to do so. As a matter of fact, as indicated in Sukhdeo Singh (supra). Section 313(1)(b), Cr. P.C. not only casts a solemn duty on the trial Court to elicit the response of the accused to every piece of incriminating circumstance, which may appear against him, but also confers a corresponding right on the accused to receive an opportunity so that he can offer his explanation, if he has any, with regard to such incriminating materials or circumstances as may be appearing against him from the evidence on record. Examination of the accused under Section 313(1)(b), Cr. P.C. is reached after the witnesses of the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of prosecution’s evidence and before recording statement of the accused under Section 313(1)(b), Cr. P.C. the trial Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. Before an accused is examined under Section 313(1)(b), Cr. P.C. the trial Judge is not expected to sift the evidence and pronounce whether or not he would accept the evidence regarding any incriminating material against the accused to determine whether or not he would examine the accused on that material. To do so, points out the Apex Court, in Sukhdeo Singh 1992 Cri LJ 3454 (supra), would amount to pre-judging the evidence without hearing the prosecution under Section 314, Cr.P.C. No wonder, therefore, that the Supreme Court, in Sukhdeo Singh (supra), has observed that however weak or scanty the prosecution evidence may be with regard to an incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereto. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under Section 313. In short, if there is material against the accused, he must be examined, under Section 313(1)(b), Cr.P.C. In fact, it is apposite to pointed out, at this stage, that in Sharad Birdhi Chand Sarda v. State of Maharashtra the Apex Court made it clear that the circumstances, which were not put to an accused, while he was examined under Section 313, Cr.P.C. such circumstances have to be kept excluded from the Court’s considering at the time of determining the guilt or otherwise of the accused.” 37. The learned counsel for the appellant has also submitted that the appellant was not having conscious possession of the contraband, which was recovered from his vehicle. He submits that during his examination under Section 313 of the Code of Criminal Procedure, 1973, he has categorically stated that he was engaged by one Kakho to take his goods to TCP Gate Kohima from Manipur and on assurance of paying of Rs. He submits that during his examination under Section 313 of the Code of Criminal Procedure, 1973, he has categorically stated that he was engaged by one Kakho to take his goods to TCP Gate Kohima from Manipur and on assurance of paying of Rs. 10,000/- and he was unaware of the fact that the goods which are being carried in the vehicle, which was driven by the appellant may contain Ganja. 38. Mr. K. V. Angami, the learned Public Prosecutor has submitted that the Trial Court has rightly arrived at conclusion of the guilt of the appellant under Section 20(b)(ii)(C) of the NDPS Act, 1985 for possessing commercial quantity of Ganja. He submits that the discrepancy of date mentioned in the test memo accompanying the samples to Forensic Laboratory, i.e., mentioned about the date “04.01.2022” therein can be ignored as the same is only a typographical mistake as on perusal of the Exhibit P-4 itself appellant that he samples were sent to the Forensic Laboratory in connection with Pfutsero P.S. Case No.0001/2022, which was registered on 19.01.2022. 39. Mr. K. V. Angami, the learned Public Prosecutor has further submitted that the discrepancy in the FSL report was never questioned by the appellant in trial nor the same has been taken as a ground of appeal in the memo of appeal presented by the appellant impugning the judgment dated 03.04.2024. 40. Mr. K. V. Angami, the learned Public Prosecutor has also submitted that the non-exhibition of the Malkhana Register was never raised by the Trial Court and, therefore, he estopped from raising the said plea in this appeal. 41. The learned Public Prosecutor has also submitted that the fact that all the incriminating materials were not put to the appellant during his examination under Section 313 of the Code of Criminal Procedure, 1973 was also not raised before the Trial Court at the time of argument before the Trial Court and he has not shown as to how the appellant was prejudiced by not putting all the incriminating circumstances to him in his examination under Section 313 of the Code of Criminal Procedure, 1973. 42. Mr. 42. Mr. K. V. Angami, the learned Public Prosecutor has also submitted that during his examination under Section 313 of the Code of Criminal Procedure, 1973, the appellant has admitted that the vehicle from where the contraband was recovered was driven by him and in view of the said admission, there was no necessity on the prosecution side to prove the said fact, in view of the Section 58 of the Indian Evidence Act. 43. The learned Public Prosecutor has also submitted that the Trial Court has dealt with the issue of recovery of all the seized contraband from the conscious possession of the appellant and by holding that under Section 35 and 54 of the NDPS Act, 1985, it was the burden of the appellant to rebut the presumption that the appellant was having conscious possession of the contraband and on failure of the appellant to rebut the said presumption, the Trial Court correctly came to the conclusion of guilt of the appellant under Section 20(b)(ii)(C) of the NDPS Act, 1985. 44. Mr. K. V. Angami, the learned Public Prosecutor has also submitted that the search of the vehicle from which the contraband was recovered and arrest of the present appellant was made during Mobile Vehicle Check, which was conducted at Razeba Welcome Gate, Pfutsero and the same was informed to the Officer-In- Charge of Pfutsero Police Station, who in turn informed the Superintendent of Police, Pfutsero about the same. He, therefore, submits that there has been a delayed compliance of the provision of Section 42 (2) of the NDPS Act, 1985 in this case, which is not fatal to the prosecution?s case. 45. In support of his submission, Mr. K. V. Angami, the learned Public Prosecutor has cited a ruling of Division Bench of this Court in the case of “ Binod Yadav Vs. Union of India ” (Criminal Appeal No. 67 of 2019, judgment delivered on 04.10.2024), wherein it relied upon the ruling of the Apex Court in the case of “Karnail Singh vs. State of Haryana” reported in (2009) 8 SCC 539 , wherein it was observed that while total non-compliance of the requirements of Section 42 (1) and (2) of the NDPS Act, 1985, is impermissible, however, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42 of the NDPS Act, 1985. 46. Mr. 46. Mr. K. V. Angami, the learned Public Prosecutor submits that the impugned judgment of conviction of the appellant under Section 20(b)(ii)(C) of the NDPS Act, 1985 and sentence imposed on him, therefore, needs no interference from this Court in this case, hence, he prays for dismissing the appeal. 47. I have considered the submissions made by the learned counsel for both the sides and have gone through the records of Sessions (Special) Case No.03/2022, which was called for, in connection with this appeal. I have also gone through the rulings cited by the learned counsel for both the sides in support of submissions made by them. 48. On perusal of the FIR, which was exhibited as Exhibit P-1 by the prosecution side, it is apparent that the search of the white colour Maruti Gypsy from where 360 kg suspected Ganja was recovered was done by the informant, namely, Kedukhro, who has deposed as Prosecution Witness No. 2 and who was posted as a constable in Pfutsero Police Station on that day. 49. It appears from the evidence on record that the search of the vehicle from where the Ganja was seized was done by the PW-2, who was a constable at the time of conducting the said search. It also appears that it was he, who had arrested the appellant at the place of search of the vehicle, though, the arrest memo was prepared later on in the police station. 50. The question, which arises for consideration in this appeal, is as to whether the PW-2 was authorized to conduct search and arrest under the provisions of NDPS Act, 1985. 51. In this regard, the observations made by the Apex Court in the case of “ Roy V.D. Vs. State of Kerala” (Supra) are very relevant and therefore, the same are reproduced herein below: “9 . A reference to Sections 41 and 42 of the NDPS Act will be apposite. They read as under: “41. 51. In this regard, the observations made by the Apex Court in the case of “ Roy V.D. Vs. State of Kerala” (Supra) are very relevant and therefore, the same are reproduced herein below: “9 . A reference to Sections 41 and 42 of the NDPS Act will be apposite. They read as under: “41. Power to issue warrant and authorisation.—(1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a Peon, Sepoy, or a Constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42. 42. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.—(1) Any such officer (being an officer superior in rank to a Peon, Sepoy or Constable) of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a Peon, Sepoy or Constable) of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds on his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.” 10. Sub-section (1) of Section 41 of the NDPS Act enables a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class who is especially empowered by the State Government in this behalf to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act. Such a warrant may also be issued for the search of any building, conveyance or place in which he has reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. Arrest or search under a warrant issued in this provision can be made at any time whether by day or by night. 11. Sub-section (2) of Section 41 of the NDPS Act entitles any officer of gazetted rank of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force who has been empowered in that behalf by general or special order of the Central Government, or any officer of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in that behalf by general or special order of the State Government, to arrest a person or search a building, conveyance or a place or to authorise any officer subordinate to him but superior in rank to a Peon, Sepoy or a Constable, to arrest such a person or search a building, conveyance or place whether by day or by night. 12. Sub-section (3) of Section 41 of the NDPS Act says that the officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search and the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42. 13. 12. Sub-section (3) of Section 41 of the NDPS Act says that the officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search and the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42. 13. Sub-section (1) of Section 42 of the NDPS Act enumerates the powers of any such officer as is specified therein and who is duly empowered by the Central Government or the State Government, as the case may be. If he has reason to believe either from personal knowledge or on information given by any person and taken down in writing, that (a) any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed; or (b) any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, he may exercise the following powers, between sunrise and sunset. They are: (i) enter into any building and search any such building, conveyance or place and if faced with any resistance, break open any door and remove any such obstacle to such entry; (ii) seize: (a) such drug or substance and other materials any other article or any animal or conveyance which he has reason to believe to be liable to confiscation under the Act; and (b) any document or other article which he has reason to believe may furnish evidence of the commission of any offence relating to such drug or substance; and (iii) detain and search and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance. The proviso to sub-section (1) says that an empowered officer may also enter into any building, conveyance or enclosed place at any time between sunset and sunrise if he has reason to believe that a search warrant or authorisation cannot be obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender but in such a case before so proceeding he is enjoined to record the grounds of his belief. 14. 14. Sub-section (2) of Section 42 contains a procedural directive to the officer who takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto to send forthwith a copy thereof to his immediate official superior. 15. It is thus seen that for exercising powers enumerated under sub-section (1) of Section 42 at any time whether by day or by night a warrant of arrest or search issued by a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class who has been specially empowered by the State Government in that behalf or an authorisation under sub-section (2) of Section 41 by an empowered officer is necessary. Without such a warrant or an authorisation, an empowered officer can exercise those powers only between sunrise and sunset. However, the proviso permits such an empowered or authorised officer to exercise the said powers at any time between sunset and sunrise if he has reason to believe that such a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence of facility for the escape of an offender and he records the grounds of his belief. 16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of Section 36-A of the NDPS Act. It follows that any collection of materials, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial. 17. To the same effect is the view expressed by this Court in State of Punjab v. Balbir Singh [ (1994) 3 SCC 299 : 1994 SCC (Cri) 634] . In para 13 Jayachandra Reddy, J. speaking for the Court observed thus: (SCC p. 313) “13. 17. To the same effect is the view expressed by this Court in State of Punjab v. Balbir Singh [ (1994) 3 SCC 299 : 1994 SCC (Cri) 634] . In para 13 Jayachandra Reddy, J. speaking for the Court observed thus: (SCC p. 313) “13. Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial.” 52. On perusal of the aforesaid observations made by the Apex Court, it appears that no officer other than an empowered officer can resort to Section 41 (2) or exercise powers under Section 42 (1) of the NDPS Act, 1985, and make a complaint under Clause (d) of Sub-section (1) of Section 36A of the NDPS Act, 1985. 53. If any arrest or search made by any other person not empowered or authorized, the same would per se be illegal and would consequently, vitiate the trial. 54. In the instant case, though, the PW-2 has deposed that he was authorized by the Officer-In-Charge of Pfutsero Police Station to conduct search and seizure of the contraband, however, there is a clear embargo in Section 41 of the NDPS Act, 1985 to authorize arrest of any person or search or any place under Section 41 (2) of the NDPS Act, 1985, if the said person is not superior in rank to a peon, Sepoy or a constable. In the instant case, PW-2 was admittedly a constable, and therefore, he could not have been authorised to conduct search and seizure in the instant case. 55. Another important aspect of this case is that on perusal of the seizure list, names of two seizure witnesses have been mentioned in the said seizure list, which is exhibited as P-3. They are, Mr. Sekhotso Medeo, who was examined as PW-4, and Mr. Neikhwetso Mero, who was examined as PW-5. Both of them have deposed that they were present at the spot, when the contraband was seized. They are, Mr. Sekhotso Medeo, who was examined as PW-4, and Mr. Neikhwetso Mero, who was examined as PW-5. Both of them have deposed that they were present at the spot, when the contraband was seized. Though, from the evidence of PW-2, it appears that the search of the vehicle from where the contraband was recovered was made at Razeba Gate, however, none of the seizure witness was present there at that time and they were later on called to the police station to put their signatures on the seizure list. Thus, the prosecution side has failed to adduce evidence of independent witnesses to prove the seizure of the contraband in this case. 56. One another important aspect, which dent into the prosecution case is that the date mentioned in the test memo accompanying the sample sent to the Forensic Laboratory for examination is 04.01.2022, whereas the date of the seizure of this contraband in this case is shown as 19.01.2022. The test memo of the sample collected from the contraband, which was seized on 19.01.2022 could not have contained date of 04.01.2022, which creates a doubt regarding the fact as to whether the sample sent to the Forensic Laboratory pertains to the contraband seized in this case or not. 57. The submission of the learned Public Prosecutor that the same might be a typographical mistake is not acceptable as in an offence involving commercial quantity of contraband, where punishment prescribed is harsh punishment, the burden on the prosecution side to prove the foundational fact is very important and the same cannot be taken lightly. Apart from mere submission of the learned Public Prosecutor that the discrepancy in the date mentioned in the test memo, accompanying the sample is a typographical mistake, there is no material on record to substantiate the said submissions of the learned Public Prosecutor. 58. The prosecution side has failed to prove that the chain of custody of the seized contraband was properly maintained from the time of its recovery and seizure till the sending of the samples to the Forensic Laboratory and receipt of the report of the Forensic Laboratory in respect of the said samples. 59. 58. The prosecution side has failed to prove that the chain of custody of the seized contraband was properly maintained from the time of its recovery and seizure till the sending of the samples to the Forensic Laboratory and receipt of the report of the Forensic Laboratory in respect of the said samples. 59. If the evidence on record, which includes the Forensic Laboratory report, wherein the mention about the date of the test memo accompanying the sample is there, creates doubt regarding the veracity of samples drawn from the contraband the benefit of said doubt shall go to the appellant in this case. 60. As regards the manner, in which, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, it appears that in the instant case, the same was not recorded in terms of the provisions of the Section 313(1)(b) of the Code of Criminal Procedure, 1973. As per the said provision, the Trial Judge has to put to the accused every piece of such evidence, which appears incriminating against the accused and reply of the accused shall be sought thereto. 61. In the instant case, the questions were put to the accused in the manner as if he was being cross-examined by the Court. He was not informed as to which witness have adduced what incriminating materials against him in their testimony. 62. It is also pertinent to note that no question was put to the appellant during his examination under Section 313 of the Code of Criminal Procedure, 1973, regarding the Forensic Laboratory report, which was exhibited as Exhibit P-4, so as to enable him to explain against the said Forensic Laboratory report. 63. It is no longer res integra in view of the observations made by the Apex Court in several of its rulings (for example, in the case of “ Sharad Birdichand Sharda Vs. State of Maharashtra reported in AIR 1984 SC 1622 ) , wherein it was made clear that the circumstances, which were not put to an accused, while he was examined under Section 313 of the Code of Criminal Procedure, 1973, shall have to be kept excluded from the Court?s considerations at the time of determining the guilt or otherwise of the accused. 64. 64. In the instant case, if the Forensic Laboratory report exhibited by the prosecution side as Exhibit P-4 is excluded from consideration the prosecution case falls flat. 65. In view of what has been discussed in the foregoing paragraphs, this Court is constrained to observe that the conduct of the investigation as well as trial by the prosecution side and examination of the appellant by the Trial Court has been done in the manner, which leaves glaring loopholes in the prosecution case, which give rise to inescapable inference that the prosecution side has miserably failed to show that all the mandatory provisions of the NDPS Act, 1985 were complied with as well as it also failed to prove the basic foundational facts, which are essential for convicting an accused in an offence under Section 20(b)(ii)(C) of the NDPS Act, 1985. 66. Resultantly, the impugned judgment passed by the learned Special Judge, NDPS, Phek in Sessions (Special) Case No. 03/2022 corresponding to G.R. Case No. 05/2022 and Pfutsero P.S. Case No.0001/2022 is hereby set aside and the appellant is acquitted of charges under Section 20(b)(ii)(C) of the NDPS Act, 1985. 67. The appellant shall be set at liberty forthwith, if not required in connection with any other case. 68. Let the Trial Court record be sent back along with a copy of this judgment.