IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE

LUNGLEI JUDICIAL DISTRICT: LUNGLEI

PRESENT
Smt.Helen Dawngliani
Addl. District & Sessions Judge

Crl.Tr.150/2016
u/s 22( C) NDPS Act

Ref :- Lunglei Excise & Narcotics Station Case No. 31/2016 dt.30.4.2016 U/s
22(C)NDPS Act

State of Mizoram

Versus

1. Lalmuanpuia
S/o Vanlalauva
R/o ITI Veng, Aizawl.
Mizoram

2. Lalchhuanpuia
S/o Zotawnliana
R/o Chawnpui, Tlabung
Mizoram

3. Vanlalrengpuia
S/o Ngurhmingliana(L)
R/o Dinthar, Aizawl
Mizoram ….... Accused
Date of hearing ……. 24.4.2017
Date of Judgment ……. 28.4.2017

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 APPEARANCE

For the Prosecution ……. Mrs. C.Vanlalmuani Addl.PP

Mr.MS Dawngliana APP
For the Accused ……. Mr. F.Lalchhanhimi Advocate

JUDGMENT & ORDER

1. The brief story of the prosecution is that on 30.4.2016 @ 12 noon acting

on the information received from the BSF Personnel, SI/HC Lalramthara, Exise &
Narcotics Station Lunglei seized 15000/- tablets suspected to be
Methamphetamine from Joshua Hotel at Bazar Veng, Lunglei. The three accused
persons were apprehended in connection with the said seizure. SI/HC
Lalramthara submitted Report of Seizure and Arrest on 30/4/2016 itself to the
Officer-in-Charge, Excise and Narcotics Station, Lunglei and on the basis of the
Report Excise Case No.31/2016 Lli dt. 30.4.2016 u/s 22( C) NDPS Act was
registered.

Investigation was conducted and on completion of investigation, having

found prima face case against the 3 accused namely, Lalmuanpuia,
Lalchhuanpuia and Vanlalrengpuia, complaint u/s 190(1)(a) Cr.PC was
submitted against them for the offence punishable u/s 22( C) NDPS Act.

2. Copy of the Complaint sheet and all connected documents were delivered
to the accused.

3. Charge u/s 22(C) NDPS Act was framed against the accused. The
charge was read over and explained to each of the accused in the language
known to them, to which, all of them pleaded not guilty and claims for trial.

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4. In order to prove its case, the prosecution examined 4 witnesses. The
accused was examined u/s 313 Cr.PC, defence declined to lead evidence and
thereafter parties were heard.

Mrs. Vanlalmuani the Ld. Addl.PP submitted that even though it appears
that search was not done in presence of civilian witnesses, no prejudice was
caused by such irregularity and that the civilian witnesses clearly identified that 3
accused persons in the court and stated that they were present in the hotel room
from where recovery was made. The Ld. Addl.PP also submitted that since the 3
accused persons were in the hotel room from where the contraband was
recovered it can be presumed that they were in conscious possession of the
same. The Ld. Counsel therefore prays to convict the 3 accused.

On the other hand, Ms.F.Lalchhanhimi Ld.Defense Counsel submitted that

even though the alleged recovery was made from a Hotel room, the same
continued to be an enclosed place as such the provision of section 42 ND&PS
Act would be applicable. But in this case, from the prosecution evidence itself it
is clear that the said provision of law have been violated. It is by now a settled
position of law that complete violation of section 42 ND&PS Act is fatal to an
inquiry and trial. Secondly, the provision of section 100(4) Cr.PC is violated. In
this regard the Ld. Counsel argued that since the alleged search and seizure was
made from a hotel which is centrally located in the heart of the town there was
no difficulty to procure civilian witness as provided u/s 100 Cr.PC. But in this
case, it is seen that search was already done before the civilian witnesses
arrived, as such, the provision of section 100(4)Cr.PC have been made
redundant. Thirdly, the prosecution has failed to prove possession of the
contraband. In this connection, the Ld. Counsel argued that the prosecution has
failed to prove that the said Room No.203 Joshua Hotel was actually occupied by
the 3 accused and that the bag from where the alleged recovery was made
belonged to the accused persons. In this regard the Ld. Counsel further
submitted that from the evidence adduced by the prosecution it is clear that
there were 2 or 3 other civilians in the room, but nothing is known about the
said civilians, this has created more doubt in the prosecution story. With such

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irregularity and lack of sufficient proof of possession of the contraband, the Ld.
Counsel prays to acquit the accused persons.

6. POINT(S) FOR DETERMINATION :

1. Whether the contraband in question i.e Methamphetamine is psychotropic

substance ? If so, what was the quantity seized?

2. Whether there was due compliance of procedure with regard to search,

seizure, arrest etc? If so,

3. Whether there was violation with regard to manufacture, possession, sell,

purchase, transport, import-inter State or use which is liable to be punished u/s
22 (C)NDPS Act ?

7. EVIDENCE:-

The evidence adduced by the prosecution may be briefly highlighted:-

PW No.1/ PC Lalthansanga is seizure witness. He stated that at the

request of Excise personnel on 30.4.2016 he went to Room no.203 Hotel Joshua
at Bazar Veng Lunglei. He saw the 3 accused inside the room. The Excise
personnel showed them the suspected drugs and there was some more in the
bags of the accused. 3 packets were opened and inside the said packet there
were 75 smaller packets. Inside the smaller packets there were tablets of
pink/light red colour. He admitted that all the packets were not opened and
counted and that it was presumed that the tablets altogether would be 15000/-.
He also admitted that he did not see the actual act of recovery and that when he
reached the spot it was already recovered but the packets were not yet opened.

PW No.2/C.Biakthankima is also seizure witness. He also stated that

when he entered the hotel room he saw the 3 accused and some BSF personnel,
PW /PC Lalthansanga was also there. He saw 3 packets on the table. The

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biggest packet was opened and it contained 75 smaller packets. 2 packets of the
said smaller packets were opened and they contained 200 tablets each. He too
admitted that when he reached the hotel room the contraband was already
recovered. When he reached the room the 3 accused, 2 BSF personnel about 3
Excise personnel and PC Lalthansanga were there. All the tablets were not
counted.

PW No.3/ SI HC Lalramthara is the seizing officer. He stated that on

30.4.2016 @ 10:30am the OC Excise and Narcotics Station received information
from BSF personnel about suspected drug trafficking at Hotel Joshua, Bazar Veng
Lunglei. On the instruction of the OC he proceeded to the spot where he met
the BSF team. Excise team along with BSF personnel entered room No.203 of
Hotel Joshua where he saw the 3 accused and 2/3 other civilians. Before
conducting search they procured civilian witnesses. Before the civilian witnesses
arrived the 3 accused took out 3 packets from one bag. After the civilian
witnesses arrived they opened the packet and it contained suspected
methamphetamine tablets. The tablets from one packet was counted and it was
200. There were 75 packets and seeing the size of the tablets they presumed
that the total number of tablets would be 15000 i.e 75packets x200tablets. In
his cross examination he admitted that before entering the hotel room they did
not call civilian witness. When they reached the spot BSF personnel were
outside the hotel but he does not know if they had entered the hotel room
earlier. He admitted that they did not count the tablets from all the packets. He
did not obtain signatures of the accused on the body of grounds of belief which
he recorded.

PW No.4/ SI Zothuamliana is the Investigating officer. During

investigation he recorded statements of accused and witnesses. He visited the
hotel room from where recovery was made. He made an attempt to arrest Pi
CLi and Pu Vana whom the accused named as owner of the drugs but the same
was in vain. He received the FSL Report which was positive for
methamphetamine. Since seizure was made from the possession of the 3
accused he formed the opinion that they simply named some other person in

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order to save themselves, so he submitted complaint u/s 190 Cr.PC for the
offence u/s 22( C) NDPS Act against the 3 accused. He is not sure whether the
civilian witnesses whom he listed in the complaint sheet are the ones who were
with the accused when the search team entered the hotel room. He admitted
that the two civilian seizure witnesses were called after recovery was made.
There is no identification mark in the bag from where recovery was made.

8. POINT NO.1
Whether the contraband in question i.e Methamphetamine is psychotropic
substance? If so, what was the quantity seized?

9. PW No.1/PC Lalthansanga and PW No.2/C.Biakthankima both stated that

they witnessed the drawal of sample on the spot. PW No.3/SI HC Lalramthara
stated that sample was drawn on the spot.

PW No.4/SI Zothuamliana exhibited the FSL Report at Ext.P-V. The said

FSL Report was prepared by Asst.Director, FSL. As per the report, the exhibit
which was sent for examination was found to contain Methamphetamine.
Section 293 Cr.PC provides that report prepared by Government Scientific Expert
whose designation are listed under the said provision can be admitted into
evidence without formal proof of the same. Asst. Director of State FSL is one of
such Scientific expert listed in the said provision. As such, the finding arrived
can be admitted into evidence even without any formal proof of the same.

10. In the List of Psychotropic Substances prepared in the Schedule under

section 2(xiii) of the NDPS Act, Methamphetamine is included as Psychotropic
substance.

11. Since the exhibit sent for examination in this case is proved to contain
Methamphetamine upon examination by Asst.Director, FSL Aizawl who is
Government Scientific Expert and since Methamphetamine is a Psychotropic
substance as per The Schedule of Psychotropic Substances annexed to the NDPS

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Act, it can be safely concluded that the seized drug was Methamphetamine and
that the same is Psychotropic substance.

12. Coming to the quantity of Methamphetamine, PW No.1/PC Lalthansanga

stated that “ The tablets from two packets were counted in my presence. Since
there were many packets and all of them were of the same size we presumed
that all the packets would contain about 15,000 tablets”. In his cross
examination, he further stated “3.I did not count the tablets but I saw the
counting. All the packets were not opened and counted”. PW
No.2/C.Biakthankima stated that “The biggest of the three packets was opened
in my presence and I saw that inside the said packet there were 75 smaller
packets. Then 2 packets from the 75 smaller packets were opened and they
contain 200 tablets each. In my presence I did not see the opening of the two
other packets on the table.”. In his cross examination he stated “ 3. It is a fact
that since all the tablets were not counted in my presence I do not know the
exact number of the tablets seized”. PW No.3/SI HC Lalramthara stated “ Being
suspicious we opened the packets and counted the tablets. In one packet there
were 200 tablets. There were 75 packets and seeing the size of the packets and
the total number of the packets we presumed to be 15000(75x200)”. In his
cross examination he further admitted that “11. It is a fact that we did not count
the Tablets in all the Packets”.

13. From the evidence highlighted above, it is clear that there were 75
packets out of which only 2 packets were opened and its content were counted.
Each of the two packets contained 200 tablets of Methamphetamine. It appears
that the remaining 73 packets were not opened nor their contents counted. It is
also not known whether all the remaining 73 packets have the same content as
the two packets which were opened and counted. From the evidence of PW
No.3/SI HC Lalramthara who is the seizing officer it is seen that they simply
presumed that the tablets would be 15000 considering the uniformity in the size
of the packet and the content of the packet they opened and counted. From
the evidence of PW No.4/SI Zothuamliana who is the investigating officer, it
appears that the seized items were not counted by him after he took over the

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investigation and that he simply relied on the counting done by the Seizing
officer who submitted report of seizure and arrest to the OC, Narcotics Station
Lunglei.

14. With the evidence and materials in hand, at the most it can be safely
concluded that the seized drug was Methamphetamine tablets which were 200 in
numbers. This Court cannot conclude that the remaining 73 packets which
appeared to be of the same size with that which were opened also contained 200
tablets of Methamphetamine without any formal proof the content of the packet
as well as the quantity of the content of each packet.

15. As per the FSL Report at Ext.P-V, the tablet weight about 0.095gms. In
terms of the Notification specifying small and commercial quantity, upto 2gms is
small quantity and 50gms onwards are commercial quantity. Notification S.O
2941(E) dt.18.11.2009 provides that the quantities shall apply to the entire
mixture or any solution or any one or more narcotic drugs or psychotropic
substances of that particular drug in dosage form or isomers, esters, ethers and
salts of these drugs, including salts of esters, ethers and isomers, wherever
existence of such is possible and not just its pure drug content. As such in the
instant case, if there are 200 tablets of 0.095 gms the total weight would be, 19
gms. Since the weight falls in between small quantity and commercial quantity,
the offence would fall u/s 22( b) NDPS Act.

16. POINT NO.2

Whether there was due compliance of procedure with regard to search,

seizure, arrest etc?

PW No.1/ PC Lalthansanga and PW No.2/C.Biakthankima are seizure

witnesses. Both of them admitted that they did not witness the actual act of
recovery and that when they reached the hotel room after the contraband drugs
were already recovered. PW No.3/SI HC Lalramthara admitted that before they

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entered the hotel room they did not call civilian witnesses. He also stated that
when they reached the spot the BSF personnel were outside the hotel but he
was not sure whether they have already entered the hotel before giving
information to them. Similar is also the statement of PW No.4/SI Zothuamliana
when he stated that he does not know whether the BSF personnel already
entered the hotel room before the Excise team arrived.

17. Section 51 NDPS Act provides that the provisions of the Code of Criminal
procedure shall apply, in so far as they are not inconsistent with the Act, to all
warrants issued and arrests, searches and seizures made under the NDPS Act.
As per section 100(4) Cr.PC two or more independent and respectable inhabitant
of the locality will have to witness the search. But in this case, from the
evidence it appears that search was already conducted before civilian witnesses
were called to the spot. Therefore, it appears that search was conducted in
violation of section 100(4) Cr.PC. In the case of State of Punjab versus Balbir
Singh 1994 AIR 1872 the Honb’le Supreme Court has held that violation of
section 100(4) CrPC is an irregularity and the effect of it would depend on the
fact and circumstances of each case. The effect of such non-compliance will have
bearing on the appreciation of evidence of official witness and other materials
depending upon the facts and circumstances of each case. In other words, from
the said decision it can be understood that in case of violation of section
100(4)CrPC which is an irregularity, evidence have to be examined with
circumspection and would depend on the facts of each case.
In the instant case the accused persons deny that the room from where
the contraband was recovered was occupied by them. In such a situation the
presence of independent and reliable civilian witness becomes all the more
important before search was conducted. In this case it has also come in evidence
that 2 or 3 civilians were also in the room and PW No.4 SI. Zothuamliana who is
the investigating officer stated that he does not know whether the 2 civilian
witness whom he listed in the complaint sheet were the ones who were with the
accused when the search team entered the room. It is also in evidence that
initial information was given to the Excise personnel by the BSF. As per evidence
the BSF personnel were outside the Hotel Building when the search team of

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Excise and Narcotic Department proceeded to the spot. PW No.3 SI
HC.Lalramthara, seizing officer and PW No.4 SI Zothuamliana, investigating
officer both stated that they do not know whether search was already conducted
by the BSF before they arrived. As already mentioned before it has come in
evidence that the search team did not even bother to count all the seized
(alleged) drugs not to speak of carrying out the counting properly. This conduct
on the part of the search team depicts carelessness and lackadaisical manner of
performing duty where care and alertness is repost upon them. Accordingly from
the evidence and the facts and circumstances of the case it appears that non-
compliance with the provision of section 100(4) CrPC has prejudice the right of
the accused persons thereby raising doubt on the prosecution case itself.

18. From the evidence of PW No.3/SI HC Lalramthara it has come to light

that information was first received by the O/C of Excise and Narcotics Station,
Lunglei. On the basis of the said information, the O/C instructed him to proceed
to the spot. As such, information was first received by the o/c. The said officer-
in-Charge have not been examined as prosecution witness. As such, it is not
known whether he reduced the information in writing as mandated u/s 42 NDPS
Act PW No.3, stated that he reduced the information into writing and also
prepared draft of Grounds of Belief before proceeding to the spot. But from the
evidence itself it is clear that he was not the one who received the information.
In addition to this, there is no material to show that the information reduced into
writing or the Grounds of belief was communicated to the superior officer as per
section 42(2)NDPS Act. In fact, in this case since there already was irregularity
in the manner of receiving information there is doubt as to who would be the
superior authority to whom information is to be passed on. It therefore appears
that there was total non-compliance of section 41/42 NDPS Act.

19. In this regard, the honble Apex Court in the case of Karnail Singh versus
State of Haryana reported in (2009) 8SCC 539 has held as follows .

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 “ 17. In conclusion, what is to be noticed is Abdul Rashid did not require
literal compliance with the requirements of Sections 42(1) and 42(2) nor did
Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not
be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information (of the nature referred to in Sub-
section (1) of Section 42) from any person had to record it in writing in the
concerned Register and forthwith send a copy to his immediate official superior,
before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police
station, but while he was on the move either on patrol duty or otherwise, either
by mobile phone, or other means, and the information calls for immediate action
and any delay would have resulted in the goods or evidence being removed or
destroyed, it would not be feasible or practical to take down in writing the
information given to him, in such a situation, he could take action as per Clauses
(a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the
information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and
42(2) in regard to writing down the information received and sending a copy
thereof to the superior officer, should normally precede the entry, search and
seizure by the officer. But in special circumstances involving emergent situations,
the recording of the information in writing and sending a copy thereof to the
official superior may get postponed by a reasonable period, that is after the
search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of Sub-sections (1) and (2) of

Section 42 is impermissible, delayed compliance with satisfactory explanation
about the delay will be acceptable compliance of Section 42. To illustrate, if any
delay may result in the accused escaping or the goods or evidence being
destroyed or removed, not recording in writing the information received, before
initiating action, or non-sending a copy of such information to the official
superior forthwith, may not be treated as violation of Section 42. But if the

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information was received when the police officer was in the police station with
sufficient time to take action, and if the police officer fails to record in writing the
information received, or fails to send a copy thereof, to the official superior, then
it will be a suspicious circumstance being a clear violation of Section 42 of the
Act. Similarly, where the police officer does not record the information at all, and
does not inform the official superior at all, then also it will be a clear violation of
Section 42 of the Act. Whether there is adequate or substantial compliance with
Section 42 or not is a question of fact to be decided in each case. The above
position got strengthened with the amendment to Section 42 by Act 9 of 2001.”

20. From the decision of the honb’le Apex Court highlighted above, it is clear
that total non-compliance with the provision is fatal to the case. In addition, as
pointed out above, there was irregularity in the manner of conducting search
which was in violation of section 100(4) Cr.PC. The above lapse cannot be
ignored in as much as procedures are meant to safeguard the rights of an
accused and to ensure fairness and propriety.

In the instant case, as pointed out before, following the procedure

becomes all the more important in as much as the accused persons deny that
they were the ones who occupied/rented the hotel room from where recovery
was made. As pointed out by the Ld.Defence Counsel, no evidence is adduced by
the prosecution to show that the 3 accused persons actually occupied the said
hotel room in exclusion of others and that the bag from where seizure was made
belonged to them. It is also necessary to prove that there were no visitors to the
room and that the other 2 or 3 civilians who were also present in the room does
not have involvement.

21. For the reasons indicated above, this court is of the view that there was
irregularity in the manner of search and seizure which is fatal to the prosecution
case. For the same reason it would not be necessary to deal with the next point
for consideration.

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 ORDER

22. Accordingly, accused Lalmuanpuia, Lalchhuanpuia and Vanlalrengpuia are

acquitted of the offence punishable u/s 22( C) ND&PS Act by giving them the
benefit of doubt.

23. As per section 437A Cr.PC the said accused persons shall be on bail for
another period of 6 months with a bond of Rs.25,000/- each with one surety of
the like amount who shall be permanent resident of Lunglei.

24. It appears from the record that the seized Methamphetamine have not be
disposed. The same shall be disposed off expeditiously in terms of the decision
of the honb’le Supreme Court in Union of India Versus Mohan Lal dt.28.Jan.2016,
Appeal(Crl.)No.652 of 2012.

25. Accused persons who are in confinement shall be released forthwith if not
required in any other case.

26. Give copy of the Judgment & Order, free of cost, to the accused.

Judgment is pronounced in open court and given under my hand and the
seal of this Court on this the 28th day of April, 2017.

Sd/-(HELEN DAWNGLIANI)
Additional Sessions Judge
Lunglei Judicial District: Lunglei

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Memo No.Crl.Trl.No.150/16/AD&SJ/(L)/………..… :Dated Lunglei, the 28 th April, 2017

Copy to:

1. Lalmuanpuia, Lalchhuanpuia & Vanlalrengpuia C/o F.Lalchhanhimi , Advocate.

2. The District & Sessions Judge, Lunglei.
3. District Magistrate, Lunglei.
4. Addl.PP, Lunglei.
5. PI of Excise Narcotic Lunglei.
6. P.A to Additional District & Sessions Judge, Lunglei Judicial District, Lunglei.
7. Registration Section.
8. Case Record.

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 APPENDIX
PROSECUTION EXHIBITS
Ext.P-I is the seizure and arrest memo.
Ext.P-I(a) Signature of PC.Lalthansanga
Ext.P- I(b) Signature of C.Biakthankima
Ext. P-I (c) Signature of HC.Lalramthara.
Ext. P-II is the information.
Ext. P-II (a) Signature of HC.Lalramthara.
Ext. P-III is grounds of believe.
Ext. P-III (a) Signature of HC.Lalramthara
Ext. P-IV is report of seizure and arrest.
Ext. P-IV (a) Signature of HC.Lalramthara
Ext.P-V is the FSL report
Ext.P-VI is the complaint submitted by Zothuamliana.
Ext.P-VI(a) Signature of Zothuamliana.
M. Ext.-I is the seized Tablets.

DEFENCE EXHIBITS-: None

EXHIBITS PRODUCED BY WITNESSES - : None

PROSECUTION WITNESSES:
PW.1 – PC.Lalthansanga
PW.2 – C.Biakthankima
PW.3 – HC.Lalramthara
PW.4 – Zothuamliana
DEFENCE WITNESSES -:
OURT WITNESSES -: None

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