Page No.# 1/9 GAHC030003952025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./20/2025 Sh. C. Lalrinsanga S/o C. Lalpekthanga, Buang Village, Champhai District VERSUS The State of Mizoram Aizawl Advocate for the Petitioner : Mr R Lalremruata Advocate for the Respondent : P.P./Addl.PP, Mizoram BEFORE HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER Advocates For the Appellant : Mr. R. Lalremruata, Adv For the State respondent : Mrs. Mary L. Khiangte, Addl. PP Date of Hearing : 27.10.2025 Date of Judgment : 29.10.2025 Page No.# 2/9 JUDGMENT & ORDER (CAV) Heard Mr. R. Lalremruata, learned counsel for the appellant. Also heard Mrs. Mary L. Khiangte, learned Additional Public Prosecutor for the State respondent. 2. The instant appeal is directed against the Judgment and Order dated 23.04.2025 and sentence order dated 23.04.2025 passed by the Learned Special Court, ND&PS Act, Champhai Judicial District, Champhai in Crl Trl. No 92/2022 arising out of Champhai, P.S Case No. 20 of 2022 whereby the appellant has been convicted under Section 21(b)/25 ND&PS Act for a period of 1 year RI with a fine of Rs. 10,000/- and in default to undergo simple imprisonment for 1 month. He was also convicted under Sec 22(c)/25 of ND&PS Act for a period of 10 years RI with a fine of Rs. 1,00,000/- with a default clause to undergo simple imprisonment for 5 months. 3. The prosecution case in brief is that on 09.02.2022 at around 8:00 Pm, while on duty at the Chalbawia Junction Khankawn Check Gate Champhai, ASI Laltlanchhuaha and his team recovered 5(five) soap cases containing brown powder suspected to be Heroin weighing 63 grams and 10,000/- pink tablets suspected to be Methamphetamine weighing 1.095kgs from a bag containing mustard leaves. An FIR dated 09.02.2022 was then lodged against the accused appellant at the Champhai Police Station. The bag was seized from one sumo Vehicle (Aizawl to Zokhawthar service) B/R No.MZ-01-J8821 driven by the accused appellant. The recovered contraband items were seized in the presence of two civilian witnesses by observing all formalities. The accused appellant was Page No.# 3/9 arrested and brought to the police station along with the seized items. During the investigation, the seizing officers and the seizure witnesses were examined along with the accused person. The seized articles were brought before the CJM, Champhai where the correctness of the inventory was certified, and samples of the contraband articles were drawn and sent for forensic examination. The FSL report confirmed that the samples contained Heroin and Methamphetamine. Having found a prima facie case against the accused appellant, the police submitted charge sheet against the appellant under Section 22(c)/21(b)/25 of the ND&PS Act on 04.08.2022. Charge was framed against the appellant accused under Section 22(C)/21(b) and 25 of the ND&PS Act on 26.08.2022. The charge was read over and explained to the accused appellant and he pleaded not guilty and claimed to be tried, the matter accordingly went up for Trial. 4. In order to bring home the charges brought against the appellant accused the prosecution side examined as many as 6 witnesses and exhibited 10 documents. The defense produced the accused/appellant as DW-1. 5. Upon examining the evidence available on record, the learned Trial Court was of the view that the prosecution has succeeded in establishing the case against the appellant accused and proved the charges brought against the appellant under Section 22(c)/21(b) and 25 of ND&PS Act beyond reasonable doubt and accordingly convicted and sentenced the appellant. 6. Assailing the impugned Judgment and Sentence Order dated 23.04.2025 learned counsel for the appellant has submitted that there is no independent witness to the seizure. The I.O of the Case/PW5 had stated on oath that he Page No.# 4/9 examined and recorded the statements of the two independent witnesses namely Chanchinmawia and Jacob Lalnunhlima. However it is seen from the Sec 161 CrPC statement of witnesses attached in the charge sheet that their statements were recorded by the seizing officer/PW1. The I.O also stated that he recorded the statement of the seizing officer/PW1 who was also the complainant. However on perusal of the Section 161 Cr.PC statement of the complainant in the charge sheet, the statement of the complainant was recorded by PW-1 himself as he was the complainant as well as seizing officer. 7. The learned counsel states that as per Section 2.3 of the Standing Order, S.O No.1/89 dated 13th June, 1989 the quantity to be drawn in each sample for a chemical test shall not be less than 5 grams for all Narcotics Drugs and Psychotropic Substances, except for opium, ganga and charas where a quantity of 24 grams in each case is required. Failure to adhere to these guidelines renders the forensic analysis unreliable. In the instant case as per the report of PW4/Assistant Director FSL, Aizawl the total amount of samples in relation to the brown powder was 120 mg. In his cross examination also PW-4 deposed that the weight of the samples were all under 1 gram. As such the learned Trial Court could not have relied on the forensic report dated 25.02.2022. 8. Learned counsel further submits that the PW1/seizing officer in his cross examination clearly deposed that the accused person was not the owner of the seized articles. He also stated that a phone no. was pasted on the mustard leaves bag and that the said phone no. was the phone no. of the suspected owner of the seized article. 9. PW2/independent witness deposed that when he reached the place of Page No.# 5/9 occurrence, the bag containing the mustard leaves was already unloaded from the sumo vehicle and was kept inside the Khankawn Police Check gate. He also stated that the weighment of the seized Methamphetamine was not done at the place of occurrence. This means that the PW-2 was not a witness to the actual seizure of the contraband items. He also deposed that when he reached the place of occurrence there was no other civilian witness. Learned counsel therefore submits that in the present case even the seizure of the contraband items from the accused/appellant has not been proved. Moreover PW-1 had deposed that the recovery was witnessed by 2(two) civilian witnesses, however PW-2 was the only independent witness who was examined by the prosecution during the trial. Learned counsel has also alleged that there is violation of Section 55 of the NDPS Act in as much as the prosecution could not produce the Malkhana register of Champhai Police Station where the seized article was alleged to be deposited by the PW1. This has cast a serious doubt as to whether the alleged contraband produced before the CJM and the sample sent to the FSL were the items recovered from the procession of the appellant. Non-production of the Malkhana register has created a doubt as to whether the alleged seized article was in the safe custody of the Malkhana or not. And in criminal law the benefit of doubt has to be always given to the accused appellant. 10. Learned counsel therefore submits that it is apparent that the recovery of the contraband item from the possession of the appellant has not been proved by the prosecution and the loop holes in the prosecution case gives rise to the inescapable inference that the prosecution has failed to prove the chain of custody regarding the safe custody of the seized article from the time of seizure till the time it reached the magistrate and to the FSL. The settled principle in Criminal Jurisprudence is that the accused is innocent until proven guilty. The Page No.# 6/9 burden of proof lies on the prosecution and they must prove beyond reasonable doubt that the appellant had committed the crime. In a criminal case under the NDPS Act the foundational facts regarding seizure and possession has to be first established by the prosecution, and only then, the presumption of culpable mental state under Section 35 of the NDPS Act can be taken. Learned counsel has therefore prayed that the impugned judgment and order dated 23.04.2025 as well as the sentence order dated 23.04.2025 passed by the learned Special Court, ND&PS Act Champhai may be quashed and set aside. 11. Ms. Mary L Khaingte, learned Addl. Public Prosecutor has on the other hand argued that the prosecution has led sufficient evident to establish the fact that the appellant had committed the offences under Section 22(c)/21(b)/25 of the NDPS Act. She has submitted that the seizure of the contraband items from the accused appellant has been proved by the PW1 and PW2. She has also submitted that the FSL report dated 25.02.2022 and the evidence of PW4 have proved that the seized items contained heroin and Methamphetamine. Learned Public Prosecutor has however, fairly submitted that PW2/seizure witness has deposed that weighment of the seized item was not done at the P.O. The PW5/I.O had stated in his evidence that the two independent witnesses had stated before him that they had witnessed the seizure, recovery and arrest with their own eyes. Learned Public Prosecutor therefore submits that all the procedural requirements have been carried out by the investigating agency and therefore the Impugned Judgment and Sentence dated 23.04.2025 does not warrant the interference of this Court. 12. I have considered the arguments advanced by the learned counsel for both sides, and have examined the evidence available on record. The Trial records Page No.# 7/9 have also been perused. As noted above there are 5(five) prosecution witnesses. The accused appellant has also examined himself as DW1. 13. PW1 is the seizing officer. He deposed that the contraband items were seized in the presence of reliable witnesses. However the prosecution has examined only PW-2 as the seizure witness. PW2 deposed that when he reached the place of occurrence, the bag containing the mustard leaves from where the seized article was recovered was already unloaded from the sumo vehicle and it was inside Khankawn Police Check gate. He deposed that the seized items were not weighed at the P.O. He also deposed that there was no other civilian witness when he reached the P.O as he was the first person to reach the place.The PW5 deposed that the 2(two) independent witnesses stated before him that they had witnessed the seizure, the recovery and arrest with their own eyes. But in total contradiction the PW-2 who is the lone seizure witness examined by the prosecution stated that when he reached the P.O the bag containing the seized article was already unloaded from the sumo which means that he did not see from whom it was seized. There is also nothing on record to explain why the other civilian witness was not examined. PW1/seizing officer in his cross examination clearly deposed that the accused person was not the owner of the seized articles. The appellant/DW1 in his Examination-in-Chief deposed that on 09.02.2022 at around 6:00 pm when he was about to leave Zokhawthar towards Aizawl in his sumo, 2(two) persons 1(one) female and 1(one) male came to him and requested him to deliver 2(two) bags of mustard leaves to Aizawl. He asked those persons to load the mustard leaves bags on the carrier of the sumo and he did not have time to check the contents of the bags. The owners of the mustard leave bags told him that the bag would be taken by some person when he reached Aizawl counter and their phone No. and Page No.# 8/9 name was pasted on the bags. After that he headed towards Aizawl along with his passenger as usual. When they reached Champhai Police Check gate Khankawn the police checked his sumo and surprisingly, found some packets of Methamphetamine and Heroin from a bag of mustard leaves which was not known to him. The police arrested him and when he was arrested they asked him to call the phone no. pasted on the bags. When he called the phone was picked up by one man who told him that he will take the bags when he reaches Aizawl sumo. He stated that the weighment of the seized items was not taken in his presence and he had no knowledge regarding the seized article as he did not check the content of the bag at the time of loading in his sumo. During cross examination his testimony could not be rebutted by the defense and he further stated in his cross examination that he did not receive any money as delivery charge from the two persons. 14. In the case of Noor Aga Vrs State of Punjab, reported in (2008) 16 SCC 417, the Hon’ble Supreme court has expressed the view that the initial burden to establish the foundational facts lies squarely on the prosecution. Only after such burden is discharged does the onus shift to the accused. This court upon going through the above evidence is of the view that the prosecution has not been able to prove the foundational fact regarding the seizure and possession in respect of the appellant accused and further the conscious possession of the seized article has not been proved. For sustaining the conviction of a person under NDPS Act it must be shown that possession was conscious and not accidental or without knowledge. The accused must know that he/she is in possession of the contraband and have control over the same. Just because of the fact that the appellant accused was in the sumo vehicle where the seized articles were found does not automatically imply guilt unless Page No.# 9/9 knowledge or control is established. The prosecution in the present case has not been able to prove the element of knowledge and control. Only when the prosecution is able to prove possession, then the burden shifts to the appellant/accused to rebut the presumption of knowledge under Section 35 and 54 of the NDPS Act. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. 15. As the foundational facts have not been established by the prosecution in the present case, this court does not find it necessary to go into the other grounds put forward by the appellant. If the foundational facts of (i) proper and lawful search and seizure and (ii) recovery of contraband from the accused’s conscious possession are not proved the accused cannot be called upon to rebut any presumption and acquittal must follow. On this ground alone the Judgment and Sentence dated 23.04.2025 is liable to be interfered with. 16. In the result the appeal is allowed. The impugned Judgment and Sentence dated 23.04.2025 in Crl Trl. No 92/2022 arising out of Champhai P.S Case No. 20 of 2022 is quashed and set aside. Appeal stands disposed of, and the Registry is directed to send back the Trial Court records. JUDGE Comparing Assistant