Allowed

Sh. Lalzamliana v. The State of Mizoram and Anr.

Gauhati HC4 Aug 2025Crl.A./39/2023

Case brief

AI extract

What is this about?

Appeal against conviction under Section 22(c) NDPS Act for possession of 39,000 methamphetamine tablets. The High Court found non-production of the Malkhana Register, incomplete Section 52A certification, and an unexplained five-day delay in sending samples to the FSL fatally broke the chain of custody and set aside the conviction.

What did the court decide?

Conviction dated 24.08.2023 and sentencing order dated 25.08.2023 set aside and quashed; appellant to be released forthwith if not required in any other case.

Sh. Lalzamliana Vs The State of Mizoram and Anr. — Narcotics (NDPS) | Gauhati HC (2025)

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GAHC030005422023

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A./39/2023

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Sh. Lalzamliana S/o C. Zarlianthanga R/o Tuithiang Veng, Aizawl, Mizoram.

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VERSUS

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The State of Mizoram and Anr. r/b the Secy. to the Govt. of Mizoram, Home Department. 2:Inspector Vanlalsiam

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Advocate for the Petitioner : Mr A.R. Malhotra

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Advocate for the Respondent : P.P./Addl.PP, Mizoram

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B E F O R E

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HON’BLE MRS. JUSTICE SHAMIMA JAHAN

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Date of hearing : 31.07.2025 Date of judgment : 05.08.2025

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JUDGMENT & ORDER (CAV)

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By this criminal appeal, this Court is called upon to decide as to whether the

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conviction and sentence of the appellant under Section 22(C) of the ND&PS Act,

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1985 by the Special Court under the NDPS Act, 1985, Lunglei, Mizoram by Judgment & Order dated 28.08.2023 was as per law or was in violation of the procedural requirements provided under the NDPS Act.

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FACTS:

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1. The prosecution story as revealed from the First Information Report (FIR) was that on 26.10.2020 at around 11:30 AM, the complainant while on duty received information that a vehicle was carrying some contraband substance. The complainant informed the same to Hnahthial Police Station and on receiving the authorization letter from the Officer-in-Charge of Hnahthial Police Station to take legal action, he and his crew members moved towards a particular petrol pump and while they were around the said place, they saw a car and on suspicion stopped the same. The complainant and his crew members checked the vehicle and found the driver of the vehicle and the appellant sitting inside. They saw the appellant with a rucksack in his hand and asked him to open his bag to which the appellant opened the bag and took out a case of Amul Gold. The complainant got suspicious and by calling a witness opened the said Amul Gold case and on opening they found two black polythene packets inside the same and on opening the said polythene packets, they found two packets wrapped in yellow colour cello tape and inside the same, they found

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polythene packets wrapped with white paper and on opening the white wrapper, 20 nos. of smaller packets were recovered and on further opening of the same, 200 nos. of black colour wrapper were found. The complainant and his crew members opened the said packets and found plenty of red tablets inside and in presence of the witnesses they calculated and found 39,000 tablets therein and by weighing it they found the total weight as of 4.6 kgs. Suspecting the said tablets as methamphetamine they seized the vehicle alongwith the tablets and took it to the Police Station and submitted a report to the Officer-in-Charge of Hnahthial Police Station. It was further stated in the FIR that the price of the said tablets would come to around Rs. 78,00,000/-. On receipt of the said FIR lodged by the complainant i.e. Sub-Inspector of Hnahthial Police Station, the Police registered the case as HNTL Police Station Case No. 18/2020 and registered it under Section 22(c) of the ND&PS Act. The Police on completion of the investigation submitted a charge-sheet on 22.01.2021. Thereafter, the Special Court, ND&PS Act, 1985 after complying with all the requirements under the law, framed charge against the appellant and another, i.e. the driver, under Section 22(c) of the ND&PS Act and on completion of the trial, convicted the appellant under Section 22(c) of the ND&PS Act and sentenced him to undergo R.I for a period of 10 years with fine and default stipulation. The learned Trial Court, however, for lack of evidence acquitted the other accused person i.e. the

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driver from the charges levelled against him. Against this Judgment & Order, the

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present appeal is filed.

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EVIDENCE:

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2. The prosecution to establish the charge against the appellant had examined 4 witnesses and the defence had examined 3 witnesses.

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3. PW-1 was the complainant in the present case and he, apart from the statements made in the FIR, further stated that on receipt of the information that contrabands were carried in one vehicle, he recorded the said information by entering in the General Diary and reported the matter to the officer-incharge, Hnahthial Police Station. He also stated that on receiving the authorization, he and his crew members left the Police Station and were performing duty at three different places and that while he was on duty, he received another information from the same informer that the suspected vehicle had Registration No. MZ-01-2644 and that he informed about the same to all the personnel in duty and that after 10 minutes, he was further informed that the suspected vehicle with the said registration number was detained and he rushed to the said place. On reaching the spot, he saw the vehicle and the appellant and the driver were sitting inside. He saw the appellant with a

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rucksack placed on the floor of the car between his legs and by calling witnesses he made both the accused persons including the appellant to come out of the car and directed them to open the rucksack. On opening the rucksack as stated in the FIR, 39,000 tablets suspected to be drugs were recovered. He further stated that the seized articles were counted, weighed, sealed and packed at the place of occurrence. He also prepared a seizure memo of the said suspected drugs and the vehicle used for transporting the same and obtained the signature of the witnesses on it. He thus produced two accused persons with the seized articles alongwith the enquiry report before Hnahthial Police Station.

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4. The said witness was cross-examined and he stated that he received the information and he obtained the authorization to conduct the search which was valid up to 27.10.2020. He prepared the seizure memo at the place of occurrence in presence of two witnesses and re-iterated the other statements as stated in his examination-in-chief. He however stated that he did not conduct body search of the two accused persons and vehicles.

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5. PW-2 was the Vice Chairman of Village Level Task Force, Hnahthial and he stated that the incident occurred during the lockdown period and while he was performing duty at Hnahthial, he saw a vehicle coming towards Aizawl from

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southern side of Hnahthial and since the movement of vehicle were banned at that juncture, he stopped the vehicle and asked for permission which they could not show and when he tried to report the matter to Hnahthial Police Station, Police personnel from the said Police Station arrived at the spot and told him that the vehicle is involved in drug trafficking. This witness had witnessed the entire seizure made from the said vehicle and corroborated the statements of the complainant and the put his signature in the seizure memo. In his crossexamination, he re-iterated his statements made in the examination-in-chief and denied various suggestions put forth by the defence.

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6. PW-3 was also a seizure witness and he had made similar statements as that of PW-2. He too was performing duty like PW-2 and that he and PW-2 stopped the vehicle from which the seizures were made by the Police personnel from Hnahthial Police Station. In his cross-examination he re-iterated the statements made in the examination-in-chief.

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7. PW-5 was the Investigating Officer of the instant case and he stated before the trial court that the complainant on 26.10.2020 at around 2:40 PM seized the contrabands i.e. 39,000 tablets of suspected methamphetamine at Hnahthial and submitted a report to the Police Station and resultantly the case was registered under Section 22(C) of ND&PS Act. He stated that the complainant

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produced both the accused persons including the appellant at Hnahthial Police Station alongwith the seized articles. He thereafter stated that the seized articles were kept in Hnahthial Police Malkhana vide Registration No. 11/2020. He, during investigation, recorded statements of the accused persons and arrested both of them and gave arrest intimation to their relatives.

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8. This witness thereafter stated that on 27.10.2020 he submitted an application for certification of the inventory prepared before the Judicial Magistrate First Class. He also stated that he drew sample and sealed the seized article before the Magistrate and sent the sample to the Forensic Science Laboratory (FSL), confirming it to be methamphetamine. Thereafter, on completion of the investigation he submitted charge-sheet before the Court against the two accused persons including the appellant under Section 22(C) of the NDPS Act. During his cross-examination, he stated that he does not remember how many tablets were separated from each packet and sent to FSL. He also stated that the samples were sent for Forensic examination on 29.10.2020 and he also stated that he had given authorization to the complainant to conduct the search on 26.10.2020.

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9. After completion of the prosecution evidence, the appellant was examined under Section 313 of the CrPC. In his statement, the appellant stated that on

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26.10.2020 he went with his brother-in-law i.e. the other accused person from Aizawl to Hnahthial by hiring the vehicle owned by the other accused and that

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the vehicle was stopped by PW-2 & 3 on their way. He at the same time also stated that there was no need for vehicle movement permit at that juncture within the State. He also admitted that he had a rucksack with him in the vehicle but he denied the seizure of the contrabands from the said rucksack. He in his defence, stated that he deals in tobacco business and that he was visiting Hnahthial to give tobacco sample. He stated that the articles inside the rucksack was given to him by another person namely Biaka of Hnahthial who is known to him and with whom he does business and that he had no knowledge that the said bag contained drugs.

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10. The appellant thereafter adduced defence evidence. DW-1 stated that he knew the appellant and further knows that he deals in tobacco business and that he was a tailor by profession. He also stated that the appellant on the said occasion tried to hire a vehicle to deliver tobacco to the southern part of Mizoram and that the appellant asked for his vehicle which he did not give due to the Pandemic and he also stated that the appellant was a good person.

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11. DW-2 is the wife of the other accused person and she deposed that the appellant was a tailor by profession who also deals in tobacco business and that

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the appellant hired her husband’s vehicle for providing tobacco sample somewhere in Hnahthial. Similar statements were also made by DW-3 that the appellant hired a vehicle to deliver tobacco sample somewhere in Hnahthial. These are the evidence led in the present case.

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SUBMISSIONS:

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12. Mr. C Tlanthianghlima, learned counsel appearing for the appellant raised 6 (six) grounds of challenge before this Court against the impugned judgment & order passed by the trial court:-

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(1) He submitted that although the I.O in his deposition before the trial court had stated that seized articles were kept in Police Malkhana vide Registration No. 11/20, however, no Malkhana register was produced to substantiate the claim. He as such stated that there is no evidence proving that seized articles were actually kept in the Malkhana and was in safe custody till it was produced before the JMFC on the next date i.e. 27.10.2020.

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(2) The samples were drawn on 27.10.2020 and were sent to the FSL on 29.10.2020 i.e. after 2 days and there was nothing in evidence to show as

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to whether the samples were of the seized articles which were finally sent

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for the examination. He also stated that the samples were sent through the Special Messenger and the same were received by the Directorate of FSL, Aizawl only on 03.11.2020 i.e. after a lapse of 5 days and that there is no explanation as to who was in custody of the samples during the said 5 days. Further, the Special Messenger was also not examined by the prosecution to prove safe custody of the samples.

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(3) The learned counsel submitted that there was no compliance of Section 52A of the ND&PS Act inasmuch as, although the inventory was prepared and was certified, no samples were drawn before the Magistrate and no list of samples were prepared and that no photographs of the contrabands were taken before the Magistrate. Further, the Magistrate before whom the inventory was prepared was also not examined.

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(4) The learned counsel further argued that the prosecution has failed to comply with the provisions of Section 42 of the NDPS Act. It is stated that although the complainant had made the General Diary Entry on receiving the first reliable information but he did not enter the second information which he received from the same informer in the General Diary and neither reported the matter to the superior authority. He further stated

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that the vehicle was stopped by the members of the Village Level Task

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Force and not by the Police Personnel which again amounts to violation of

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Section 42 of the ND&PS Act.

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(5) The learned counsel further submitted that the complainant who received the information and seized articles had investigated the case in the initial stage and the same creating prejudice was illegal, as held by Hon’ble Supreme Court.

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13. To substantiate his arguments, he relied on the following judgments:-

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(1) Mohammed Khalid & Anr. Vs. State of Telangana, reported in (2024) 5 SCC 393.

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(2) Bhim Ram & Ors. vs. State of Assam, reported in 2012 (1) GLT 416.

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(3) State of Rajasthan vs. Gurmail Singh, reported in (2005) 3 SCC 59.

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(4) Sh. Lalmawia & Anr. Vs. State of Mizoram, reported in 2019 (5) GLT 828.

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(5) Majem Ali @ Majom Ali vs. State of Assam, reported in 2024 (5) GLT 635.

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(6) Judgment & Order dated 09.09.2024 passed by the Hon’ble Gauhati

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High Court in Crl. A. No. 392/2023 (Md. Manijur @ Mon Jaman vs. State of Assam).

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(7) Karnail Singh vs. State of Haryana, reported in (2009) 8 SCC 539.

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(8) Megha Singh vs. State of Haryana, reported in (1996) 11 SCC 709.

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(9) Hanif Khan alias Annu Khan vs. CBI, reported in (2020) 16 SCC 709.

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14. Mr. C Tlanthianghlima has relied on two additional judgments:-

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(1) Yusuf @ Asif vs. State, reported in 2023 SCC OnLine SC 1328 by which, the Hon’ble Supreme Court had observed that drawing samples in presence of a Gazette Officer is not sufficient compliance of Section 52 A of the Act and that in absence of evidence that samples were drawn before the Magistrate and that inventory is duly certified by the Magistrate, the said seized contrabands and the samples would not be valid piece of primary evidence in the trial and once it is not a primary evidence, the trial is vitiated.

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(2) State of Rajasthan vs. Tara Singh, reported in (2011) 11 SCC 559 by which the Hon’ble Supreme Court had observed that sending samples for

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Forensic examination after a long lapse of time is illegal inasmuch as, the chain of safe custody cannot be proved.

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15. On the other hand, the learned Addl. Public Prosecutor Ms. Mary L Khiangte has submitted before this Court in respect of all the grounds taken by the counsel appearing for the petitioner.

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(1) On non-production of Malkhana Register, the learned Addl. Public Prosecutor states that PW-5 who was the Investigating Officer had categorically stated in his statement before the trial court, which was on oath, that after the seizure, the seized articles were kept in Hnahthial Police Malkhana, vide Registration No. 11/20. She as such submitted that there is nothing to disbelief PW-5 and further, she stated that the said aspect of not producing the Malkhana Register which would show the safe custody of the contrabands, was not put to this witness during the crossexamination.

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(2) On the delay of the samples been sent to the FSL, she stated that the said delay has not resulted in tampering of the samples inasmuch as

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the report of the FSL dated 9^th November, 2020 shows that parcel consisted of 18 exhibits packed in polythene packets and enclosed in a

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paper envelope, were sealed with wax seals. As such, she submits that the samples of the contrabands which were seized on 26.10.2020 were sent for examination to the FSL. She further stated that the SOP, 1988 provides that the samples has to be sent within 72 hours and as such there is no violation of the same in the instant case.

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(3) With regard to the contention that there was no GD Entry with respect to the subsequent information that was received by the complainant by which the registration number of the vehicle was obtained, the learned Addl. Public Prosecutor states that under Section 42 of the ND&PS Act, the requirement is that on receipt of an information, the concerned officer should take down the said information in writing and on being authorized by the superior officer, the concerned officer can enter into and search any building conveyance or place. She submitted that in the instant case, the complainant on receipt of the information had noted the same in the General Diary, informed the superior officer and on the authorization been given, formed the team and went for patrolling in three different places. She stated that on information from one of the said three places, he went there and intercepted the vehicle. As such, she stated that the requirements under Section 42 of the NDPS Act were fulfilled, as

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the initial information was written down in the General Diary. She stated that in Karnail Singh (supra), no entry was made in the General Diary but in the instant case the entry was made and it is only that the subsequent information which was in continuation of the first information was not made and the same is not fatal. Further, she submitted that in the instant case, Section 43 of the ND&PS Act is also applicable inasmuch as, the vehicle was in transit and the seizure was made in a public place in view of the fact that the bag was brought down alongwith the appellant and it was opened on a public road. Further, she submitted that it is an admitted case that there was no body search done and neither the inside of the vehicle was searched. She also placed exhibit P-6 which was a communication made by the complainant to the officer-in-charge of Hnahthial Police Station in compliance of Section 57 of the ND&PS Act by which, the complainant had informed the Officer-in-Charge regarding the seizure and arrest of the accused/appellant on 26.10.2020 at 2:30 PM alongwith the contrabands. She as such stated that the procedures under the ND&PS Act were substantially complied with in the instant case.

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(4) With regard to the contention of the appellant that there is violation of Section 52A of the ND&PS Act that no photographs were taken as well

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as no list of samples were prepared before the concerned Magistrate and neither there was any certification, the learned Addl. Public Prosecutor submits that a bare perusal of Section 52A of the ND&PS Act provides that an application is to be made before the Magistrate for certifying the inventory or for taking photographs or for drawing representative samples. She stressed on the term “or” present in the Clauses under Sub-Section 2 of Section 52A of the NDPS Act and states that either of the three may be certified by the Magistrate. She stated that the application was made on 27.10.2020 by the Inspector, Hnahthial Police Station to the learned Magistrate, Lunglei Judicial District by which a prayer is made for certification of correctness of inventory, photographs and samples of seized articles and that the learned Magistrate had certified to the correctness of the inventory. As such, she stated that certification with regard to taking of photographs or preparing representative samples is not provided for under Section 52A of the NDPS Act since one of the requirement i.e. the inventory was stated to be correct by certifying the same by the learned Magistrate. In this context, she placed reliance on a judgment delivered by the Hon’ble Supreme Court in Mangi Lal vs. State of Madhya Pradesh, reported in (2023) 19 SCC 364, by which the Hon’ble Supreme Court has observed that Section 52A of the NDPS Act mandates

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competent officer to prepare an inventory and file an appropriate application before the Magistrate for certification to the correctness of the same or for taking relevant photographs in his presence or for preparing representative samples in his presence with due certification. It is further

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observed that such an application can be filed for any one of the aforesaid three purposes.

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16. She further referred to the statement of PW-5 wherein, the said witness stated on oath before the Trial Court that drawing of sample and sealing of the seized article was done before the Magistrate in presence of the accused person. As such, she submits that there is no violation of Section 52A of the Act.

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17. The further contention of the appellant that the complainant who was the seizing officer had initiated the investigation and had recorded statements of the witnesses which according to him is illegal, the learned Addl. Public Prosecutor states that there is no bar on the seizing officer or the complainant to investigate the offence and in this connection, she placed reliance of the Judgment delivered by the Hon’ble Supreme Court in Mukesh Singh vs. State, reported in (2020) 10 SCC 120 by which, the Apex Court had observed that under the ND&PS Act, there is no specific bar for the complainant to be an investigator for investigation into the offence under the Act.

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18. She thereafter submitted that the appellant while replying to the question put to him under Section 313 of the CrPC had stated that the bag from which the contrabands were seized belongs to him and that he had kept it on the floor of the vehicle. She also submitted the answer given by the other accused person to his questions under Section 313 of the CrPC wherein he had stated that it was the appellant who had carried the bag. As such, she submitted that there is conscious possession on the part of the appellant in carrying the contrabands in the said vehicle and that the prosecution had established the foundational facts of the instant case and that it is now the burden of the defence to rebut the allegations. On these contentions, the learned Addl. Public Prosecutor prays that the judgment may be upheld and the contention and sentence may be maintained.

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19. In reply to the said contentions, Mr. C Tlanthianghlima, learned counsel appearing for the appellant further stated that the safe custody of the contrabands are not proved and that on the nights of 26.10.2020 as well as on subsequent nights, there is no evidence as to where and under whose custody the contrabands were kept. He also submitted that the grounds with regard to the law points can always be raised at any stage and that not putting them during the cross-examination of the witnesses would not matter.

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20. On the above facts and law raised by the counsels for both the parties, this

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Court is now called upon to adjudicate as to whether the procedural requirements are followed in the instant case and whether the conviction and sentence of the appellant is lawful.

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ANALYSIS:

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21. On the first point raised by the appellant that non-production of the Malkhana Register has the fact of vitiating the trial, this Court would like to jot down the following facts and law. It is a settled position of law that nonproduction of Malkhana Register can raise doubt about the chain of custody and the fact as to whether the articles were actually those which were seized from the accused person. However, that alone may not vitiate the trial. The Apex Court had held many a times that non-production of Malkhana Register coupled with other procedural lapses would render the trial bad. It is required that prosecution must prove the safe custody of seized contraband from seizure to the FSL report and the Malkhana Register is crucial for establishing the unbroken chain of custody for seized articles. Non-production of the same may vitiate the trial by creating doubt inasmuch as whether the article was stored properly or was tampered or some other articles were stored in place of the seized articles. These occurrences may have the effect of weakening the

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prosecution case and can also lead to acquittal. The Apex Court had observed that procedural lapses may be directory but non-production of the Malkhana Register is a major flaw when combined with other irregularities. In this connection, the observation made by the Apex Court in State of Rajasthan vs. Gurmail Singh (supra) may be reproduced below:-

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“We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.”

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22. In yet another decision, the Hon’ble Apex Court in State of Orissa vs.

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Sitansu Sekhar Kanungo, reported in MANU/Supreme Court/0952/2002, it was observed in the following terms:-

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“The High Court though not placed much reliance apparently thereon but obviously the same had its due impact and effect on the court since in the last paragraph, the High Court did speak of "other factors highlighted coupled with the non-production of malkhana register that have given fatality to the prosecution case'. This observation of the High Court by itself connotes that the High Court has taken note of it with due particulars and it is on the issue of facts that the High Court felt that there would be justice trampled if an order is passed in favour of the prosecution .“

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23. It is as such clear from the aforesaid observations that non-production of Malkhana Register by itself will not vitiate the trial and that coupled with other procedural lapses, the same can be taken into consideration. Therefore, it is required that this Court may go into the other points raised by the counsel for the petitioner.

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24. It is contended that there has been violation of Section 52A of the Act inasmuch as although inventory was prepared and was certified to be correct by

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the learned Magistrate but no photographs were taken and no list of samples were prepared before the Magistrate and resultantly, without any certification thereafter. Section 52A of the Act outlines procedures for disposal of drugs. It mainly provides for that the trial ensues with respect to the articles actually seized and also to keep the evidence intact. It mandates that an officer should prepare inventory and apply to the Magistrate for certification, take photos and samples in presence of the learned Magistrate. Thereafter, those inventory, photographs and samples are treated as primary evidence. Although, those are mandatory requirements, however the Supreme Court has clarified that noncompliance of Section 52A of the Act does not automatically vitiate the prosecution and if other evidence regarding recovery and possession are present, non taking of photographs cannot weaken the prosecution case in view of the substantial compliance of other procedures by the authorities. It is noticed in the instant case that an application was made before the learned Magistrate, Lunglei Judicial District on 27.10.2020 for certification of correctness of inventory, for taking photographs as well as for taking samples of seized contrabands with resultant certification thereof. The said prayers are reproduced below:-

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“2. As required under sub-section (2) of section 52 A of the ND&PS Act,

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1985, I submit the enclosed inventory of seized narcotic and psychotropic,

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controlled substances and request you to—

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(a) Certify the correctness of the inventory.

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(b) Permit taking in your presence photographs of the seized items in the inventory and certify such photographs as true.

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(c) Allow drawing of representative samples in your presence and certify the correctness of the list of samples so drawn.

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I request you to allow this application under sub-section (3) of

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Section 52 A of the Narcotic Drugs and Psychotropic Substances Act,

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1985, so that the seized narcotic drugs, psychotropic substances, controlled substances can therefore be disposed of as per sub-section (1) of section 52 A of the said Act retaining the certificate, photographs and samples as primary evidence as per sub-section (4) of Section 52A(4) of ND&PS Act, 1985.”

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25. It is seen that certification was requested in respect of all the three

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purposes, however, the learned Magistrate had certified the correctness of the

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inventory vide Order dated 27.10.2020. In this connection, the observations

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made by the Hon’ble Supreme Court in Union of India vs. Mohan Lal & Ors., reported in (2016) 3 SCC 379 may be reproduced below:-

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“13. It is manifest from Section 52A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer incharge of the nearest 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. 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

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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.

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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 52-A 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

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taking samples at the time of seizure.

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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

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the minds of the authorities concerned instead of helping them in the

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discharge of their duties. The Central Government would, therefore, do

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well, to re-examine the matter and take suitable steps in the above direction .”

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26. The further submission of the learned Addl. Public Prosecutor was that Section 52 A of the ND&PS Act provides for certification of any of the three purposes i.e. inventory, photos, list of samples as the word used in the said Section is “or”. In this connection, it may be stated that Section 52A of the Act specifically uses the word “or” in respect of actions to be undertaken by the Magistrate to certify the correctness of inventory or allow taking photos of the seized drugs with resultant certification or allow drawing representative samples with list of samples with resultant certification.

¶140

27. The use of the word “or” in this context indicates that officer may apply to

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the Magistrate for any of these three actions, not necessarily all of them. Although provision allows choosing one of the aforesaid action, the Courts have emphasized that compliance with Section 52A of the Act is mandatory to ensure the integrity of evidence. The certified photos, the certified inventory and the certified list of samples become primary evidence and once there are no primary evidence, the trial is vitiated. The Supreme Court had observed in many of the judgments that if samples are drawn without Magistrate’s presence or

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certification, the same violates Section 52A of the Act. Choice of actions “inventory, photographs or samples” depends on cases and circumstances but procedure must be followed rigorously to avoid procedural lapses. In the instant case, the application has been made to the learned Magistrate, Lunglei Judicial District, requesting for certification in respect of the correctness of the inventory as well as allowing to take photographs of the seized items and certification of the same and also allowing to draw representative samples and for certification of the list of samples. However, the certificate was issued only in respect of the correctness of the inventory vide Order dated 27.10.2020 by the learned Magistrate. There is nothing on record to show that the learned Magistrate had allowed photographs to be taken and certifying the same or that representative samples were allowed to be taken with certification thereof of the list of samples. As such, it is observed that there are lapses in respect of Section 52A of the Act or partly thereof.

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28. It is also noticed in the facts of the case that the seizing officer or the complainant had put down in writing the initial information that he received in the General Diary but the later information about the number of the vehicle and the vehicle being caught at a different location were not jotted down in the General Diary. Later information like some leads/developments during the

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search process as a procedure should be written down in the General Diary and the failure to record the same may be a flaw. The prosecution may rely on a General Diary Entry for initial information but if it fails to document the subsequent information, it may be viewed as a procedural lapse. If a search is conducted on a new unrecorded information like leading to a specific location, lack of documentation could render a procedural flaw.

¶147

29. In the instant case, it is noticed that the informant alongwith the team after recording the initial information in the General Diary had gone out to three different places for the said search. However the informant was informed after reaching his respective place about certain further information. In that case, it is not plausible for the informant to go back to the Police Station and record the statement and then proceed to the particular place. However, after proceeding to the particular place and making the seizure thereof, it is required that the Police Officer after coming back to the Police Station should record the entire process in the General Diary like in any other case. Since this is not a case where the initial information is not written in the General Diary, the procedure under Section 42 of the Act, is complied with by the Police Officer. On the subsequent information, the informant going to a specific place and seizing the contrabands is a continuation of the initial information and as such, it cannot be

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held that Section 42 of the Act is not complied with, moreso the same is not provided for under Section 42 of the Act.

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30. The further argument that in the instant case, Section 43 of the NDPS Act is applicable, the same cannot be accepted in view of the explanation appended to Section 43 of the Act wherein it is provided that “for the purposes of this section, the expression ”public place” includes any public conveyance, hotel, shop or other place intended for use by, or accessible to the public”. In the present case, although the contrabands were carried in a vehicle but the same was brought down and seized on the road as per the evidence on record. At the first blush it seems that seizure been made on the road which is accessible to the public is a public place attracting Section 43 of the Act but by applying the principle of ejusdem generis, it has to be an enclosed place where people at large can enter. Since that is not the case, Section 43 of the Act, is not attracted in the present case.

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31. The further submission of the Appellant is that the seizing officer or the informant cannot be the Investigating Officer of the case. It be stated that although it is a settled proposition of law that officer who seizes contrabands should not investigate the case as it can have the effect of compromising with the impartiality and fairness in the investigation. The investigation must be

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conducted by an independent officer to avoid any prejudice. This has been settled by the Hon’ble Supreme Court only for the reason to avoid a situation where the officer might be inclined to justify the seizure. However, it was also held that in case, the Investigating Officer is the seizing officer, the same would not automatically vitiate the trial unless prejudice is shown by the accused person. In the State of Punjab vs. Balbir Singh, reported in (1994) 3 SCC 299, it was held that investigation should be fairly conducted and that although there is no specific bar that the seizing officer cannot be the I.O., but it was also observed that investigation should be impartial by adhering to the principles of natural justice.

¶154

32. In Mukesh Singh vs. State (supra), the Apex Court after considering the Judgments in favour of and against the said issue, had observed as follows:-

¶155

“9.5. Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible.”

¶156

33. In the present case, it is noticed that the informant after seizing the contrabands had proceeded with the investigation but finally the case was

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investigated by PW-5 who on completion of the investigation submitted charge-

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sheet in the instant case. The present case is not a case where the informant had done the entire investigation and as such, no prejudice can be said to have been caused to the Appellant concerned.

¶160

34. As far as the delay in sending the samples for forensic examination, it is noticed that in the instant case, the Investigating Officer had made an application before the learned Magistrate, Lunglei District Judicial District, to draw list of samples alongwith the representative sample on 27.10.2020 i.e. a day after the seizure is made i.e. on 26.10.2020. In the statement of the Investigating Officer it is found that the seized contrabands were kept in the Malkhana after the seizures were made by which it can be presumed that the contrabands were kept in the Malkhana during the night of 26.10.2020. As stated above, on 27.10.2020, the said articles were produced before the Magistrate which was also stated by the I.O in his deposition before the Trial Court wherein, he stated that he drew samples and sealed the same before the Magistrate and had sent the samples for examination to the FSL. During his cross-examination, PW-5 deposed that he remembers that he had sent the samples to FSL on 29.10.2020, which is also proved by the letter written by the I.O to the Director, FSL exhibited as Ext. No. P-18 and the said letter was

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written on 29.10.2020. The Investigating Officer had also specified that 18 nos.

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of polythene packets marked as A-1, A-9, B-1 to B-9 were sent to the FSL. However, in the FSL report dated 9^th November, 2020, it is reflected that the sample packets consisting of 18 exhibits were received in the Office of the Forensic Science Laboratory on 03.11.2020. In the said report, it was also stated that the samples were packed in polythene packets and enclosed in a paper envelope sealed with wax seals. After examination of the samples, the report was furnished to the I.O of the said case, stating therein that the exhibits were found to contain methamphetamine. However, there is nothing on record to show as to where the sample packets were kept and in whose custody those were kept from 29.10.2020 to 03.11.2020.

¶164

35. It is also stated at the bar that to cover the distance between Hnahthial and Aizawl where the FSL locates, it takes 4 to 5 hours by road. In the instant case, it is noticed that the samples reached the FSL after a period of 5 days and there is no explanation as to whether the samples were in safe custody during that period. Neither the Special Messenger who carried the samples to the FSL was examined by the prosecution. The Hon’ble Apex Court had addressed the issue of delay in sending samples to the FSL in several cases. It had held that prompt submission of the samples for examination is required to prevent

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contamination or tampering with the samples and also to ensure integrity of the evidence. It is mandated that the samples should be properly kept and documented. However, it was also held that delay in sending samples will not automatically become fatal to the prosecution case if the integrity of the samples is maintained through intact seals and proper link evidence which can be substantiated by the evidence given by the officer who carries the responsibility to take it to the FSL. If any delay is caused, it must be explained and the chain of custody must be meticulously documented. In the instant case, it is noticed in the FSL report that the samples packed in polythene packets and enclosed in a paper envelope, were sealed with wax seals and that the seal impression corresponded to that forwarded. Nothing more than that were mentioned in the said report.

¶167

36. Wax seals on the parcels had the potentiality of being tampered during the said 5 days. In absence of any evidence that the samples received by the FSL is the same one which were sealed before the Magistrate as stated by the I.O, it will be difficult to return a finding about the integrity of the said sample. In the instant case therefore, it is noticed that the delay in sending the samples to FSL is fatal.

¶168

37. The learned Addl. Public Prosecutor had placed that the samples were

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sealed with wax seals and the seal impression was same as that was forwarded cannot substantiate the fact that the same samples were forwarded, beyond reasonable doubt. The Special Messenger by whom the parcel was sent to the FSL was not examined and as such, it cannot be said with all clarity that the same sample reached the FSL. There is nothing on record to show as to where those samples were kept during that period and there can be every possibility that the samples were changed and some other samples were replaced with wax seals and the impression. There are cases where the delay in sending the samples was not considered fatal such as in Hardip Singh Vs. State of Punjab, reported in (2008) 8 SCC 557, the Apex Court had held that 40 days delay in sending the samples to FSL was not fatal. However the safe custody of the samples during the said period of 40 days was accounted for. The relevant part of the said Judgment is reproduced below:

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“12. ........................... .The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1, was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW 5. It has come on evidence that Inspector Baldev Singh kept the entire case property with him till it was deposited in the office of the Chemical Examiner, Amritsar

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on 30.9.1997 through ASI Surinder Singh, (PW-3). It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the appellant. In that view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant. The aforesaid contention, therefore, also stands rejected.”

¶174

38. In the said case, it is noticed that the Inspector kept the entire property with him, till it’s submission in the Forensic Laboratory. This evidence is lacking in the instant case and as such, the delay becomes fatal. In Karnail Singh Vs. State of Haryana (Supra), it was held by the Apex Court that the issue of delay in sending samples, whether it was undue or whether the same has been explained or not, depends on the facts of each case. It be stated here that delay in sending the samples for examination, per se would not be material. What has to be established is that the proper custody of the samples and that the samples sent for examination was the same that was seized. In the present case, the

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delay of 5 days in sending the samples to Forensic Science Laboratory must be

¶177

held to be fatal since in the facts of the case, this court is not satisfied that the seized sample was properly preserved during the said period.

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CONCLUSION:

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39. In view of the statements made above, there are glaring lapses of the procedures in so far as maintaining the Malkhana Register as well as the delay in sending the samples for examination to the FSL. Further, there was no evidence to prove satisfactorily that the seals found on the samples when it reached the FSL were in fact, the same seals which were put on the samples immediately after seizure of the contraband. It is no res-integra that nonproduction of Malkhana Register as it has happened in the present case alone cannot vitiate the trial but the same coupled with the delay of 5 days in sending the sample to the FSL without any explanation as to it’s safe custody, has the effect of vitiating the trial. Further, absence of certification in respect of photographs as well as the representative sample with the list of samples also has the effect of vitiating the said trial. In light of the discussions made above and for the reasons assigned therein, this Court is of the firm opinion that presence of too many material irregularities have created serious dents in the case of prosecution which has the effect of vitiating the trial and as such, the

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conviction of the appellant is not sustainable in law and the same deserves to be set aside. Accordingly, the Judgment convicting the accused/appellant dated

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24.08.2023 and the sentencing Order dated 25.08.2023 passed by the Special Court of ND&PS Act, Lunglei District, Mizoram is set aside and quashed. The accused be released forthwith, if not required in connection with any other case or for any other purpose.

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40. The Office to send back the Trial Court Records.

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41 . The Criminal Appeal is allowed.

¶185

Comparing Assistant

Sh. Lalzamliana v. The State of Mizoram and Anr.

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Sh. Lalzamliana v. The State of Mizoram and Anr.

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