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GAHC030003712025

REPORTABLE

IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)

Principal Seat

C rl. A. 18/2025

Haukhenkhama

S/o Thangkhandawng

R/o Vengthar, Champhai

----- Appellant/Accused

– VERSUS –

The State of Mizoram

-----Respondent

Advocate for the appellant:- Mr. Johny L. Tochhawng

Advocate for the respondent:- Mrs. Vanneihsiami

B E F O R E

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MR. JUSTICE PRANJAL DAS

Date on which judgment is reserved: 23.01.2026

Date of pronouncement of judgment: 25.02.2026

Whether the pronouncement is of the N/A

Operative part of the judgment :

Whether the full judgment has been

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Pronounced :Yes

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JUDGMENT & ORDER (CAV)

(Mr. Pranjal Das, J.)

1. Heard Mr. Johny L. Tochhawng, learned counsel for the appellant. Also

heard Mrs. Vanneihsiami, learned Addl. Public Prosecutor for the State

respondent.

2. The appellant has filed this appeal aggrieved by his conviction and

sentence under section 22(C) of NDPS Act, 1985 - vide judgment and order

dated 16.04.2025 passed by learned Special Judge (NDPS), Champhai Judicial

District, in Champhai PS Case No. 44 / 2019 - whereby he has been sentenced

to undergo rigorous imprisonment for 11 (eleven) years and to pay a fine of Rs

1 Lakh (in default, undergo simple imprisonment for six months).

The prosecution in brief is that - Liansiampuii, SDPO Champhai lodged an

FIR in Champhai PS to the effect that on 1.6.2019 at 3:00pm, information was

received from a reliable source that some narcotic substances suspected to be

Methamphetamine is kept at the residence of Haukhenkham (25) s/o

Thangkhandawng of Vengthar, Champhai. Accordingly, a party comprising

Champhai PS staff and CID (SB) Champhai rushed to residence of the above

mentioned person. On checking the said house, they recovered 11 bundles, with

each bundle containing 50 packets (one packet contains 200 tablets thus

1,10,000 tablets in total) value of Rs. 165 lakhs (approx.) suspected to be

Methamphetamine which was concealed inside the lining of skirting of the

house. The recovered items were seized from possession of Chingsianding (27)

w/o Haukhenkham of Vengthar, Champhai. The seized items were packed and

sealed in the presence of two witnesses and total weight of the seized items

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was 14.228 kgs. The other accused person, head of family Haukhenkham (25)

s/o Thangkhandawng of Vengthar Champhai staying at that time, at Aizawl and

CID (SB) Aizawl were requested to locate and apprehend him from the spot.

The CID (SB) Aizawl reported that he was apprehended at Aizwal on that day

itself. The seized articles were brought to Champhai PS after observing legal

formalities at the spot. On the basis of the FIR, Champhai PS Case No. 44 of

2019 was registered under Section 22 (C) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (herein after NDPS Act, 1985).

3. The case was investigated and after completion of the investigation, the

investigating officer submitted charge sheet vide CS no. 105 of 2019 dated

29-11-2019 u/s 22 (C) /29 of the NDPS Act. The charge-sheet was filed against

four accused persons, including the present convict-appellant namely,

Haukhenkhama. The accused Haukhenkhama and all the other accused persons

were charge sheeted under Section 22(C)/29 of the NDPS Act. For accused

Shomshul Alom, additional penal provisions were given under section 463/470

IPC r/w section 471/465 IPC.

4. Subsequently, after completion of the usual formalities, charges were

framed against all the four charge sheeted accused persons, including the

present convict-appellant under Sections 22(C)/29 of the NDPS Act vide order

dated 11-03-2020. Additional charge was framed against accused Shomshul

under section 365 IPC. Upon the charges being put to the accused persons,

they denied the same and claimed to be tried, whereupon the trial commenced.

5. During the trial, prosecution examined 7(seven) witnesses. After the

completion of prosecution evidence, the accused persons were examined under

Section 313 Cr.P.C. The defence did not adduce any evidence on its part. After

completion of trial, accused Nos. 1, 2 and 4,namely, Shomshul Alom,

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Lalengzuava and Chingsiandingi were acquitted of the charges under section 22

(C) and also 29 of the NDPS Act. The accused Shomshul Alom was, however,

convicted under section 465 IPC and sentenced separately.

6. The present convict-appellant who was accused No. 3 namely,

Haukhenkhama was convicted under section 22 (C) of the NDPS Act and for

such conviction, he was sentenced to undergo rigorous imprisonment for 11

years and pay a fine of Rs. 1 lakh, in default of payment of fine, he was

sentenced to undergo simple imprisonment for 6 (six) months.

7. Aggrieved by the aforesaid conviction and sentence under section 22 (C) of

the NDPS Act, the convict-appellant Haukhenkhama has come before this Court

with this criminal appeal.

8. Mr. Johny L Tochhawng, the learned counsel for the convict-appellant

submits that - the presiding officer was not present at the time of the deposition of PW2;

that, the sample was not drawn at the place of occurrence; that, the disclosure statement

leading to the seizure of the contraband was not recorded; that, the provisions of Section

52A of the NDPS Act has not been complied properly; that, the procedure was also violative

of the notification and that sampling was not done before the Magistrate; that, the

contraband was already recovered when the accused was apprehended; that, there was no

evidence that the contraband was deposited in the Malkhana; that, as the law under the

NDPS Act is a stringent one, therefore, the prosecution has to prove its case properly; that,

the appellant does not know as to how the contraband was kept in the skirting of his house;

that, some other accused persons of this case were acquitted; that, the evidence of the

seizing officer is an afterthought. Summing up the submissions, it is contended and

submitted by the learned counsel for the appellant that the impugned judgment and

sentence suffers from infirmities and therefore, the same should be interfered and set aside,

acquitting the appellant.

9. In support of his submissions the learned counsel for the convict-appellant

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relies upon the following decisions: -

(i) State of Rajasthan vs Gurmail Singh, (2005)3 SCC 59,

(ii) Madhu Gupta vs State of Assam, 2023 SCC OnLine Gau 2760,

(ⅲ) Pooran Singh vs State of Uttarakhand, 2013 SCC OnLine Utt

3387,

(ⅳ) State of A.P. vs Gangula Satya Murthy, (1997)1 SCC 272,

10. On the other hand, Mrs. Vanneihsiami, the learned Additional Public

Prosecutor appearing for the State submits that - there are sufficient evidence

regarding recovery of the contraband from the house of the accused person and thereafter,

the burden shifted to him to show that he was not in conscious possession regarding the

same; that, the appellant during the trial as accused failed to discharge that burden and

show that he was not in conscious possession of the contraband; that, the appellant could

not explain as to how the contraband in such a large quantity came to his house; that, the

sampling has to be done before the Magistrate as per the governing law on the subject and

in this case, there is evidence regarding sampling before the Magistrate. Summing up the

submissions, the prosecution contends and submits that there is no infirmity in the impugned

judgment and sentence and the same may be upheld, thereby dismissing the appeal.

11. In support of her contentions, the learned Additional Public Prosecutor

relies upon the following decisions:-

(ⅰ) Bharat Aambale vs State of Chhattisgarh, 2025 SCC OnLine SC 110

(ⅱ) Raja Khan vs State of Chhattisgarh, (2025)3 SCC 314

(ⅲ) Rakesh Kumar Raghuvanshi vs State of Madhya Pradesh, 2025

SCC OnLine SC 122.

12. We have carefully perused the Appeal Memo; the impugned judgment and

order; the FIR, the depositions adduced during the trial, the examination of the

accused under Section 313 Cr.P.C and the documents exhibited in the trial. We

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have considered the submissions of the learned counsel for the convict-

appellant and the learned Additional Public Prosecutor. We have also considered

the decisions cited at the Bar.

EVIDENCE

13. PW-1 is Liansiampuii, the police official, who stated in his deposition

during the trial that he knew the accused person and that on 01.06.2019 at 3

p.m., he received a reliable information that some narcotic contraband

substances suspected to be Methamphetamine were kept at the residence of

the appellant at Vengthar, Champhai. He further stated that in pursuance of the

information, he obtained permission from the OC Champhai PS, under Section

41(2) of the NDPS Act and proceeded to the house of the said convict-appellant

with his parties. After preparing his grounds of belief and information in writing

and after arrival of two civilian witnesses, he conducted a search in the

residence of the appellant, but the appellant was at Aizawl at that time and only

his wife was inside the house with their minor children and that, they could not

find anything significant. PW-1 further testified that they requested the CID

(SB) Aizawl to locate and apprehend the accused appellant and after he was

apprehended, he confessed to the CID (SB) that he had hidden 11 bundles of

Methamphetamine inside the lining of the skirting beside the master bed and

thereafter, without conducting further search, they broke open the skirting of

the house and recovered 11 bundles, each containing 10 packets with each

packet containing 200 tablets and therefore,1,10,000 tablets in total of

Methamphetamine from the skirting of the house. PW-1 testified that weighing

and repackaging were done in the presence of civilian witnesses and seized

articles weighed 14.228 Kgs. in total. He further testified that as the sealed

articles were seized from the possession of the co-owner of the house (wife of

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the appellant), he also conducted a formal search of her person, checking on

her body and before conducting checking, he asked her whether she wanted to

be checked before a Magistrate or Gazetted Officer, but she preferred to be

checked on the spot only and thereafter, he proceeded to conduct search on her

body. She was subsequently arrested and produced at the police station before

sunset. PW-1 further testified that he submitted a report of the seizure and

also an FIR to the officer-in- charge, Champhai police station and handed over

the case for further investigation. As part of his deposition, PW-1 exhibited as

Exhibit P1, the seizure memo and his signature thereon, as Exhibit P1(c). He

also exhibited as Exhibit P2, the FIR and his signature thereon as Exhibit P2(a).

He exhibited the arrest memo as Exhibit P3 and his signature thereon, as

Exhibit P3(a). He exhibited the grounds of relief as Exhibit P4 and his

signature thereon as Exhibit P4(a) and P4(b). He exhibited the authorization

under section 41(2) of the NDPS Act as Exhibit P5 and the information in writing

under section 42(1) of the NDPS Act as Exhibit P6. He exhibited the report of

seizure and arrest as Exhibit P7 and his signature thereon as Exhibit P7(a).

14. In cross-examination, PW-1 affirmed that he had sent the information in

writing under section 42(1) of NDPS Act, along with the report of seizure and

arrest as well as FIR on the same date to the OC, Champhai police station. But

that, the OC, Champhai did not append his signature on the body of the

information in writing to show that he had received the documents on the same

day. PW-1 admitted in cross-examination that the samples were not drawn at

the place of occurrence and that he did not know whether the seized articles

were sent immediately before the Magistrate for certification. He also admitted

that he does not know whether the OC, Champhai police station made an

application for certification of seized articles to the Magistrate.

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15. PW-2 F. Lalrinmuana stated that on 01.06.2019 at around 3 p.m.,

Champhai police personnel informed him that they received a reliable

information about the convict-appellant concealing and keeping some

contraband articles in his residence and that the police officer requested him to

be a witness to the seizing of the contraband articles. Accordingly,PW-2 and his

friend C. Lalventhuama proceeded to the place of occurrence along with the

police officer and upon reaching there, the Champhai police under the

supervision of SDPO conducted search of the house of the convict-appellant and

they recovered 11 bundles of Methamphetamine. These bundles contained 50

packets and total tablets were 1,10,000 pieces. They were concealed inside the

wooden plank lining of the skirting of the said house.PW-2 stated that in his

presence, the police officer conducted weighing of the seized articles and the

total weight was found to be 14.228 Kgs. He further testified that after weighing

of the seized articles, the police officer packed and sealed the said seized

articles in his presence, prepared seizure memo on the spot and he put his

signature on the body of the seizure memo. PW-2 testified that after observing

all the legal formalities on the spot, the police officer produced the seized

articles and the wife of the convict-appellant at the Champhai police station. He

proved as Exhibit P1(a), his signature on the body of the seizure memo.

16. In cross-examination, PW-2 stated that at the time of seizure and

recovery of the seized articles, he only saw the wife of the convict-appellant

who was accused No. 2. He further stated during cross-examination that before

his deposition and cross-examination and while taking oath, the learned Special

Judge was not present in the court. He admitted that the I/O or the seizing

officer had not taken his statement. He also stated that the house where the

articles were recovered is not owned by accused Nos. 3 and 4 and he also

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expressed ignorance as to whether the accused Nos. 3 and 4 had a house

guest. He also stated that he cannot recall the amount of the seized articles

without getting information from the case record and he also cannot remember

the weight of the seized articles without checking from the case record. PW-2

stated that the convict-appellant (accused No. 3) was not present during the

recovery of the seized articles.

17. PW-3 is another seizure witness C. Lalventhuama and he stated that on

01.06.2019 at around 3 p.m., Champhai police informed him that they received

the reliable information about one person Haukhenkhama of Vengthar

concealing and keeping contraband articles in his residence and that the police

officer requested him to be a witness to the seizure of the same. He further

testified that accordingly, he and his friend F. Lalrinmuana (PW-2) proceeded to

the place of occurrence along with the police officer and reached the residence

of the convict-appellant where the police with the supervision of SDPO

conducted search of the house and upon doing so, recovered 11 bundles of

Methamphetamine with each bundle containing 50 packets and total tablets

were 1,10,000 which were concealed inside the wooden plank lining of the

skirting of the house. PW-3 testified that in his presence, police conducted

weighing of the seized articles and found it to be 14.228 kgs. He further

testified that after weighing of the seized articles, the police officer packed and

sealed the articles in his presence and prepared seizure memo on the spot

where he put his signature. PW-3 testified that after observing all the legal

formalities on the spot, police officer produced the seized articles and the wife

of the convict-appellant, who was co-accused at the Champhai police station.

PW-3 proved as Exhibit P1(b) his signature on the seizure memo.

18. In cross-examination – PW-3 stated that at the time of the seizure, he

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only saw accused No. 4, the wife of the convict-appellant (who was acquitted after

the trial) as already mentioned earlier. He further admitted in cross-examination

that his statement was not recorded during investigation. He stated that the

house from where the seized articles were recovered is not owned by accused

Nos. 3 & 4 and that he does not know whether they have a house guest. He

also stated that without referring to the case record, he cannot recall the

amount of the seized articles or its weight. PW-3 stated in cross-examination

that the convict-appellant was not present during the recovery of the seized

articles.

19. PW-4 Ginzawmliana deposed that on 30.05.2019, the convict-appellant

called him on phone and asked him to accompany him to Jokhawthar in the

next morning and accordingly, they proceeded there and after reaching, they

went to Khawmawi, where they drank beer and whisky. PW-4 testified that the

convict-appellant was on conversation on the phone with some other person,

but he did not know the nature of the conversation. Later, they came back to

Jokhawthar side and stopped near customs gate and halted there for a while

and one person riding a pink scooty came and asked them to follow him.

Accordingly, they followed him and stopped outside one house whereupon the

convict-appellant and the scooty rider went inside a house and PW-4 remained

outside near his bike. PW-4 further testified that when the convict-appellant

and the scooter rider came out of the house, the convict-appellant was carrying

one bag and thereafter, the PW-4 drove the bike and convict-appellant carried

the bag on his lap and sat behind him and after coming back to Champhai, the

convict-appellant paid him a sum of Rs.2,000/- for hiring his bike. PW-4

testified that before this also, once the convict-appellant had asked him to

accompany him to Khawmawi and said that he had some important business

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there.

20. In cross-examination- PW-4 stated that the convict-appellant never

mentioned about Methamphetamine before him. He also stated that he did not

know the contents of the bag that the convict-appellant carried from the house,

where he had gone in with the pink scooty rider. He also stated that when they

came back with the bag, no checking was done by police on the way. He stated

in cross-examination that the colour of the bag carried by the convict-appellant

was black in colour.

21. PW-5 is one Lalmuanawma who testified that he along with his Joint

Director T Lalropnia examined the seized articles being Exhibit C (CPI)-260

(1) to C(CPI)-260(11) and confirmed that the seized articles contained

Methamphetamine. He proved the FSL report as Exhibit P15 and his signature

thereon as Exhibit P15 (a).

22. In cross-examination – PW-5 stated that all the 11 Exhibits were under 1

gram each and also stated that each Exhibit contained 2 tablets. He admitted

that only Exhibit 9 contained green tablet.

23. PW-6 is one Lalpianpuii, police officer who stated during his deposition

that he knew the accused person and testified that as endorsed by the OC,

Champhai police station, he went to the office of the Assistant Commissioner,

Aizawl district and collected the fake ILP documents submitted by co-accused

Shomshul Alom using another name. Thereafter, he also sent the two

documents to the investigating officer. He proved the wireless message given by

the OC, Champhai police station as Exhibit P8 and the receipt of ILP documents

from Assistant Commissioner Aizawl as Exhibit P9, the ILP form of accused

Shomshul Alom as Exhibit P10 and temporary ILP of co-accused Shomshul Alom

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as Exhibit P11. Cross-examination was declined

24. PW-7 is SI V L Chama Ralte, who was the Investigating Officer of the

case. He stated in his deposition that he knew the accused person and he was

endorsed to investigate the case and during investigation, he examined the

seizing officer, who stated about receiving information regarding keeping of

contraband substances suspected to be Methamphetamine, in the residence of

the convict-appellant and that he received the information on 01.06.2019. PW-

7 stated that in her statement the seizing officer stated about obtaining

permission from OC, Champhai under Section 41 (2) of NDPS Act and

proceeding to the house of the convict-appellant and there, in the presence of

witnesses conducting search and later, the convict-appellant was found in Aizawl

where he was interrogated by CID (SB) and he confessed to have hidden 11

bundles of Methamphetamine inside the lining of the skirting behind the master

bed and that after conducting search there by breaking open the skirting, they

recovered 11 bundles, each containing 10 packets with one packet containing

200 tablets and total 1,10,000 tablets of Methamphetamine in the skirting of the

house. PW-7 stated that the seizing officer also stated in her statement that

the weight of these seized articles was 14.228 kgs. PW-7 stated that the

civilian witnesses corroborated the statement of the seizing officer and stated

about witnessing the recovery, seizure, weighing and repackaging with their

own eyes. PW-7 stated that during investigation, he interrogated the accused

persons including the present convict-appellant. He also sent the seized articles

to FSL Aizawl and he got a confirmation that the seized articles were

Methamphetamine. Upon completion of investigation and finding evidence, he

submitted charge-sheet. He proved the charge-sheet as Exhibit P8 and his

signature thereon as Exhibit P8(a). He proved the arrest memo of the present

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convict-appellant as Exhibit P9 and his signature thereon as Exhibit P9(a). He

proved as Exhibit P10, the inventory of the seized articles and as Exhibit P11

and Exhibit P11(a), the photograph of inventory and sampling.

25. In cross-examination, PW-7 admitted that in the documents of grounds

of belief and the information in writing, there was no signature of the OC, but it

was delivered to the OC as always. He also admitted that the tablets were

partially counted and rounded up the numbers as they were aware of the

contents of each bundle, sub-bundles and packets and bundles and sub-bundles

were in consonance with each other. He also stated that all the bundles, sub-

bundles and small packets were separately counted. PW-7 stated that they had

seized 11 bundles and 11 Exhibits were sent to the FSL as sample. He admitted

that at that time, they were not equipped with UN field testing kit during that

time. He also stated that the seized articles consisted of red color and spotted

with light green colors. He stated that the samples sent to FSL were not only

red color but also green color. He stated that he was present at the time of the

sampling and that the Magistrate came to the PS as requested and samples

were done at the PS in presence of the Magistrate.

26. PW-7 stated in cross-examination that he deposited the seized articles as

soon as finishing drawing of samples and they were briefly entered and

recorded in the Malkhana register book. However, he admitted that no receipt or

copy of the extract of the register has been submitted. He admitted that he

does not know the name of the legal owner of the house from where the seized

articles were recovered. But he knew that he had blood relationship with the

accused persons. He also stated that he did not highlight the name of the legal

owner of the house as he had no involvement and that he had let out the house

to the accused persons.

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DISCUSSION

27. In a trial under the NDPS Act, usually the following important facts are

required to be proved. (i) the seizure of the contraband from the possession or

from the premises of the accused in the presence of witnesses; (ii) wherever,

the provisions of Section 42 are applicable, evidence regarding the recording of

information and sending the same to the higher police authority. (iii) Proof of

sampling and inventory before the Magistrate, (iv) evidence to the effect that

the sample out of the contraband, which was seized in the presence of

witnesses from the accused or his premises and certified by the Magistrate are

sent to the FSL and duly received there, (v) a positive finding from the forensic

laboratory about the said contraband being one of the substances prohibited

under the NDPS Act and with regard to which an offence under the Act is

created.

28. In the instant case, during the trial, the seizing officer PW-1, who was an

SDPO of police, has testified about receiving the information and searching the

house of the accused in the presence of his wife and not finding anything

initially. It is revealed from his evidence that subsequently, the accused who was

in Aizawl, was interrogated by the CID Special Branch to which he confessed

about contraband being hidden in his house at the stated location.

29. It is further revealed from the evidence of PW-1 that thereafter, skirting of

the house beside the master bed was explored and that revealed the

contraband in the nature of 11 bundles of suspected methamphetamine

containing 10 packets with each packet containing 200 tablets and thereby

1,10,000 tablets of suspected methamphetamine. The weight was 14.228 kgs.

30. The testimony of PW-1 about the forensic seizure of the contraband, upon

it being found in the house of the accused has stood its ground in cross-

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examination. PW-1 has duly proved the seizure memo, his signature thereon as

well as the FIR subsequently, lodged by him before the Champhai Police Station.

31. The Seizing Officer being an SDPO was obviously a Gazetted Officer and

therefore, the provisions of Section 42 about recording his information and

sending it to higher police authority was not really applicable in terms of Section

41 of the NDPS Act.

32. Nevertheless, PW-1 has exhibited the information that he had received

and which was reduced to writing and his grounds of satisfaction. He had

exhibited and proved the information that he had sent to the O/C of Champhai

Police Station and also the authorization given to him by the O/C Champhai

Police Station.

33. It is admitted in cross-examination by PW-1 that though the information in

writing was sent on the same day but O/C Champhai did not append his

signature on the body of the writing to show that he had received on the same

day.

34. The learned counsel for the appellant had contended that the samples

were not drawn at the place of occurrence as has been admitted by PW-1 in his

cross-examination and that the same constitutes violation of the standing order

regarding sampling issued by the Government of India. However, it has been

held by the Hon’ble Supreme Court in Union of India v. Mohanlal, (2016) 3 SCC

379 that sampling of the contraband has to be done before the Magistrate in

compliance with section 52A of the NDPS Act.

35. Moreover, if there is a conflict between the statutory provision regarding

taking of samples and standing order of Central Government, the conflict has to

be resolved in favor of the statute on the basis of the first principles of

interpretation. The relevant paragraphs of Mohanlal (supra), being para 15, 16,

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17 and 18 may be reproduced herein below:-

“15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of

the contraband the same has to be forwarded either to the officer-in-

charge 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.

16. Sub-section (3) of Section 52-A requires that the Magistrate shall as

soon as may be allow the application. This implies that no sooner the

seizure is effected and the contraband forwarded to the officer-in-charge

of the police station or the officer empowered, the officer concerned is in

law duty-bound to approach the Magistrate for the purposes mentioned

above including grant of permission to draw representative samples in

his presence, which samples will then be enlisted and the correctness of

the list of samples so drawn certified by the Magistrate. In other words,

the process of drawing of samples has to be in the presence and under

the supervision of the Magistrate and the entire exercise has to be

certified by him to be correct.

17. 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-sections (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 taking samples at the time of seizure.

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18. Be that as it may, a conflict between the statutory provision

governing taking of samples and the Standing Order issued by the

Central Government is evident when the two are placed in juxtaposition.

There is no gainsaid that such a conflict shall have to be resolved in

favour of the statute on first principles of interpretation but the

continuance of the statutory notification in its present form is bound to

create confusion in the minds of the authorities concerned instead of

helping them in the discharge of their duties. The Central Government

would, therefore, do well, to re-examine the matter and take suitable

steps in the above direction.”

36. Therefore, in terms of the aforesaid settled law, even if the samples were

not drawn at the place of occurrence, the same would not come to the aid of

the appellant in defeating the prosecution case. The evidence regarding seizure

of the contraband in the nature of methamphetamine from the house of the

accused has been duly corroborated by the testimony of PW-2 and PW-3, who

were the independent seizure witnesses. Their testimony reveals that they were

asked by the police team led by the seizing officer, PW-1, to participate in the

operation. Both these witnesses have stated about the recovery of the

contraband in the nature of methamphetamine from the lining of the skirting of

the house.

37. The testimony of both the seizure witnesses not only corroborate the

testimony of PW-1 but they are also consistent with one another regarding

being witness to the search and seizure operation resulting in the recovery of

14.228 kgs. of contraband in the nature of methamphetamine. Both these

witnesses have duly proved their signatures on the seizure list.

38. We have duly perused the seizure list (Exhibit P-1) which indicates seizure

of 11 bundles of tablets with each bundle containing 50 packets, with each

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tablet containing 200 tablets, thereby 1,10,100 tablets, valued at Rs. 165.00

lakhs, of red tablets suspected to be methamphetamine.

39. The signature of PW-1 appears as also the proved signatures of PW-2 and

PW-3 as the seizure witnesses. Thus, the testimony of PW-1 together with the

testimony of PW-2 and PW-3 are cogent and consistent regarding the seizure of

14.228 kgs. of suspected contraband in the nature of methamphetamine from

the skirting of the wall of the house in which the appellant was staying with his

wife and children. Another aspect which emerges from the testimony of PW-2

and PW-3 is that they have stated cogently about witnessing the weighing of

the contraband by the Police Officer in their presence.

40. Importantly, PW-2 and PW-3 have also stated about witnessing that the

police officer had packed and sealed the seized articles in their presence and

preparing the seizure memo, where, they signed.

41. PW-6 is a Police Officer but his testimony is more regarding verifying the

fake ILP documents of co-accused Shomsul Alum and his testimony is not much

relevant to the materials with regard to the present appellant.

42. The testimony of PW-4 is not directly related to the present incident of

recovery of contraband from the house of the appellant; but, nevertheless, it

has a secondary significance. From the unshaken testimony of PW-4, it has

emerged that on at least two earlier occasions, the appellant had hired his

scooter to travel with him with his bike to travel with him and on the occasion

described by the witness, they stopped at a place where the appellant and rider

of one scooty who joined them on the way, went inside the house and after

emerging, the appellant was carrying a bag in his hand. PW-4 was paid some

money by the appellant for giving him the service of travel on his two-wheeler.

Page No.# 20/25

43. The prosecution has contended that on the basis of the evidence and

facts proved, conscious possession can be attributed to the appellant. And once

that is so, the appellant would have to discharge his burden that he was not in

conscious possession.

44. The prosecution has contended that the appellant has not been able to

discharge the said burden. In Rakesh Kumar Raghuvanshi (supra), relied

upon by the prosecution, it is stated in para-21 as follows:-

“21. Conscious possession refers to a scenario where an individual not

only physically possesses a narcotic drug or psychotropic substance but is also aware

of its presence and nature. In other words, it requires both physical control and mental

awareness. This concept has evolved primarily through judicial interpretation since the

term “conscious possession” is not explicitly defined in the NDPS Act. This Court

through various of its decisions has repeatedly underscored that possession under the

NDPS Act should not only be physical but also conscious. Conscious possession implies

that the person knew that he had the illicit drug or psychotropic substance in his

control and had the intent or knowledge of its illegal nature.”

45. With regard to the contention of the appellant side regarding not doing of

sampling at the place of seizure and violation of the standing order of 1989, the

prosecution has referred to the case of Bharat Ambale (supra). In this recent

judgment also, the Hon’ble Apex Court, summarizing its findings in para-50, has

stated that mere non-compliance with the procedure under Section 52A or the

standing orders will not necessarily be fatal to the trial, unless there are

discrepancies in the physical evidence rendering the prosecution case doubtful.

It was further held that, if otherwise, the prosecution materials inspired

confidence regarding the recovery and conscious possession, then the

conviction can be recorded despite some procedural defect in terms of Section

52A of the NDPS Act. The relevant para 50 (IV), (V) and (VI) are reproduced

Page No.# 21/25

herein below:-

“(IV) The procedure prescribed by the Standing Order(s) / Rules

in terms of Section 52A of the NDPS Act is only intended to guide the officers

and to see that a fair procedure is adopted by the officer in-charge of the

investigation, and as such what is required is substantial compliance of the

procedure laid therein.

(V) Mere non-compliance of the procedure under Section 52A or

the Standing Order(s) / Rules there under will not be fatal to the trial unless

there are discrepancies in the physical evidence rendering the prosecution’s

case doubtful, which may not have been there had such compliance been done.

Courts should take a holistic and cumulative view of the discrepancies that may

exist in the evidence adduced by the prosecution and appreciate the same more

carefully keeping in mind the procedural lapses.

(VI) If the other material on record adduced by the prosecution,

oral or documentary inspires confidence and satisfies the court as regards the

recovery as-well as conscious possession of the contraband from the accused

persons, then even in such cases, the courts can without hesitation proceed to

hold the accused guilty notwithstanding any procedural defect in terms of

Section 52A of the NDPS Act.”

46. PW-1 in his testimony, has stated about handing over the materials and

wife of the appellant who was arrested at that time, to the O/C Champhai Police

Station for further investigation. It has also emerged from the testimony of PW-

7, the I/O, that the house in which the appellants were staying belonged to

another person but no materials were found about his involvement. He had only

rented out the house to the convict appellant and his family.

47. PW-7, the I/O, has stated about PW-1, the seizing officer (SDPO),

narrating about the incident on the lines which has emerged from the testimony

of PW-1. PW-7, the I/O, has also stated the same regarding the seizure

Page No.# 22/25

witnesses and about their corroboration of the seizure and having witnessed the

recovery, seizure, weighing and repackaging with their own eyes. It has

emerged from the cross-examination of PW-7 that though the signature of the

O/C was not there on the grounds of belief and information sent by PW-1, but

they were delivered to the O/C as always. PW-7 has also stated about 11

bundles and about submitting 11 exhibits to FSL as sample. From his testimony,

the presence of the Magistrate during the sampling has emerged.

48. Before proceeding further, we would like to discuss the forensic evidence

rendered by PW-5. PW-5, the forensic witness, has exhibited and proved the

FSL report and his signature and testified about the seized articles giving a

result of methamphetamine upon forensic examination. From his testimony, it

emerges that 11 exhibits were there, which tallies with the testimony of PW-7,

the I/O, that 11 exhibits were sent to the FSL as sample.

49. In this context, it has emerged from the testimony of PW-7, the I/O, that

after drawing up samples, he promptly deposited the seized articles and the

particulars entered in the Malkhana Register book. However, it has emerged

from his cross-examination by way of his admission that no receipt or extra copy

of the register has been submitted.

50. The learned counsel for the appellant has contended that there are

deficiencies in the chain of custody and in support of the same, referred to the

decision of Gurmail Singh (supra) para-3 of the said decision may be

reproduced herein below:-

“3. 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

Page No.# 23/25

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.”

51. There is no doubt that there should be chain of custody and evidence

regarding the same, so that, the Court is satisfied before reaching any

conclusion that there is no dichotomy between the sample seized and the

sample examined in the forensic laboratory.

52. Coming back to the facts of the case, PW-7, the I/O, has testified about

depositing the materials in the Malkhana and making entries in the Malkhana

register book, though he has not adduced the Malkhana register in evidence.

Further, it has also emerged from his testimony that 11 exhibits were sent to the

FSL and the FSL report as also the testimony of the forensic witness - mentions

about 11 exhibits received and examined in the laboratory.

53. It is also stated in Exhibit P-15, the FSL report that - the parcel consisted

of 11 exhibits packed and sealed in polythene bags and enclosed together in a

paper envelope sealed in wax seals, the seal impression corresponding to that

forwarded. Therefore, upon perusing the available evidence with regard to the

chain of custody, we are of the considered opinion that the same is reasonably

sufficient and that the exhibits which were sampled after seizure were sent to

the FSL and such sample exhibits were examined in the FSL, returning a positive

finding for methamphetamine.

54. Upon perusing and analyzing the entire evidence on record, including the

exhibited documents - we hold that a commercial quantity of psychotropic

Page No.# 24/25

substances in the nature of methamphetamine were seized from the house of

the appellant, with the contraband hidden in the skirting of wall in the bedroom.

The said contraband was duly seized by PW-1, which is corroborated by the

testimony of the independent witnesses PW-2 and PW-3.

55. As already mentioned, we have found the evidence regarding chain of

custody to be satisfactory. The forensic examination confirmed that the seized

substances were methamphetamine. The testimony of the I/O PW-7 fortifies the

rest of the prosecution evidence. Hence, we are of the opinion that there is no

infirmity in the judgment of the learned Trial Court in convicting the petitioner

under Section 22(C) of the NDPS Act pertaining to possession etc., of

Psychotropic Substances in the bracket of commercial quantity. The said

conviction of the convict appellant under 22(C) is hereby upheld and confirmed.

56. Section 22(C) is punishable with rigorous imprisonment for minimum

10(ten) years and which may extend to twenty years and a minimum fine of

Rs.1,00,000/-, which may extend to Rs.2,00,000/-(Rupees Two Lakhs).

57. Considering the circumstances and the quantity in which the contraband

was seized, it is quite clear that such a large quantity of psychotropic

substances could not have been for personal consumption of the appellant and

that they were in all probability kept for the purpose of selling to others - which

is undoubtedly a grave danger to society.

58. Therefore, we do not find any scope for interference with the sentence on

the lower side and consequently, the sentence of rigorous imprisonment of 11

(eleven) years and fine of Rs. 1,00,000/- (in default simple imprisonment for 6

months) is also hereby upheld and confirmed. Thus, the impugned judgment

and order dated 16.04.2025 passed by learned Special Judge (NDPS), Champhai

Page No.# 25/25

Judicial District, in Champhai P.S. Case No. 44 / 2019 stands confirmed.

59. Resultantly, the instant criminal appeal is found to be devoid of merits and

is accordingly dismissed and disposed of on the aforesaid terms.

JUDGE JUDGE

Comparing Assistant