Page 1 of 18

GAHC030002472025

2026:GAU-MZ:479

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

CRL.A. NO.10 OF 2025

Sh. Lalrosanga,

S/o- Lalchhuanmawia,

R/o- Zokhawthar, Champhai District,

Mizoram.

…….Appellant

-Versus-

The State of Mizoram

…….Respondent

– B E F O R E –

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Appellant(s) : Mr. Johny L. Tochhawng, Advocate.

For the Respondent(s) : Mrs. Vanneihsiami, Additional Public

Prosecutor.

Date on which judgment

is reserved : N/A.

Date of pronouncement

of judgment : 01.09.2026.

Whether the pronouncement

is of the operative

part of the judgment? : N/A.

Whether the full judgment

has been pronounced? : Yes.

Page 2 of 18

JUDGMENT & ORDER (ORAL)

Heard Mr. Johny L. Tochhawng, learned counsel

appearing for the appellant. Also heard Ms. Vanneihsiami,

learned Additional Public Prosecutor appearing for the State

respondent.

2. This criminal appeal is filed under Section 415(2)

of the BNSS, 2023 against the impugned judgment of

conviction & sentence dated 18.10.2024, passed by the

learned Special Judge, ND&PS Act, Champhai Judicial District,

Mizoram (hereinafter referred to as the “trial Court”) in

Crl.Trl. No. 197/2023 (Ref: Khawzawl P.S. Case No.

19/2023 dated 26.04.2023), whereby the accused/appellant,

i.e., Sh. Lalrosanga, and another co-accused were convicted

under sections 21(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as the “NDPS

Act”), and were sentenced to suffer rigorous imprisonment

for 10 years and to pay a fine of Rs. 1,00,000/-; in default to

suffer simple imprisonment for another six months. Further,

under Section 25 of the ND&PS Act, was sentenced to suffer

rigorous imprisonment for 10 years and to pay a fine of Rs.

1,00,000/-; in default to suffer simple imprisonment for

another six months. Both the sentences were directed to run

concurrently.

3. The brief facts of the case, as borne out from the

record, are that on 26.04.2023, PW-4, along with another

constable, was on duty at the Tuisenphai Check Gate when

they intercepted a Hyundai i20 vehicle bearing Registration

Page 3 of 18

No. MZ01E-7744, which was being driven by the co-accused,

Joseph Laldingngheta. The accused/appellant, Lalrosanga,

was allegedly accompanying him. Suspecting that the vehicle

was carrying contraband articles, PW-4 informed the

Khawzawl Police Station telephonically. Pursuant thereto, ASI

C. Vanlalruata and his team proceeded to the place of

occurrence. Upon search of the vehicle, 80 soap cases

containing brown powder, suspected to be heroin, weighing

894.18 grams in total, were allegedly recovered from the back

carrier/boot space of the vehicle in the presence of two

civilian witnesses. Both accused persons were thereafter

arrested and Khawzawl P.S. Case No. 19/2023 dated

26.04.2023 was registered under Sections 21(c)/25 of the

NDPS Act.

4. Upon completion of investigation, including seizure

of the alleged contraband, a charge-sheet was laid against

the accused/appellant and the co-accused under Sections

21(c)/25 of the NDPS Act. The learned trial Court, upon both

accused persons pleading not guilty, framed the charges

accordingly. During trial, the prosecution examined five

witnesses, including the seizing officer, two civilian seizure

witnesses, the police constable who had allegedly

apprehended the accused/appellant and the Investigating

Officer. Upon completion of the prosecution evidence, the

accused/appellant was examined under Section 313 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as

the “Cr.P.C.”). He denied the incriminating circumstances put

Page 4 of 18

to him. In support of his defence, he examined one Margareth

Liani as DW-1.

5. Upon appreciation of the evidence on record and

hearing the parties, the learned trial Court convicted the

accused/appellant and the co-accused under Sections

21(c)/25 of the NDPS Act and sentenced them accordingly.

Aggrieved thereby, the present appeal has been preferred.

6. Mr. Johny L. Tochhawng, learned counsel appearing

for the accused/appellant submits that the conviction cannot

be sustained either on facts or in law. His principal submission

is that the search and seizure proceedings were not

conducted in accordance with the statutory safeguards

contained in the NDPS Act, particularly Section 52A thereof. It

is further contended that the prosecution has failed to

establish the foundational fact of conscious possession of the

alleged contraband by the accused/appellant, which is the

essential ingredient necessary to bring home the charge

under Section 21(c) of the NDPS Act.

6.1. Learned counsel further submits that the coordinate

Bench of this Court, while deciding the appeal preferred by

the co-accused, namely, Joseph Laldingngheta, being

Crl.A./7/2025 (Joseph Laldingngheta v. The State of

Mizoram and Anr.), arising out of the very same judgment

of the learned trial Court, has already examined the legality of

the search and seizure as well as the evidence relating to

recovery and has found serious deficiencies therein which

vitiated the prosecution case. The said judgment having

Page 5 of 18

attained finality, the same findings, insofar as they relate to

the common search, seizure, sampling and chain of custody,

cannot be ignored while considering the present appeal.

6.2. It is further submitted that the very circumstance

upon which the prosecution principally seeks to establish

possession against the accused/appellant, namely, that he

was carrying the contraband in a plastic sack and thereafter

placed the same in the back carrier/boot space of the vehicle,

was never put to him during his examination under Section

313 Cr.P.C. Consequently, such circumstance cannot be used

against him. In support of the aforesaid contentions, he relies

upon the following decisions: -

(i) Paramjeet Singh Alias Pamma v. State of

Uttarakhand, reported in (2010) 10 SCC 439. (Apex

Court)

(ii) Binod Yadav & Anr. v. Union of India and Anr .,

reported in 2024 (6) GLT 492. (Coordinate Bench)

7. Per contra, Ms. Vanneihsiami, learned Additional

Public Prosecutor appearing for the State submits that the

acquittal of the co-accused is of no assistance to the

accused/appellant, since the evidence against the

accused/appellant is distinct. According to the learned

Additional Public Prosecutor, it was the accused/appellant

who was carrying the contraband and subsequently placed it

in the back carrier of the vehicle. It is submitted that PW-4

has categorically established this circumstance and, therefore,

the conviction of the accused/appellant does not warrant

Page 6 of 18

interference. Reliance has been placed upon the judgment of

the Apex Court in Bharat Aambale v. State of

Chhattisgarh, reported in 2025 SCC OnLine SC 110 .

8. I have considered the rival submissions advanced by

the learned counsel for the parties and have carefully

examined the materials available on record, including the

evidence led before the learned trial Court and the judgment

rendered by the coordinate Bench in the appeal preferred by

the co-accused. I have also duly considered the case laws

cited at the Bar.

9. Since this is an appeal against conviction, this Court

is required to independently re-appreciate the evidence on

record and arrive at its own conclusion as to whether the

prosecution has established the guilt of the accused/appellant

beyond reasonable doubt.

10. Upon consideration of the materials on record, the

following questions arise for determination:

(i) Whether the prosecution has established beyond

reasonable doubt that the accused/appellant was in

conscious possession of the alleged contraband so as to

bring home the charge under Section 21(c) of the NDPS

Act?

(ii) Whether the material incriminating circumstances

relied upon by the prosecution, particularly the

allegation that the accused/appellant was carrying the

contraband and thereafter placed it in the back

Page 7 of 18

carrier/boot space of the vehicle, could be relied upon

when such circumstances were not specifically put to

him during his examination under Section 313 Cr.P.C.?

(iii) What is the effect of the findings recorded by the

coordinate Bench in the appeal preferred by the co-

accused with regard to the search, seizure, sampling

and chain of custody of the alleged contraband?

11. The first issue goes to the very foundation of the

prosecution case. In a prosecution under Section 21(c) of the

NDPS Act, the prosecution must establish possession.

12. Section 8 of the NDPS Act prohibits a person from

possessing any narcotic drug or psychotropic substance,

except as provided under the provisions of the Act and the

rules or orders made thereunder. Section 21 of the NDPS Act

makes possession, etc., of manufactured drugs and

preparations an offence. Section 21(c) relates to an offence

involving possession, etc., of such substance in commercial

quantity, which reads as under: -

“(C) where the contravention involves commercial

quantity, with rigorous imprisonment for a term which

shall not be less than ten years but which may extend to

twenty years and shall also be liable to fine which shall

not be less than one lakh rupees but which may extend

to two lakh rupees:”

13. The expression “possession” has to be understood in

the context of awareness about the particular fact and it is

well settled that once possession is established, the person

who claims that it was not a conscious possession has to

Page 8 of 18

establish it because it is he who knew how it came to be in

his possession. In other words, the prosecution must first

establish the foundational fact that the accused was in

conscious possession of the contraband. The statutory

presumptions under the NDPS Act do not dispense with this

initial burden. Possession is the sine qua non for bringing

home the charge under Section 21(c) of the NDPS Act.

14. In Ram Singh v. Central Bureau of Narcotics ,

reported in (2011) 11 SCC 347, the Apex Court has held that

once an article is found in possession of an accused, it can be

presumed that he was in conscious possession. In short,

control over the goods is one of the tests to ascertain

conscious possession, so also the title. Paragraph 24 of the

aforesaid judgment reads as under: -

“24. It is trite that to hold a person guilty, possession has to

be conscious. Control over the goods is one of the tests to

ascertain conscious possession so also the title. Once an

article is found in possession of an accused it could be

presumed that he was in conscious possession. Possession

is a polymorphous term which carries different meaning in

different context and circumstances and, therefore, it is

difficult to lay down a completely logical and precise

definition uniformly applicable to all situations with

reference to all the statutes. A servant of a hotel, in our

opinion, cannot be said to be in possession of contraband

belonging to his master unless it is proved that it was left in

his custody over which he had absolute control”

15. As a necessary corollary to the above, unless the

prosecution first establishes the nexus of the accused with the

recovered contraband beyond reasonable doubt, the reverse

burden cannot be invoked to fill an evidentiary gap. It is,

Page 9 of 18

therefore, necessary to examine whether the evidence on

record establishes such nexus.

16. PW-1, the seizing officer, deposed that upon

receiving information from the Tuisenphai Check Gate, he

proceeded to the spot and searched the Hyundai i20 vehicle.

According to him, 80 soap cases containing brown powder

suspected to be heroin were recovered from the back carrier

of the vehicle. The articles were weighed, repacked and

sealed at the spot and were found to weigh 894.18 grams in

total. Significantly, however, PW-1 does not claim to have

seen the accused/appellant either carrying the alleged

contraband or placing it in the vehicle.

17. PW-2 and PW-3, the independent seizure

witnesses, also do not provide the necessary link between the

accused/appellant and the alleged contraband. Though in

their examination-in-chief they stated that the two accused

persons were apprehended and described them as

occupants/possessors of the seized articles, their cross-

examination materially weakens the prosecution case. Both

witnesses stated that when they reached the place of

occurrence, the two accused persons were already inside the

duty check post. Both further stated that they had not seen

the accused persons driving or occupying the vehicle or

transporting the seized articles. PW-3 could not even

remember the accused persons and stated that the owner of

the vehicle was not present at the spot.

Page 10 of 18

18. PW-6, the Investigating Officer, likewise does not

bridge the evidentiary gap. During cross-examination, he

stated that when he reached the place of occurrence, he did

not see either accused inside the vehicle. More importantly,

he admitted that the seized articles were not present in the

vehicle when it crossed the check gate and that he did not

actually see who had placed the seized articles in the back of

the car.

19. Thus, the prosecution case regarding conscious

possession substantially rests upon the testimony of PW-4,

the police constable who was on duty at the Tuisenphai Check

Gate.

20. PW-4 stated that when the vehicle reached the

check gate, the co-accused stepped out of the vehicle and

allegedly disclosed that he was smuggling contraband along

with the accused/appellant, who had walked away from the

vehicle to avoid the check gate. PW-4 thereafter informed the

seizing officer and, along with another constable, followed the

vehicle. According to him, they proceeded for about two

kilometres, waited for the accused/appellant and, when he

arrived after about three to four minutes, halted him. PW-4

further stated that the accused/appellant was carrying the

contraband in a plastic sack in his hand, and that he

thereafter placed it in the back carrier of the vehicle,

wherefrom the 80 soap cases were recovered.

During cross-examination, PW-4 further stated that

another constable was on duty at the check gate and that,

Page 11 of 18

without any specific direction or order from anyone, both of

them accompanied the co-accused in the back seat of the

vehicle with the intention of apprehending the

accused/appellant. He stated that, after proceeding about 2

kilometres from the check gate, they waited for the

accused/appellant, who arrived after about 3–4 minutes.

According to him, the accused/appellant was carrying the

contraband in a plastic bag which was not transparent, and

therefore, they could not ascertain whether the bag contained

heroin. He further stated that they gave the information only

after returning to the check gate. The witness also stated that

he could not say whether the seizing officer had prepared any

document before conducting the search and checking the

vehicle.

21. The difficulty with this version is not merely that PW-

4 is a solitary witness. The material circumstance relied upon

by him is itself attended by an unexplained gap. If, as PW-4

states, the accused/appellant was halted immediately upon

reaching the spot where PW-4 and another constable were

already waiting for him, and if he was then carrying the

alleged contraband in his hand, the prosecution has not

explained when, and in what manner, the contraband came to

be placed in the back carrier of the vehicle. There is no

evidence to establish that the accused/appellant thereafter

entered the vehicle. There is also no evidence explaining how,

when the said two constables were seated in the back seat of

the said vehicle, the accused/appellant could have placed the

contraband therein.

Page 12 of 18

22. This assumes significance because the other

constable was admittedly present with PW-4 throughout this

crucial part of the occurrence. He was, therefore, a natural

and material witness to the alleged apprehension of the

accused/appellant and the events immediately preceding the

recovery. Yet, he was neither examined nor was his non-

examination explained. The Investigating Officer, on the other

hand, candidly admitted that he did not see who had placed

the seized articles in the vehicle.

23. The independent seizure witnesses also did not see

the accused/appellant driving or occupying the vehicle or

transporting the alleged contraband. Consequently, the only

evidence sought to establish the crucial act of carrying the

contraband and placing it in the vehicle is that of PW-4.

Tested against the surrounding circumstances and the

evidence of the other witnesses, that testimony does not

attain the degree of reliability required to safely sustain a

conviction.

24. This Court is conscious of the settled principle that a

conviction can rest upon the testimony of a solitary witness if

such testimony is wholly reliable and inspires confidence. But

the present case is not one where the testimony of PW-4 can

safely be placed in that category. The unexplained transition

of the alleged contraband from the hands of the

accused/appellant, who was allegedly apprehended outside

the vehicle, to the back carrier of the vehicle, coupled with

the non-examination of the other constable admittedly

present at the spot and the admission of the Investigating

Page 13 of 18

Officer that he did not see who placed the articles in the

vehicle, creates a serious doubt regarding the prosecution

version.

25. This doubt becomes more fortified from the evidence

of PW-6, the Investigating Officer, who admitted that the

seized articles were not present in the vehicle when it crossed

the check gate. Thus, the contraband was admittedly not in

the vehicle at the stage when it was initially detained. The

prosecution case, therefore, requires the Court to accept that

the accused/appellant, after being halted outside the vehicle,

somehow placed the contraband inside the back carrier, from

where it was subsequently recovered. Yet, the prosecution

has led no reliable evidence establishing this crucial

intervening circumstance.

26. It is also pertinent that the menace of drugs to

society is undoubtedly grave and the offences under the

NDPS Act are serious in nature. However, the seriousness of

the offence cannot dispense with proof of the essential

ingredients of the offence. Where the essential link between

the accused/appellant, who was allegedly halted outside the

vehicle, and the contraband subsequently recovered from the

back carrier of the vehicle driven by the co-accused is lacking,

particularly when the prosecution’s own evidence shows that

the contraband was not present in the vehicle when it was

initially detained at the check gate, the Court cannot supply

that missing link by conjecture or presumption. The

prosecution must establish that link by cogent evidence

Page 14 of 18

before the statutory presumptions can be brought into

operation.

27. That apart, the statement of the accused/appellant

recorded under Section 313 Cr.P.C. shows that he was asked

whether he was halted by police personnel at the Tuisenphai

Check Gate and whether 894.18 grams of heroin packed in 80

soap cases had been recovered from his possession. He

denied both circumstances and stated that nothing had been

seized from his possession and that he had no knowledge of

the matter.

28. What was not put to him was the specific

prosecution case emerging from the testimony of PW-4 that

he had deliberately walked away from the check gate carrying

the contraband in a plastic sack; that he was subsequently

apprehended about two kilometres away; and, most

importantly, that he himself placed the contraband in the back

carrier of the vehicle.

29. Section 313 Cr.P.C. is intended to provide the

accused a fair opportunity to explain every material

circumstance appearing against him. In Sharad

Birdhichand Sarda v. State of Maharashtra , reported in

(1984) 4 SCC 116, the Apex Court held that circumstances

not put to the accused in his examination under Section 313

Cr.P.C. cannot be used against him for recording his

conviction, since the accused had no opportunity to explain

the same. The principle has also been reiterated in Inspector

of Customs, Akhnoor, Jammu and Kashmir v. Yashpal

Page 15 of 18

and Anr., reported in (2009) 4 SCC 769 and Paramjeet

Singh (supra).

30. It is equally well settled that every omission in a

Section 313 examination does not ipso facto vitiate a trial; the

Court must examine whether the omission concerns a

material incriminating circumstance and whether prejudice

has resulted. In the present case, however, the circumstance

omitted is not peripheral. It is the very circumstance by which

the prosecution seeks to establish the accused/appellant’s

conscious possession. The failure to put that circumstance to

him, therefore, assumes direct significance.

31. Accordingly, the specific incriminating circumstance

that the accused/appellant had carried the contraband and

thereafter placed it in the back carrier of the vehicle cannot

be used against him. Once that circumstance is excluded, the

remaining evidence does not establish that th e

accused/appellant was in conscious possession of the

contraband recovered from the vehicle.

32. The position is also to be examined in the backdrop

of the judgment rendered by the coordinate Bench in

Crl.A./7/2025, preferred by the co-accused against the very

same judgment of the learned trial Court. The coordinate

Bench, upon examination of the same search and seizure,

found material deficiencies in the prosecution case concerning

the proof of recovery, compliance with the statutory

safeguards, sampling and chain of custody, and held that the

foundational facts necessary to sustain the prosecution under

Page 16 of 18

the NDPS Act had not been established beyond reasonable

doubt. The co-accused was accordingly acquitted.

33. The learned Additional Public Prosecutor is correct in

submitting that the acquittal of the co-accused does not, by

itself, result in an automatic acquittal of the

accused/appellant, particularly where the evidence against

the two accused persons is not identical. However, the

search, seizure, sampling and chain of custody in the present

case are the very same proceedings which were considered

by the coordinate Bench. The findings recorded in respect

thereof, having attained finality, constitute a relevant and

binding part of the factual and evidentiary backdrop of the

present case.

34. More importantly, even independently of the

aforesaid findings, the prosecution has failed to establish the

essential link between the accused/appellant and the

contraband. The prosecution cannot rely upon the statutory

presumptions without first establishing conscious possession.

Nor can the Court supply the missing link by inference or

conjecture merely because the accused/appellant was

allegedly associated with the co-accused or was found in the

vicinity of the vehicle.

35. On an overall appreciation of the evidence, the

prosecution case therefore suffers from a fundamental

deficiency. The alleged contraband was not recovered from

the person of the accused/appellant. The independent

witnesses did not see him possessing or transporting it. The

Page 17 of 18

Investigating Officer did not see him placing it in the vehicle.

The other constable who was admittedly present at the crucial

time was not examined. The only witness seeking to establish

the missing link, PW-4, gives a version which does not

satisfactorily explain how the contraband came to be

recovered from the back carrier after the accused/appellant

had allegedly been halted outside the vehicle. Significantly,

the Investigating Officer himself stated that the contraband

was not present in the vehicle when it crossed the check gate.

Added to this is the failure to put the crucial incriminating

circumstance to the accused/appellant under Section 313

Cr.P.C.

36. The learned trial Court convicted the

accused/appellant primarily on the evidence that he was

occupying the vehicle along with the co-accused from which

the contraband was seized. However, the evidence of the

prosecution witnesses, including PW-4, who had apprehended

the accused/appellant, does not support the aforesaid finding

of the learned trial Court insofar as the accused/appellant is

concerned.

37. In such circumstances, it would be unsafe to sustain

the conviction on the basis of the testimony of PW-4. The

doubt that arises is not fanciful or remote; it emerges from

the prosecution’s own evidence and concerns the very

circumstance necessary to establish conscious possession.

38. The prosecution was required to establish the

foundational fact of conscious possession beyond reasonable

Page 18 of 18

doubt, that being the sine qua non for bringing home the

charge under Section 21(c) of the NDPS Act. On the evidence

available, that foundational fact remains unproved.

39. Where the evidence reasonably admits of two views,

the view favourable to the accused must necessarily prevail.

The present case is one where the prosecution version does

not exclude a reasonable possibility that the

accused/appellant’s connection with the contraband was not

established. The benefit of that reasonable doubt must,

therefore, go to the accused/appellant.

40. Consequently, the judgment of conviction and

sentence dated 18.10.2024 passed by the learned Special

Judge, ND&PS Act, Champhai Judicial District, Mizoram in Crl.

Trl. No. 197/2023, arising out of Khawzawl P.S. Case No.

19/2023 dated 26.04.2023, convicting the accused/appellant

under Sections 21(c)/25 of the NDPS Act, cannot be sustained

and is hereby set aside and quashed.

41. The accused/appellant, Lalrosanga, is accordingly

acquitted of the charges. He shall be set at liberty forthwith, if

his detention is not required in connection with any other

case.

42. The criminal appeal stands allowed and is

accordingly disposed of.

JUDGE

Comparing Assistant