2019 (8) TMI 1666 - SC - Indian Laws

Smuggling - contraband item - illegal sale/purchase between the appellant and the acquitted co-accused - HELD THAT - The prosecution under the NDPS Act carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him and it is for the accused to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case only whereafter the burden shifts to the accused. Because there is a reverse burden of proof the prosecution shall be put to a stricter test for compliance with statutory provisions. If at any stage the accused is able to create a reasonable doubt as a part of his defence to rebut the presumption of his guilt the benefit will naturally have to go to him - the contraband is stated to have been seized from the appellant on 28 December 2001. The Malkhana Register undoubtedly shows that the seized sample was deposited the same day. There is also no dispute with regard to the sample extracted and sent to the FSL for examination confirming that the contraband was Opium and that the seal had not been tampered with in any manner. There can hardly be any difference between a case of non-production of a sample and the production of a sample doubtful in its identity in being co-related to what was seized from the accused. In both the cases it will become doubtful if the FSL Report is with regard to the very sample seized from an accused - appeal allowed - decided in favor of appellant.

Summary

Issues:
Conviction under Sections 8 and 18(b) of the NDPS Act based on search and seizure evidence, compliance with Section 50 of the NDPS Act, delay in production of seized sample, credibility of evidence, burden of proof, benefit of doubt.

Analysis:

Conviction under Sections 8 and 18(b) of the NDPS Act:
The appellant challenged his conviction under Sections 8 and 18(b) of the NDPS Act, alleging improper conviction due to lack of evidence establishing illegal sale/purchase. The defense argued that witnesses turned hostile, and there were discrepancies in the search and seizure memo. The defense relied on case law to highlight non-compliance with Section 50 of the NDPS Act, emphasizing the importance of foundational facts for establishing guilt.

Compliance with Section 50 of the NDPS Act:
The prosecution contended that Section 50 of the NDPS Act was complied with, as the appellant was informed of his legal rights and voluntarily consented to the search. The prosecution emphasized the timely submission of the seized sample to the FSL and the confirmation of the contraband as Opium. However, the defense raised doubts about the search and seizure process, pointing out irregularities in the signatures on the seizure memo.

Delay in production of seized sample:
The defense highlighted a significant delay in producing the seized sample before the Court, raising concerns about the authenticity of the evidence. The defense argued that the delay, coupled with illegible signatures on the seal, cast doubt on the prosecution's case. The lack of a satisfactory explanation for the delay further undermined the credibility of the evidence.

Credibility of evidence and burden of proof:
The Court emphasized the reverse burden of proof in NDPS cases, placing a stricter test on the prosecution to establish guilt. The Court noted discrepancies in the evidence, including hostile witnesses and suspicious gaps in the seizure memo. The defense's ability to create reasonable doubt shifted the burden back to the prosecution, highlighting the need for a prima facie case before presuming guilt.

Benefit of doubt:
Considering the doubts raised regarding the identity of the seized sample and the sample produced in Court, the Court applied the principle of the benefit of doubt. Citing relevant case law, the Court held that a doubtful identity of the sample weakened the prosecution's case, entitling the appellant to the benefit of doubt. Consequently, the appeal was allowed, and the appellant's bail bonds were discharged.

Conclusion:
The judgment focused on the importance of establishing a prima facie case in NDPS prosecutions, emphasizing compliance with statutory provisions and the burden of proof. The doubts raised regarding the search and seizure process, delay in evidence production, and credibility of witnesses played a crucial role in granting the appellant the benefit of doubt and overturning the conviction.