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TMI Blog2019 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... was included in the investigation and all the witnesses are police officials only. 3. Learned counsel for the appellant alleging false implication contends that he was apprehended as he stepped out of his house. There is no explanation for the nonavailability of any independent witness in a residential locality. There is noncompliance with Section 50 of the NDPS Act. The prosecution failed to prove that the sample produced in court was the same as seized from the appellant. 4. Learned counsel for the State submits that the appellant has a previous history of two convictions under the NDPS Act and he is a habitual offender. Section 50 has been complied with. The Trial Court has recorded its satisfaction that the sample produced in court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s inconsequential. Unfortunately, the High Court did not deal with this aspect of the matter at all. The fact of an earlier conviction may be relevant for the purpose of sentence but cannot be a ground for conviction per se. 7. In Mohan Lal vs. State of Punjab, AIR 2018 SC 3853, it was observed: "10. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in the case of Ashok (supra), this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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