The burden of proof and presumption of guilt under the Narcotics Drugs and Psychotic Substances Act, 1985, and the admissibility of evidence were central legal principles established in the judgment.

JUDGMENT

Debangsu Basak, J. - The appellants have assailed the judgement of conviction dated July 3, 2020 and order of sentence dated July 6, 2020 passed by the learned Additional Sessions Judge cum Judge Special Court (NDPS Act), Berhampore, Murshidabad, in NDPS Case No. 53 of 2010.

2. The Directorate of Revenue Intelligence (DRI) had lodged a complaint with the Court that, on the basis of a specific intelligence, to the effect, that a truck loaded with Ganja would pass through National Highway 34 on May 9, 2010, a team of DRI officers and staff had kept vigil on National Highway 34 at Girja More of Murshidabad district. At about 4 AM of May 9, 2010 the team had spotted a truck and intercepted it. Three persons including the driver had been found inside the truck. They had disclosed their identities. On preliminary search several rectangular packets of identical sizes wrapped with blue, black, white and green coloured polythene and pasted with cello tape had been found concealed under waste dry ash. The apprehended persons had claimed before the officers that they were under life risk at the spot and preferred the office of the DRI. They were thereafter taken to the office of the DRI where a total number of 181 packets containing Ganja had been recovered from the three accused. Three mobile phones along with other articles had been recovered during personal search of the apprehended persons. Weight of the Ganja had been found to be 3429.300 kgs.

3. After completion of the investigations, senior intelligence officer had submitted a complaint against seven accused on November 20, 2010. Two of the accused being the appellants had faced trial. The other accused were either absconding or could not be apprehended and therefore the case had been filed as against them.

4. On November 25, 2013, charges under the provisions of Narcotics Drugs and Psychotic Substances Act, 1985 had been framed. The accused persons had pleaded not guilty to the charge. By the impugned judgement of conviction and the order of sentence, the appellants have been convicted under section 20 (b) (ii) (c) of the Act of 1985 and sentenced to suffer rigorous imprisonment for 15 years and to pay a fine of Rs. 1 lakh and in default to suffer simple imprisonment for six months.

5. Learned advocate appearing for the appellants have submitted that, the prosecution failed to prove the charges beyond reasonable doubt. He has contended that, the investigating officer was not examined by the prosecution. Consequently, the prosecution had caused prejudice to the defence as the defence was denied the opportunity to cross examine him and elicit vital contradictions. He has contended that, although, non-examination of the investigating officer is not always fatal unless prejudice is shown by the accused, in the facts of the present case, the appellants were prejudiced by non-examination of the investigating officer by the prosecution. He has contended that, whether the investigating officer went to the place of occurrence to investigate into the matter, whether he examined the so-called independent witnesses and if so when and how, whether he examined any other witnesses of the locality where the persons were apprehended and where the seizure took place, whether he drew any sketch map of the place of occurrence, how the samples had been produced before the learned Court below and how those were sent for chemical examination, whether the mother packets were stored in the Malkhana by himself or by the complainant, how statement under Section 67 of the Act of 1985 was recorded and whether procedural safeguards were followed or not, whether he sought for requisition order by which prosecution witness No. 2 could be present at 200 km away from his workplace at Kolkata are some of the questions which the investigating officer ought to have been answered by the investigating officer.

6. He has contended that, non-examination of the investigating officer is not on the ground of incapacitat