In NDPS cases, once the prosecution establishes a prima facie case, the burden shifts to the accused to explain possession of the narcotic substance.

Judgment :

(Sanjay Kumar Jaiswal, J.)

1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, appellants Mayur Deshle @ Manya and Prakash Beldar @ Prakash Mohite herein have preferred these criminal appeals challenging the legality, validity and correctness of the judgment of conviction and order of sentence dated 23.02.2019 passed by the learned Special Judge (NDPS Act) Kanker (C.G.), in Special (NDPS Act) Criminal Case No. 9 of 2018 by which the appellants have been convicted and sentenced as under:-

Since the facts and evidence as also the question of law involved in both the appeals are similar, they are being disposed of by this common judgment.

2. In this case, it is alleged that on 28.12.2017 the accused appellants were found illegally transporting 124 Kgs. & 318 grams of narcotic substance (ganja) in 61 packets. .

3. The case of prosecution is that on 28.12.2017 Sub-Inspector Purushottam Kurre of Police station Kanker was instructed by Senior Officers to conduct MCP (Model Code of Criminal Procedure) proceedings. Sub-Inspector Vikrant Som, Assistant Sub-Inspector Sahu Head Constable Nos.123, 146 and Constable Nos. 44, 645, 317 were conducting MCP proceedings at Raza Fuels Pathari NH-30. At around 12.00 PM, a white Scorpio bearing Regn. No. MH-19-BJ/9499 coming from Jagdalpur was intercepted for checking and the inmates of the vehicle were questioned. On suspecting that there is Ganja in vehicle, a Panchnama was prepared and a duty certificate was issued to Constable Sachin Shori and he was sent to the SDO(P) Office to give information. On being instructed by the SDOP over mobile to take action, witnesses Dilip Verma and Govind Diwan were given notice to appear at the vehicle parking space of Raza Fuels. Then the accused were given notice regarding search either by Police or by a gazetted officer, on which, the accused gave their consent to be searched by the police. Before that, the police staff and seizure witnesses Dilip Verma (P.W.2) and Govind Diwan (P.W.1) were searched by accused, on which, no suspicious material was found from them in the said search. Thereafter, the accused were personally searched in front of the witnesses and during search, an Aadhar card, a mobile, a purse containing Rs.500/- along-with a driving license were found from accused Mayur and an Aadhar Card, two mobiles, a purse containing Rs.1000/- were found from accused Prakash, which were seized. Thereafter, when the offending vehicle was searched 61 packets of narcotic substance i.e., ganja were found in the dicky of the vehicle and the accused were found to be illegally transporting it.

4. The further case of prosecution is that in the presence of witnesses, accused Mayur Deshale and Prakash were served notice under section 91 Cr.P.C., demanding to produce valid documents for carrying ganja in the said vehicle, on which, the accused did not produce any documents. The said offending vehicle was found in the possession of accused Mayur Deshale and Prakash. A recovery Panchnama of 61 packets of ganja was prepared. Notice was served to the weigher Sunil Patel (P.W.3) through constable Sachin Shori for weighing the said ganja. When the weigher Sunil Patel came at the scene of incident with his electronic weighing scale, a panchnama was prepared after physically verifying his electronic weighing scale. Further, a panchnama of sample seal was prepared for sealing the seized ganja and thereafter another Panchnama was prepared by writing letters SI MAVS in English on the seal of samples. Total 61 packets of narcotic substance were recovered, which were marked by writing serial numbers from 01 to 61 over the packets and were weighed at the scene of incident by weigher Sunil Patel (P.W. 3 ) and the total weight o