Point of law: While upholding the constitutional validity of sections 35 and 54 of the NDPS Act, the Apex Court has, however, reiterated that more serious the offence, the stricter would be the degree of proof to convict the accused. It was also observed that an initial burden would lie upon the prosecution and only when it stands satisfied, the legal burden would shift upon the accused. What follows from the above decision is that notwithstanding the concept of reverse burden envisaged by section 35 and 54 of the NDPS Act, the burden upon the prosecution to prove the foundational fact would still exist.

JUDGMENT :

A.D. Choudhury, J.

Heard Ms. S.K. Nargis, learned counsel appearing for the appellants. We have also heard Ms. N. Das, learned APP, Assam, appearing for the State.

1. This appeal is directed against the judgment and order dated 12/09/2019 passed by the learned Sessions Judge, Kamrup(M), in NDPS Case No. 58/2018, finding the appellants guilty of committing offences under Sections 20(b)(ii)(c) and 29 of the NDPS Act’1985 and sentencing them to undergo RI for 14 years and also to pay fine of Rs.200000/-(rupees two lacs) each, in default to undergo rigorous imprisonment for another 6(six) months each.

2. The facts of the case, briefly stated, are that on 10/04/2018, one Girindra Nath Haloi, S.I. of Guwahati GRPS, Assam, had lodged an ejahar before the In-Charge, Guwahati GRPS, informing that on 10/04/2018, at 7.30 a.m., the train checking party, ASI Dinesh Deka, along with staff conducted checking inside the train No.12435DN Rajdhani Express, while it was standing at Platform No.1, in Guwahati Railway station, had detected that the Bedroll staff of Coach No.4A and Coach No.B3 were carrying suspected Ganja in bags kept inside the bedroll cabin of the Coach. Immediately, the checking party deboarded the bedroll staff along with the three Bags containing Ganja from the coach and detained them with the bags at Plat Form No.1. On getting information from the Checking party, O.C., GRPS issued authority letter under section 41(2) of the NDPs Act, to the informant and the informant visited the place of occurrence, examined the checking party, detained the bedroll staffs who on being asked, disclosed their names, to be Ashok Bhagat and Viswanath Pratap singh. During their bag checking, total five packets of suspected Ganja weighting 38 kgs wrapped in black polythene were recovered from the two black colored bags alleged to be of Ashok Bhagat. Also recovered one alleged ID card allegedly kept in one of the bags. A total of 27 KGs of suspected Ganja, wrapped in three black polythene bags, were recovered from a red colored bag allegedly belonging to Sri Viswanath Pratap Singh and also recovered one ID card and two numbers of mobile handset. Accordingly, Guwahati GRPS Case No. 85/2018 was registered under Section 20(C)/29 NDPS Act and the Officer-in-Charge of Guwahati GRPS Police Station took up the matter for investigation and one Sri Mahesh Baishya, Sub Inspector, Guwahati GRPS was appointed as Investigating Officer.

3. During the course of investigation, the I.O. had recorded the statements of the witnesses, statement of the informant, drew sketch map and took custody of the seized Ganja. The original samples of the seized Ganja was sent to Forensic Science Laboratory for examination. Upon completion of investigation, the I.O. had laid charge-sheet against the two accused under Section 20(C)/29 of the NDPS Act.

4. Thereafter, charge under section 20(b)(ii)(C) and under Section 29 of the NDPS act was framed against the accused persons and the same was read over and explained to them. However, since the accused had pleaded not guilty and claimed to be tried, the matter went up for trial.

5. During the course of trial, the prosecution side had examined as many as 6 (six) witnesses, including the IO and the Deputy Director, Drugs and Narcotic Division, Directorate of Forensic Sciences, Assam, who had conducted examination of the samples of the suspected Ganja and submitted his Report. After conclusion of recording of evidence of the prosecution witnesses, the accused were examined under Section 313 of the Cr.P.C., wherein, they denied their involvement in the matter and had taken the plea of false accusation.

6. Upon conclusion of trial, the learned Sessions Judge, Kamrup (Metro), had held that the PW5, who examined the samples of the seized ganja, gave positive tests for Cannabis (Ganja) and the defense failed to shake his evidence. The PW1, PW2 and PW3 have deposed that during the routine checking, they first recovered the Ganja from the p