Point of Law: Prosecution failed in duty to discharge its initial burden of proof of recovery and seizure of morphine from the exclusive and conscious possession of the accused beyond all reasonable doubt.

Headnote:
Code of Criminal Procedure, 1973 - Section 374 (2) - NDPS Act - Section 21 (c) - Morphine - Purchased - Prosecution story, in brief, is that on at around 7.30 a.m. at Railway Station, train checking party of Government Railway Police Station (GRPS), Guwahati led by one, recovered four packets of suspected morphine from the possession of accused /appellant who was travelling in Coach No. 1-A, seat No. Down Rajdhani Express Train - On enquiry, accused/appellant disclosed that he had purchased morphine at Dimapur Bus Stand from an unknown Naga person and he carried same to Kanpur for business purpose - Later on, SI Biswajit Rabha, who was entrusted for preliminary steps, weighed suspected morphine and found total weight to be 900 grams.
Findings of the Court:
Prosecution case suffers from material procedural irregularities such as non-examination of offence detecting police officer; non-examination of Malkhana in-charge of GRPS, Guwahati and non-exhibition of malkhana register or extract of Malkhana register; non-preparation of any inventory; non-procuring of any independent witness despite readily available at public place of search and seizure etc and resultantly, prosecution failed in duty to discharge its initial burden of proof of recovery and seizure of morphine from exclusive and conscious possession of accused beyond all reasonable doubt - In such a situation, no reverse burden lies on accused/appellant to prove his innocence.
Result: Appeal stands allowed.

JUDGMENT :

AJIT BORTHAKUR, J.

1. Heard Mr. M Biswas, learned counsel for the appellant as well as Mr. B.B. Gogoi, learned Addl. P.P. Assam appearing for the State/respondent.

2. This appeal under Section 374 (2) of the Code of Criminal Procedure (Cr.P.C. for short) is preferred against the Judgment and Order, dated 31.08.2019, passed by the learned Special Judge (NDPS Act), Kamrup (M), Guwahati in NDPS Case No. 80 of 2018 under Section 21 (c) of the NDPS Act, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs.1,00,000/- (Rupees One Lakh), in default, to suffer imprisonment for 6 (six) months under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short).

PROSECUTION STORY:

3. The prosecution story, in brief, is that on 11.06.2018, at around 7.30 a.m. at Guwahati Railway Station, the train checking party of the Government Railway Police Station (GRPS), Guwahati led by one ASI SK Jha, recovered four packets of suspected morphine from the possession of the accused/appellant who was travelling in the Coach No. 1-A, seat No. 48 of the 12423 Down Rajdhani Express Train. On enquiry, the accused/appellant disclosed that he had purchased the morphine at Dimapur Bus Stand from an unknown Naga person and he carried the same to Kanpur for business purpose. Later on, SI Biswajit Rabha, who was entrusted for preliminary steps, weighed the suspected morphine and found the total weight to be 900 grams.

INVESTIGATION AND TRIAL:

4. On receipt of the FIR, Officer-In-Charge, Guwahati GRPS registered the case being Case No. 153/2018 under Section 20 (c) of the NDPS Act. After completion of investigation, the investigating officer laid a charge-sheet against the accused appellant under Section 21 (c) of the NDPS Act. On appearance of the accused/appellant, the learned trial court framed a charge against him under Section 21 (c) of the NDPS Act. The accused/ appellant pleaded not guilty and claimed to be tried.

5. In order to bring home the charge brought against the accused/ appellant, the prosecution examined altogether 06 (six) witnesses. After closing the evidence of the prosecution side, the statement of the accused/appellant under Section 313 Cr.P.C. was recorded. The accused/appellant pleaded innocence and claimed to be tried. After completion of trial, the learned Special Judge (NDPS Act), Kamrup (M), Guwahati convicted and sentenced the accused/appellant under Section 21 (c) of the NDPS Act as stated above.

EVIDENCE:

Now, let us look to the evidence on record in short:

6. PW-1, Nikunja Das, UBC, GRPS, Guwahati, in his evidence stated that on 11.06.2018, while he along with ASI SK Jha and other staff were on train checking duty at Guwahati Railway Station, at around 6.30 am in the Down Rajdhani Express, they checked Coach No. A-1, Berth No. 48 and found a passenger with a black colour bag and four small plastic packets containing powder like substance, suspected to be morphine. Thereafter, SI Biswajit Rabha, who came to the place, weighed the packets, collected samples and prepared the seizure list Ext.1, where Ext.1 (1) is his signature. He recognized Material Ext.1, the seized bag and Material Ext.2, the sealed packet containing the packets of morphine.

7. PW-2, SI Biswajit Rabha, the search and seizing officer, deposed that on 11.06.2018, he was posted at the Guwahati GRPS. On that day at around 7.30 a.m. while the train checking in-charge of the GRPS, namely ASI SK Jha was checking the coaches of the Rajdhani Express train in Coach No. A-1, Berth No. 48 found four packets of suspected morphine in a black-coloured bag. The said bag belonged to the passenger Saulat Rasool (accused/appellant herein), aged about 40 years. Thereafter, he weighed the four packets of suspected morphine and found the weight of each packet to be 225 grams and seized the same in presence of witnesses. During interrogation, the accused disclosed that he was ca

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