Point of Law: A reverse burden of proof lies upon the accused, contrary to the normal rule of criminal jurisprudence for presumption of innocence unless proved guilty

JUDGMENT :

Heard Mr. B. C. Das, learned counsel for the appellants. Also heard Ms. A. Begum, learned Additional Public Prosecutor for the State respondent.

2. This is an appeal under Section 374 of the Code of Criminal procedure, 1973, against the judgment and order dated 17.12.2012, passed by the learned Special Judge, Jorhat, in Special Case No. 04/2011, convicting the accused/appellants under Section 21(C) of the NDPS Act and sentencing them to suffer R.I. for 10 (ten) years each and also to pay a fine of Rs. 1,00,000/-(Rupees one lakh) only each in default S.I. for 6 (six) months.

3. The brief fact of the prosecution case is that an F.I.R. was lodged by one Shri Roma Kanta Bora, ASI of Police, alleging inter alia that on 04.11.2011, at about 1.30 a.m., while he along with his staff were doing the patrolling duty, they noticed one vehicle, bearing Registration No. AS-03C/2991 (Maruti Car), coming from Mariani side and while the vehicle reached at Khatisona Tini-Ali, he, on suspicion, asked the vehicle to stop and accordingly, the vehicle was stopped. But, while the vehicle was about to stop, one packet was seen to be thrown out from the vehicle and immediately the packet, which was thrown outside, was picked up and it was found that around 4274 numbers of loose SPM-PRX capsules were inside packet. Accordingly, it was seized and a case was registered, being Mariani P.S. Case No. 133/2011, under Section 21(C) of the NDPS Act. The sample was accordingly sent to FSL Guwahati for examination and the FSL report gave the positive test for propoxyphene.

4. After investigation, Charge-Sheet was also filed against the accused appellants under Section 21(C) of the NDPS Act and the case was accordingly referred to the Court of learned Special Judge, Jorhat, which was accordingly registered as Special Case No. 4/2011, under Section 21(C) of the NDPS Act. The charge was accordingly framed and read over to the accused/appellants where they pleaded not guilty and claimed to be tried.

5. The prosecution examined as many as 7 (seven) numbers of witnesses in support of their case, but no defence witness was examined by the defence and the accused/appellants pleaded not guilty while recording their statements under Section 313 Cr.P.C. After hearing the arguments put forwarded by both sides and considering the materials on record, the learned Special Judge, vide judgment and order dated 17.12.2012, convicted the accused/appellants under Section 21(C) of the NDPS Act and sentenced them to undergo R.I. for 10 (ten) years and to pay fine of Rs. 1,00,000/- each in default S.I. for 6 (six) months.

6. On being highly aggrieved and dissatisfied with the judgment and order passed by the learned Special Judge in Special Case No. 4/2011, the convict appellants have preferred the present appeal on the following grounds, amongst others:

(i) That the learned Special Judge erred in both law and facts and without appreciating the evidence in its true perspective had passed the judgment and order, which is bad in law and liable to be set aside.

(ii) That the learned Special Judge failed to appreciate the fact that from the deposition of the prosecution witnesses, the offence under Section 21(C) of the NDPS Act is not established against the accused/ appellants beyond all reasonable doubt and hence, the judgment and order, convicting the accused/ appellants, is illegal and liable to be set aside.

(iii) That there is no evidence that the seized capsules were recovered from the exclusive possession of the appellants and there are no independent witnesses to corroborate the fact of seizure and merely on the strength of the testimony of the police personnel, the appellants were convicted, which is illegal and liable to be set aside.

(iv) That from the evidence of the PW-6, A.S.I. of Police, it is seen that at the time of occurrence, he was accompanied by his staff and the packet was also picked up as per his direction, but the I.O. did not obtained the signature in the seizu