Point of Law : Contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty - Rule shall not dispense with the requirement of the prosecution to having first establish a prima facie case, only whereafter the burden will shift to the accused.

JUDGMENT & ORDER :

Heard Mr. S. K. Deori, learned counsel for the appellants. Also heard Ms. L. Hage, learned Additional Public Prosecutor for the State respondent.

2. This is an appeal filed under Section 374(2) of the Code of Criminal Procedure against the impugned judgment and order dated 23.03.2023, passed by the learned Special Judge (NDPS), Tezu, in NDPS Case No. 01(LDV)/2016, convicting the accused appellant under Section 17(b) of the NDPS Act, 1985, and sentenced him to undergo Rigorous Imprisonment for 7 (seven) years and to pay fine of Rs. 50,000/- in default Simple Imprisonment for 6 (six) months.

3. The brief facts of the prosecution case is that on 12.06.2015, at about 1430 hours, one written F.I.R. was submitted by Sub-Inspector S. M. Singha before the Officer-In-Charge, Roing Police Station, alleging inter alia that 2-3 numbers of ladies, who supply opium in Roing Township area, are likely to reach Roing by State Transport Bus from Tezu with huge quantity of opium to supply to their customers. On receipt of the information, at 10.30 hours, a police team led by S.I. S. M. Singha went to the State Transport Office premises at Roing and nabbed 3 (three) ladies, namely, (i) Smti Batungsi Rai @ Bakamlu Pul, (ii) Smti Sangsi Krong @ Bajusai Sambal & (iii) Smti Thongsi Bengia @ Temlu Pisa. During search, the opium like substance weighing 3 Kg 622 grams in total were recovered from the their possession and seized at the spot complying all necessary procedures. On receipt of the said F.I.R., the Officer-In-Charge, Roing Police Station, registered Roing P.S. Case No. 49/2015, under Section 17(c) of the NDPS Act read with Section 34 of the Indian Penal Code, and the investigation was taken up by Sub-Inspector S. M. Singha. During investigation, 1516.92 grams of opium strip cloths numbering 117 pieces were seized from Smti Batungsi Rai @ Bakamlu Pul (Rai), 838.80 grams of opium strip cloths numbering 66 pieces were seized from Smti Sangsi Krong @ Bajusai Samba and 1277.28 grams of opium strip cloths numbering 99 pieces were seized from the possession of Smti Thongsi Bengia @ Temlu Dellang (Pisa). The said opiums were seized in presence of the witnesses and samples were also marked and thereafter the samples were produced before the learned Chief Judicial Magistrate, Roing, along with the seized materials in sealed packages and then it was kept in malkhana. The said sample packages were marked as A1, B1 & C1 and forwarded to FSL Banderdewa and accordingly, as per FSL report, it was identified as opium and thereafter, the Charge-Sheet was filed against the accused persons under Section 17(c) of the NDPS Act.

4. Thereafter, the learned Chief Judicial Magistrate, Roing, sent the case for trial before the Special Court (NDPS), East Session Division, Tezu, and the accused persons were accordingly charged under Section 17(b) of the NDPS Act. During framing of charge, the charge was altered under the provision of 216 Cr.P.C. from Section 17(c) to Section 17(b) of the NDPS Act. The prosecution, accordingly, examined 6 (six) numbers of witnesses and on completion of the prosecution evidences, the accused persons were also examined under Section 313 Cr.P.C., wherein, they took the plea of total denial.

5. The learned Special Judge (NDPS), Tezu, accordingly, framed the point for determination as to “whether on 12.06.2015, the accused persons were found in possession of intermediate quantity of opium at Roing Bus Station in contravention of Section 17(b) of the NDPS Act, 1985? If yes, what punishment is deserved by the accused persons?”

6. After hearing the arguments put forwarded by the learned counsels for both sides and considering the evidences on record, the learned Special Judge (NDPS), Tezu, convicted the accused appellants under Section 17(b) of the NDPS Act and sentenced them to undergo Rigorous Imprisonment for 7 (seven) years with a fine of Rs. 50,000/- in default Simple Imprisonment for 6 (six) months.

7. On being aggrieved and dis