Possession of contraband under ND&PS Act establishes statutory presumptions, burden shifts to accused to rebut claims, mere denial insufficient to challenge prosecution evidence.

UDGMENT :

KAUSHIK GOSWAMI, J.

1. Heard Mr. B. Lalramenga, learned counsel for the accused appellants. Also heard Ms. Linda, learned Additional Public Prosecutor, Mizoram for the State respondents.

2. This appeal is directed against the impugned judgment and order dated 19.07.2022 passed by the learned Judge, Special Court, ND&PS, Aizawl, Mizoram in S.R. No. 285/2018 arising out of Excise & Narcotics Case No. N-172/2018, whereby the appellants were convicted for offence punishable under Section 21 (c) of the ND&PS Act, 1985 and the impugned sentence dated 20.07.2022 to undergo rigorous imprisonment for 10 (ten) years with fine of Rs. 1,00,000/- (one lakh) and failure to pay the fine, to undergo rigorous imprisonment for another 1 (one) year.

3. The brief facts of the prosecution case are that on the night of 15.08.2018 at around 11:30 pm, PW-5, S.I. Lalnghahmawii received information from her source that some persons would bring Heroin from Kolasib, Mizoram. Pursuant to such report, a team/party went to Bawngkawn, Aizawl to intercept the suspected persons. After waiting for some time, the suspected persons reached Bawngkawn in a Taxi. They conducted a search in the presence of the witnesses and recovered 21 (twenty one) Nos. of soap cases containing Heroin kept in a black rucksack. The seized articles were seized at 2:30 AM on 16.08.2018 and the weight of the said seized articles was taken, which is 252 grams of Heroin. Accordingly, a case was registered against the accused appellants.

4. Thereafter, the appellants were arrested on 16.08.2018 and accordingly, a complaint-sheet was submitted by the Investigating Officer before the learned Judge, Special Court, ND&PS, Aizawl, against the accused appellants vide forwarding letter dated 02.10.2018.

5. Upon appearance, the learned Judge, Special Court, ND&PS, Aizawl framed charges under Section 22 (c) of the ND&PS Act against the accused appellants.

6. During trial, prosecution examined five prosecution witnesses, namely, (i) Shri. B Lalzirmawia (PW-1, Seizure Witness), (ii) Shri James Lalhmachhuana (PW-2, Seizure Witness), (iii) Smt. Lalnghahmawii (PW-3, Seizing Officer), (iv) Smt. Lalhriatpuii (PW-4, JMFC) and (v) S.I. C Lalbiaktluanga (PW-5, the Investigating Officer of the case).

7. Upon completion of the prosecution evidence, all incriminating circumstances were put to the accused appellants under Section 313 CrPC, wherein the accused appellants denied the allegations made against them. Thereafter, the learned Trial Court passed the impugned judgment of conviction and sentence.

8. Situated thus, the present appeal has been preferred.

9. Mr. B. Lalramenga, learned counsel for the accused appellants, submits that the front seat passenger of the tourist taxi from which the seized articles have been allegedly recovered, being a material witness, was neither prosecuted nor examined. He further submits that the drawing of sample of the contraband seized articles for chemical analysis was not done as per the provisions stipulated in the Standing Order dated 22.11.1989 framed under Section 52 (A) of the NDPS Act, 1985. He further submits that there is no direct evidence connecting the accused appellants with the alleged contraband. He further submits that the prosecution has failed to discharge its burden under the stringent provisions of the ND&PS Act.

10. In support of his submission, learned counsel for the accused appellants relied on the following case laws –

(i) Noor Aga -Vs- State of Punj