The prosecution must establish foundational facts regarding possession and seizure under the NDPS Act before the burden shifts to the accused, or the case fails.

JUDGMENT :

YARENJUNGLA LONGKUMER, J.

1. Heard learned counsel for the appellant Ms. Khriekethonuo. Also heard the learned Public Prosecutor for the State of Nagaland, Mr. K. Angami.

2. The instant appeal is directed against the Judgment and Order dated 18.03.2020 passed by the learned Special Judge NDPS Phek, Nagaland in Sessions Special Case No. 08/19 in GR Case No. 29/19 arising out of Pfutsero P.S Case No. 08/19 whereby the appellant has been convicted under Section 20 (b)(ii)(C) NDPS Act for a period of 10 years with fine of Rs. 1 Lakh and in default to undergo RI for one year.

3. The prosecution case in brief is that on 25.06.2019, at around 0145 Hrs, a written FIR was received at the Pfutsero Police Station from Naik Subedar D.D. Joshi of 14^th Assam Rifles stating that on 24.06.2019 at around 2100 Hrs while conducting surprise MVCP one suspected driver of Maruti Alto bearing Registration No. NL-01T-9577 fled from the scene to avert apprehension, leaving the vehicle behind. Upon search of the vehicle, 50 Kgs of suspected Marijuana (Ganja) in 5 sealed black poly bags were recovered. The vehicle and the seized contraband were produced at the Pfutsero Police Station and re-seized by the police under proper seizure memos. On receipt of the FIR, the case was taken up for investigation.

4. During the investigation the owner of the seized vehicle was summoned and upon examination it was revealed that his friend, Weshete Lohe/accused had borrowed his vehicle on the pretext of visiting an ailing relative at Pfutsero Town. The accused/appellant surrendered before the police and admitted his crime. The complainant and one witness were examined along with the accused person. The seized articles were brought before the S.D.O.(C) Pfutsero, sealed and packed and samples of the contraband articles were drawn and sent for forensic examination. The FSL Report confirmed that the samples tested positive for Cannabis/Ganja. Having found a prima facie case against the appellant under Section 20 (b) (ii) (C) of the NDPS Act the I.O submitted the Chargesheet. Charge was framed against the appellant/accused under (b)(ii)(C) NDPS Act on 20.11.2019. Charge was read over and explained to the accused/appellant and he pleaded not guilty and claimed to be tried. The matter, accordingly, went up for trial.

5. In order to bring home the charge against the accused/appellant the prosecution side examined 5 witnesses and exhibited 7 documents. The defence did not adduce any evidence.

6. Upon examining the evidence available on record, the learned Trial Court was of the view that the presumption of culpable mental state can be made against the accused and that the prosecution has succeeded in establishing the case against the appellant/accused and proved the charges brought against the appellant under Section 20 (b)(ii)(C) NDPS Act beyond reasonable doubt and, accordingly, convicted and sentenced the appellant by the impugned Judgment and order dated 18.03.2020.

7. Assailing the impugned Judgment and Sentence dated 18.03.2020, the learned counsel for the appellant has submitted that there is no independent witness to the seizure. All the prosecution witnesses are Police personnel and Assam Rifles personnel except for the owner of the seized vehicle. Nothing was seized from the possession of the accused/appellant and the possession was not proved by cogent and reliable evidence. There was no evidence that the accused/appellant was travelling in the seized vehicle or that he was the one who was carrying the seized contraband items in the seized vehicle, except for the deposition of PW/4 who deposed that the accused borro