Strict compliance with statutory requirements and procedures under the NDPS Act, and the benefit of doubt should be given to the accused in the absence of evidence connecting the seized material with the alleged substance.

JUDGMENT :

Navin Sinha, J.

Leave granted.

2. The Appellant assails his conviction and sentence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”), for fifteen years, arising out of Dehri P.S. Case No.216 of 2009 by the Additional Sessions Judge Vth, Rohtas at Sasaram, affirmed by the High Court.

3. The police on information received, are stated to have raided the house of the appellant on 16.05.2009 leading to recovery of 59 kilograms of “Ganja”. The Additional Sessions Judge held that the FSL Report, Exhibit 8, confirmed that the seized material was Ganja. The search and seizure was in accordance with Sections 42 and 50 of the NDPS Act. The High Court declined interference with the conviction.

4. We have heard Shri Nagendra Rai, learned Senior Counsel for the Appellant and Shri Manish Kumar, learned counsel for the State, at length. Though several arguments have been raised by the parties to assail the conviction and in support of the same, it is not considered necessary to deal with all of them since the present appeal can be decided on a single issue alone.

5. PW-1, Brij Nandan Mehta, the S.H.O. of Dehri (T) Police Station, who carried out the raid, in his evidence acknowledged that neither the seized Ganja, nor the sample drawn from the same at the time of seizure, was placed in evidence before the Court during the course of the trial. Similar is the evidence in confirmation of PW-4, Prema Nand Choudhary, the Sub-Inspector of Police. While the latter deposed of MR entry number on the seized Ganja, the Investigating officer PW-7, Inspector Hemant Kumar deposed that there was no MR number on the sealed materials, and he was not sure whether the seized material had been kept at the Malkhana and also that it had not been produced in the Court.

6. The NDPS Act provides for a reverse burden of proof upon the accused, contrary to the normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This 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. The mere registration of a case under the Act will not ipso facto shift the burden on to the accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and the scrutiny stringent. If there is any iota of doubt the benefit shall have to be given to the accused.

7. In the facts of the present case, the independent witnesses with regard to the search and seizure, PW-2 and PW-3, having turned hostile deposing that their signatures were obtained on blank paper at the police station, the mere fact of a FSL Report (Exhibit 8), being available is no confirmation either of the seizure or that what was seized was Ganja, in absence of the production of the seized item in Court as an exhibit. The non-production of the seized material is therefore considered fatal to the prosecution case. The issue whether there has been compliance with Sections 42 and 50 of the NDPS Act loses its relevance in the facts of the case.

8. The remaining prosecution witnesses being police officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself either with regard to recovery or the seized material being Ganja. No explanation has also been furnished by the prosecution for non-production of the Ganja as an exhibit in the trial. The benefit of doubt will, therefore, have to be given to the Appellant and in support of which learned Senior Counsel Shri Rai has relied upon Jitendra and Another vs. State of M.P., (2004)10 SCC 562, and reiterated in Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123, as follows:

“12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and o