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2019 (8) TMI 1666 - SC - Indian LawsSmuggling - contraband item - illegal sale/purchase between the appellant and the acquitted co-accused - HELD THAT:- The prosecution under the NDPS Act carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him, and it is for the accused to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case only whereafter the burden shifts to the accused. Because there is a reverse burden of proof, the prosecution shall be put to a stricter test for compliance with statutory provisions. If at any stage, the accused is able to create a reasonable doubt, as a part of his defence, to rebut the presumption of his guilt, the benefit will naturally have to go to him - the contraband is stated to have been seized from the appellant on 28 December 2001. The Malkhana Register undoubtedly shows that the seized sample was deposited the same day. There is also no dispute with regard to the sample extracted and sent to the FSL for examination confirming that the contraband was Opium and that the seal had not been tampered with in any manner. There can hardly be any difference between a case of non-production of a sample and the production of a sample doubtful in its identity in being co-related to what was seized from the accused. In both the cases, it will become doubtful if the FSL Report is with regard to the very sample seized from an accused - appeal allowed - decided in favor of appellant.
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