TMI Blog2019 (8) TMI 1666X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous in view of the large gap in space between the signature of the appellant and that of the of the independent witnesses. Relying on Narcotics Control Bureau vs. Sukh Dev Raj Sodhi (2011) 6 SCC 392, it is submitted that there has been non-compliance with Section 50 of the NDPS Act as the appellant was not informed of his legal right to be searched before a Magistrate. The entire allegations of recovery against the appellant are suspicious as even his father s name has been recorded incorrectly. The last submission was that there was an inordinately long delay of one year in production of the seized sample before the Court. PW-6 has not furnished any satisfactory explanation with regard to the same. The Trial Court has itself recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, it was submitted that no prejudice has been caused to the appellant even if the signatures on the seized sample had become illegible. We have considered the submissions on behalf of the parties. 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. In Noor Aga v. State of Punjab, (2008) 16 SCC 417 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. The fact that the independent witnesses may have turned hostile is also not very relevant so long as they have admitted their signatures on the seizure memo. The seizure memo is also signed by the accused. There has been compliance with section 50 of the NDPS Act also, as the appellant was duly informed of his legal rights. But, considering the nature of the present prosecution under the NDPS Act, we are satisfied that the ground urged on behalf of the appellant with regard to the large vacant pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be conclusively the same sample as seized from the appellant. Learned counsel for the respondent did make an effort to convince us that there will be a difference where the sample is never produced in Court as compared to a case where a sample is produced and an argument is made that it may not be the same sample especially when an FSL report has been made available in time, which causes no prejudice to the accused. We are unable to accept the submission. 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 ver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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