Presumptions Under NDPS Act Are Rebuttable Not Absolute, Prosecution Must First Establish Prima Facie Case: J&K High Court

The court emphasised that the prosecution must first establish a prima facie case against the accused before the burden shifts to the defense.

“Section 54 of the Act provides for a reversal burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This however, does not dispense with the requirement of the prosecution to establish a prima facie case in the backdrop of sufficient, cogent and clear evidence with observance of mandatory provisions under sections 42, 50, 52 and 57 of the Act, where after the accused has to be called to account for his possession”, a bench comprising Justices Sanjeev Kumar and Mohammad Yousuf Wani explained.

Background:

The case originated from an FIR registered at the Pulwama Police Station, where the police, acting on a tip-off, raided a premises and arrested Nazir Ahmad Rather, Mohd. Yasin Ganaie, and Manzoor Ahmad Ganaie. The prosecution alleged that the accused were caught red-handed grinding poppy straw to produce "Fuki," a narcotic substance. The police seized a total of 100 kilograms of raw and ground poppy straw from the site.

The accused were charged under Sections 15, 18, and 29 of the NDPS Act. However, the Trial Court acquitted them on December 30, 2016, citing multiple contradictions in the prosecution's evidence, violations of the NDPS Act's mandatory provisions, and the absence of any independent witnesses. The state subsequently filed an appeal against this acquittal.

The State in appeal contended that the Trial Court failed to properly appreciate the evidence, which clearly indicated the accused's culpability. It argued that the accused were found in conscious possession of the contraband, establishing a presumption of culpability under Sections 35 and 54 of the NDPS Act.

The prosecution maintained that minor contradictions in witness statements should not be deemed fatal to the case, as they were expected due to the passage of time.

It further contended that strict adherence to the provisions of Section 42(2) of the NDPS Act was not necessary and that the investigation had been conducted fairly under the supervision of the concerned SHO.

The defense argued that the acquittal was justified, as the prosecution had failed to prove the guilt of the accused beyond a reasonable doubt. It highlighted several violations of mandatory procedures under Sections 42, 52, and 57 of the NDPS Act, such as the absence of a gazetted officer or magistrate during the raid and the lack of independent witnesses.

Court's Observations:

The High Court observed that the NDPS Act's presumptions under Sections 35 and 54 are not absolute but are indeed rebuttable. The Court emphasized that the prosecution must first establish a prima facie case to shift the burden of proof to the accused.

Pointing out the Violation of Mandatory Procedures the Court observed that the investigation violated several mandatory provisions of the NDPS Act. The SHO, who led the raid, was not a gazetted officer, and no search warrant was obtained as required under Sections 41 and 42 of the Act. The Court noted that the raid was conducted after sunset, without proper authorization, and in the absence of independent witnesses.

“A conjoint reading of the provisions of sections 41 and 42 of the Act makes it abundantly clear that an officer/official of the State Police Department, who has not obtained warrant for search in terms of the provisions of Section 41 (1) of the Act or is not so authorized by gazetted officer of his department or is not himself a gazetted officer, cannot under any circumstances make search of any building or conveyance or enclosed place despite his belief from personal knowledge or information received and taken down in writing regarding keeping or concealing of any narcotic drug or psychotropic substance or contraband substance in any such building or the conveyance or enclosed place, search such building or conveyance except between “sunrise and sunset”, Justice Mohammad Yousuf Wani for the bench reasoned.

Highlighting numerous contradictions in the testimonies of the prosecution witnesses regarding the seizure, sealing, and weighing of the contraband the court said that the Investigating Officer's statement that the seizure was made on the second day, without proper documentation or adherence to the required legal formalities, further weakened the prosecution's case.

Reiterating that the presumption under Sections 35 and 54 could not automatically lead to a conviction the court cited the Supreme Court's rulings in "Noor Aga vs. State of Punjab" and "Mohan Lal v. State of Rajasthan," which clarified that while the NDPS Act allows for presumptive culpability, the prosecution must first establish the foundational facts beyond a reasonable doubt.

Concluding that the Trial Court had rightly acquitted the accused, as the prosecution had failed to prove the guilt beyond a reasonable doubt the appeal filed by the State was dismissed as meritless, thus upholding the acquittal of the accused.

Case Title: State through P/S Pulwama Vs Nazir Ahmad Rather

Citation: 2024 LiveLaw (JKL) 258

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