NDPS: Reverse Burden Of Proof Does Not Absolve Prosecution From Establishing Prima Facie Case Against Accused: SC [Read Order]

The Supreme Court has observed that, though Narcotic Drugs and Psychotropic Substances Act carries reverse burden of proof, it does not absolve the prosecution from establishing a prima facie case against the accused.

The bench comprising Justice Navin Sinha and Justice Indira Banerjee was considering an appeal challenging conviction of an accused under Sections 8 and 18(b) of the NDPS Act sentencing him to 10 years rigorous imprisonment, along with fine of Rs. 1 lakh, with a default stipulation.

While considering various contentions raised on behalf of the accused, the court in Hanif Khan @ Annu Khan vs. Central Bureau Of Narcotics observed:

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.

In the instant case, the court said that the delay in the production of the seized sample coupled with the signature on the seal being illegible creates a serious doubt with regard to the prosecution case. The court also said that the large vacant place below the signature of the accused and that of the independent witnesses, is clearly abnormal and cannot be lightly wished away especially when the independent witnesses have deposed that they were not present at the time of such search and seizure.

The prosecution contended 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. The bench said:

"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." 

Acquitting the accused, the bench said that a doubtful identity with regard to the sample seized from the accused and that produced in Court, the FSL Report loses much of its significance and the accused is entitled to the benefit of doubt.

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