Gauhati High Court Upholds Conviction for Ganja Possession: “Burden Shifts to Accused Once Prosecution Establishes Prima Facie Case; Failure to Rebut Guilt Confirmed”

Court’s Decision

The Gauhati High Court dismissed the criminal appeal filed by the appellant challenging his conviction under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The Special Judge had sentenced the appellant to three years and six months of rigorous imprisonment, along with a fine of ₹20,000. The court held that the prosecution had successfully established a prima facie case, and the procedural lapses highlighted by the appellant were not significant enough to invalidate the conviction.

Facts of the Case

1. Seizure of Contraband:
   On September 24, 2022, police received credible information about the movement of two individuals carrying cannabis on motorcycles. Acting on this tip, a naka (checkpoint) was set up, during which the appellant was apprehended. The other accused fled the scene.
2. Seized Material:
   Two motorcycles and two gunny bags of cannabis were recovered at the scene. The contraband weighed a total of 40.4 kg.
3. Procedural Steps Post-Seizure:
   • The contraband was seized and sealed.
   • An FIR was lodged the next day, on September 25, 2022.
   • Samples of the contraband were sent to the Forensic Science Laboratory (FSL) for analysis, which confirmed the substance as cannabis.
4. Trial Court Judgment:
   The Special Judge convicted the appellant based on the evidence, holding that the prosecution had fulfilled its burden of proof, and sentenced him accordingly.

Issues

1. Compliance with Procedural Requirements:
   Whether the prosecution adhered to mandatory procedures under the NDPS Act, such as maintaining the chain of custody, obtaining proper authorizations, and fulfilling statutory obligations under Sections 42, 52A, 55, and 57.
2. Evidentiary Gaps:
   Whether discrepancies in the prosecution’s evidence (e.g., non-production of the malkhana register, contradictions in witness statements) cast doubt on the appellant’s guilt.

Petitioner’s Arguments

1. Non-Compliance with Statutory Requirements:
   • The appellant argued that key provisions of the NDPS Act—such as Sections 42(2) (written information to superior officers), 52A (certification of inventory), 55 (safe custody), and 57 (report to superiors)—were violated.
   • The prosecution failed to prove a clear chain of custody, as the malkhana register was not produced, and there was no evidence about the secure storage of the contraband.
2. Witness Testimonies:
   • Independent witnesses did not directly link the appellant to the seized contraband.
   • Police witnesses provided inconsistent accounts, casting doubt on the integrity of the evidence.
3. Delay in Sending Samples to FSL:
   • The samples were sent to the FSL two days after the seizure. This delay, coupled with discrepancies in records, raised doubts about tampering.
4. Failure to Prove Ownership:
   • The appellant claimed there was no direct evidence linking him to the contraband or proving his ownership of the motorcycles or the cannabis.

Respondent’s Arguments

1. Adherence to NDPS Provisions:
   • The prosecution argued that the SDPO’s presence during the seizure satisfied the requirements of Section 42(2).
   • The inventory was prepared and certified by a magistrate, fulfilling Section 52A requirements.
2. Prima Facie Case:
   • The prosecution emphasized that it had established a prima facie case, shifting the burden of proof to the appellant under Sections 35 (presumption of culpable mental state) and 54 (presumption of possession) of the NDPS Act.
3. Chain of Custody:
   • While the malkhana register was not produced, other evidence (e.g., receipts from the malkhana in-charge, timely submission of samples to the FSL) established that the chain of custody was intact.

Analysis of the Law

1. Compliance with Section 42:
   The court noted that P.W.1 (the informant) had acted on information provided by the SDPO and conducted the operation with proper authorization. Since the SDPO himself was present, the requirement to send written information to a superior was not necessary.
2. Section 52A (Inventory):
   The inventory of the seized contraband was prepared and certified by the magistrate. While the magistrate was not examined during the trial, the court held that this did not invalidate the inventory or the seizure.
3. Section 55 (Safe Custody):
   The malkhana register was not produced, but the receipt issued by the malkhana in-charge proved that the contraband was handed over and stored securely.
4. Section 57 (Reporting):
   The seizure and arrest were reported to superior officers within the stipulated 48-hour period, fulfilling the requirements of Section 57.
5. Burden of Proof Under Sections 35 and 54:
   The court emphasized that once the prosecution establishes a prima facie case, the burden shifts to the accused to rebut the presumption of guilt. The appellant failed to provide any credible defense.

Precedent Analysis

The court relied on several precedents to uphold the prosecution’s case:

1. Vijay Pandey v. State of Uttar Pradesh (2019):
   Highlighted the importance of establishing a clear link between seized contraband and forensic reports.
2. State of Rajasthan v. Gurmail Singh (2005):
   Held that minor procedural lapses do not invalidate an otherwise strong case under the NDPS Act.
3. Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000):
   Discussed the presumption of guilt under Sections 35 and 54 of the NDPS Act and the appellant’s burden to rebut it.

Court’s Reasoning

1. Procedural Compliance:
   The court found that the prosecution had substantially complied with all statutory requirements under the NDPS Act. Minor lapses, such as the non-production of the malkhana register, did not prejudice the appellant.
2. Independent Witnesses:
   While independent witnesses were not fully aware of the contraband’s ownership, their presence during the seizure lent credibility to the prosecution’s case.
3. Chain of Custody:
   Despite the absence of the malkhana register, the receipt issued by the malkhana in-charge and timely forensic analysis proved that the chain of custody remained intact.
4. Reverse Burden of Proof:
   The appellant failed to rebut the presumption of guilt under Sections 35 and 54.

Conclusion

The court upheld the appellant’s conviction, affirming that the procedural discrepancies raised were insufficient to invalidate the judgment. The prosecution had proven the appellant’s involvement in cannabis trafficking beyond a reasonable doubt.

Implications

1. Strengthening NDPS Convictions:
   This judgment reinforces the principle that minor procedural lapses do not vitiate a case if the prosecution establishes a robust chain of evidence.
2. Accused’s Burden Under Reverse Presumption:
   The ruling highlights the importance of the accused presenting a credible defense under the reverse burden provisions of the NDPS Act.
3. Prosecution’s Duty:
   While minor lapses are permissible, the prosecution must ensure substantial compliance with NDPS procedures to sustain convictions.

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