The Special Court (NDPS ACT) Manoj R Purwar acquitted the accused Pawan Kashyap and Deepak Gupta of the charges under the NDPS Act. The accused had been arraigned for the offences punishable u/s 20, 22 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 for being apprehended with 75 kg Ganja and AN offence was registered on 29/12/2021 with Police Station Butibori, Nagpur.
It had been alleged by the prosecution that on 29/12/2021 the informant Police Sub-Inspector received a secret information that one car (“Ertiga”) proceeding on Chandrapur-Nagpur Road is carrying contraband articles and as such he immediately availed the services of panchas and that in the presence of said panchas they intercepted the vehicle and found the accused herein were aboard the said vehicle. The prosecution has claimed that during search it revealed that the accused were carrying contraband articles (”Ganja”) in 36 plastic bundles and after the accused were apprised of the rights to be searched in the presence of the Magistrate of Gazetted officer, the accused refused.
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Saturday18 Jan. 2025
On weighing, the said contraband articles weighed 74.780 Kg. Since the trial was yet to commence, the accused had moved for bail which was rejected initially by the trial court and subsequently by the High Court. However, the Hon’ble Supreme Court had granted bail to the accused on account of non compliance of mandated aspects. However, since the accused hailed from Delhi, and they could not furnish local surety, they subjected themselves to trial. The prosecution as such claimed to have completed its formalities and arrested the accused and after thorough investigation proceeded to submit the chargesheet. In the course of trial, prosecution examined a total of 15 witnesses to substantiate its claim.
In the course of cross examination, Advocate Prakash Naidu appearing for the accused persons demolished the prosecution claim and brought on record vital discrepancies in the evidences of the witnesses on material aspects including the aspects of sealing and seizing the muddemal property, the defunct aspect of the raiding team with regards to the mandatory compliances which were mandated by the rigors as have been laid down under the Act and which have been spelled out and clarified by the Hon’ble Apex Court with regards to its compliances. Adv Naidu argued that there has been sheer non compliance of the provisions and that on account of the same; no presumption as contemplated by virtue of section 35 of the act could be drawn against the accused. Adv Naidu submitted that it was true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that the recovery of the alleged contraband was made from the accused.
It was argued that only when the prosecution was able to establish by producing adequate evidence to prove beyond reasonable doubt that the accused had knowledge that he was carrying contraband ganja and when the prosecution was able to prove through cogent evidence that what was being carried was a prohibited contraband, the presumption contemplated under Section 35 of the NDPS Act would have to be drawn against him to hold that he had a culpable mental state for indicting him for the offence for which he had been charged.
In this regard untainted proof of possession of the contraband is an essential condition to secure a conviction under Section 21 of the NDPS Act. Adv Naidu pointed out that the procedural discrepancies pointed out by the defence were so vital and crucial that the prosecution version stood demolished going by the records produced and evidences deposed by the prosecution witnesses and the case set up by the prosecution.
Advocate Prakash Naidu, Homesh Chauhan, Mitesh Bais, Surabhi Naidu (Godbole), Dhruv Sharma appeared for the accused.
