Excelsior Correspondent
SRINAGAR, Jan 9 : The High Court has expressed its serious concern over the issue of handling the investigation of Narcotic Drugs and Psychotropic Substances (NDPS) cases by the prosecution which leads to acquittal of accused without any doubt after trial of the case.
The Division Bench of Justice Sanjeev Kumar and Justice Mohd Yousuf Wani recorded that the mandatory provisions of the NDPS Act are being taken casual and observed in breach. “Casual, unfair and non-scientific investigations in NDPS cases are uncalled for,” the Division bench recorded in the judgment.
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The court was hearing an appeal filed by the prosecution-state against the acquittal of two drug peddlers by the trial court due to failure on part of the prosecution to prove the accused as guilty before the trial court. “Every day we hear about the seizure of Narcotic Drugs and Psychotropic Substances, especially from the youth. It is shocking that most factual and genuine cases in relation to offences under NDPS Act end in acquittals mainly on account of casual, cavalier, unfair, faulty and non-scientific investigations,” the DB said in the judgment.
The bench has pointed out that “illicit traffic” in relation to Narcotic Drugs and Psychotropic Substances is on the alarming increase, which has led to drug addiction among a sizable section of the public, particularly the adolescents and students of both the sexes. The menace has assumed serious and alarming dimensions in recent years. Drug addiction has been eating the vitals of society.
The court said that it is surprising that investigations in NDPS cases are most often being entrusted to incompetent officers as under the NDPS Act it cannot be investigated by a police officer below the rank of a Sub Inspector.
Referring to the Division Bench directions, the court said that in NDPS cases, the investigation is conducted in a proper and professional manner by adhering to the mandatory provisions of the Act. “The Central and State/UT Governments, as such, need to authorize the experienced and competent officers of Central Excise, Narcotics, Customs, Revenue Intelligence, Police etc to exercise powers of the NDPS Act”, read the judgment.
A casual approach of the Investigating agencies, court added, in the matter of the investigation in NDPS cases creates a sense of insecurity and undermines the faith of the common man in the administration of criminal justice. “We, however, appreciate the efforts of the Government of Jammu and Kashmir Home Department, Civil Secretariat, Srinagar, in issuing the Circular No. 02-Home of 2017 dated 25.09.2017 prescribing the Standard Operating Procedure(s) to be followed in NDPS cases and expect that same shall be pressed into service”, the DB added.
The Investigating agency, court said, can take the benefit of presumptions of the Act, for finalization of the investigation process, and even for purposes of bail, the prosecution can rely upon the said presumptive provisions. “But for the purposes of the trial, the accused can be called to account for his alleged possession of the narcotic drugs as being ‘not conscious’ only after the prosecution proves the foundational facts of its case beyond any doubt”, read the judgment.
Court added that Section 54 of the Act provides for a reversal burden of proof upon the accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proven 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 57of the Act, where after the accused has to be called to account for his possession”, the Court clarified.
“In the light of the total failure of the prosecution to prove the seizure of the alleged drug containing tramadol a psychotropic substance, as a constituent through cogent, un-contradictory, and trustworthy evidence, the presumptions under Sections 35 and 45 of the Act loose significance. The initial burden is always on the prosecution to establish a prima facie case against the accused, only where after burden will shift to the accused”, Court recorded while dismissing the appeal of prosecution and upholding the acquittal of accused as per the trial court verdict.