TaxTMI 
TaxTMI 
2019 (8) TMI 1666
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....orous imprisonment, along with fine of Rs. 1 lakh, with a default stipulation. Learned counsel for the appellant submits that the allegations were with regard to illegal sale/purchase between the appellant and the acquitted co-accused. No appeal has been filed against the acquittal. If the sale/purchase was not established, the conviction of the appellant alone is improper. It is next submitted that PW-1 and PW-2, the independent witnesses to the search and seizure have turned hostile and have denied their presence during such search and seizure. Learned counsel further submits that the search and seizure memo itself is suspicious in view of the large gap in space between the signature of the appellant and that of the of the independe....
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....ses, is not very relevant in view of the search and seizure conducted in accordance with the law and the consequent recovery. The acquittal of the co-accused was premised on the only material against him being the confession of the appellant. The sample taken from the seized material was sent the very next day to the Forensic Science Laboratory ("FSL"). There are no allegations of the seal on the sample being tampered. The laboratory test has confirmed the seized material to be Opium. Our attention was also invited to the original Malkhana Register, to demonstrate that the seized sample was deposited on the very same day. In the circumstances, it was submitted that no prejudice has been caused to the appellant even if the signatures on t....
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....on fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 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. The contraband is stated to have been seized from the appellant on 28 December 2001. The Malkhana Register undoubtedly shows that the seized sample was deposited the same day. There is also no dispute with regard to the sample extr....
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....a long gap of one year. His explanation that he had several important works can hardly be considered sufficient, if not, any justification for the same. We have also examined the Malkhana Register from the Trial Court records. While there is an entry with regard to the deposit, Column 11 dealing with the exit from the Malkhana for taking it to the Court is blank. It may not be unreasonable to presume that the delay in production of the seized sample before the Court was occasioned due to lack of identification consequent to the signatures on the seized sample having illegible. Therefore what may have been produced in court cannot be held to be conclusively the same sample as seized from the appellant. Learned counsel for the responden....