Mohan Lal vs The State Of Punjab on 16 August, 2018 (Supreme Court)

A fair trial to an accused, a constitutional guarantee under

Article 21 of the Constitution, would be a hollow promise if the
investigation in a NDPS case were not to be fair or raises serious questions
about its fairness apparent on the face of the investigation. In the nature of
the reverse burden of proof, the onus will lie on the prosecution
to demonstrate on the face of it that the investigation was fair, judicious
with no circumstances that may raise doubts about its veracity.
The obligation of proof beyond reasonable doubt will take within
its ambit a fair investigation, in absence of which there can be no fair
trial. If the investigation itself is unfair, to require the accused to
demonstrate prejudice will be fraught with danger vesting arbitrary
powers in the police which may well lead to false implication also.
Investigation in such a case would then become an empty formality
and a farce. Such an interpretation therefore naturally has to be
avoided.
The duty of the prosecution under the NDPS Act, considering the reverse
burden of proof, was noticed in Noor Aga (supra) observing: “58……An
initial burden exists upon the prosecution and only when it
stands satisfied, would the legal burden shift. Even then, the standard of
proof required for the accused to prove his innocence is not as high
as that of the prosecution. Whereas the standard of proof required to
prove the guilt of the accused on the prosecution is “beyond all
reasonable doubt” but it is “preponderance of probability” on the
accused. If the prosecution 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.

Noor Aga vs State Of Punjab & Anr on 9 July, 2008 (Custom Act case)
The last but not the least, physical evidence relating to three samples taken
from the bulk amount of heroin were also not produced. Even if it is
accepted for the sake of argument that the bulk quantity was destroyed, the
samples were essential to be produced and proved as primary evidence for
the purpose of establishing the fact of recovery of heroin as envisaged under
Section 52A of the Custom Act.

Mirza Qumer Hyder vs A.K. Thakker And Anr on 31 January, 2018

Bombay High Court in Criminal Appeal No.545 of 2006 filed by the
appellant/original accused No.1 has considered the aspect as to whether
there is positive evidence to conclude that the seized article was a
contraband or prohibited substance and came to the conclusion that the
prosecution has failed to establish that the contraband which was seized by
the raiding party was Methaqualone/Mandrex Tablet. There is no reason to
deviate from this conclusion particularly when in the matter of Suleman
Usman Menon (supra), the Honourable Apex Court has categorically held
that the report of the Chemical Analyzer must show the tests or experiments
performed by him, the factual data revealed by such tests or experiments
and the reasons leading to the formation of the opinion from such factual
data. All these factors are missing from the reports of chemical analysis at
Exhibit 34 Colly. Therefore, it cannot be positively said that the seized
substance is Methaqualone falling in Entry No.20 of the Schedule appended
to the N.D.P.S.Act. The appellants/accused, as such, are entitled for the
benefit of doubt.
In this view of the matter, only because the appellants/accused
had not objected to filing of the Chemical Analysis Reports (Exhibit 34
Colly.) the prosecution case cannot be held to be proved. The duty to prove
its case by adducing clear and cogent evidence is always on the prosecution
and in the case in hand, the prosecution has not discharged his onus to
prove beyond all reasonable doubt that the seized article was a contraband
or prohibited substance.