REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 504 OF 2020
(Arising out of SLP (Crl.) No.7415 of 2019)
GANGADHAR alias GANGARAM ....APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellant assails his conviction under Section 8C
read with Section 20(b)(ii)(c) of the Narcotics Drugs and
Psychotropic Substances Act, 1985 (hereinafter called as “the
NDPS Act”) for recovery of 48 Kgs 200 gms. cannabis (ganja),
sentencing him to 10 years of rigorous imprisonment with a
default stipulation.
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3. The appellant was held to be the owner of the House in
question from which the ganja was recovered, relying upon
the voters list of 2008 rejecting his defence that he had sold
the house to coaccused Gokul Dangi on 12.06.2009. Gokul
Dangi has been acquitted in trial.
4. Shri Puneet Jain, learned counsel for the appellant
submitted that the conviction based on a mere presumption
of ownership of the house, without any finding of conscious
possession was unsustainable. Reliance was placed on
Gopal vs. State of Madhya Pradesh, (2002) 9 SCC 595. The
police had received information that Gokul Dangi had kept
contraband in his house. The appellant and Ghasiram, the
village chowkidar had identified the house of the accused to
the police when it came to the village for search and seizure.
Both of them were witness to the panchnama for breaking
open the lock to the house when the contraband was
recovered. It stands to reason why the appellant would take
the police to his own house, have the lock broken to recover
the contraband and implicate himself. Ghasiram and P.W.11,
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were both witnesses to the sale agreement dated 12.06.2009,
Exhibit P28 executed by the appellant in favour of Gokul
Dangi. It was produced before the police by the appellant the
very next day but was never investigated, Ghasiram has not
been examined for no explicable reasons. The entries in the
village panchayat records with regard to ownership of the
house had not been investigated. The appellant was
subsequently made an accused during investigation because
of the failure of the police to investigate properly.
5. Ms. Swarupama Chaturvedi, learned Addl. Advocate
General for the State, submitted that P.W.11 had denied
being a witness to the sale agreement alleging that his thumb
impression had been impersonated. The deed was therefore
rightly held to be a forged and fabricated document
confirmed by the voter list entry of 2008 that the house
belonged to the appellant. The village panchayat records also
mentioned the ownership of the appellant.
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6. We have considered the submissions on behalf of the
parties and have carefully perused the evidence on record
also. P.W. 6, the first investigation officer deposed that secret
information had been received of Gokul Dangi having stored
contraband in his house. The appellant and Ghasiram along
with other villagers identified the house as belonging to
Gokul Dangi on 11.08.2009 leading to recovery after the lock
was broken open. The witness admitted that on 12.08.2009
itself the appellant had submitted the sale agreement dated
12.06.2009 Ex. P28 to him but that it was never investigated
by him. Acknowledging that ownership details are mentioned
in the gram panchayat records, the witness stated that he did
not investigate the same. P.W. 16, who took over the
investigation after transfer of the former recorded the
statements of Ghasiram and P.W. 11 as also of other
witnesses. The appellant was then made an accused on basis
of his name being entered in the voters list of 2008. Contrary
to the evidence of P.W.6, the witness stated that the gram
panchayat records had been looked into by the former. No
explanation was offered for not investigating the sale
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agreement. The appellant was acknowledged not to be living
in the house from where the contraband was recovered, but
was alleged to be using it as a store room on basis of no
evidence whatsoever.
7. P.W. 3 and P.W.7, the police constable who had
accompanied P.W. 6, deposed that the appellant and
Ghasiram had identified the house as belonging to Gokul
Dangi which was corroborated by the panchayat records.
8. Ghasiram, as the village chowkidar was the best person
in the know of the ownership and possession of the house.
He was one of the two witnesses to the sale agreement
Exhibit P28. The prosecution for inexplicable reasons has
not examined him. P.W. 11 denied his thumb impression on
the sale document contending that it was a fabricated
document. No forensic report was obtained by the
prosecution. The witness acknowledged that the appellant
did not visit his own house and lived in his new house for the
last 15 years denying any knowledge who the owner was. Yet
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his statement was accepted as gospel truth without any
further investigation.
9. The presumption against the accused of culpability
under Section 35, and under Section 54 of the Act to explain
possession satisfactorily, are rebuttable. It does not dispense
with the obligation of the prosecution to prove the charge
beyond all reasonable doubt. The presumptive provision with
reverse burden of proof, does not sanction conviction on
basis of preponderance of probability. Section 35(2) provides
that a fact can be said to have been proved if it is established
beyond reasonable doubt and not on preponderance of
probability. That the right of the accused to a fair trial could
not be whittled down under the Act was considered in Noor
Aga vs. State of Punjab, (2008) 16 SCC 417 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
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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.
59. With a view to bring within its purview the
requirements of Section 54 of the Act, element of
possession of the contraband was essential so as
to shift the burden on the accused. The
provisions being exceptions to the general rule,
the generality thereof would continue to be
operative, namely, the element of possession will
have to be proved beyond reasonable doubt.”
10. The stringent provisions of the NDPS Act, such as
Section 37, the minimum sentence of 10 years, absence of
any provision for remission do not dispense with the
requirements of prosecution to establish a prima facie case
beyond reasonable doubt after investigation, only where after
which the burden of proof shall shift to the accused. The
gravity of the sentence and the stringency of the provisions
will therefore call for a heightened scrutiny of the evidence for
establishment of foundational facts by the prosecution.
11. It is apparent that the police being in a quandary with
regard to the ownership and possession of the house in
question due to a flawed, defective and incomplete
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investigation found it convenient to implicate the appellant
also, sanguine that at least one of the two would be
convicted. Sri Jain is right in the submission that according
to normal human prudence, it stands to reason why the
appellant who was residing in his new house for the last 15
years would identify his own erstwhile house as that of the
accused Gokul Dangi, be a witness to the breaking of the lock
and recovery to implicate himself.
12. The appellant had produced the sale agreement,
Exhibit P.28 with promptness the very next day. It was never
investigated for its genuineness by the police and neither
were the panchayat records verified. The panchayat records
are public documents and would have been the best evidence
to establish the ownership and possession of the house.
Despite the best evidence being available the police
considered it sufficient to obtain a certificate Exhibit P37
signed by P.W. 14 who acknowledged her signature but
denied knowledge of the contents of the certificate. The voters
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list entry of 2008 being prior to the sale is of no consequence.
It is not without reason that the coaccused had absconded.
13. The appellant was held guilty and convicted in view of
his name being recorded as the owner of the house in the
voters list 2008, ignoring the fact that sale agreement was
subsequent to the same on 12.06.2009. The prosecution
cannot be held to have proved that Exhibit P18 was a
fabricated and fictitious document. No appeal has been
preferred by the prosecution against the acquittal of the co
accused.
14. In view of the nature of evidence available it is not
possible to hold that the prosecution had established
conscious possession of the house with the appellant so as to
attribute the presumption under the NDPS Act against him
with regard to recovery of the contraband. Conviction could
not be based on a foundation of conjectures and surmises to
conclude on a preponderance of probabilities, the guilt of the
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appellant without establishing the same beyond reasonable
doubt.
15. The police investigation was very extremely casual,
perfunctory and shoddy in nature. The appellant has been
denied the right to a fair investigation, which is but a facet of
a fair trial guaranteed to every accused under Article 21 of
the Constitution. The consideration of evidence by the Trial
Court, affirmed by the High Court, borders on perversity to
arrive at conclusions for which there was no evidence. Gross
misappreciation of evidence by two courts, let alone poor
investigation by the police, has resulted in the appellant
having to suffer incarceration for an offence he had never
committed.
16. Normally this Court in exercise of its jurisdiction under
Article 136 of the Constitution does not interfere with
concurrent findings of facts delving into appreciation of
evidence. But in a given case, concerning the liberty of the
individual, if the Court is satisfied that the prosecution had
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failed to establish a prima facie case, the evidence led was
wholly insufficient and there has been gross misappreciation
of evidence by the courts below bordering on perversity, this
Court shall not be inhibited in protecting the liberty of the
individual.
17. The conviction of the appellant is held to be
unsustainable and is set aside. The appellant is acquitted. He
is directed to be set at liberty forthwith unless wanted in any
other case.
18. The appeal is allowed.
…………...................J.
[R.F. NARIMAN]
…………...................J.
[NAVIN SINHA]
NEW DELHI
AUGUST 05, 2020.
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