Back
SUPREME COURT OF INDIA
R.F. NARIMAN, NAVIN SINHA, JJ.
Gangadhar Alias Gangaram – Appellant
Versus
State of Madhya Pradesh – Respondent
Criminal Appeal No. 504 of 2020 (Arising out of SLP (Crl.) No. 7415 of 2019)
Decided On : 05-08-2020
(A) Narcotics Drugs and Psychotropic Substances Act, 1985 – Sections 35 and 54 – Presumption of culpability – Presumption against accused of culpability under Section 35 and under Section 54 of Act to explain possession satisfactorily, are rebuttable – It does not dispense with obligation of prosecution to prove charge beyond all reasonable doubts – 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 – Right of accused to a fair trial could not be whittled down. (Para 9)
(B) Narcotics Drugs and Psychotropic Substances Act, 1985 – Section 8C read with Section 20(b)(ii)(c) – Constitution of India – Article 21 – Recovery of Ganja – Conviction and sentence – Gravity of sentence and stringency of provisions will call for a heightened scrutiny of evidence for establishment of foundational facts by prosecution – It does not stand to reason why appellant would identify his own erstwhile house as that of accused, to be a witness to breaking of lock and recovery to implicate himself – Sale agreement was never investigated for its genuineness by police and neither were Panchayat records verified – Panchayat records are public documents and would have been best evidence to establish ownership and possession of house – In view of nature of evidence available it is not possible to hold that prosecution had established conscious possession of house with appellant so as to attribute presumption under NDPS Act against him with regard to recovery of contraband – Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, guilt appellant without establishing the same beyond reasonable doubt – Police investigation was very extremely casual, perfunctory and shoddy in nature – Appellant has been denied right to a fair investigation which is but a facet of a fair trial guaranteed to every accused under Article 21 of Constitution – Conviction of appellant held to be unsustainable and set aside – Appellant acquitted. (Paras 10, 11, 12, 14, 15 and 17)
(C) Constitution of India – Article 136 – Appeal – Scope and ambit – Normally, this Court in exercise of its jurisdiction under Article 136 of Constitution does not interfere with concurrent findings of facts delving into appreciation of evidence – But in a given case, concerning liberty of individual, if Court is satisfied that prosecution had failed to establish a prima facie case, evidence led was wholly insufficient and there has been gross mis-appreciation of evidence by courts below bordering on perversity, this Court shall not be inhibited in protecting liberty of individual. (Para 16)
Facts of the case:
Appellant assails his conviction under Section 8C read with Section 20(b)(ii)(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 for recovery of 48 Kgs 200 gms. cannabis (Ganja), sentencing him to 10 years of rigorous imprisonment with a default stipulation.
Findings of Court:
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 sale agreement was a fabricated and fictitious document. No appeal has been preferred by the prosecution against the acquittal of the co accused.
Result : Appeal allowed
JUDGMENT :
NAVIN SINHA, J.
1. 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.
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 co-accused 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,were both witnesses to the sale agreement dated 12.06.2009, Exhibit P-28 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.
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. P-28 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 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
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
