IMPORTANT POINT
Recovery of Ganja – Court cannot convict a person whose identity as accused itself is doubtful.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. By order dated 4th January 2024, the Special Leave Petition out of which the present Criminal Appeal arises has been dismissed as regards petitioner no. 1 therein. Now, this Appeal survives only insofar as the appellant, namely, K. Shikha Barman (the appellant) is concerned.

2. The appellant was arraigned as accused no. 2 along with three other accused in a prosecution for the offence punishable under Sections 8 and 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

3. On 4th March 2016, PW-5, Sub-Inspector Bhawna Tiwari, who was posted at the relevant time in Hanumantal Police Station, Jabalpur, received an information that some persons, including three men and two women, were carrying Ganja in a WagonR car and were trying to sell the contraband. Accordingly, necessary preparation was made by PW-5. When PW-5 and her team reached Footalal Ground, Hanumanatal, they found that three men and two women were sitting in a WagonR. The women were Seema and Preeti. On search, bags containing Ganja, totally weighing 38.200 kgs. were seized. Samples were drawn, and further procedure was followed. The accused were arrested. In the memo of arrest, one Seema Choudhari was shown as arrested, whose age was recorded as 17 years in the arrest memo.

4. We may note here that, according to the case of the appellant, in fact, one Seema Choudhari was the accused and she was shown as arrested. The appellant’s contention is that the said Seema Choudhari was released, and the appellant, who was begging on the road, was caught and falsely implicated. While deciding the bail application filed by the appellant, an order was passed on 6th September 2016 holding that the real name of Seema Choudhari is Shikha Barman. By the order dated 6th September 2016, by recording a finding that Seema Choudhari and Shikha Barman are the same, the bail application of the appellant was rejected.

SUBMISSIONS

5. The submission of the learned counsel appearing for the appellant who has been appointed to espouse the cause of the appellant by the Supreme Court Legal Services Committee is that there is no evidence adduced at the time of the final hearing to show that the present appellant was Seema Choudhari who was caught sitting in WagonR car and both the High Court and Special Court have erroneously relied upon the order dated 6th September 2016 passed on the application for grant of bail. The submission of the appellant is that only a summary inquiry was held at that time without oral evidence being adduced by the parties. Therefore, on the basis of the said order of 6th September 2016, the argument of the appellant that she is not the accused and that one Seema Choudhari was the real accused cannot be discarded. Therefore, in the absence of any evidence adduced by the prosecution to show that Seema Choudhari and the present appellant are one and the same, the conviction of the appellant cannot be sustained.

6. The learned counsel appearing for the State invited our attention to statements recorded by the police and findings in the order dated 6th September 2016. He submitted that the findings are based on documents such as the Aadhar card. He submitted that the said order was not challenged by the appellant and hence, has become final.

CONSIDERATION OF SUBMISSIONS

7. The burden was on the prosecution to prove that the present appellant was found sitting in a WagonR car on 4th March 2016, from which contraband was recovered. Therefore, it was the duty of the prosecution to prove that the accused Seema Choudhari, as described in all documents, including documents of seizure, arrest memo, etc., is the present appellant. Firstly, we deal with the contentions based on the order dated 6th September 2016. A perusal of the order dated 6th September 2016 shows that a summary inquiry was conducted by the learned Special Judge under the NDPS Act on the basis of the documents produced on record. He