The Division Bench consisted of Justice Naveen Sinha and Justice R F. Nariman. They held that conviction could not be based on a foundation of conjectures, nor based on probabilities alone. The stringency of the provisions requires an adequate examination of the evidence for the establishment of facts by the prosecution.
Brief Facts of the Case
The Appellant was held to be the owner of the house from which cannabis was recovered. The High Court rejected his defense that he had sold the house to co-accused Gokul Dangi on 12.06.2009. Gokul Dangi was acquitted in trial. Whereas he was sentenced to 10 years of rigorous imprisonment.
The Appellant questions his conviction under Section 8C read with Section 20(b)(ii)(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) for recovery of 48 Kg of Cannabis (“ganja”).
The conviction was based on a mere presumption of ownership of the house. No finding of conscious possession was made.
The police had received information that Gokul Dangi had kept contraband (goods imported or exported ) in his house. The Appellant and Ghasiram (the village chowkidar) identified the house of the accused to the police for search and seizure. The Counsel questioned the reasons on why the Appellant would take the police to his own house. Also, why he would have the lock broken to recover the contraband and implicate himself.
Moreover, Ghasiram and PW-11 were both witnesses to the sale agreement executed by the Appellant in favor of Gokul Dangi.
He contended that the Appellant was made an accused during the investigation, because of the failure of the police to investigate. The agreement produced before the police the very next day was never investigated. Additionally, Ghasiram had not been examined. The entries in the village panchayat records about ownership of the house had not been investigated too.
Additional Advocate General for the State submitted that PW-11 had denied being a witness to the sale agreement. PW-11 alleged that his thumb impression had been made up. Hence, the deed was held to be a forged and fabricated document. Also, the voter list entry of 2008 confirmed that the house belonged to the Appellant. The village panchayat records also mentioned the ownership of the appellant.
The Court examined the evidence admitted by the lower courts.
No evidence was found of the Appellant using the house from where the contraband was recovered, as a storeroom. Ghasiram, as the village chowkidar was the best person in the know of the ownership and possession of the house. He was also one of the two witnesses to the sale agreement.
The Bench noted that the prosecution had not examined him. Also, no forensic report was obtained by the prosecution to prove the fabrication of PW-11’s signature. PW-11 stated that the Appellant did not visit his own house and lived in his new house for the last 15 years. But, he denied any knowledge of ownership of the house. Regardless, his statement was accepted as truth without any further investigation.
Section 35 and 54 of the NDPS Act raise a presumption against the accused of being guilty and to explain possession of drugs. Besides, the obligation of the prosecution to prove the charge beyond all reasonable doubt subsites.
The Court agreed with the decision in Noor Aga vs. the State of Punjab, (2008) 16 SCC 417, that the right of the accused to a fair trial could not be overlooked. The Court stated that it is clear that the police undertook a flawed, defective, and incomplete investigation. It was convenient to implicate the Appellant. Further, the Apex Court questioned inadequate estimation of evidence by the Trial court and High Court.
The Appellant was held guilty and convicted because of his name being recorded as the owner of the house in the voters list 2008. The fact that the sale agreement was later in 2009, was completely ignored.
The Bench opined that the police investigation was very casual. The Appellant has been denied the right to a fair investigation. This is guaranteed to every accused under Article 21 of the Constitution. This resulted in the Appellant having to suffer for an offense he had never committed.
Evidence was estimated by the lower courts. The prosecution failed to establish Appellant’s possession of the house. Hence, the presumption under the NDPS Act about the recovery of drugs cannot be made.
The Appellant was acquitted.
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