Supreme Court of India
GANGADHAR ALIAS GANGARAM versus STATE OF MADHYA PRADESH on 5 August 2020
GANGADHAR ALIAS GANGARAM
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 504 of 2020)
AUGUST 05, 2020
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Narcotics Drugs and Psychotropic Substances Act, 1985 –s.8C r/w. s. 20(b)(ii)(c) – Appellant was convicted u/s. 8C r/w. s.20(b)(ii)(c) of the 1985 Act for the recovery of 48 Kgs 200 gms.cannabis (ganja) and sentenced for 10 years of rigorousimprisonment – The appellant was held to be owner of the house bythe courts below, from where cannabis was recovered – Appellant’sdefence that he had sold the said house to the co-accused wasrejected – Held: The appellant had produced the sale agreementdated 12.06.2009 of the property in question with promptness –The said document was never investigated for its genuineness bythe police and neither panchayat records were verified – Theappellant was held guilty and convicted in view of his name beingrecorded as the owner of the house in the voters list 2008, ignoringthe fact that sale agreement was subsequent to the same on12.06.2009 – The prosecution cannot be held to have proved thesale agreement as fabricated and fictitious document – Further, noappeal was preferred by the prosecution against the acquittal ofthe co-accused – In view of the nature of evidence available it isnot possible to hold that the prosecution had established consciouspossession of the house with the appellant so as to attribute thepresumption under the NDPS Act against him with regard to recoveryof the contraband – There was gross misappreciation of evidenceby the courts below and the police investigation was extremelycasual, perfunctory and shoddy in nature – Therefore, the convictionof the appellant is unsustainable and is set aside.
Allowing the appeal, the Court
HELD: 1. The police being in a quandary with regard tothe ownership and possession of the house in question due to aflawed, defective and incomplete investigation found itconvenient to implicate the appellant also, sanguine that at least
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Aone of the two would be convicted. It is rightly submitted thataccording to normal human prudence, it stands to reason whythe appellant who was residing in his new house for the last 15years would identify his own erstwhile house as that of the accused,be a witness to the breaking of the lock and recovery to implicatehimself. [Para 11][178-B-C]
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2. The appellant had produced the sale agreement, ExhibitP.28 with promptness the very next day of recovery of contraband.It was never investigated for its genuineness by the police andneither were the panchayat records verified. The panchayatCrecords are public documents and would have been the bestevidence to establish the ownership and possession of the house.Despite the best evidence being available the police consideredit sufficient to obtain a certificate Exhibit P-37 signed by P.W. 14who acknowledged her signature but denied knowledge of thecontents of the certificate. The voters list entry of 2008 beingDprior to the sale is of no consequence. It is not without reasonthat the co-accused had absconded. [Para 12][178-D-E]
3. The appellant was held guilty and convicted in view ofhis name being recorded as the owner of the house in the voterslist 2008, ignoring the fact that sale agreement was subsequentEto the same on 12.06.2009. The prosecution cannot be held tohave proved that Exhibit P-18 was a fabricated and fictitiousdocument. No appeal has been preferred by the prosecutionagainst the acquittal of the co-accused. [Para 13][178-F-G]
4. In view of the nature of evidence available it is notFpossible to hold that the prosecution had established consciouspossession of the house with the appellant so as to attribute thepresumption under the NDPS Act against him with regard torecovery of the contraband. Conviction could not be based on afoundation of conjectures and surmises to conclude on aGpreponderance of probabilities, the guilt of the appellant withoutestablishing the same beyond reasonable doubt. [Para 14][178-G-H; 179-A]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.504 of 2020.
From the Judgment and Order dated 02.01.2019 of the High Courtof Madhya Pradesh, Bench at Indore in Criminal Appeal No. 421 of2012.
Ms. Swarupama Chaturvedi, AAG, Puneet Jain, Ms. Pratibha Jain,Ms. Christi Jain, Sunny Choudhary, Harsh Parashar Advs. for theappearing parties.
The Judgment of the Court was delivered by NAVIN SINHA, J.
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1. Leave granted.
2. The appellant assails his conviction under Section 8C read withSection 20(b)(ii)(c) of the Narcotics Drugs and Psychotropic SubstancesAct, 1985 (hereinafter called as “the NDPS Act”) for recovery of 48Kgs 200 gms. cannabis (ganja), sentencing him to 10 years of rigorousimprisonment with a default stipulation.
3. The appellant was held to be the owner of the House in questionfrom which the ganja was recovered, relying upon the voters list of2008 rejecting his defence that he had sold the house to co-accusedGokul Dangi on 12.06.2009. Gokul Dangi has been acquitted in trial.
4. Shri Puneet Jain, learned counsel for the appellant submittedthat the conviction based on a mere presumption of ownership of thehouse, without any finding of conscious possession was unsustainable.Reliance was placed on Gopal vs. State of Madhya Pradesh, (2002) 9SCC 595. The police had received information that Gokul Dangi hadkept contraband in his house. The appellant and Ghasiram, the villagechowkidar had identified the house of the accused to the police when itcame to the village for search and seizure. Both of them were witnessto the panchnama for breaking open the lock to the house when thecontraband was recovered. It stands to reason why the appellant wouldtake the police to his own house, have the lock broken to recover thecontraband and implicate himself. Ghasiram and P.W.11, were bothwitnesses to the sale agreement dated 12.06.2009, Exhibit P-28 executedby the appellant in favour of Gokul Dangi. It was produced before thepolice by the appellant the very next day but was never investigated,Ghasiram has not been examined for no explicable reasons. The entries A
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Ain the village panchayat records with regard to ownership of the househad not been investigated. The appellant was subsequently made anaccused during investigation because of the failure of the police toinvestigate properly.
5. Ms. Swarupama Chaturvedi, learned Addl. Advocate GeneralBfor the State, submitted that P.W.11 had denied being a witness to thesale agreement alleging that his thumb impression had been impersonated.The deed was therefore rightly held to be a forged and fabricateddocument confirmed by the voter list entry of 2008 that the house belongedto the appellant. The village panchayat records also mentioned theownership of the appellant.C6. We have considered the submissions on behalf of the partiesand have carefully perused the evidence on record also. P.W. 6, the firstinvestigation officer deposed that secret information had been receivedof Gokul Dangi having stored contraband in his house. The appellantand Ghasiram along with other villagers identified the house as belongingDto Gokul Dangi on 11.08.2009 leading to recovery after the lock wasbroken open. The witness admitted that on 12.08.2009 itself the appellanthad submitted the sale agreement dated 12.06.2009 Ex. P-28 to him butthat it was never investigated by him. Acknowledging that ownershipdetails are mentioned in the gram panchayat records, the witness statedEthat he did not investigate the same. P.W. 16, who took over theinvestigation after transfer of the former recorded the statements ofGhasiram and P.W. 11 as also of other witnesses. The appellant wasthen made an accused on basis of his name being entered in the voterslist of 2008. Contrary to the evidence of P.W.6, the witness stated thatthe gram panchayat records had been looked into by the former. NoFexplanation was offered for not investigating the sale agreement. Theappellant was acknowledged not to be living in the house from wherethe contraband was recovered, but was alleged to be using it as a storeroom on basis of no evidence whatsoever.
7. P.W. 3 and P.W.7, the police constable who had accompaniedGP.W. 6, deposed that the appellant and Ghasiram had identified the houseas belonging to Gokul Dangi which was corroborated by the panchayatrecords.
8. Ghasiram, as the village chowkidar was the best person in theknow of the ownership and possession of the house. He was one of theH
GANGADHAR ALIAS GANGARAM v. STATE OF MADHYAPRADESH [NAVIN SINHA, J.]
two witnesses to the sale agreement Exhibit P-28. The prosecution forinexplicable reasons has not examined him. P.W. 11 denied his thumbimpression on the sale document contending that it was a fabricateddocument. No forensic report was obtained by the prosecution. Thewitness acknowledged that the appellant did not visit his own house andlived in his new house for the last 15 years denying any knowledge whothe owner was. Yet his statement was accepted as gospel truth withoutany further investigation.
9. The presumption against the accused of culpability under Section35, and under Section 54 of the Act to explain possession satisfactorily,are rebuttable. It does not dispense with the obligation of the prosecutionto prove the charge beyond all reasonable doubt. The presumptiveprovision with reverse burden of proof, does not sanction conviction onbasis of preponderance of probability. Section 35(2) provides that a factcan be said to have been proved if it is established beyond reasonabledoubt and not on preponderance of probability. That the right of theaccused to a fair trial could not be whittled down under the Act wasconsidered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417observing:
“58. … An initial burden exists upon the prosecution and onlywhen it stands satisfied, would the legal burden shift. Even then,the standard of proof required for the accused to prove hisinnocence is not as high as that of the prosecution. Whereas thestandard of proof required to prove the guilt of the accused on theprosecution is “beyond all reasonable doubt” but it is“preponderance of probability” on the accused. If the prosecutionfails to prove the foundational facts so as to attract the rigours ofSection 35 of the Act, the actus reus which is possession ofcontraband by the accused cannot be said to have been established.
59. With a view to bring within its purview the requirements ofSection 54 of the Act, element of possession of the contrabandwas essential so as to shift the burden on the accused. Theprovisions being exceptions to the general rule, the generalitythereof would continue to be operative, namely, the element ofpossession will have to be proved beyond reasonable doubt.”
10. The stringent provisions of the NDPS Act, such as Section37, the minimum sentence of 10 years, absence of any provision for AB
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Aremission do not dispense with the requirements of prosecution toestablish 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 willtherefore call for a heightened scrutiny of the evidence for establishmentof foundational facts by the prosecution.B
11. It is apparent that the police being in a quandary with regardto the ownership and possession of the house in question due to a flawed,defective and incomplete investigation found it convenient to implicatethe 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,Cit stands to reason why the appellant who was residing in his new housefor the last 15 years would identify his own erstwhile house as that ofthe accused Gokul Dangi, be a witness to the breaking of the lock andrecovery to implicate himself.
12. The appellant had produced the sale agreement, Exhibit P.28Dwith promptness the very next day. It was never investigated for itsgenuineness by the police and neither were the panchayat recordsverified. The panchayat records are public documents and would havebeen the best evidence to establish the ownership and possession of thehouse. Despite the best evidence being available the police considered itEsufficient to obtain a certificate Exhibit P-37 signed by P.W. 14 whoacknowledged her signature but denied knowledge of the contents ofthe certificate. The voters list entry of 2008 being prior to the sale is ofno consequence. It is not without reason that the co-accused hadabsconded.F13. The appellant was held guilty and convicted in view of his F13. The appellant was held guilty and convicted in view of hisname being recorded as the owner of the house in the voters list 2008,ignoring the fact that sale agreement was subsequent to the same on12.06.2009. The prosecution cannot be held to have proved that ExhibitP-18 was a fabricated and fictitious document. No appeal has beenpreferred by the prosecution against the acquittal of the co accused.G
14. In view of the nature of evidence available it is not possible tohold that the prosecution had established conscious possession of thehouse with the appellant so as to attribute the presumption under theNDPS Act against him with regard to recovery of the contraband.Conviction could not be based on a foundation of conjectures and surmisesH
to conclude on a preponderance of probabilities, the guilt of the appellantwithout establishing the same beyond reasonable doubt.
15. The police investigation was very extremely casual,perfunctory and shoddy in nature. The appellant has been denied theright to a fair investigation, which is but a facet of a fair trial guaranteedto every accused under Article 21 of the Constitution. The considerationof evidence by the Trial Court, affirmed by the High Court, borders onperversity to arrive at conclusions for which there was no evidence.Gross misappreciation of evidence by two courts, let alone poorinvestigation by the police, has resulted in the appellant having to sufferincarceration for an offence he had never committed.
16. Normally this Court in exercise of its jurisdiction under Article136 of the Constitution does not interfere with concurrent findings offacts delving into appreciation of evidence. But in a given case, concerningthe liberty of the individual, if the Court is satisfied that the prosecutionhad failed to establish a prima facie case, the evidence led was whollyinsufficient and there has been gross misappreciation of evidence by thecourts below bordering on perversity, this Court shall not be inhibited inprotecting the liberty of the individual.
17. The conviction of the appellant is held to be unsustainable andis set aside. The appellant is acquitted. He is directed to be set at libertyforthwith unless wanted in any other case.
18. The appeal is allowed.
Ankit Gyan
Appeal allowed.
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