2008 (7) TMI 853 - SC - Customs

Whether the prosecution has been able to discharge its burden hereinafter? Held that - The provisions of Sections 35 and 54 are not ultra vires the Constitution of India. However, procedural requirements laid down therein are required to be strictly complied with. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant s guilt. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution s case must be held to be lacking in credibility.The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law. The investigation of the case was not fair. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. Before, however, parting with this judgment, we would like to place emphasis on the necessity of disposal of such cases as quickly as possible. The High Courts should be well advised to device ways and means for stopping recurrence of such a case where a person undergoes entire sentence before he gets an opportunity of hearing before this Court. Appeal allowed.

Issues Involved:
1. Constitutional validity of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Burden of proof on the prosecution vis-`a-vis the accused.
3. Non-production of physical evidence.
4. Non-examination of independent witnesses.
5. Discrepancies in the statements of official witnesses.
6. Admissibility of purported confessions.

Issue-wise Detailed Analysis:

1. Constitutional Validity of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The appellant challenged the constitutional validity of Sections 35 and 54 of the Act, arguing that they impose a reverse burden on the accused, contrary to Article 14(2) of the International Covenant on Civil and Political Rights and Articles 14 and 21 of the Indian Constitution. The court held that while presumption of innocence is a human right, it is not absolute and can be subject to statutory exceptions. The Act's stringent provisions are justified by the need to combat narcotic drug trafficking, aligning with international conventions. Therefore, the provisions of Sections 35 and 54 are not ultra vires the Constitution of India.

2. Burden of Proof on the Prosecution vis-`a-vis the Accused:
The court emphasized that the prosecution must establish foundational facts beyond reasonable doubt before the burden shifts to the accused. The heightened standard of proof is necessary due to the severe penalties under the Act. The court held that the prosecution failed to discharge its initial burden, thus failing to establish the foundational facts required to invoke the reverse burden under Sections 35 and 54.

3. Non-production of Physical Evidence:
The prosecution failed to produce essential physical evidence, including the cardboard carton, the bulk quantity of heroin, and the three samples taken from the bulk. The court noted that the cardboard carton was missing, and no convincing explanation was provided. The bulk quantity of heroin was allegedly destroyed without proper authorization, and the samples were not produced in court. The court held that non-production of physical evidence significantly undermines the prosecution's case and warrants drawing an adverse inference against the prosecution.

4. Non-examination of Independent Witnesses:
The prosecution did not examine the independent witnesses, Mahinder Singh and Yusuf, who were allegedly present during the search and seizure. The court held that the non-examination of these material witnesses, without any explanation, adversely affects the credibility of the prosecution's case. The court emphasized that the quality of evidence matters, and the failure to examine independent witnesses in a case with numerous discrepancies prejudices the appellant.

5. Discrepancies in the Statements of Official Witnesses:
The court noted several discrepancies in the statements of official witnesses regarding the search and seizure process. For instance, there were contradictions in the time of recovery and the handling of the samples. The court held that these discrepancies, when considered cumulatively, erode the credibility of the prosecution's case. The court highlighted the importance of strict compliance with procedural safeguards, especially in cases involving severe penalties.

6. Admissibility of Purported Confessions:
The appellant retracted his confessions, claiming they were made under duress and threat. The court held that the burden of proving that the confessions were made voluntarily lies with the prosecution. The court found that the prosecution failed to establish the voluntariness of the confessions. The court also noted that the use of technical terms in the confessions, which the appellant, an Afghan national, was unlikely to know, raised doubts about their authenticity. The court concluded that the purported confessions could not be relied upon as the sole basis for conviction.

Conclusion:
1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India.
2. Procedural requirements laid down therein are required to be strictly complied with.
3. There are numerous discrepancies in the treatment and disposal of physical evidence, contradictions in the statements of official witnesses, and non-examination of independent witnesses, leading to a lack of credible evidence.
4. The fact of recovery has not been proved beyond all reasonable doubt, which is required to establish before applying the doctrine of reverse burden.
5. The investigation was not fair, and the impugned judgment cannot be sustained.

The appeal is allowed, and the impugned judgment is set aside. The court also emphasized the necessity of disposing of such cases quickly to prevent undue delay in the justice process.

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