2006 (9) TMI 494 - SC - Customs

Whether High Court of Madhya Pradesh at Indore was correct in affirming the judgment of conviction and sentence dated 3.4.2001 passed by the Special Judge, Indore under Section 8 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act )? Held that - Why everything was left to be done by PW-5 alone is a mystery. Why Shri Bajpai and Inspectors attached to the Bureau had not been examined has not been explained. The genesis of the occurrence was obtaining of secret information from the informer. Concededly the informer gave full particulars thereof only to Ms. Sabiha Khatun. She was, therefore, the only competent witness to prove the contents of Ex. P/16. A document as, is well known, does not prove itself. The contents are required to be proved by the maker thereof. Ms. Sabiha Khatun alone could have proved the correctness or otherwise of the contents of the said document. It was all the more necessary as PW-5 conceded that all conversations between Ms. Sabiha Khatun and the informer did not take place in his presence. Appellant is entitled to benefit of doubt. The appeal is allowed. He is directed to be set at liberty unless wanted in any other case.

Issues Involved:
1. Non-examination of key witnesses.
2. Reliability of seizure witnesses.
3. Procedural compliance under the NDPS Act.
4. Identification and apprehension of the accused.
5. Adverse inference due to non-production of evidence.

Issue-wise Detailed Analysis:

1. Non-examination of Key Witnesses:
The prosecution failed to examine Sabiha Khatun, who received the initial information, and Inspector S.K. Bajpai. The judgment emphasized that Ms. Sabiha Khatun was the only competent witness to prove the contents of the informer's statement (Ex. P/16). The court noted that a document does not prove itself; the contents must be proved by the maker. The absence of these witnesses gravely prejudiced the appellant, as the procedural safeguards under the NDPS Act require strict compliance.

2. Reliability of Seizure Witnesses:
The seizure witnesses, Premchand (PW-1) and Girish (PW-2), were declared hostile and contended that their signatures were obtained on blank papers. The court found their testimonies significant, as they denied witnessing the search and seizure. This raised doubts about the legitimacy of the seizure of the contraband. The court underscored that independent witnesses' presence during recovery is crucial in NDPS cases.

3. Procedural Compliance under the NDPS Act:
The judgment highlighted several procedural lapses. The informer's information was not corroborated by Ms. Sabiha Khatun, and the identity of the accused was not disclosed to witnesses. The court noted inconsistencies in PW-5's testimony regarding the informer's statement and the nature of the bag containing opium. The court emphasized that procedural safeguards must be strictly followed, especially in grave offenses under the NDPS Act.

4. Identification and Apprehension of the Accused:
The court questioned how the accused was identified and apprehended, as his identity was not disclosed until his apprehension. PW-5's testimony was inconsistent, and it was unclear how the accused was singled out among many people at the bus stop. The court found it mysterious that all actions, including spotting, searching, and interrogating the accused, were performed by PW-5 alone.

5. Adverse Inference Due to Non-production of Evidence:
The court drew an adverse inference for the non-examination of material witnesses, as per Illustration (g) appended to Section 114 of the Indian Evidence Act. The judgment noted that the prosecution's failure to produce key witnesses and the inconsistencies in PW-5's testimony weakened the prosecution's case. The court reiterated that the burden of proof lies on the prosecution to establish the case beyond all reasonable doubt.

Conclusion:
The court concluded that the appellant was entitled to the benefit of doubt due to procedural lapses, non-examination of key witnesses, and unreliable seizure witnesses. The appeal was allowed, and the appellant was directed to be set at liberty unless wanted in any other case. The judgment underscored the need for strict compliance with procedural safeguards under the NDPS Act and the importance of independent witnesses in such cases.

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