2022 (10) TMI 575 - SC - Indian Laws

Smuggling - Ganja - possession of contraband item - lack of corroboration of the testimony of police witnesses by independent witnesses - raising of presumption - shifting of burden on accused - section 50 of Narcotic Drugs and Psychotropic Substances Act 1985 - HELD THAT - Exhibit C-1 is the notice purportedly served on the independent witness Firuturam Banware. This notice directs the said witness to appear at 17 10 hrs. at the place indicated therein namely Saida Tiwari Para By-pass Main Road . Even according to PW-7 this notice to the witness was sent only at 17 10 hrs. to be served at the residence of the witness located 1 Km. away. Therefore there was no way that PW-7 could have expected the witness to be available at the place of incident at 17 10 hrs - Exhibit C-2 is the notice served on the appellant herein (A-1) under Section 50 of the Act. The time shown therein is 18 00 hrs. This notice requires the appellant to indicate whether he would like to be searched in the presence of Magistrate or Gazetted Officer. It is also stated in the notice that the contents thereof were read over in the presence of witnesses. Exhibit C-3 is the consent Panchnama of the appellant agreeing to be searched by the police officer. This Panchnama contains the names of Sunil Malghani and Firuturam Banware (CWs 1 and 2). Even the search Panchnama of the accused marked as Exhibit C-4 refers to the presence of CWs 1 and 2 at the time of search. Right from the beginning the co-accused Reena Das (A-2) was implicated at every stage. Admittedly the information received by PW-7 at 16 50 hrs. on 31.05.2014 contained a reference to the appellant as well as the co-accused Reena Das. But for some strange reason PW-7 chose to serve a notice under Section 50 of the Act only on the appellant and not on the co-accused. PW-7 also omitted deliberately or otherwise to record (i) the consent Panchnama of co-accused; (ii) the search Panchnama of the co-accused; and (iii) the recovery Panchnama in relation to the co accused. It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect namely the search and seizure the appellant will also be entitled to the same benefit as given by the Special Court to the co-accused. The appellant is also entitled to the benefit of doubt. Therefore the appeal is allowed.

Summary

Issues Involved:

1. Conviction under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Testimony and credibility of the investigating officer (PW-7).
3. Lack of corroboration by independent witnesses (CW-1 and CW-2).
4. Discrepancies in the procedural compliance and documentation.
5. Acquittal of co-accused Reena Das and its implications.
6. Applicability of Section 50 of the Act.
7. Presumption under Section 54 of the Act.

Issue-Wise Detailed Analysis:

1. Conviction under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985:

The appellant was convicted by the Special Court for the offence under Section 20(b)(ii)(C) of the Act and sentenced to rigorous imprisonment for 10 years along with a fine of Rs. 1 lakh. This conviction was confirmed by the High Court, leading the appellant to file the present appeal.

2. Testimony and credibility of the investigating officer (PW-7):

The Special Court heavily relied on the testimony of PW-7, the Deputy Superintendent of Police, who acted as both the informant and the Investigating Officer. PW-7's testimony was deemed unshaken despite the lack of corroboration from independent witnesses. However, the appellant's counsel highlighted several omissions in PW-7's evidence, including the absence of a search warrant, discrepancies in the documentation, and the failure to record the statement of the vehicle's owner.

3. Lack of corroboration by independent witnesses (CW-1 and CW-2):

The independent witnesses, CW-1 and CW-2, did not support the prosecution's case and claimed ignorance of the entire operation. They provided a plausible explanation for their signatures on the documents, stating they were at the police station for an unrelated matter. The court noted that the lack of corroboration from these witnesses created a significant doubt about the prosecution's story.

4. Discrepancies in the procedural compliance and documentation:

Several discrepancies were noted in the procedural compliance and documentation by PW-7. These included the absence of a search warrant, inconsistencies in the time mentioned in various documents, and the lack of signatures and stamping on the property seizure memo. The court found these discrepancies fundamental flaws in the investigation.

5. Acquittal of co-accused Reena Das and its implications:

The co-accused, Reena Das, was acquitted by the Special Court due to the lack of evidence against her, including the failure to serve a notice under Section 50 of the Act and the absence of any proof that the contraband was under her possession. The State did not appeal against her acquittal, and the court found it strange that the prosecution accepted this finding despite her being implicated in the FIR and charge-sheet.

6. Applicability of Section 50 of the Act:

The court noted that the protection under Section 50 of the Act is available only for the search of a person and not for the search of a vehicle or place. Since the recovery was made from the boot of the car, Section 50 had no application in this case. However, the court found that the failure to serve a notice under Section 50 to the co-accused contributed to her acquittal.

7. Presumption under Section 54 of the Act:

Section 54 of the Act raises a presumption that the accused is guilty once possession of the contraband is established. However, the court held that this presumption could only be raised if the recovery was proved beyond doubt. Given the serious doubts cast on the search and seizure process, the court concluded that the appellant was entitled to the benefit of doubt.

Conclusion:

The court allowed the appeal, setting aside the judgments of the Special Court and the High Court regarding the appellant's conviction. The appellant was ordered to be released forthwith unless he was in custody for another case. The court emphasized that the lack of corroboration by independent witnesses and the discrepancies in the procedural compliance significantly undermined the prosecution's case, entitling the appellant to the benefit of doubt.