Gangadhar @ Gangaram vs The State Of Madhya Pradesh on 5 August, 2020


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Supreme Court of India

Gangadhar @ Gangaram vs The State Of Madhya Pradesh on 5 August, 2020

Author: Navin Sinha

Bench: Rohinton Fali Nariman, Navin Sinha

                                                                         REPORTABLE

                                      IN THE SUPREME COURT OF INDIA
                                     CRIMINAL APPELLATE JURISDICTION


                                     CRIMINAL APPEAL NO. 504 OF 2020
                                   (Arising out of SLP (Crl.) No.7415 of 2019)


                         GANGADHAR alias GANGARAM                  ....APPELLANT(S)
                                                    VERSUS
                         STATE OF MADHYA PRADESH                   ...RESPONDENT(S)


                                                  JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellant assails his conviction under Section 8C

read with Section 20(b)(ii)(c) of the Narcotics Drugs and

Psychotropic Substances Act, 1985 (hereinafter called as “the

NDPS Act”) for recovery of 48 Kgs 200 gms. cannabis (ganja),

sentencing him to 10 years of rigorous imprisonment with a

default stipulation.

Signature Not Verified

Digitally signed by
INDU MARWAH
Date: 2020.08.05
18:43:48 IST
Reason:

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3. The appellant was held to be the owner of the House in

question from which the ganja was recovered, relying upon

the voters list of 2008 rejecting his defence that he had sold

the house to co­accused Gokul Dangi on 12.06.2009. Gokul

Dangi has been acquitted in trial.

4. Shri Puneet Jain, learned counsel for the appellant

submitted that the conviction based on a mere presumption

of ownership of the house, without any finding of conscious

possession was unsustainable. Reliance was placed on

Gopal vs. State of Madhya Pradesh, (2002) 9 SCC 595. The

police had received information that Gokul Dangi had kept

contraband in his house. The appellant and Ghasiram, the

village chowkidar had identified the house of the accused to

the police when it came to the village for search and seizure.

Both of them were witness to the panchnama for breaking

open the lock to the house when the contraband was

recovered. It stands to reason why the appellant would take

the police to his own house, have the lock broken to recover

the contraband and implicate himself. Ghasiram and P.W.11,

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were both witnesses to the sale agreement dated 12.06.2009,

Exhibit P­28 executed by the appellant in favour of Gokul

Dangi. It was produced before the police by the appellant the

very next day but was never investigated, Ghasiram has not

been examined for no explicable reasons. The entries in the

village panchayat records with regard to ownership of the

house had not been investigated. The appellant was

subsequently made an accused during investigation because

of the failure of the police to investigate properly.

5. Ms. Swarupama Chaturvedi, learned Addl. Advocate

General for the State, submitted that P.W.11 had denied

being a witness to the sale agreement alleging that his thumb

impression had been impersonated. The deed was therefore

rightly held to be a forged and fabricated document

confirmed by the voter list entry of 2008 that the house

belonged to the appellant. The village panchayat records also

mentioned the ownership of the appellant.

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6. We have considered the submissions on behalf of the

parties and have carefully perused the evidence on record

also. P.W. 6, the first investigation officer deposed that secret

information had been received of Gokul Dangi having stored

contraband in his house. The appellant and Ghasiram along

with other villagers identified the house as belonging to

Gokul Dangi on 11.08.2009 leading to recovery after the lock

was broken open. The witness admitted that on 12.08.2009

itself the appellant had submitted the sale agreement dated

12.06.2009 Ex. P­28 to him but that it was never investigated

by him. Acknowledging that ownership details are mentioned

in the gram panchayat records, the witness stated that he did

not investigate the same. P.W. 16, who took over the

investigation after transfer of the former recorded the

statements of Ghasiram and P.W. 11 as also of other

witnesses. The appellant was then made an accused on basis

of his name being entered in the voters list of 2008. Contrary

to the evidence of P.W.6, the witness stated that the gram

panchayat records had been looked into by the former. No

explanation was offered for not investigating the sale

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agreement. The appellant was acknowledged not to be living

in the house from where the contraband was recovered, but

was alleged to be using it as a store room on basis of no

evidence whatsoever.

7. P.W. 3 and P.W.7, the police constable who had

accompanied P.W. 6, deposed that the appellant and

Ghasiram had identified the house as belonging to Gokul

Dangi which was corroborated by the panchayat records.

8. Ghasiram, as the village chowkidar was the best person

in the know of the ownership and possession of the house.

He was one of the two witnesses to the sale agreement

Exhibit P­28. The prosecution for inexplicable reasons has

not examined him. P.W. 11 denied his thumb impression on

the sale document contending that it was a fabricated

document. No forensic report was obtained by the

prosecution. The witness acknowledged that the appellant

did not visit his own house and lived in his new house for the

last 15 years denying any knowledge who the owner was. Yet

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his statement was accepted as gospel truth without any

further investigation.

9. The presumption against the accused of culpability

under Section 35, and under Section 54 of the Act to explain

possession satisfactorily, are rebuttable. It does not dispense

with the obligation of the prosecution to prove the charge

beyond all reasonable doubt. The presumptive provision with

reverse burden of proof, does not sanction conviction on

basis of preponderance of probability. Section 35(2) provides

that a fact can be said to have been proved if it is established

beyond reasonable doubt and not on preponderance of

probability. That the right of the accused to a fair trial could

not be whittled down under the Act was considered in Noor

Aga vs. State of Punjab, (2008) 16 SCC 417 observing:

“58. … An initial burden exists upon the
prosecution and only when it stands satisfied,
would the legal burden shift. Even then, the
standard of proof required for the accused to
prove his innocence is not as high as that of the
prosecution. Whereas the standard of proof
required to prove the guilt of the accused on the
prosecution is “beyond all reasonable doubt” but
it is “preponderance of probability” on the

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accused. If the prosecution fails to prove the
foundational facts so as to attract the rigours of
Section 35 of the Act, the actus reus which is
possession of contraband by the accused cannot
be said to have been established.

59. With a view to bring within its purview the
requirements of Section 54 of the Act, element of
possession of the contraband was essential so as
to shift the burden on the accused. The
provisions being exceptions to the general rule,
the generality thereof would continue to be
operative, namely, the element of possession will
have to be proved beyond reasonable doubt.”

10. The stringent provisions of the NDPS Act, such as

Section 37, the minimum sentence of 10 years, absence of

any provision for remission do not dispense with the

requirements of prosecution to establish 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

will therefore call for a heightened scrutiny of the evidence for

establishment of foundational facts by the prosecution.

11. It is apparent that the police being in a quandary with

regard to the ownership and possession of the house in

question due to a flawed, defective and incomplete

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investigation found it convenient to implicate the 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, it stands to reason why the

appellant who was residing in his new house for the last 15

years would identify his own erstwhile house as that of the

accused Gokul Dangi, be a witness to the breaking of the lock

and recovery to implicate himself.

12. The appellant had produced the sale agreement,

Exhibit P.28 with promptness the very next day. It was never

investigated for its genuineness by the police and neither

were the panchayat records verified. The panchayat records

are public documents and would have been the best evidence

to establish the ownership and possession of the house.

Despite the best evidence being available the police

considered it sufficient to obtain a certificate Exhibit P­37

signed by P.W. 14 who acknowledged her signature but

denied knowledge of the contents of the certificate. The voters

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list entry of 2008 being prior to the sale is of no consequence.

It is not without reason that the co­accused had absconded.

13. The appellant was held guilty and convicted in view of

his name being recorded as the owner of the house in the

voters list 2008, ignoring the fact that sale agreement was

subsequent to the same on 12.06.2009. The prosecution

cannot be held to have proved that Exhibit P­18 was a

fabricated and fictitious document. No appeal has been

preferred by the prosecution against the acquittal of the co

accused.

14. In view of the nature of evidence available it is not

possible to hold that the prosecution had established

conscious possession of the house with the appellant so as to

attribute the presumption under the NDPS Act against him

with regard to recovery of the contraband. Conviction could

not be based on a foundation of conjectures and surmises to

conclude on a preponderance of probabilities, the guilt of the

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appellant without establishing the same beyond reasonable

doubt.

15. The police investigation was very extremely casual,

perfunctory and shoddy in nature. The appellant has been

denied the right to a fair investigation, which is but a facet of

a fair trial guaranteed to every accused under Article 21 of

the Constitution. The consideration of evidence by the Trial

Court, affirmed by the High Court, borders on perversity to

arrive at conclusions for which there was no evidence. Gross

misappreciation of evidence by two courts, let alone poor

investigation by the police, has resulted in the appellant

having to suffer incarceration for an offence he had never

committed.

16. Normally this Court in exercise of its jurisdiction under

Article 136 of the Constitution does not interfere with

concurrent findings of facts delving into appreciation of

evidence. But in a given case, concerning the liberty of the

individual, if the Court is satisfied that the prosecution had

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failed to establish a prima facie case, the evidence led was

wholly insufficient and there has been gross misappreciation

of evidence by the courts below bordering on perversity, this

Court shall not be inhibited in protecting the liberty of the

individual.

17. The conviction of the appellant is held to be

unsustainable and is set aside. The appellant is acquitted. He

is directed to be set at liberty forthwith unless wanted in any

other case.

18. The appeal is allowed.

………………………….J.

[R.F. NARIMAN]

………………………….J.

[NAVIN SINHA]
NEW DELHI
AUGUST 05, 2020.

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