Conviction under NDPS Act, 1985 to be proved beyond all reasonable doubt

Isha Sawant | Government Law College, Mumbai | 14th August 2020

Gangadhar alias Gangaram v. State of Madhya Pradesh

Facts:

The appellant- Gangadhar alias Gangaram- sold his house in Nimkhed village to one Gokul Dangi on 12-06- 2009 for Rs. 45000, the sale deed was registered on 26-06-2009 with one Tolaram and Ghasiram, the village watchman as witnesses who imprinted their fingerprints as signatures. The police had received secret information on 11-08-2009, that Gokul Dangi had stored contraband substance in his house situated in gram Nimkhed. The police arrived in the village for search and seizure and were helped by Gangaram and Ghasiram in locating the house, the house was locked from inside, the police broke the lock of the house and recovered 48kgs.200gms of contraband cannabis (ganja), the appellant and the watchman were witnesses to this. Gokul was not present in the house during the search, in the absence of Gokul investigation was completed and a criminal case was registered in the name of Gangadhar, his name was added to the charge-sheet as co-accused along with Gokul. The Special Judge of the Sessions Court held that Gangaram prepared a forged agreement of the sale of his said house but the same is still recorded in his name as per the 2008 Voters List; so it was presumed that the seized quantity of contraband belongs to him leading to his conviction under section- 8 and section-20 (B)(II)(C) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 with 10 years of Rigorous Imprisonment with fine of Rs. 1,00,000/-. The appellant filed an appeal before the Madhya Pradesh High Court against the findings and judgement of the Trial court, however, the High Court upheld the decision of the trail court against his conviction. The appellant has therefore filed an appeal before the Supreme Court for relief in this matter and has preyed for his acquittal.

Issues:

1. Whether Gangaram had forged the sales agreement and was still the owner and in possession of the house.
2. Whether ownership of the house by Gangaram proves that he was in possession of the contraband substances found in the house.
3. Whether the conviction of Gangaram under the NDPS Act, 1985 is made on sufficient lawful grounds.

Legal Provisions:

1. Constitution of India, 1950 Article 226
2. Narcotics Drugs and Psychotropic Substances Act, 1985, Sections 8C and 20(b)(ii)(c), sections 35and 37 and 54.

Appellant Contention:

The counsel for the appellant relying on the case Gopal v. State of Madhya Pradesh, (2002), stated that the conviction was based on a mere presumption of the ownership of the house. It was contended as to why would the appellant implicate himself by taking the police to his own house and witness them break the lock to recover contraband substances. The next day of search and seizure the appellant produced the registered sales deed before the police but the same was not investigated. The watchman Ghasiram was not examined nor were the Village Panchayat records with regard to the ownership of the house were investigated. The appellant contended that he was made an accused due to the failure of the police to investigate properly.

Respondent’s Contention:

The respondent stated that Tolaram one of the witnesses to the sales deed, denied being a witness for the same and alleged that his thumb-print was impersonated, he also said that he did not use his fingerprint rather signed his name in Hindi, therefore it was rightly held that the sales agreement was forged ; voters-list entry of 2008 proved Gangaram’s ownership of the house, it was said that the Gram Panchayat Record proved the same.

Observations of the Court:

The appeal was heard by the Supreme Court of India, before Justice RF Nariman and Justice Navin Sinha. The court after hearing both sides made observations regarding the facts that the police went for search and seizure of contraband in Nimkhed village on 12-08-2009, where the appellant, the watchman Ghasiram and other villagers recognized the house as belonging to Gokul Dangi, the next day the appellant produced his sale agreement dated 26-06-2009 to the police but the same was not investigated by them and no explanation was provided for the same, the Gram-Panchayat records were also not investigated by the police officer who took over the case from the investigating police officer; the appellant was made an accused based on his ownership entry in the 2008 voters-list. The appellant was alleged to be using the said house not for living but as a storeroom however no evidence was found to support this claim. The police constables who were present during the search and seizure also identified the house as belonging to Gokul Dangi, this was proved by Gram Panchayat records. Further it was observed that the prosecution failed to examine Ghasiram who was a witness to both the registration of sales deed and the police search and seizure. No forensic report was made for confirming Tolaram’s denial of his thumbprint on the sale agreement.

The court relied on the observation in Noor Aga vs. State of Punjab case, that the right of the accused to a fair trial cannot be withheld under the NDPS Act, 1885; it was stated that only after the prosecution proves beyond reasonable doubt the facts then the burden of proof will shift on the accused for proving his innocence. It was held that the prosecution’s standard of proving guilt should be ‘beyond all reasonable doubt’ whereas the standard for the accused is ‘preponderance of probability.’ Conviction under stringent provisions of the NDPS Act, 1885 such as sections– 35, 37 and 54 does not do away with the requirement of the prosecution to establish a prima facie case based on foundational facts proved beyond reasonable doubt after investigation, the prosecution cannot make a case on preponderance of probability.

The court held that due to a faulty and failed police investigation that created unsurety of the house ownership and the absconding of Gokul Dangi, the police found it convenient to implicate the appellant so that they would atleast get one convicted; the court found merit in and upheld the appellant’s contentions. It said that the sale-agreement was not investigated, the Gram Panchayat records which would have been the best evidence were also not examined, and since the house was sold in 2009 the reliance on the 2008 Voters list for ownership of the house was inconsequential.

The court called the police investigation as faulty and shoddy in nature, it held that there was gross misappreciation of evidence by the Sessions Court and High Court, that the prosecution relied on a foundation of conjectures and surmises to conclude on a preponderance of probabilities the guilt of the appellant. The poor police investigation failed to establish a prima facie case and thus led to the conviction of the appellant for a crime he did not commit. The court said that the appellant had been denied a right to a fair investigation guaranteed by Article 21 of the Indian Constitution. The court observed that it did not interfere with concurrent findings of facts into appreciation of evidence but when individual liberty was concerned due to insufficient evidence and prosecution’s failure to establish a prima facie case, the court would not be inhibited in protecting individual liberty.

Judgement:

The court held the conviction of the appellant as unsustainable and it was set aside. The appellant was acquitted and directed to be set at liberty.