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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> Supreme Court A fact can be said to have been proved, if it is established beyond reasonable doubt and not on preponderance of probability MANU/SC/0575/2020 - (05 Aug 2020) </td> </tr> <tr> <td align="left" valign="top">Gangadhar Vs. State of Madhya Pradesh</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">The Appellant assails his conviction under Section 8C read with Section 20(b)(ii)(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act"). 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 co-accused on 12th June, 2009. Co-accused has been acquitted in trial. 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. 
The presumption against the Accused of culpability under Section 35 and Section 54 of the NDPS 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) of NDPS Act provides that, a fact can be said to have been proved, if it is established beyond reasonable doubt and not on preponderance of probability. 
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. 
The Appellant had produced the sale agreement, with promptness. It was never investigated for its genuineness by the police and neither was 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. The voters list entry of 2008 being prior to the sale is of no consequence. It is not without reason that, the co-accused had absconded. 
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 12th June, 2009. The prosecution cannot be held to have proved that Exhibit P-18 was a fabricated and fictitious document. No appeal has been preferred by the prosecution against the acquittal of the co-accused. 
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 Appellant without establishing the same beyond reasonable doubt. 
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 of India, 1950. 
Normally, present 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 failed to establish a prima facie case, the evidence led was wholly insufficient and there has been gross mis-appreciation of evidence by the Courts below bordering on perversity, present Court shall not be inhibited in protecting the liberty of the individual. The conviction of the Appellant is held to be unsustainable and is set aside. The Appellant is acquitted. Appeal is allowed.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Conviction, Evidence, Credibility</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>