GANGADHAR ALIAS GANGARAMversusSTATE OF MADHYA PRADESH

                        [2020] 7 S.C.R. 173                            173


              GANGADHAR ALIAS GANGARAM                                 A
                                 v.
                STATE OF MADHYA PRADESH
                 (Criminal Appeal No. 504 of 2020)
                        AUGUST 05, 2020                                B
          [R. F. NARIMAN AND NAVIN SINHA, JJ.]
      Narcotics Drugs and Psychotropic Substances Act, 1985 –
s.8C r/w. s. 20(b)(ii)(c) – Appellant was convicted u/s. 8C r/w. s.
20(b)(ii)(c) of the 1985 Act for the recovery of 48 Kgs 200 gms.
                                                                       C
cannabis (ganja) and sentenced for 10 years of rigorous
imprisonment – The appellant was held to be owner of the house by
the courts below, from where cannabis was recovered – Appellant’s
defence that he had sold the said house to the co-accused was
rejected – Held: The appellant had produced the sale agreement
dated 12.06.2009 of the property in question with promptness –         D
The said document was never investigated for its genuineness by
the police and neither panchayat records were verified – 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
                                                                       E
12.06.2009 – The prosecution cannot be held to have proved the
sale agreement as fabricated and fictitious document – Further, no
appeal was 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      F
presumption under the NDPS Act against him with regard to recovery
of the contraband – There was gross misappreciation of evidence
by the courts below and the police investigation was extremely
casual, perfunctory and shoddy in nature – Therefore, the conviction
of the appellant is unsustainable and is set aside.
                                                                       G
      Allowing the appeal, the Court
     HELD: 1. 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 investigation found it
convenient to implicate the appellant also, sanguine that at least     H
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174            SUPREME COURT REPORTS                      [2020] 7 S.C.R.


A     one of the two would be convicted. It is rightly submitted 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,
      be a witness to the breaking of the lock and recovery to implicate
      himself. [Para 11][178-B-C]
B
             2. The appellant had produced the sale agreement, Exhibit
      P.28 with promptness the very next day of recovery of contraband.
      It was never investigated for its genuineness by the police and
      neither were the panchayat records verified. The panchayat
C     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 P-37 signed by P.W. 14
      who acknowledged her signature but denied knowledge of the
      contents of the certificate. The voters list entry of 2008 being
D     prior to the sale is of no consequence. It is not without reason
      that the co-accused had absconded. [Para 12][178-D-E]
             3. 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
E     to the same on 12.06.2009. 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. [Para 13][178-F-G]
            4. In view of the nature of evidence available it is not
F     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
G     preponderance of probabilities, the guilt of the appellant without
      establishing the same beyond reasonable doubt. [Para 14]
      [178-G-H; 179-A]



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  GANGADHAR ALIAS GANGARAM v. STATE OF MADHYA                              175
                   PRADESH

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                 A
504 of 2020.
      From the Judgment and Order dated 02.01.2019 of the High Court
of Madhya Pradesh, Bench at Indore in Criminal Appeal No. 421 of
2012.
      Ms. Swarupama Chaturvedi, AAG, Puneet Jain, Ms. Pratibha Jain,       B
Ms. Christi Jain, Sunny Choudhary, Harsh Parashar Advs. for the
appearing parties.
      The Judgment of the Court was delivered by
      NAVIN SINHA, J.                                                      C
      1. 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      D
imprisonment with a default stipulation.
      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 co-accused
Gokul Dangi on 12.06.2009. Gokul Dangi has been acquitted in trial.        E
       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          F
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      G
contraband and implicate himself. Ghasiram and P.W.11, were both
witnesses to the sale agreement dated 12.06.2009, Exhibit P-28 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      H
176            SUPREME COURT REPORTS                          [2020] 7 S.C.R.


A     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
B     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.
C
              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
D     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. P-28 to him but
      that it was never investigated by him. Acknowledging that ownership
      details are mentioned in the gram panchayat records, the witness stated
E     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
F     explanation was offered for not investigating the sale 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
G     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
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  GANGADHAR ALIAS GANGARAM v. STATE OF MADHYA                                 177
           PRADESH [NAVIN SINHA, J.]

two witnesses to the sale agreement Exhibit P-28. The prosecution for         A
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
                                                                              B
the owner was. Yet 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
                                                                              C
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          D
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             E
      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 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            F
      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         G
      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
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178             SUPREME COURT REPORTS                            [2020] 7 S.C.R.


A     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.
B
             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 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,
C     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
D     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
E     sufficient to obtain a certificate Exhibit P-37 signed by P.W. 14 who
      acknowledged her signature but denied knowledge of the contents of
      the certificate. 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.

F           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
      P-18 was a fabricated and fictitious document. No appeal has been
      preferred by the prosecution against the acquittal of the co accused.
G
            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
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  GANGADHAR ALIAS GANGARAM v. STATE OF MADHYA                                    179
           PRADESH [NAVIN SINHA, J.]

to conclude on a preponderance of probabilities, the guilt of the appellant      A
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         B
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.
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       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 failed to establish a prima facie case, the evidence led was wholly
insufficient and there has been gross misappreciation of evidence by the         D
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.                                       E

       18. The appeal is allowed.


Ankit Gyan                                                     Appeal allowed.
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