Holding

The conviction was set aside because the prosecution failed to prove the recovery beyond reasonable doubt and the confessions were inadmissible, while the reverse‑burden provisions were upheld as constitutionally valid only when procedural safeguards are strictly observed.

Summary

The appellant, an Afghan national, was seized at Raja Sansi Airport with 22 packets of heroin and later arrested after a 15‑hour delay. He initially confessed to customs officials but later retracted, and was convicted under Sections 22 and 23 of the NDPS Act, a judgment affirmed by the High Court. On appeal, the Supreme Court examined the constitutionality of the reverse‑burden provisions (Sections 35 and 54) of the NDPS Act, the admissibility of confessions made to customs officers under Section 108 of the Customs Act, and numerous procedural lapses in the recovery, handling, and disposal of the physical evidence. The Court held that the reverse‑burden provisions are not per se unconstitutional but must be applied with strict procedural compliance; the confessions were inadmissible without proof of voluntariness, and the prosecution failed to prove the recovery of the contraband beyond reasonable doubt due to discrepancies and non‑production of key evidence. Consequently, the conviction was set aside and the appeal allowed.

Issues considered

The constitutionality of Sections 35 and 54 of the NDPS Act imposing a reverse burden of proof in light of Articles 14 and 21 of the Constitution and international human‑rights norms.
The admissibility of confessions made before customs authorities under Section 108 of the Customs Act, vis‑à‑vis Section 25 of the Evidence Act and Article 20(3) of the Constitution.
Whether the prosecution proved the recovery of heroin beyond reasonable doubt, given the non‑production of the cardboard carton, bulk quantity, and sample evidence, and the discrepancies in official witnesses' statements.
Whether the procedural requirements of the NDPS Act, Customs Act and the Standing Order No.1 of 1989 (search, seizure, and disposal) were complied with.
The impact of the failure to examine independent witnesses on the fairness of the trial.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Customs Act, 1962s. 108, s. 110(18), s. 1388
Indian Evidence Act, 1872s. 114(e), s. 114(g), s. 25
Indian Penal Code, 1860s. 193, s. 228
Narcotic Drugs and Psychotropic Substances Act, 1985s. 22, s. 23, s. 35, s. 52A, s. 53, s. 53A, s. 54

Subjects

NDPS Actreverse burden of proofpresumption of innocenceconfession admissibilityCustoms Actprocedural fairnessphysical evidencedrug traffickingconstitutional lawArticle 14Article 21Article 20(3)evidence lawsearch and seizurestanding orders

Judgment

[2008] 10 S.C.R. 379
-'f

NOOR AGA A
v.
STATE OF PUNJAB & ANR.
(Criminal Appeal No. 1034 of 2008)
JULY 9, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985:
ss. 22, 23, 52A, 53 and 53A -Possession of contraband
- Recovery - Prosecution - Confessions made by accused c
before Customs authorities - During trial confession retracted
- Conviction by courts below - On appeal, held: Conviction
not justified - In the facts of the case, recovery not proved
*-+ beyond reasonable doubt - Investigation of the case not fair
and reasonable - There are discrepancies in the treatment D
and disposal of physical evidence leading to drawl of nega-
tive inference - Cumulative effect of the facts of contradiction
in the statements of the official witnesses, failure to examine
independent witnesses and nature of confession and circum-
stances of recording of confession and other lacunae in the E
prosecution case, do not lead to guilt of accused - Constitu-
tion of India, 1950 - Articles 14 and 21 - Standing Order No.
1of1989- Section 3.1- Evidence Act, 1872- s. 114 (e) and
(g) - Customs Act, 1962 - s.110(18).
"' -;.
ss. 35 and 54 - Reverse burden of proof - Constitutional F
validity of - Held: Are ex faciedel not unconstitutional - A
right to be presumed innocent has to be applied subject to
exceptions - Such presumption is a human right and cannot
be equated with fundamental right enshrined under Article 21
- Constitutionality of penal provision providing for reverse bur- G
..,. den of proof must be tested on the anvil of State's responsibil-
+
ity to protect innocent citizens - Procedural requirements are
required to be strictly complied with -Evidence Act, 1872 - s.
25 - Customs Act, 1962 - ss. 108 and 1388 - International
379 H
380 SUPREME COURT REPORTS [2008] 10 S.C.R.

A Covenant on Civil and Political Rights (1966) - Article 14(2) -
Universal Declaration of Human Rights (1948) - Article 12-
Eutopean Convention for Protection of Human Rights and
Fundamental Freedoms- Article 6.2- Evidence - Reverse
burden of proof
B Evidence - Confession - Retracted confession - Reli-
ance on - For con'viction under NDPS Act- Confession made
under s. 108 of Customs Act - Plea of accused that confes-
sion was not voluntary but under threat and distress - Held:
Provisions of Customs Act cannot be applied for conviction
C under any other statute - Customs Officer, by virtue of legal
fiction would be deemed to be police officer - Thus confes-
sion made to them would run counter to s. 25 of Evidence Act
- s. 108 must give way to Article 20(3) of the Constitution - A
retracted confession can be relied on only if it is voluntary -
D Burden to prove that confession was made voluntarily is on
the prosecution - Narcotic Drugs and Psychotropic Sub-
stances Act, 198~ ss. 53 and 53A - Constitution of India,
1950 - Article 20(3) -Penal Code, 1860 - ss. 193 and 228 -
Customs Act, 1962 - ss. 108 and 1388.
E International Law:
International Covenant on civil and Political Rights -
Article 14 (2) - Presumption of innocence - Held: It is a hu-
man right - It cannot per se be equated with fundamental right
F under Article 21 of the Constitution - Constitution of India,
1950 - Article 21.
Doctrines/Principles:
(i) Doctrine of Compatibility.
G (ii) Doctrine of constitutionality.
(iii) Doctrine of res ipsa loquitur.
Appellant-an Afghan national, presented himself be-
fore authorities for Customs clearance at airport. He was
H searched by the Gazetted Officer of the Customs Depart-
~-.,
NOOR AGA v. STATE OF PUNJAB & ANR. 381

ment and 22 packets of brown power weighing 1 Kg. 400 A
gms. were recovered from a carton be·longing to him. Ap-
pellant was taken into custody immediately thereafter by
the customs authorities. He was formally arrested 15
r\ hours after the recovery. Appellant confessed his guilt on
two occasions. As per the Forensic Report, the alleged B
contraband was found to be of white colour. Appellant in
his examination u/s 313 Cr.P.C. denied in categorical terms
that the carton belonged to him. He also retracted from
his alleged confession. Trial Court convicted the appel-
lant u/s. 22 and 23 of Narcotic Drugs and Psychotropic c
Substances Act, 1985. The conviction was confirmed by
High Court.
In appeal to this court appellant contended that ss. 35
~-~
and 54 of the Act imposing reverse burden on an accused
is contrary to Article 14 (2) of the International Covenant on D
Civil and Political Rights which provides that an accused
is innocent until proved 'guilty' and thus ultra vires Articles
14 and 21 of the Constitution of India; that confessions of
the accused before customs authorities are inadmissible
in evidence being hit by s. 25 of Evidence Act, as s. 108 of E
customs Act should be read coupled with ~. 53 and 53A of
the Act; that a heightened standard of proof is required to
be discharged by the prosecution to establish foundational
~ 1' fac-ts and the same has not been done in the instant case;
that in view of the facts that there was failure to produce F
physical evidence before the Court, there was failure to
examine independent witnesses and there were discrep-
ancies in the statements of the official witnesses with re-
gard to search and seizure, conviction is not sustainable.
Allowing the appeal, the Court G
"" :~
HELD: 1.1 The provisions of Sections 35 and 54 of
Narcotic Drugs and Psychotropic Substances Act, 1985
are not ultra vires the Constitution of India. However, pro-
cedural requirements laid down therein are required to
H
382 SUPREME COURT REPORTS - [2008] 10 S.C.R.

A be strictly complied with. Only because the burden of proof
under certaifl circumstances is placed on the accused, the
same, by itself, would not render the impµgned provisions
unconstitutional. [Paras 43 and 151] [408-8, 452-C,D]
1.2 Sections 35 and 54 of NDPS Act may have to be )- ,
B read in the light of Articles 14 and 21 of the Constitution
of India. However, limited inroad on presumption would
be justified. The Act specifically provides for the excep-
tions. It is a trite law that presumption of innocence being
a human right cannot be thrown aside, but it has .to be
C applied subject to exceptions. [Paras 65, ·67 and 71] [413-
F, 415-A, 416-F]
1.3 Presumption of innocence is a human right as
envisaged under Article 14(2) of the International Cov- _
1
enant on Civil and Political Rights. It, however, cannot
0
per se be equated with the fundamental right and liberty
adumbrated in Article 21 of the Constitution of India. [Para
42] [407-G]
State v. Basson 2004 (6) BCLR 620 (CC) - referred to.
E 'War; Violence, Human Rights, and the overlap between
national and international law: Four cases before the South
African Constitutional Court' by Albie Sachs, 28 Fordham In-
ternational Law Journal 43- referred to
F 1.4 A right to be presumed innocent, subject to the
establishment of certain foundational facts and burden
of proof, to a certain extent, can be placed on an accused.
The provision for reverse burden is not only provided for
under the special· Acts like the present one but also un-
G der the general statutes like IPC. The Evidence Act pro-
vides for such a burden on an accused in certain mat-
ters,·as, for example, under Section 113Aand 113Bthereof.
Even otherwise, this Court, having regard to the factual
scenario involved in cases, e.g., where husband is said
to have killed his wife when both were in the same room,
H
NOOR AGA v. STATE OF PUNJAB & ANR. 383

... ...,
burden is shifted to the accused. The doctrine of res ipsa A
loquitur providing for a reverse burden has been applied
not only in civil proceedings but also in criminal proceed-
ings. [Paras 44, 50 and 68] [408-C, 410-A,B,C, 415-B]
Mis. Seema Silk and Sarees and Anr. v. Directorate of
' ~ Enforcement and Ors. 2008 (7) SCALE 624 - relied on 8

Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 (1)
SCALE 421; Hiten P Dalal v. Bratindranath Banerjee 2001
(6) SCC 16; Alimuddin vs. King Emperor 1945 Nagpur Law
Journal 300; Syed Akbar vs. State of Kamataka AIR 1979 c
SC 1848 Jacob Mathew vs. State of Punjab 2005 (6) SCC 1 ;
State of A.P v. C. Uma Maheswara Rao and Anr. 2004 (4) SCC
399; B. Nagabhushanam v. State of Kamataka 2008 (7)
SCALE 716 - referred to.

·-~ Regina v. Lambert 2001 UKHL 37 : 2001 (3) All ER 577; D
State v. Coetzee 1997 (2) LRC 593; R. v. Hansen 2007 NZSC
7; Home vs. Dorset Yacht Company 1970 (2) ALL E.R. 294-
referred to.
The Presumption of Innocence in English Criminal Law,
1996 Crim.LR. 306- referred to. E

1.5 It must be construed having regard to the other
international conventions and. having regard to the fact
that it has been held to be constitutional. Thus, a statute
,,. t may be constitutional but a prosecution thereunder may F
not be held to be one. Enforcement of law, on the one
hand and protection of citizen from operation of injustice
in the hands of the law enforcement machinery, on the
other, is, thus, required to be balanced. The constitution-
ality of a penal provision placing burden of proof on an
G
accused, thus, must be tested on the anvil of the State's
responsibility to protect innocent citizens. [Paras 44, 51
\.
and 52] [408-C,D, 410-C,D,E]
1.6 The procedures laid down under the Act being
stringent in nature, however, must be strictly complied H
384 SUPREME COURT REPORTS [2008] 10 S.C.R.

A with. Provisions imposing reverse burden, however, must not
only be required to be strictly complied with but a1so may be
subject to proof of some basic facts as envisaged under the
statute in question. 'Reason fo believe', as provided in sev-
eral provisions of the Act and as defined in Section 26 of IPC
B on the part of the officer concerned is essentially a question
offact. [Paras 46, 47 and 75] [408-E,F, 419-E,G]
Directorate of Revenue and Anr. v. Mohammed Nisar
Holia 2008 (2) SCC 370 - referred to.
c 1. 7 The court must assess the importance of the right
being limited to our society and this must be weighed
against the purpose of the limitation. The purpose of the
limitation is the reason for the law or conduct which lim-
its the right. [Para 53] [410-E,F]
D S v. Olamini; S v. Dladla and Ors. 1999 (7) BCLR 771 (CC) i--.
- referred to.
Glanville Williams, Textbook of Criminal Law (2"d Edn.)
page 56 - referred to.
E 1.8 Independence of judiciary must be upheld. The
superior courts should not do something that would lead
to impairment of basic fundamental and human rights of
an accused. [Para 72] [416-G]
The State v. Abdul Rashid Khoyratty, 2006 UKPC 13 -
F referred ·to.
2.1 The fact of recovery has not been proved beyond
all reasonable doubt which is required to be established
before the doctrine of reverse burden is applied. Recov-
G eries have not been made as per the procedure estab-
lished by law. The investigation of the case was not fair.
[Para 151] [452-G, 453-A]
2.2 The provisions of NDPS Act and the punishment
prescribed therein being indisputably stringent, the ex-
H tent of burden to prove the foundational facts on the pros-
NOOR AGA v. STATE OF PUNJAB & ANR. 385

ecution, i.e., 'proof beyond all reasonable doubt' would A
be more onerous. A heightened scrutiny test would be
necessary to be invoked. Whereas, on the one hand, the
court must strive towards giving effect to the parliamen-
tary object and intent in the light of the international con-
ventions, but, on the other, it is also necessary to uphold B
the individual human rights and dignity as provided for un-
der the UN Declaration of Human Rights by insisting upon
scrupulous compliance of the provisions of the Act for the
purpose of upholding the democratic values. It is neces-
sary for giving effect to the concept of 'wider civilization'. It c
is a well settled principle of criminal jurisprudence that more
serious the offence, the stricter is the degree of proof. A
higher degree of assurance, thus, would be necessary to
convict an accused. [Para 77] [420-B,C,D,E,F]
State of Punjab v. Baldev Singh, 1999 (3) SCC 977; D
Ritesh Chakravarty v. State of Madhya Pradesh, JT 2006 (12)
SC 416 - relied on.
2.3 Sections 35 and 54 of NDPS Act, no doubt, raise
presumptions with regard to the culpable mental state on
the part of the accused as also place burden of proof in E
this behalf on the accused; but the said provision would
clearly show that presumpt_ion would operate in the trial
of the accused only in the event the circumstances con-
tained therein are fully satisfied. An initial burden .exists
upon the prosecution and only when it stands satisfied, F
the legal burden would 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 stan-
dard of proof required to prove the guilt of accused on the
prosecution is "beyond all reasonable doubt" but it is 'pre- G
ponderance of probability'on the accused. If the prosecu-
tion fails to prove the foundational facts so as to attract the
rigours of Section 35 of NDPS Act, the actus reus which is
possession of contraband by the accused cannot be said
to have been established. [Para 79] [421-8,C,D, E] H

·,. ;· :..,.,!~
38~ SUPREME COURT REPORTS [2008] 10 S.C.R.

A 2.4 With a view to bring within its purv_iew the require-
\
ments of Section 54 of the Act, element of possession of
the contraband was essential so as to shift the burden
on tt:ie accused. The provisions being exceptions to the ,
).

general rule, the generality thereof would continue to be
s operative, namely, the element of possession will have to
be proved beyond reasonable doubt. [Para 80] [421-E,F]
. 2.5 Whether the burden' on the accused is a legal
bu.rden· or an evidentiary burden would depend on the
statute in question. The purport and object thereof must
C also be taken into consideration in determining the said
qu_estion. It must pe1ss the test of doctrine of proportion-
:r•
ality. The difficulties faced by the prosecution in certain
cases may be held to be sufficient to arrive at an opinion
that the burden on the accused is an evidentiary burden
.0 and not merely a legal burden. The trial must be fair. The
.accused must be provided with opportunities to effec-
tively defend himself. [Para 81] [421-G, 422-A]
She/drake v. Director of Public Prosecutions 2005 (1) All
ER 237 - refe.rred to.
E
. · Article by Richard Glover titled "She/drake Regulatory
Offences and Reverse Legal Burdens of Proof' 2006 (4) Web
JCLI - referred to.
2.6 In India the statute mw~t not only pass the test of ",
F reasonableness as contained in Article 1.4 of the Consti-
:tution of India but also the 'liberty' clause contained in
Article 21 of the Constitution of India. Placing persuasive
b~rden on the accused persons must justify the loss of
protection which will be suffered by the accused. Fair-
G ness and reasonableness of trial as also maintenance of
.the, individual dignity of the accused must be uppermost
-~n the court's mind .. [Paras 83 and 84] [425-G, 426-A,B]

R. v. Johnstone (2003) 3 All ER 884 - referred to.
H 3.1 A fundamental error has been committed by the
NOOR AGA v. STATE OF PUNJAB & ANR. 387

High Court in placing explicit reliance upon Section 108 A
of the Customs Act. Every proceeding in terms of sub-
section (4) of Section 108 would be a judicial proceeding·
within the meaning of Sections 193 and 228 IPC. The en-
quiry contemplated under Section 108 is for the purpose
of Customs Act and not for the purpose of convicting an s
accused under any other statute including the provisions
of the Act. [Paras 87 and 88] [427-F,G, 428-A]
3.2 The High Court should have considered the ques-
tion having regard to the stand taken by the appella"t that '
the confessions made by him were under threat and dis- C
tress and not made voluntarily. Only because certain per-
sonal facts known to him were written, the same by itself
• would not lead to the conclusion that they were free and
voluntary. [Para 90] [428-C]
D
3.3 Clause (3) of Article 20 of the Constitution pro-
vides that no person accused of any offence shall be com-
pelled to be a witness against himself. Any confession
made under Section 108 of the Customs Act must give
way to Article 20(3) wherefor there is a conflict between
the two.[Para 91] [428-D,E] E
3.4 A retracted confessional statement may be re-
lied upon but a rider must be attached thereto namely if it
is made voluntarily. The burden of proving that such a
confession was made voluntarily would, thus, be on the F
prosecution. [Para 91] [428-E]
3.5 The ·extent of right to a fair trail of an accused
must be determined keeping in view the fundamental
rights as adumbrated under Article 21 of the Constitution
of India as also the International Convention and Cov- G
enants chartered in Human Rights. Criminal justice deliv-
ery system prevailing in India lacks mechanisms to rem-
edy systemic violations of the accused's core constitu-
tional rights which include the right to effective assistance
of counsel, the right to have exculpatory evidence dis- H
388 SUPREME COURT REPORTS (2008] 10 S.C.R.

A closed, and the right to be free from suggestive· eyewit-
ness identifications, coerced custodial interrogation and
the fabrication of evidence. (Para 94] (430-A,B,C]
Aggregation in Criminal Lawby Brandon L. Garrett April
2007 California Law Review Vol. 95 No.2 page 385 at 393
8 - referred to.
3.6 When, however, the custom officers exercise their
power under Customs Act, it is not exercising i~ power
as an officer to check smuggling .of goods; .it acts for the
c purpose of detection of crime and bringing an accused
to book. [Para 95] [430-D]
State of Punjab v. Harkat Ram AIR 1962 SC 276- re-
ferred to
D 3. 7 Section 25 of the Evidence Act was enacted to
put a stop to the extortion of confession, by taking away
from the police officers as the advantage ·of proving such
exforted confession during the trial of accused persons.
[Para 97] (431-F,G]
E Queen Empress v. Babula/ ILR (1884) 6 All. 509 - referred to.
3.8 NDPS Act is a complete code by itself. The cus-
toms .officers have been clothed with the powers of po-
lice officers under NDPS Act. It does not, therefore, deal
only with a matter of imposition of, penalty or an order of
F confiscation of the properties under the Act but also with
the offences having serious consequences. Section 53
of NDPS Act empowers the customs officers with the pow-
ers of the Station House Officers. An officer invested with
the power of a police officer by reason of a special stat-
G ute in terms of sub-section (2) of Section 53 would, thus,
be rleemed to be police officers and for the said purposes
of Section 25 of Evidence Act shall be applicable. A legal J.

fiction must be given its fult effect. [Paras 98, 99and 100]
(431-G, 432-A,B,C] .
H
NOOR AGA v. STATE OF PUNJAB & ANR. 389

UCO Bank and Anr. v. Rajinder Lal Capoor 2008 (6) A
SCALE 1 - referred to.
3.9 Section 53A of NDPS Act makes such a statement
relevant for the purposes of the said Act. The observa-
tions of the High Court that confession can be the sole
basis of conviction in view of Section 108 of the Customs 8
Act, thus, appear to be incorrect. the provisions of the
Customs Act cannot be applied to seek conviction there-
under. [Paras 101 and 103] [432-0,G]
Alok Nath Dutta v. State of West Bengal 2006 (13) , c
SCALE 467; Pon Adithan v. Deputy Director, Narcotics Con-
trol Bureau, Madras 1999 (6) SCC 1 - relied on.
Balkrishna Chhaganlal Soni v. State of West Bengal 1974 ,
(3) SCC 567; Babubhai Udesinh Parmar v. State of Gujarat,
• 1- 2006 (12) SCC 268 - referred to. D
3.10 A search and seizure or an arrest made for the
purpose of proceeding against a person under the Act
cannot be different only because in one case the author- '
ity was appointed under the Customs Act and in the other
under another. What is relevant is the purpose for which E
such arrest or search and seizure is made and investiga-
tion is carried out. The law applicable in this behalf must
be certain and uniform. [Para 106] [433-F,G]
3.11 Even otherwise Section 1388 of Customs Act ; F
must be read as a provision containing certain important
features, namely: (a) There should be in the first instance
statement made and signed by a person before a compe-
tent custom official. (b) It must have been made during
the course of enquiry and proceedings under the Cus- G
toms Act. [Para 107] [433-G, 434-A,B]
j "- 3.12 Confessional statement of an accused, therefore,
cannot be made use of in any manner under Section 1388
of the Customs Act. Even otherwise such an evidence is
considered to be of weak nature. [Para 108] [434-F,G] ·H
390 SUPREME COURT REPORTS [2008] 10 S.C.R.

A Gopal Govind Chogale v. Assistant Collector of Central
Excise and Anr. 1985 (2) Born CR 499 - referred to.
4.1 There are a large number of discrepa'1cies in the \
;·

treatment and disposal of the physical evidence. there
are contradictions in the statements of official witn"esses.
8 Non-examination of independent witnesses and the na-
t1.:1re of confession and the circumstances of the record-
ing of such confession do 11ot lead to the conclusion of
the appellant's guilt. Finding on the discrepancies al-
though if individually examined may not be fatal to the
C case of the prosecution but if cumulative view of the sce-
nario is taken, the prosecution's case must be held to be
lacking in credibility. [Para 151) [452-D,E,F,G]
4.2 The cardboard carton was not produced in court
being allegedly missing. No convincing explanation was
0 1·
rendered in that behalf. The inference was drawn only on
the basis of a mere assertion of the witness without any
corroboration. No explanation has been given as to what
happened to the container. Its absence significantly un-
dermines th~ case of the prosecution. It reduces the evi-
E dentiary value of the statements made by the witnesses
referring the fact of recovery of the contraband therefrom.
[Para 110 and 111) [435-D, 436-A,C]
4.3 Preservance of original wrappers comes within
p the purview of the .direction issued in terms of Section 3.1
of the Standing Order No. 1 of 1989. The guidelines such
as those presen't in the Standing Order cannot be blatantly
floµted _and substantial compliance therewith must be in-
sisted upon for so that sanctity of physical evidence in
G such cases remains intact. Clearly, there has been no sub-
stantial compliance of these guidelines by the investigat-
ing authority which leads to drawing of. an adverse infer-
en.ce against them to the effect that had such evidence
been produced, the same would have gone against the
H prosecution. [Paras 112 and 117] [436-D, 438-G, 439-A]
NOOR AGA v. STATE OF PUNJAB & ANR. 391

Mani Shankar v. Union of India and Anr 2008 (3) SCC. A
484; State of Kera/a and Ors. v. Kurian Abraham (P) Ltd. and
Anr. 2008 (3) SCC 582; Union of India v. Azadi Bachao
Ando/an 2004 (10) SCC 1 - relied on.
Chief Commercial Manager, South Central Railway,
Secunderabad and Ors. v. G. Ratnam and Ors. 2007' (8) SCC , B
212 - referred to.
4.4 The bulk quantity of heroin allegedly recovered
indisputably has also not been produced in court. Re-
spondents contended that the same had been destroyed. c
However, on what authority it was done is not clear. Law
requires that such an authority must flow from an order
passed by the Magistrate u/s. 52 of NDPS Act. Such an
order whereupon reliance has been placed is Exhibit PJ;
on a bare perusal whereof, it is apparent that at no point
0
of time any prayer had been made for destruction of the
said goods or disposal thereof otherwise. What was nec-
essary was a certificate envisaged under Section 110(18)
of Customs Act. An order was required to be passed un-
der the aforementioned provision providing for authenti-
cation, inventory etc. The same does not contain within E
its mandate any direction as regards destruction. [Para
118] [439-8,C,D]
4.5 There is a distinction between Section 110(18) of
Customs Act and Section 52A(2) of NDPS Act as sub-sec- F
tion (4) thereof, namely, that the former does not contain
any provision like sub-section (4) of Section 52A. It is of
some importance to notice that paragraph 3.9 of the
Standing Order requires pre-trial disposal of drugs to be
. obtained in terms of Section 52A of NDPS Act. Exhibit PJ G
can be treated as nothing other than an order of authenti-
cation as it is a certificate under Sec~ion 110(18} of Cus-
toms Act as the aspect of disposal clearly provided for
under Section 52A of the Act is not alluded to. [Para 121]
[440-F,G]
H
392 SUPREME COURT REPORTS [2008] 10 S.C.R.
~ .
A 4.6 Pre-trial disposal of drugs is not permissile on
I'
certificate obtained u/s 110 (1 B) of Customs Act. Firstly <

because taking recourse to the purported general prac-
tice adopted by the Customs Department is not envisaged
in regard to prosecution under the Act. Secondly, no such· f- .
B general practice has been spoken of by any witness. A
statement made at the Bar as regards existence of such a
purported general practice cannotbe a substitute of evi-
dence whereupon only the court could rely upon. [Para
122] [441-F,G, 442-A]
c 4.7 Physical evidence relating to three samples taken
from the bulk amount of heroin were also not produced.
Even if it is accepted for the sake of argument that the bulk
quantity was destroyed, the samples were essential to be
produced and proved as primary evidence for the purpose 1-
D of establishing the fact of recovery of heroin as envisaged
under Section 52A of the Act. [Para 124] [442-D,E]
4.8 A slight difference in the weight of the sample may
not be held to be so crucial as to disregard the entire pros-
ecution case as ordinarily an officer in a publ.ic place
E would not .be carrying a good scale with him. Here, how-
ever, the scenario is different. The place of seizure was
an airport. The officers carrying out the search and sei-
zure were from the Customs Department. They must be
having good scales with them as a marginal increase or
F decrease of quantity of imported articles whether contra-
~ ..
band or otherwise may make a huge difference under the
Customs Act. [Para 126] [443-A,B,C]
4.9 Physical evidence of a case of this nature being
the property of the court should have been treated to be
G
sacrosanct. Non-production thereof would warrant draw- ,A
ing of a negative inference within the meaning of Section
114(g) of the Evidence Act. While there are such a large
number of discrepancies, if a cumulative effect thereto is
taken into consideration on the basis whereof the per-
H
NOOR AGA v. STATE OF PUNJAB & ANR. 393

missive inference would be that serious doubts are ere-' A
ated with respect of the prosecution's endeavour to prove
the fact of possession of contraband from the appellant.
[Para 48] [443-F,G]
Jitendra v. State of UP 2004 (10) sec 562 - relied on.,
8
4.10 . Several other lacunae in the prosecution case .
had been brought to the notice of the Court. The samples ,
had been kept at the airport for a period of three days.
They were not deposited at the malkhana. It was obliga-
•
f
I tory on the part of the Customs Department to keep the ' c
same in the safe custody. There are gaping flaws in the
treatment, disposal and production of the physical evi-
dence and the conclusion that the same was in safe cus-

-- tody required thorough evidence on the part of the pros-
ecution which suggests that the sanctity of the physical
evidence was not faulted. It was not done in the present
0
case. [Paras 130 and 131] [444-C,D,E,F]
4.11 The sample, thus, with only a seal of custom by
itself cannot be stated to be one recovered from the ap-
pellant specially when the prosecution case is that it con- .E
tained accused's signature and date of it which is not
found on the original. The independent witnesses did not
sign the samples. The original seal was not produced. It
is a mystery to whom the seal was entrusted. Thus, the
change in colour, weight of the sample as also the ab- F
sence of the accused's signature thereupon cannot be
totally ignored. The seal was not even deposited in the
malkhana. As no explanation whatsoever has been of-
fered in this behalf, it is difficult to hold that sanctity of the
recovery was ensured. Even the malkhana register was G
not produced. There exist discrepancies also in regard
to the time of recovery. [Paras 133, 135 and 136] [445-G,
446-A,B, 447-E,F,G]
State of Punjab v. Baldev Singh, 1999 (3) SCC 977 -
relied on. H
394 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 4.12 Although examinati'on of independent wit-
nesses in all situations may not be imperative, if they were I=
material, in terms of Section 114(e) of the Evidence Act, an "
adverse inference could be drawn. In a case of his nature,
where tl:lere are a large number of discrepancies, the ap-
8 pellant has been gravely prejudiced by their non-examina-
tion. It is true that what matters is the quality of the evi-
dence and not the quantity thereo~ but in a case of this
nature w.here procedural safeguards were required to be
strictly complied with, it is for the prosecution to explain
c why the material witnesses (independent witnesses) had
not been examined. [Paras 138 and 139] [449-C,D,E]
4.13 Article 12 of the Universal Declaration of Human
Rights provides for the Right to a fair trial. Such rights are
enshrined in our Constitutional Scheme being Article 21
D of. the .Constitution of India. If an a·ccused has a right of
fair trial, his case must be examined keeping in vi.ew the
ordinary law of the land. The courts, in order to do justice
between the parties, must examine the materials brought
on record in each case on its own merits. Marshalling and
E appreciation of evidence must be done strictly in accor-
dance with the well known legal principles governing the
same; wherefor the provisions of the Code of Criminal
Procedure and Evidence Act must be followed. Apprecia-
tion of evidence must be done on the basis of materials
F on record and not on the basis of some reports which 1' . .
have nothing to do with the occurrence in question. (
[Paras 143, 144 and 145] [450-D,E,F,G]
4.14 Exbt PA indicates that the gazetted officer or the
independent witnesses were not present at the time of
G purported recovery. Exhibit PC, however, shows the pres~
ence of independent witnesses at the time of recovery.
The credibility of the statements, having regard to these
vital discrepancies stand eroded. [Para 148] [451-D,E]
4.15 The High Court disregarded that although Ex-
H
NOOR AGA v. STATE OF PUNJAB & AN~. 395

hibit PA may not affect a technical compliance of Section A
50 of the Act on taking a complete and circumspect view
of the materials brought on record, ,but the-same, affect
the credibility of the documentary evidence and the state-
ments of the official witnesses, namely, PW1 and PW2. If
origin of principle has not been followed and discrepan~ B
cies and contradictions have occurred in the statements
of PW1 and PW2 the same would cause doubt on the cred-
ibility of prosecution case and their claim of upholding
procedure established by law in effecting recovery. [Para
150] [451-G, 452-A,B] , c
State of Himachal Pradesh v. Pawan Kumar 2005 (4)
sec 350 - distinguished.
State of Punjab v. Baldev Singh, 1999 (3) SCC 977; D.K.
Basu v. State of West Bengal 1997 (1) SCC 416 - referred to D
Miranda v. Arizona 1966 (384) US 436- referred to.
5. There is necessity of disposal of such cases ·as
quickly as possible. The High Courts should be well ,ad-
vised to device ways and means for stopping recurrence
of such a case where a person undergoes entire sentence E
before he gets an opportunity of hearing before this
Court. [Para 152] [453 8-C]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1034 of 2008 F
From the Judgment dated 9.6.2006ofthe High Court of Punjab
and Haryana at Chandigarh in Crl. Appeal No. 81 O-SB/2000

Tanu Bedi, D.P. Singh, Sanjay Jain, Rajat Vohra; Prayanat
Singh, Rachana Golchha and Sunil Roy for the Appellant.
G
Vikas Sharma and B.V. Balaramdas (for B. Krishna
Prasad) for the Respondent.

Kuldip Singh and A.K, Mehta for the state.

The Judgment of the Court was delivered by H
396 SUF'REME COURT REPORTS [2008] 10 S.C.R.

A SJ~. SINHA, J: Leave granted.
INTRODUCTION
1 . Several question$ of grave importance including the
constitutional validity of the Narcotic Drugs and Psychotropic
B Substances Act, 1985 (for short "the Act"), the standard and f- •
extent of burden of proof on the prosecution vis-a-vis accused
are in question in this appeal which .arises out of a judgment
and order dated 9.06.2006 passed by the High Court of Punjab
and Haryana in Criminal Appeal No. 810-SB of 2000 whereby
c and whereunder an appeal filed by the applicant against the
judgment of conviction and sentence dated 7.6.2000 under
Section 2"2 and 23 of the Act has been dismissed.
PROSECUTION CASFE.
2. Appellant is an Afghan national.
0
3. He was arrested and later on prosecuted under Sec-
tions 22 and 23 of the Act allegedly for carrying 1 kg 400 grams
of heroin as a member of crew of Ariana Afghan Airlines.
E 4. Appellant arrived at Raja Sansi Airport at about 6 p.m.
on 1.08.1997. He presented himself before the authorities un-
derthe Customs Act, 1962 (for short "the Cu:)toms Act") for cus-
toms clearance. He was carrying a carton wit_h him said to be
containing grapes. the.cardboard walls of the said carton were
said to have two layers. As some concealment in between the
F layers was suspected by one Kulwant Singh, an Inspector of
the Customs Department, the appellant was asked as to whether
he had been carrying any contraband or any other suspicious
item. Reply thereto having been rendered in the negative, a
search was purported to have been conducted.
5. Kulwant Singh, who examined himself as PW-1 before
the trial court, allegedly asked the appellant as to whether he
intended to be searched by a Magistrate or a Gazetted officer
of the Customs Department in response whereto, he exercised
H his option for the latter, whereupon one Shri K.K. Gupta, Super-
NOOR AGA v. STATE OF PUNJAB & ANR. 397
., -"! [S.B. SINHA, J]

., intendent of the Customs Department and two independent wit-
nesses, Mohinder Singh and Yusaf were sent for. K.K. Gupta
disclosed his identity to the appellant as a Gazetted officer
A

working in the Customs Department.
,
-\ 6. The layers of the walls of the carton were thereafter sepa-
rated, wherefrom 22 packets of polythene containing brown B
powder were allegedly recovered. The same was weighed; the
gross weight whereof was found to be 1 kg. 400 grams. Rep-
resentative homogeneous samples from each packet in small
quantities were taken weighing 5 gms. each. They were pur-
ported to have been sealed with a seal bearing No. 122 of the c
Customs Department. The cardboard carton was also sealed
with the same seal. The recovered item being of brown colour
was taken in possession vide recovery memo (Ex. PB),
.,_ r Panchanama (Ex.PC) prepared by Shri Kulwant Singh. The en~
tire bulk was put into cotton bags and sealed. D
ARREST AND PURPORTED CONFESSION
7. Although the appellant had all along been in the custody
of the Customs Department, he was formally arrested at about
3 p.m. on 2.08.1997, i.e., 15 hours after the recovery having E
peen effected. Grounds of arrests allegedly were supplied to
him. His body was also searched wherefor his jamatalashi was
prepared which was marked as Ex. PE.
' 'r
8. Appellant purported to have confessed his guilt on
2.08.1997 as also on 4.08.1997. F
INVESTIGATION
9. Samples were sent to the Central F~rensic Laboratory
on 5.08.1997. The weight of the said samples was found to be
8.7 gms. The document is said to have been tinkered with, as G
,l the words "net weight" were crossed and converted into 'gross
weight'.
10. The alleged contraband was found to be of white colour
containing Diacetyl Morphine. The report was submitted on
H
398 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 2.09.1997; on the basis whereof a complaint Ex. PL was filed
in the Court and in a consequence thereof, appellant was'to put •
on' foal having been charged under Sections 22 and 23 of the
Act.
11. The contraband articles were produced before the Mag- ~
B istrate on 30.01.1999. The purpose for production is mired in
controversy. Whereas the appellant contends that the same was
.. • • 1

done for the purpose of authentication, according to the respon-
dent, i~ was produced .for the purpose of obtaining a judicial
order f~r destruction thereof. No order, however, was passed
c by the learned Magistrate for destruction of the contraband. No
application forcestruction was also filed.
PROCEEDINGS
12. At .the t.rial, the following witnesses were examined on. i ~

D behalf of the State:
PW-1 Kulwant Singh-Inspector Customs
(Complainant and investigating officer)
PW-2 KK Gupta- Superintendent-Customs (A Gazzeted
E
Officer)
PW-3 Ashok Kumar:- Inspector, Customs Department
...
(Deposited sample)
PW-4 Rajesh Sodhi-Deputy Commissioner 1'
F
Custodian of case property from 1-8-97 to 4-8-97
PW-5 KK Sharma-Inspector lncharge- Malkhana
13. Appellant, ·In his examination under section 313 of the
G Code of Criminal Procedure in categorical terms denied that
the carton belonged to him. He also retracted from his alleged J.
confession.
14. The learned Additional Sessions Judge by his order
and judgment dated 7 .06.2000 convicted the appellant under
H Sections 22 and 23 of the Act and sentenced him to undergo
NOOR AGA v. STATE OF PUNJAB & ANR. 399
[S.B. SINHA, J]

rigorous imprisonment for 10 years and also imposed a fine of A
Rs. 1 lakh on him.
15. Aggrieved by and dissatisfied with the said judgment
and order of the learned Additional Sessions Judge, the appel-
lant filed an appeal before the High Court of Punjab and
B
!
~ Haryana. The High Court dismissed the said appeal by a judg-
ment and order dated 9.06.2006. Appellant is, thus, before us.
CONTENTIONS
16. Ms. Tanu Bedi, learned counsel appearing on behalf
of the appellant, in support of this appeal, submits: c
(i) The provisions of Sections 35 and 54 of the Act being
draconian in nature imposing reverse burden on an
accused and, thus, being contrary to Article 14 (2) of
, ,. r the International Covenant on Civil and Political Rights
D
providing for 'an accused to be innocent until proved
guilty' must be held to be ultra vires Articles 14 and
21 of the Constitution of India.
(ii) Burden of proof under the Act being on the accused,
a heightened standard of proof in any event is E
required to be discharged by the prosecution to
establish the foundational facts and the same having
not been done in the instant case, the impugned
judgment is liable to be set aside.
...ii)I
1' (iii) The prosecution having not produced the physical F
evidence before the court particularly the sample of
the purported contraband materials, no conviction
could have been based thereupon.
.•
(iv) Independent witnesses having not been examined, .G
the prosecution must held to have failed to establish .
actual recovery of the contraband from the appellant.
l
(v) There being huge discrepancies in the statements
of official witnesses in regard to search and seizure,
the High Court judgment is fit to be set aside. H
•
400 SUPREME COURT REPORTS [2008] 10 S.C.R.

A .(vi) The purported confe.ssions of the appellant before
the customs i;luthorities are wholly inadmissible in
I
evidence being hit by Seciion 25 of the Indian
Evidence Act, as Section 108 of the Customs Act
should be read in terms thereof coupled with Sections
B 53 and 53A of the Act.
>-
17. Mr. Kuldip Singh, learned coun~.el appearing on be-
half of the State, on the other hand, would contend:
(i) The learned Trial .Judge as also the High Court upon
c having examined the materials brought on records
:by the prosecution to hold that the guilt of the accused
sufficiently has been established in the .case, this
Court should not interfere with the impugned
judgment.
0 (ii) Appellant haying .exercised his option of being
searched by;,.a Gaz.etted Officer; and the legal
requirements of Sections 42 and 50 of the Act must
be held to ha.ve been fully complied with. In any
event, search and seizure of the carton did not attract
E the provisions of Section
...
50 of the Act.
(iii) Despite some discrepanc;:ies in the statements of
the w.itnesses as regards recovery, the same cannot
be said to be a vital flaw in the casE? of the prosecution
so as to make the impugned judgment unsustainable.
F The learned Trial Judge as also the High Court had
considered the practices prevailing in the Customs
Department for the purpose of appreciating the
evidence brought on record, and having recorded
'their satisfaction with regard thereto, the impugned
G judgments do not warrant any interference.
(iv) Any confession made before the custom$ authorities
·in terms of Section 108 of the Customs Act is not hit
t;>y Section 25 of the Indian Evid~nce Act and the
same, thus, being admissible in evidence could have
H

~I
NOOR AGA v. STATE OF PUNJAB & ANR. 401
{S.B. SINHA, J]
·~~

been relied upon for the purpose of recording a A
judgment of conviction.
AN OVERVIEW OF THE STATUTORY PROVISIONS
18. Before embarking upon the rival contentions of the par-
. -\ ties, as noticed hereinbefore, it is appropriate to notice the rel- 8
evant provisions of the Act as also the Customs Act, 1962.
19. The purported recovery was made by the Customs
Department. In terms of the provisions of the Act they were
entitled to make investigations as also file the chargesheet.
c
20. The Act was enacted to consolidate and amend the
law relating to narcotic drugs to make stringent provisions for
the control and regulation of operations relating to narcotic drugs
and psychotropic substances. It was enacted to implement the
'" r provisions of the International Conventions on Narcotic Drugs
D
and Psychotropic Substances and the matters connected there-
with.
21 . Section 2(xiv) of the Act defines "narcotic drug" to mean
coca leaf, cannabis (hemp), opium poppy straw and includes
all manufactured drugs. E
22. "Illicit traffic", in relation to narcotic drugs and psycho-
tropic substances, has been defined in Section 2(viiia) pf the
Act, inter alia, to mean:
... ~ "(iv) dealing in any activities in narcotic drugs or F
psychotropic substances other than those referred to in
sub-clauses (i) to (iii); or .
(v) handling or letting out any premises for the carrying on
of any of the activities referred to in sub-clauses (i) to (iv);"
G
23. "~mmercial quantity" has been defined in Section...
4' ' • ~

~ 2(viia) to mean any quantity greater than the quantity specified
by the Central Government by notification in the official gazette.

Indisputably, the commercial quantity prescribed for heroin
is only 250 gms. H
11-
1

402 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 24. "international Conventions" have been specified in Sec-
tion 2(ix) of the Act.
25. Chapter II of the Act enables the Central Government
to-take measures as may be necessary or expedient inter alia
. .for the purpose of preventing and combating abus.e of and illicit >- .:
8 traffic·ther~in including constitution of an authority or hierarchy
of authorities by such name or names as may be specified in
·;the order for the purpose of exercising such of the powers and
functions of the Central Government under the Act and for tak-
ing measures with respec,t to such of the matters referred to in
·c sub-section ,(2) as being specified therein, subject, of course, ·
•to the supervision and control of the Centra.1 ~overnment.
26. Chapter Ill proyides for prohibition,' control and regula-
tion~ Section 8.,inter alia bars possession, sale, purchase, trans-
D ~port of any narcotic drugs except for medical or scientific pur- i '·
poses and in· the manner and the extent provided by the provi-
sions of the Act or the Rules or orders framed thereunder. Sec-
.-tiqp- 9 of the, Act empowers the Central Government t<? make
rules ir:iter .alia permitting and regulating possession of narcotic
-E substance, subject, however, to the provisions contained in
Section 8 thereof.
, • T,

.·. 27. Chapter IV provides for offences and per.ialties. Sec-
tion 22'provides for punishmerit for contravention in relation to
psychotropic substances. Section 23 provides for punishment
F for Hlegal import into India, export from India or transshipment
· of narcotic. drugs and psychotropic substances.·
28. The punishment under both the provisions in case of
commercial quantity provides for rigorous imprisonment for a
term which shall not be less than ten years but which may ex-
:G tend to twenty years and shall also be liable to fine which shall
, n.ot b~less than one lakh rupees but which may be extended to
two, l~l<h n,ipees. The proviso app~n:d~d thereto, however, em-
powers the court. for reasons to be recorded in the judgment, to
r impose"a"fine exceeding two lakh rupees.

H

I
!l
NOOR AGt. v. STATE OF PUNJAB & ANR. 403
[S.B. SINHA, J]

29. Section 35 of the Act provides for presumption of cul- A
pable mentat state. It also provides that an accused may prove
that he had no such mental state with respect to the act charged
as an offence under the prosecution. Sectio1:1 54 of the Act places
the burden of proof on the accused as regards possession of
the contraband to account for the same satisfactorily. B'
30. Section 37 of the Act makes offences cognizable and
non-bailable. It contains a non-obstante clause in terms whereof
restrictions have been imposed upon the power of the court to
release an accused on bail unless the following conditions are
satisfied: C
"(i) the Public Prosecutor h~s been given an opportunity
to oppose the applice1tion for such release, and
(ii) where the Public Prosecutor opposes the application,
the court is satisfied that there are reasonable grounds. for D
believing that he is not guilty of such offence and that he
is not likely to commit any offence while on bail."
31. The said limitations on the power of the court to grant
bails as provided form clause (b) of Section (1) of Section 37
of the Act are in addition to the limitations provided for under E •
the Code of Criminal Procedure, 1973 or any other law for the
time being in force.
32. Section 39 provides for the power of the court to re-
r lease certain offenders on probation. '"' F
33,¥'-Je may notice.that the restrictions on the power of the
court t'c1~1t1spend the: ~ef:ltence as envisaged in Section 39 of
the Act has been he1d10 be unconstitutional in Dadu@ Tulsidas
v. Stat~ of Maharashtra ((2000) 8 sec 437], subject, of course,
to· the restrictiol")s for grant of bail as contained in Section 37 of ..G
the Act. · · ·1···, ,•••.•, . . .
34. Section 42 p5ovides for 'power of entry, search, sei-
zure and arrest without any warrant or authorization by an of-
ficer who is otherwise empowered by the Central Government H
404 SUPREME COURT REPORTS [2008] 10 S.C.R.

,i,..-, ..

A by general or special order.
35. If the authorities or officers specified therein have any
reason to believe from personal knowledge or information given
by any person and taken down in writing that any narcotic drug
or psychotropic substances in respect of which an offence pun-
B ishable under the Act has been committed, they may enter into >-
and search such building, conveyance or enclosed place at any
time between sunrise and sunset and detain, search and arrest
any person whom he has reason to believe to have committed
an offence punishable under the Act.
c
36. Section 43, however, empowers an officer of any de-
partment mentioned in Section 42 to detain and search any
person who he has reason to believe has committed an offence
punishable under the Act in a public place. Section 50 pro-
vides for the conditions under which search of persons are to .... ,(
D
be conducted. Section 51 provides for application of the Code ,__
't-
of Criminal Procedure, 1973 insofar as they are not inconsis-
tent with the provisions. of the Act. Section 52 provides for dis-
posal of persons arrested and articles seized. Section 52-:A
provides for disposal of seized narcotic drugs and psychotro-
E pie substances; sub-section (2) whereof reads as under:
"(2) Where any narcotic drugs or psychotropic substances
has been seized and forwarded to the officer in charge of
the nearest police station or to the officer empowered
F under Section 53, the officer referred to in sub-section (1)
shall prepare an inventory of such narcotic drugs or,
psychotropic substances containing such detail~ relating
to their description, quality, quantity, mode of packing,
marks, numbers or such other identifyir]g particulars of the
narcotic drugs or psychotropic substances or the· packing
in which they are packed, country of origin and other
particulars as the officer referred to in sub-section (1) may
consider relevant to the identity qt the narcotic drugs or
psychotropic substances in any proceedings under this
Act and make an application, to any purpose of,-
H
NOOR AGA v. STATE OF PUNJAB & ANR. 405
[S.B. SINHA, J]

(a) Certifying correctness of the inventory so prepared; or A
(b) Taking, in the presence of such Magistrate,
photographs substances and certifying such
photographs as true; or

-~ (c) Allowing to draw representative samples of such B
drugs or substances, in the presence of such !

Magistrate and certifying the correctness of any list
of samples so drawn."
37. Indisputably, the proper officers of the 1962 Act are
authorized to take action under the Act as regards seizure of C
goods, documents and things.
38. We may notice Section 110 of the 1962 Act, sub-sec-
tion (1) whereof reads as under:
"110. Seizure of goods, documents and things. - (1) If the D
proper officer has reason to believe that any goods are
liable to confiscation under this Act, he may seize such
goods:
Provided that where it is not practicable to seize any such
goods, the proper officer may serve on the owner of the ,E
goods an order that he shall not remove, part with, or
otherwise deal with the goods except with the previous
permission of such officer.
(1A) The Central Government may, having regard to the F
perishable or hazardous nature of any goods, depreciation
in the value of the goods with the passage of time,
constraints of storage space for the goods or any other
1

relevant considerations, by notification in the Official
Gazette, specify the goods or class of goods which shall, G
as soon as may be after its seizure under subsection (1),
be disposed of by the proper officer in such manner as
the Central Government may, from time to time, determine
after following the procedure hereinafter specified.
(1 B) Where any goods, being goods specified under sub- H
406 SUPREME COURT REPORTS [2008] 10 S.C.R.

A section (1A), have been seized by a proper officer under
sub-section (1 ), he shall prepare an inventory of such goods
containing such details relating to their description, quality,
quantity, mark, numbers, country of origin and other
particulars as the proper officer may consider relevant to
B the identity of the goods in any proceedings under this Act }-
and shall make an application to a Magistrate for the
purpose of -
(a) certifying the correctness of the inventory so prepared; or

c (b) taking, in the presence of the Magistrate,
photographs of such goods, and certifying such
photographs as true; or
..
(c) allowing to draw representative samples of such
goods, i.h the· presence of the Magistrate, and
D certifying the correctness of any list of samples so
drawn.
(1 C) Where. an application is made under sub-section
(1B), the Magistrate shall, as soon as may be, allow
the application."
E
39. Indisputably, the Central Government has isa.d
guidelines in this behalf being Standing Order No. 1 of T989
-
dated 13.06.1989 which is in the following terms:
"WHEREAS . the Central Government. .considers it
1 ....
F necessary and expedient to dete.rmine the manner in which
the narcotic drugs and psychotropic substances, as
specified in Notification No. 4/89 dateq. the i9th May, 1989
(F. No. 664/23/89-0pium, published as S.O. 381(E) ), ·
which shall, as soon as may be, after thefr seizure, be
G disposed of, having rega'rd to their hazardous' nature,
vulnerability to theft, substitution and constraints of proper
storage space;
Now, therefore, In exercise of the powers conferred by
sub-section (1) of Section 52A of the Narcotic Drugs and
H
NOOR AGA v. STATE OF PUNJAB & ANR. 407
(,-..,.. [S.B. SINHA, J]

Psychotropic Substances Act, 1985 (61 of 1985}, A
(hereinafter referred to as 'the Act'), the Central
Government hereby determines that the drugs specified
in the aforesaid Notification shall be disposed off in the
following manner ... "
40. These guidelines under the Standing order have been 8
made under Statute, and Heroin is one of the items as sub-
stances listed for disposal under Section I of the Standing Or-
der.
41. Paragraphs 3.1 and 6.1 of the Standing Order read as c
under:
"Preparation of inventory.
3.1 After sampling, detailed inventory of such packages/
containers shall be prepared for being enclosed to the D
panchnama. Original wrappers shall also be preserved
for evidentiary purposes.
Certificate of destruction
6.1 A certificate of destruction (in triplicate (Annexure Ill) E.

containing all the relevant data like godown entry, no., file
No., gross and net weight of the drugs seized etc. shall be
prepared and duly endorsed by the signature of the
Chairman as well as Members of the· Committee. This ,
could also serve the purpose of panchanama, The original
copy shall be posted in the godown regfster after making F
necessary entries to this effect, the duplicate to be retained
in the seizure case file and the triplicate copy will be kept
by the Disposal Committee. "
I
CONSTITUTIONAL/TY
G
42. Presumption of innocence is a human right as envis-
aged under Article 14(2) of the International Covenant on Civil
and Political Rights. It, however, cannot per se be equated with
the fundamental right and liberty adumbrated in Article 21 of the
ConStitution of India. It having regard to the extent thereof would H
I
408 SUPREME COURT REPORTS [2008] 10 S.C.R.

A not militate against other statutory provisions (which, of course,
must be read in the light of the constitutional guarantees as
adumbrated in Articles 20 and 21 of the Constitut~on of India) .
.,.. .

43. The A~~ontains draconian provisions. It must, how-
ever, be borne in mind that the Act was enacted having regard
8 to the mandate contained in International Conventions on Nar-
cotic Drugs and Psychotropic Substances. Only because the
burden of proof under certain circumstances is placed on the
accused, the same, by itself, in our opinion, would not render
the impugned provisions unconstitutional.
c
44. A right to be presumed innocent, subject to the estab-
lishment of certain foundational facts and burden of proof, to a
certain extent, can be placed on an accused. It must be con-
strued having regard to the other international conventions and
having regard to the fact that it has been held to be constitu-
0
tional. Thus, a statute may be constitutional but a prosecution
thereunder may not be held to be one. Indisputably, civil liber-
ties and rights of citizens must be upheld.
45. A Fundamental Right is not absolute in terms.
E 46. It is the consistent view of this Court that 'reason to
believe', as provided in several provisions of the Act and as
defined in Section 26 of the Indian Penal Code, on the part of
the officer concerned is essentially a question of fact.

F 47. The procedures laid down under the Act being strin-
gent in nature, however, must be strictly complied with.
48. In Directorate of Revenue and Another v. Mohammed
Nisar Holia [(2008) 2 SCC 370], this Court held:
t:e "11. Power to make search and seizure as also to arrest
_ 21 vn 9 a0q,CJRC·~,s.~~,j~1J9~nded upon and subject to satisfaction of
,;IVIJ,., nthe,ot.ficei:,as,the· term "reason
U n,1:>;;::>\/UO 1oi1CJ 1Jbl• '·
to believe"
·
has been used.
rlhv-i ,,~\.},S~J?Ej~el£T:l~~ P&if.Rund~d upon secret\nformation t~at
-~id~ m_,,ay: btfA9fiCl!l.Y conveyed by the informant. Dracon~an
i·f..i L ic proyision ,~hich may le~d to a harsh sentence having
NOOR AGA v. STATE OF PUNJAB & ANR. 409
[S.B. SINHA, J]
·-\
regard to the doctrine of "due process" as adumbrated A
under Article 21 of the Constitution of India require striking ,
of balance between the need of law and enforcement
thereof, on the one hand, and protection. of citizen from
oppression and injustice on the other." ""'·
49. Application of inte~ational law in a case involving war 8
crime was considered by ~ Constitutional Court of South Af- .
rica in State v. Basson [2004 (6) BCLR 620 (CC)f qpining:
"The rules of humanitarian law constitute an important
1

ingredient of customary international law. As the c
International Court of Justice [("the ICJ)] has stated, they '
are fundamental to the respect of the human person and
"elementary considerations of humanity. The rules of '
humanitarian law in armed conflicts are to be observed by I
all States whether or not they have ratified the Conventions
0
that contain them because they constitute intransgressible
principles of international customary law. The ICJ has
· also stressed that the obligation on all governments to ,
respect the Geneva Conventions in all circumstances does ·
not derive from the Conventions themselves, but from the
general principles of humanitarian law to which the E
Conventions merely give specific expression."
It was furthermore observed:

.. t "When allegations of such serious nature are at issue,
and where the exemplary value of constitutionalism as , F
against lawlessness is the very issue at stake, it is
particularly important that the judicial and prosecutorial ·
functions be undertaken with rigorous and principled
respect for basic constitutional rights. The effective •
prosecution of war crimes and the rights of the accused G
to a fair trial are not antagonistic concepts. On the contrary, '
both stem from the same constitutional and humanitarian
foundation, namely the need to uphold the rule of law and
the basic principles of human dignity, equality and
freedom." H
410 SUPREME COURT REPORTS [2008) 10 S.C.R.

A [See also 'War, Violence, Human Rights, and the overlap
between national and international law: Four cases before the
South African Constitutional Court' by Albie Sachs, 28 Fordham
International Law Journal 432)
50. The provision for reverse burden is not only provided
8 for under the special acts like the present one but also under
the general statutes like the Indian Penal Code. The Indian Evi-
dence Act provides for such a burden on an accused in certain
matters, as, for example, under Section 113A and 1138 thereof.
Even otherwise, this Court, having regard to the factual sce-
C nario involved in cases, e.g., where husband is said to have
killed his wife when both were in the same room, burden is shifted
to the accused.
51. Enf9rcement of law, on the one hand and protection of
citizen from operation of injustice in the hands of the law en-
0
forcement machinery, on the other, is, thus, required to be baJ:
anced.
52. The constitutionality of a penal provision placing bur-
den of proof on an accused, thus, must be tested on the anvil of
E the State's responsibility to protect innocent citizens.
53. The court must assess the importance of the. right be-
ing limited to our society and this must be weighed against the
purpose of the limitation. The purpose ofthe·limitation isthe
reason for the law or conduct which limits the right. {See S v. 1 -
F Dlamini; S v. Dladla and others 1999(7) BCLR 771(CC)}
54. While, however, saying so, we are not unmindful of se-
rious criticism made by the academies in this behalf.
55. In Glanville Williams, Textboo·k of Crim·inal Law (2"d .
G Edn.) page 56, it is stated:
-\
"Harking back to Woolmington, it will be remembered
that Viscount Sankey said that "it is the duty of the
prosecution to prove the prisoner's guilt, .subject to the
defence of insanity and subject also to any statutory
H
NOOR AGA v. STATE OF PUNJAB & ANR. 411
[S.B. SINHA, J]

exception" .... Many statutes shift the persuasive burden. A
It has become a matter of routine for Parliament, in respect
of the most trivial offences as well as some serious ones,
to enact that the onus of proving a particular fact shall rest
on the defendant, so that he can be convicted "unless he
proves" it." B
56. But then the decisions rendered in different jurisdic-
tions are replete with cases where validity of the provisions rais-
ing a presumption against an accused, has been upheld.
57. The presumption raised in a case of this nature is one c
for shifting the burden subject to fulfillment of the conditions pre-
cedent therefor.
58. The issue of reverse burden vis-a-vis the human rights
regime must also be noticed. The approach of the Common
Law is that it is the duty of the prosecution to prove a person D
guilty. Indisputably this common law principle was subject to
parliamentary legislation to the contrary. The concern n.ow shown
worldwide is that the Parliaments had frequently been making
inroads on the basic presumption of innocence. Unfortunately
unlike other countries no systematic study has been made in E
India as to how many offences are triable in the Court, where
the legal burden is on the accused. In the United Kingdom it is
stated that about 40% of the offences triable in the Crown Court
to
appear violate the presumption. (See - The Presumption of
Innocence in English Criminal Law, 1996 Crim.LR. 306, at 309). F
59. In Article 11 (1) of the Universal Declaration of Human
Rights (1948) it is stated :-
"Everyone charged with a penal offence has the right to
be presumed innocent until proved guilty according to G
law .... "
60. Similar provisions have been made in Article 6.2 of
the European Convention for the protection of Human Rights
and Fundamental Freedoms (195) and Article 14.2 of the Inter-
national Covenant on Civil and Political Rights (1966). H
412 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 61. The legal position has, however, undergone a drastic
change in the United Kingdom after coming into force of the
Human Rights Act, 1998. The question as to whether on the
face of Article 6.2 ofthe European Convention for the Protec-
tion of Human Rights and Fundamental Freedomst(1950), the
s doctrine of reverse burden passes the te~f:SFconstitutionality )r
came up for consideration before the House'of Lords in Regina
v. Lambert :([2001] UKHL 37 : [2001] 3 All ER 577) wherein
the following two questions came up for consideration:-

"The first is whether a defendant is entitled to rely· on
c convention rights when the court is hearing an appeal from
a decision which was taken before the Human Rights Act,
1998 came into effect. The second is whether a reverse
burden provision in section 28(2) and (3) of the Misuse of
Drugs Act, 1971 is a compatible with the presumption of i ~-
D innocence contained in article 6.2 of the European
Convention for the Protection of Human Rights and
Fundamental Freedoms."
62. Sub-section (2) of Section 28 of the Misuse of Drugs
Act, 1971, with which the House was concerned, reads as un-
E der:-

"(2) Subject to sub-section (3) below, in any proceedings
for an offence to which this section applies it shall be a
defence for the accused to prove that he neither knew of
F nor suspected nor had reason to suspect the existence of
some fact alleged by the prosecution which it is necessary
for the prosecution to prove if he is to be convicted of the
offence charged."
Lord Steyn stated the law thus :-
G
"Taking into account that section 28 deals directly with the
situation where the accused is denying moral
blameworthiness and the fact that the maximum prescribed
penalty is life imprisonment, I conclude that the appellant's
interpretation is to be preferred. It follows that section 28
H
NOOR AGA v. STATE OF PUNJAB & ANR. 413
[S.B. SINHA, J)

derogates from the presumpticfn of innocence. I would, A
however, also reach this conclusion on broader grounds.
The distinction between constituent elements of the crime
and defensive issues will sometimes be unprincipled and
arbitrary. After all, it is sometimes simply a matter of which
drafting technique is adopted: a true constituent element B
can be removed from the definition of the crime and cast
as a defensive issue whereas any definition of an offence
can be reformulated so as to include all possible defences
within it. It is necessary to concentrate not on technicalities
and niceties of language but rather on matters of substance. c
I do not have in mind cases within the narrow exception
"limited to offences arising under enactments which prohibit
the doing of an act save in specified circumstances or by
persons of specified classes or with specified
qualifications or with the licence or permission of specified
0
authorities";
63. Section 28 of the Misuse of Drugs Act, 1971 was read
in the manner which was compatible with convention rights opin-
ing that Section 28(2) and (3) create an evidential burden on
the accused. E

64. Applicability of the doctrine of compatibility may be
somewhat equated (essential differences although cannot be
ignored) with the applicability of the doctrine of constitutionality
in our country.
F
65. Sections 35 and 54 of the Act may have to be read in
the light of Articles 14 and 21 of the Constitution of lntjja.

66. We may notice that Sachs, J. in State v. Coetzee
[(1997) 2 LRC 593) explained the significance of the pre>Sump-
tion of innocence in the following terms :- G
"There is a paradox at the heart of all criminal procedure
in that the more serious the crime and the greater the
public interest in securing convictions of the guilty, the
more important do constitutional protections of the
H'
414 SUPREME COURT REPORTS [2008) 10 S.C.R

A accused become. 'he starting point .of ~ny balancing
enquiry where constitutional rights are concerned must be
that the public interest in ensuring that innocent people
are not convicted and subjected to ignominy and heavy
sentences massively outweighs the public interest in
)'-
B ensuring that a particular criminal is brought to -book ...
Hence the presumption of innocence, which serves not
only to protect a particular individual on trial, but to maintain
public confidence in the enduring integrity and security of
the legal system. Reference to the prevalence and severity
c of a certain crime therefore does not add anything new or
special to the balancing exercise. The perniciousness of
the offence is one of the givens, ·against which the
presumption of innocence is pitted from the beginning,
_not a new element to be put into the scales as part ofa
justificatory balancing exercise. If this were not so, the
D
ubiquity and ugliness argument could be used in relation
to murder, rape, car-jacking, housebreaking, drug-
smuggling, corruption ... the list is unfortunately almost
endless, and nothing would be left of the presumption of
innocence, save, perhaps, for its relic status as a doughty
E defender of rights in the most trivial of cases". ·
.67. In R. v. Hansen[(2007) NZSC 7], while construing Sec-
tion 6(6) of the Misuse of Drugs Act, 1975 the New Zealand
Supreme Court held as under :
F "In the context of a prosecution for an offence of possession
of controlled drugs for the purpose of supply, that reversal
of the onus of proof is obviously inconsistent with the aspect
of the presumption of innocence that requires the Crown
to prove all elements of a crime beyond reasonable doubt.
G While the Crown must prove to that standard that the person
charged was in possession of the stipulated quantity of
drugs, the jury can convict even if it is left with a reasonable
doubt on the evidence over whether the accused had the
purpose of supply of the drugs concerned. Indeed, as Lord
H Steyn pointed out in R v Lambert, the jury is obliged to
NOOR AGA v. STATE OF PUNJAB & ANR. 415
[S.B. SINHA, J]

convict if the version of the accused is as likely to be true A
as not."
However, in our opinion, limited inroad on presumption
would be justified. We may consider the question from another
angle.
B
68. The doctrine of res ipsa loquitur ·providing for a re-
verse burden has been applied not only in. civil proceedings but
also in criminal proceedings. [See Alimuddin Vs. King Em-
peror (1945 Nagpur Law Journal 300]. In Home vs. Dorset
Yacht Company [1970 (2) ALL E.R. 294], House of Lords de- c
veloped the common law principle and evolved a presumptive
duty to care.
69. It is, however, of some interest to note that in Syed
Akbar vs. State of Kamataka [AIR 1979 SC 1848] this Court
he~: D
"28. In our opinion, for reasons that follow, the first line of
approach which tends to give the maxim a larger effect
than that of a merely permissive inference, by laying down
· that the application of the maxim shifts or casts, even in E
the first instance, the burden on the defendant who in order
to exculpate himself must reb~t the presumption of
·negligence against him, cannot, as such, be invoked in
the trial of criminal cases where the accused stands
charged for causing injury or death by negligent or rash
act.· The primary reasons for non-application of this abstract F
doctrine.of res ipsa loquitur to criminal trials a.~e: Firstly,
in a criminal trial, the burden of proving everything
essential to the establishment of the charge against the
accused always rests on the prosecution, as every man r
is presumed to be innocent until the contrary is proved, G
and criminality is. never to be presumed subject to
statutory exception. No such statutory exception has been
made by requiring the drawing of a mandatory
presumption of Pegligence against the accused where
the accident "tells its own story" of negligence of somebody. H
):

416 SUPREME COURT REPORTS [2008] 10 S.C.R.

-~~

A Secondly, there is a marked difference as to the effect of
evidence viz. the proof, in civil and criminal proceedings.
In civil proceedings, a mere preponderance of probability .r
is sufficient, and the defendant is not necessarily entitled
to the benefit of every reasonable doubt; but in criminal
B proceedings, the persuasion of guilt must amount to such ,,
a moral certainty as convinces the mind of the Court, as
a· reasonable man beyond all reasonable doubt. Where
negligence is an essential ingredient of the offence, the
negligence to be established by the prosecution must be
c culpable or gross and not the negligence merely based
upon an error of judgment. As pointed out by Lord Atkin in
Andrews v. Director of Public Prosecutions, "simple lack
of care such as will constitute civil liability, is not enough";
for liability und_er the criminal law "a very high degree of
negligence is required to be proved. Probably, of all the rt.:
D
epithets that can be applied 'reckless' most nearly covers
the case".
'
(emphasis supplied)
70. The said dicta was followed in Jacob Mathew vs. State
E of Punjab [(2005) 6 SCC 1]. We may, however, notice that the
prindple of 'res ipsa /oquitur' has been applied in State of A.P
v. C. Uma Maheswara Rao & Anr [2004 (4) SCC. 399] {see
also B. Nagabhushanam v. State of Karnataka (2008) 7
SCALE 716}.
--J._ ,....
F
71. The Act specifically provides for the exceptions .
•
It is a trite law that Presumption of innocence being a hu-
man right cannot be thrown aside, but it has to be applied sub-
ject to exceptions. 1.\
G
72. Independence of judiciary must be upheld. The supe-
rior courts should not do something that would lead to impair- J,
ment of basic fundamental and human rights of an accused.
We may incidentally notice a decision of the Privy Council in an
appeal from the Supreme Court of Mauritius in The State v.
H
NOOR AGA v. STATE OF PUNJAB & ANR. 417
[S.B. SINHA, J]

Abdul_Rashid Khoyratty, [2006] UKPC 13. In that case, an at- A
tempt on the part of the Parliament to curtail the power of the
court to grant bail in respect of the Dangerous Drugs Act (Act
No.32 of 1986) was held to be unconstitutional being contrary
to the doctrine of separation of power, necessary to protect in-
dividual liberty stating that the power to grant bail is exclusively B
within the judicial ~omain. A constitutional amendment to over-
come the impact of the said decision was also held· to be un-
constitutional by the Supreme Court of Mauritius. In Abdul
Rashid Khoyratty (supra), the Privy Council upheld the said view.
73. Dealing with the provisions of Sections 118(b) and 139 C
of the Negotiable Instruments Act, 1881 in Krishna Janardhan
Bhat v. Dattatraya G. Hegde [2008 ( 1) SCALE 421] this Court
upon referring to Hiten P Dalal v. Bratindranath Banerjee
[(2001) 6 sec 16], opined:
D
"32. But, we may at the same time notice the development
of law in this area in some jurisdictions.
The presumption of innocence is a human right. [See
Narender Singh & Anr. v. State of M. P (2004) 10 SCC
699, Ranjitsing Brahmajeetsing Sharma v. State of E
Maharashtra and Anr. (2005) 5 SCC 294 and Rajesh
Ranjan Yadav @ Pappu Yadav v. CBI through its Director
(2007) 1 SCC 70] Article 6(2) of he European Convention
on Human Rights provides : "Everyone charged with a
criminal offence shall be presumed innocent until proved F
guilty according to law". Although India is not bound by the
aforementioned Convention and as such it may not be
necessary like the countries forming European countries
to bring common law into land with the Convention, a
balancing of the accused's rights and the interest of the G
society is required to be taken into consideration. In India,
however, subject to the statutory interdicts, the said principle
forms the basis of criminal jurisprudence. For the
aforementioned purpose the nature of the offence,
seriousness as aiso gravity thereof may be taken into
H
418 SUPREME COURT REPORTS [2008] 10 S.C.R.

A .consideration. The courts must be on guard to see that
merely on the application of presumption as contemplated
under Section 139 of the Negotiable Instruments Act, the
same may not lead to injustice or mistaken conviction. It
is for the aforementioned reasons that we have taken into
B consideration the decisions operating in the field where
the difficulty of proving a.negative has been emphasi?:ed.
It is not suggested that a negative can never ·be proved
but there are. cases where such difficulties are faced by
the accused e,g;. honest and reasonable mistake of fact.
c In a recent Article "The Presumption of Innocence and
Reverse Burdens : A Balancing Duty" published in [2007]
C;l.J. (March Part) 142 it has been stated :-
"In determining whether a reverse burden is compatible
with the presumption of innocence regard should also be
D had to the pragmatics of proof. How difficult would it be for
the prosecution to prove guilt without the reverse burden?
How easily could an innocent defendant discharge the
. reverse burden? But courts will not allow these pragmatic
considerations to override the legitimate rights of the
E defendant. Pragmatism will have greater sway where the
reverse burden would not pose the risk of great injustice
- where the offence is not too serious or the reverse burden
· only concerns a matter incidental to guilt. And greater
weight will be given to prosecutorial efficiency in the
F regulatory environment." ·
The above stated principles should be applied in each case
having regard to the statutory provisions involved therein.
74. We may, however, notice that recently in Mis. Seema
. . • :, t i. i . I . . 1· I ' ·.' '
'. ~- . G. Silk & Sarees & Anr. v. D1req_tofate of Enforcement &Ors. [200.8
(7) SCALE 624], in a case where the constitutionality of the
provisions ofSections 18(2) and 18(3) of the Foreign Exchange
Regulation Act, 1973 were questioned on the ground of infring-
ing .the '.equa1i~ eta use' enshrined in Article 14 of the Constitu-

H
tion of India, this Court held: · ,
.__
NOOR AGA v. STATE OF PUNJ/~B & ANR. 419
[S.B. SINHA, J]

"16. A legal provision does not ber.:orne unconstitutional A
only because it provides for a rewerse burden. The
question as regards burden of proo1f is procedural in nature.
[See Hiten P Dalal v. Bratindra.nath Banerjee, (2001) 6
SCC 16 and M. S. Narayana N/enon v. State of Kera/a,
(2006) 6 sec 391 B
17. The presumption raised against the trader is a
rebuttable one. Reverse burden as also statuto·(y
presumptions can be raiSf.!d in several statutes as., for
example, the Negotiable ~nstruments Act, Pmver.'cion of
Corruption Act, TADA, 'dtc. Presumption is raijsed only C
when certain foundatio,nal facts are establish.ed by the
prosecution. The accused in such an ever1t would be
entitled to show that he has not violated the; provisions of.
the Act. In a case of this nature, particularly, when an appeal
against the order of the Tribunal is pending, we do not D
think that the appellants are entitled trJ take the benefit
thereof at thi~~ stage. Such contentions must be raised
before the criminal court.
18. Commercial expediency or auditing of books of E 1

accounts canr:iot be a ground for questioning the
constitutional validity of a Parliamentary Act. If the
Parliamentary Act is valid and constitutional, the same
cannot be declared ultra vires only because the appellant
faces some difficulty in writing off the bad debts in his
books of accounts;. He may do so. But that does not F
mean the statute is unconstitutional or the criminal i

prosecution becomes vitiated in law.
75. Provisions imposing reverse burden, however, must
not only be required to be strictly complied with but also may be G
subject to proof of some basic facts as envisaged under the
statute in question.
76. The provisions of Section 35 of the Act as also Sec-
tion 54 thereof, in view of the decisions of this Court, therefore,
cannot be said to be ex facie unconstitutional. We would how- H
420 SUPREME COURT REPORTS [2008] 10 S.C.R.

A ever, keeping in view the principles noticed hereinbefore ex-
amine the effect thereof, vis-a-vis the question as to whether
the prosecution has been able to discharge its burden herein-
after.
BURDEN OF PROOF
B
77. The provisions of the Act and the punishment pre-
scribed therein being indisputably stringent flowing from ele-
ment? such as a heightened standard for bail, absence of any
provision for remissions, specific provisions for grant of mini-
C mum sentence, enabling provisionsgranting power to the Court
to impose fine of more than maximum punishment of
Rs.2,00,00d/- as also the presumpti9n of guilt emerging from
possession of Narcotic Drugs and Psychotropic substances,
the extent of burden to prove the foundational facts on the pros-
D ecution, i.e., 'proof beyond all reasonable doubt' would be more
onerous. A heightened scrutiny test would 'be necessary to be
invoked. It is so because whereas, on-the one hand, the court
must strive towards giving effect to the parliamentary object and
intent in the light of the international conventions, but, on the
E other, it is also necessary to uphold the individual human rights
and dignity as provided for under the UN Declaration of Human
Rights by insisting upon scrupulous compliance of the provi-
sions of the Act for the purpose of upholding the democratic
values. It is necessary for giving effect to the concept of 'wider
civilization'. The courts must always remind itself that it is a well . ._
F settled principle of criminal jurisprudence that more serious the
offence, the stricter is the degree of proof. A higher degree of
assurance, thus, would be necessary to convict an accused.
In State of Punjab v. Baldev Singh, (1999) 3 .sec 977, it was
stated:
G
"It must be borne in mind that severer the punishment,
greater has to be the car~ taken to see that all the
safeguards provided in a statute are scrupulously
followed."

H [See also Ritesh Chakravarty v. State of Madhya
NOOR AGA v. STATE OF PUNJAB & ANR. 421
[S.B. SINHA, J]

Pradesh, JT 2006 ( 12) SC 416] A
78. It is also necessary to bear in mind that superficially a
case may have an ugly look and thereby, prima facie, shaking,
the conscience of any court but it is well settled that suspicion,
however high may be, can under no circumstances, be held to
be a substitute for legal evidence. B
79. Sections 35 and 54 of the Act, no doubt, raise pre-
sumptions with regard to the culpable mental state on the part
of the accused as also place burden of proof in this behalf on
the accused; but a bare perusal the said provision would clearly c
show that presumption would operate in the trial of the accused
only in the event the circumstances contained therein are fully '
satisfied. An initial burden exists upon the prosecution and only
when it stands satisfied, the legal burden would shift. Even then,
the standard of proof required for the accused to prove his in-
0
nocence is not as high as that of the prosecution. Whereas the
standard of proof required to prove the guilt of accused on the
prosecution is "beyond all reasonable doubt" but it is 'prepon-
derance 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 E
contraband by the accused cannot be said to have been estab-
lished.
80. With a view to bring within its purview the requirements
of Section 54 of the Act, element of possession of the contra- F
band was essential so as to shift the burden on the accused.
The provisions being exceptions to the general rule, the gener-
ality thereof would continue to be operative, namely, the ele-
ment of possession will have to be proved beyond reasonable
doubt.
G
81. Whether the burden on the accused is a legal burden
or an evidentiary burden would depend on the statute in ques-
tion. The purport and object thereo_f must also be taken into
consideration in determining the said question. It must pass
the test of doctrine of proportionality. The difficulties faced by 1

H
422 SUPREME COURT REPORTS [2008] 10 S.C.R.

A the prosecution in certain cases may be held to be sufficient to
arrive at. an opinion that the burden on·the accused is an evi-
dentiary burden and not merely a legal burden. The trial must
be fair. The accused must be provided with opportunities to ef-
fectively defend himself. In She/drake v. Director of Public Pros-
s ecutions [(2005) 1 All ER 237] in the following terms:
"21. From this body of authority certain principles may be
derived. The overriding concern is that a trial should be
fair, and the presumption of innocence·is a fundamental
right directed to that end. The convention does not outlaw
c presumptions of fact or law but requires that these should
1

be kept within reasonable limits and should not be
arbitrary. It is open to states to define the constituent
elements of a criminal offence, excluding the requirements
of mens rea. But the substance and effect of any
b presumption adverse to a defendant must be examined,
and must be reasonable. Relevant to any judgment on
reasonableness or proportionality will be the opportunity
given to the defendant to rebut the presumption,
maintenance of the rights of the defence, flexibility in
E application of the presumption, retention by the court of
a power to assess the evidence, the importance of what
is at stake and the difficulty which a prosecutor may face ·
in the absence of a presumption. Security concerns do
not absolve member states from their duty to observe
F basic standards of fairness. The justifiability of any
infringement of the presumption of innocence cannot be
resolved by any rule of thumb, but on examination of all the
fa9ts and circumstances of the particular provision as
applied in the particular case."
G (emphasis added)
82. It is, however, interesting to note the recent comments
' on She/drake (supra) by Richard Glover in an Article titled
"Sheldrake Regulatory Offences and Reverse Legal Burdens
H of Proof' [(2006) 4 Web JCLI] wherein it was stated:
NOOR AGA v. STATE OF PUNJAB & ANR. 423
[S.8. SINHA, J]

"It is apparent from the records in Hansard (implicitly if hot A
expressly) that the Government was content for a legal
onus to be on the defendant when if drafted the Ro,ad
Traffic Act 1956. An amendment to the Bill was suggest13d
in the Lords "which puts upon the accused the onus .of
showing that he had no intention of driving or attempting B
to drive a motor vehicle" (Lord Brabazon 1955, col 582).
Lord Mancroft, for the Government, although critical of the
amendment stated:" ... the Government want to do exactly
what he wants to do. We have, therefore, to try to find
some means of getting over this technical difficulty" (Lord c
Mancroft 1955, col 586). It is submitted that this tends to
suggest that the Government intended a reverse legal
burden.
The reverse legal bu;den was certainly _in-keeping with
+ the tenor of the 1956 Act to "keep death off the road" (Lord D
Mancroft 1954, col 637) by increased regulation of road
transport, particularly in the light of a sharp increase in
reported road casualties in 1954 - there was an 18 per
cent increase (Lord Mancroft 1954, col 637). The Times
lead article for the 4 July 1955 (at 9d) stressed the Bill's E
importance for Parliament: "They have the casualty lists -
5,000 or more killed on the roads every year, 10 times as
many killed and more than 30 times: as many slightly hurt".
This was "a national scandal". The Earl of Selkirk, who
introduced the Bill in the Lords, remarked that "we require F
a higher standard of discipline on the roads" (The Earl of
Selkirk 1954, col 567) and Lord Mancroft commented
specifically in relation to 'being drunk in charge' that " ... we
should be quite right if we erred on the side of strictness"
(Lord Mancroft 1955, col 586).
G
Notwithstanding this historical background it was, of '
course, open to their Lordships in Sheldrake to interpret ·
section 5(2) as only imposing an evidential burden on the
defendant. Lord Bingham referred to the courts'
interpretative obligation unaer the Human Rights A~t 1998 H
424 SUPREME COURT REPORTS [2008] 10 S.C.R.

A s3 as "a very strong and far-reaching one, and may require
the court to depart from the legislative intention of
Parliament" ([2004] UKHL 43, para 28). However, he must
also have had in mind further dicta from the recent judgment
in Ghaidan v Godin-Mendoza:
B "Parliament is charged with the primary responsibility for
deciding the best way of dealing with social problems.
The court's role is one of review. The court will reach a
different conclusion from the legislature only when it is
apparent that the legislature has attached insufficient
c importance to a person's Convention rights" (Lord Nicholls,
[2004] UKHL 30, para 19. Also see Johnstone (2003) UKHL
28, para 51 ).
That is, the Courts should generally defer (11) to the
Legislature or, at least, allow them a discretionary area of
D
judgment (R v OPP, exp Kebilene [1999] UKHL 43; [2000]
2 AC 326, 380-381). (Lord Hoffman has criticised the
use of the term 'deference' because of its "overtones of
servility, or perhaps gratuitous concession" R (Prolife
Alliance) v BBC (2003) UKHL 23, paras 75-762; WLR
E 1403, 1422.) This principle now appears firmly
established, as is evident from the decision of an enlarged
Privy Council sitting in Attorney-General for Jersey v Holley
(2005] UKPC 23. Lord Nicholls, who again delivered the
majority judgment (6-3), stated:
F
"The law of homicide is a highly sensitive and highly
controversial area of the criminal law. In 1957 Parliament
altered the common law relating to provocation and
declared what the law on this subject should thenceforth
be. In these circumstances it is not open to judges now to
G
change ('develop') the common law and thereby depart
from the law as declared by Parliament" (para 22).
Parliam~nt's intentions also appear to have been of
particular importance in the recent case Makuwa [2006)
H EWCA Crim 175, which concerned the application of the
NOOR AGA v. STATE OF PUNJAB & ANR. 425
[S.B. SINHA, J]

statutory defence provided by the Immigration and Asylum A
Act 1999 s31 (1) to an offence under the Forgery and
Counterfeiting Act 1981 s3 of using a false instrument.
The question was whether there was an onus on a refugee
to prove that he (a) presented himself without delay to the
authorities; (b) showed good cause for his illegal entry B
and (c) made an asylum claim as soon as was reasonably
practicable. Moore-Bick LJ's judgment was, with respect,
rather confused. He appeared to approve gravamen
analysis when he stated that the presumption of innocence
was engaged by a reverse burden (paras 28 and 36). c
However, he then stated that the statutory defence did not
impose on the defendant the burden of disproving an
essential ingredient of the offence (para 32), in which case
it is clear that the presumption of innocence was not
engaged. Nonetheless, he did, at least, recognise the limits
0
of gravamen analysis, which was clearly inapplicable to
sections 3 and 31 as the statutory defence applied to a
number of other offences under the same Act and the
Immigration Act 1971 (para 32). His Lordship
acknowledged that particular attention should be paid to
Parliament's actual intentions (para 33), as had been the E
case in Sheldrake.
In light of the above it is submitted that their Lordships in
Sheldrake, as in Brown v Stott [2000] UKPC 03; [200~]
1 AC 681, 711C-D, PC, were entitled to uphold a legal F
rather than an evidential burden on the defendant and to
take into account other Convention rights, namely the right
to life of members of the public exposed to the increased
danger of accidents from unfit drivers (European
Convention on Human Rights and Fundamental Freedoms,, G
article 2). That is, there were sound policy reasons fo~
imposing a reverse legal burden, which will be the subjec~
of further discussion in the second part to this article."
83. Whereas in India the statute must not only pass the
test of reasonableness as contained in Article 14 of the Consti- H
426 SUPREME COURT REPORTS [2008] 10 S.C.R. .'
A tuti.on of India but also the 'liberty' clause contained in Article 21
of the Constitution of India, in England it must satisfy the re-
quirements of the Human Rights Act 1998 and consequently
the provisions of European Conventions of Human Rights.
/
, 84. Placing ,persuasive burden on the accused persons
8 riust justify the loss of protection which will be suffered by the
1 accused. Fairness and reasonableness of trial as also mainte-

.· nance of the individual dignity of the accused must be upper-
most in the court's mind.
c _In a case involving infringement of trade mark, the House
of Lords in R. v. Johnstone [(2003) 3 All ER 884] stated the law,
thus:
"[52] I turn to s 92. (1) Counterfeiting is fraudulent trading.
It is a serious contemporary problem. Counterfeiting has
D adverse economic effects on genuine trade. It also has • •

adverse effects on consumers, in terms of quality of goods
and, sometimes, on the health or safety of consumers.
The Commission of the European Communities has noted
the scale of this iwidespread phenomenon with a global
E impact.' Urgent steps are needed to combat counterfeiting
and piracy (~ee the Green Paper, Combating
Counterfeiting and Piracy in the Single Market (COM (98)
569 final) and its follow up (COM (2000) 789 final).
Protection of consumers and honest manufacturers and
F traders from counterfeiting is an important policy
consideration. (2)The offences created bys 92 have rightly
been described as offences of 'near absolute liability'.
The prosecution is not required to prove intent to infringe
a registered trade mark. (3) The offences attract a serious
level of punishment: a maximum penalty on indictment of
G
an unlimited fine or imprisonment for up to ten years or
both, together with the possibility of confiscation and
deprivation orders. (4) Those who trade in brand products
are aware of the need to be on guard against counterfeit
goods. They are aware of the need to deal with reputable
H
NOOR AGA v. STATE OF PUNJAB & ANR. 427
[S.S. SINHA, J]
w;.> ..-'(

suppliers and keep records and of the risks they take if A
they do not. (5) The s 92 (5) defence relat~s to facts
within the accused person's own knowledge: his state of
mind, and the reasons why he held the belief in question.
His sources of SU.Pply are knmyn to him. (6) Conversely,
I 1 by and large it is to be expected that those who supply B
traders with counterfeit products, if traceable at all by
outside investigators, are unlikely to be co-operative. So,
in practice, if the prosecution must prove that a trader
acted dishonestly, fewer investigations will be undertaken
and fewer prosecutions will take place. c
[53] In my view factors (4) and (6) constitute compelling
reasons why the s 92(5) defence should place a persuasive
burden on the accused person. Taking all the factors
mentioned above into account, these reasons justify the
t loss of protection which will be suffered by the individual. D
Given the importance and difficulty of combating
counterfeiting, and given the comparative ease with which
an accused can raise an issue about his honesty, overall
it is fair and reasonable to require a trader, should need
arise, to prove on the balance of probability that he honestly E
and reasonably believed the goods were genuine."
The same principle applies to this case.
CASE AT HAND
... Confession of the Appellant F
86. With the aforementioned principles in mind, let us con-
sider the evidence brought on record by the respondents.
87. We may, at the outset, notice that a fundamental error
has been committed by the High Court in placing explicit reli- G
ance upon Section 108 of the Customs Act.
88. It refers to leading of evidence, production of docu-
ment or any other thing in an enquiry in connection of smuggling
of goods. Every proceeding in terms of sub-section (4) of Sec- H
428 SUPREME COURT REPORTS [2008) 10 S.C.R.

A tion 108 would be a judicial proceeding within the meaning of
Sections 193 and 228 of the Indian Penal Code. The enquiry
contemplated under Section 108 is for the purpose of 1962 Act
and not for the purpose of convicting an accused under any other
statute including the provisions of the .Act.
B 89. Appellant contended that the purported confessions
recorded on 2.08.1997 and 4.08.1997 were provided by an of-
ficer of the Customs Department roughly and later the same
were written by him under threat, duress and under gun point
and had, thus, not been voluntarily made.
c
90. The High Court should have considered the question
having regard to the stand taken by the appellant. Only because
certain personal facts known to him were written, the same by
itself would not lead to the conclusion that they were free and
voluntary. •
0
91. Clause (3) of Article 20 of the Constitution provides
that no person accused of any offence shall be compelled to be
a witness against himself. Any confession made under Section
108 of the Customs Act must give way to Article 20(3) wherefor
E there is a conflict between the two. A retracted confessional state-
ment may be relied upon but a rider must be attached thereto
namely if it is made voluntary. The burden of proving that such a
confession was made voluntarily would, thus, be on the pros-
ecution. It may not be necessary for us to enter into the question
F as to whether the decisions of this Court that a Custom Officer •
is not a Police Officer should be revisited in view of the deci-
sion of this Court in Balkrishna Chhaganlal Soni v. State of
West Bengal [(1974) 3 SCC 567, wherein it was stated :
"On the proved facts the gold bar is caught in the criminal
G coils of Section 135, read with Sections 111 and 123,
Customs Act, as the High Court has found and little has
been made out before us to hold to the contrary." ~

92. It may also be of some interest to note the decision of this
H Court in State of Punjab v. Barkat Ram [AIR 1962 SC 276], holding:
NOOR AGA v. STATE OF PUNJAB & ANR. 429
~ .... _,, [S.S. SINHA, J]

"17. There has, however, arisen a divergence of opinion A
about officers on whom some powers analogous to those
of police officers have been conferred being police officers
for the purpose of S. 25 of the Evidence Act. The view
which favours their being held police officers, is based on
their possessing powers which are usually possessed by B
the police and on the supposed intention of the legislature
at the time of the enactment of S. 25 of the Evidence Act
to be that the expression 'police officer, should include
every one who is engaged in the work of detecting and
preventing crime. The other view is based on the plain c
meaning of the expression and on the consideration that
the mere fact that an officer who, by no stretch of imagination
is a police officer, does not become one merely because
certain officers similar to the powers of a police officer
t are conferred on him."
D
93. It was pointed out that the power of a Police Officer as
crime detection and custom officer as authorities invested with
a power to check the smuggling of goods and to impose pen-
alty for loss of revenue being different, they were not Police Of-
ficers but then the court took notice of the general image of po- E:
lice in absence of legislative power to enforce other law enforc-
ing agencies for the said purpose in the following terms :
"23. It is also to be noticed that the Sea Customs Act itself
refers to police officer in contradistinction to the Customs
Officer. Section 180 empowers a police officer to seize F
articles liable to confiscation under the Act, on suspicion
that they had been stolen. Section 184 provides that the
officer adjudging confiscation shall take and h~
possession of the thing confiscated and every office?}6f
police, on request of such officer, shall assist him in taking G
and holding such possession. This leaves no room for
'f
doubt that a Customs Officer is not an officer of the Police ..
24. Section 171-A of the Act empowers the Customs
Officer to summon any person to give evidence or to
H
430 SUPREME COURT REPORTS [2008] 10 S.C.R.
)'... ...,,_.....,
A produce a document or any other thing in any enquiry
which he be making in connection with the smuggling of
any goods."
94. The extent of right to a fair trail of an accused must be
determined keeping in view the fundamental rights as adum-
B 'r
brated under Article 21 of the Constitution of India as also the
International Convention and Covenants chartered in Human
Rights. We cannot lose sight of the fact that criminal justice de-
livery system prevailing in our country lacks mechanisms to rem-
edy systemic violations of the accused's core constitutional
c rights which include the right to effective assistance of counsel,
the right to have exculpatory evidence disclosed, and the right
to be free from suggestive eyewitness identifications, coerced
custodial interrogation and the fabrication of evidence. (See
Aggregation in Criminal Law by Brandon L. Garrett : April 2007
t
D California Law Review Vol. 95 No.2 page 385 at 393).
95. When, however, the custom officers exercise their
power under the Act, it is not exercising its power as an officer
to check smuggling of goods; it acts for the purpose of detec-
tion of crime and bringing an accused to book.
E
96. This Court in Barkat Ram (supra) left the question, as
to whether officers of departments other than the Police on whom
the powers of Officer-in-charge of a Police Station under Chap-
ter XIV of the Code of Criminal Procedure has been conferred
are police officers or not for the purpose of Section 25 of the 4
F
Act, open, stating:
34. In the Oxford Dictionary, the word "police" is defined
thus:
"The department of government which is concerned
G
with the maintenance of public order and safety, and
the enforcement of the law; the extent of its functions Y
varying greatly in different countries and at different
periods. ·

H The civil force to which is entrusted the duty of
NOOR AGA v. STATE OF PUNJAB & ANR. 431
-<~ ~ [S.B. SINHA, J]

maintaining public order, enforcing regulations for A
the prevention and punishment of breaches of the
law and detecting crime; construed as plural, the
members of a police force; the constabulary of a
locality."
1
Shortly stated, the main duties of the police are the B
prevention and detection of crimes. A police officer
appointed under the Police Act of 1861 has such
powers and duties under the Code of Criminal
Procedure, but they are not confined only to such
police officers. As the State's power and duties c
increased manifold, acts which were at one time
considered to be innocuous and even praiseworthy
have become offences, and the police power of the
State gradually began to operate on different
subjects. Various Acts dealing with Customs, Excise, D
Prohibition, Forest, Taxes etc., came to be passed,
and the prevention, detection and investigation of
offences created by those Acts came to be entrusted
to officers with nomenclatures appropriate to the
subject with reference to which they functioned. It is E
not the garb under which they function that matters,
but the nature of the power they exercise or the
character of the function they perform is decisive.
The question, therefore, in each case is, does the
\-
officer under a particular Act exercise the powers F
I
I
and discharge the duties of prevention and detection
of crime? If be does, he will be a police officer."
97. Section 25 of the Evidence Act was enacted in the
words of Mehmood J in Queen Empress v. Babula/ [ILR (1884)
6 All. 509] to put a stop to the extortion of confession, by taking G
'1 away from the police officers as the advantage of proving such
extorted confession during the trial of accused persons. It was,
therefore, enacted to subserve a high purpose.
98. The Act is a complete code by itself. The customs of-
H
432 SUPREME COURT REPORTS [2008] 10 S.C.R.
'l<-- 'l'-

A ficers have been clothed with the powers of police officers un-
der the Act. It does not, therefore, deal only with a matter of
imposition of penalty or an order of confiscation of the proper-
ties under the Act but also with the offences having serious con-
sequences.
B . 99. ·Section 53 of the Act empowers the customs officers
with the powers of the Station House Off,icers. An officer in-
vested with the power of a police officer by reason of a special
statute in terms of sub-section (2) of Section 53 would, thus, be
deemed to be police officers and for the said purposes of Sec-
c tion 25 of the Act shall be applicable.
100. A legal fiction as is well known must be given its full
effect. [See UCO Bank and Anr. v. Rajinder Lal Capoor 2008
(6) SCALE 1]
D 101. Section 53A of the Act makes such a statement rel-
evant for the purposes of the said Act. The observations of the
High Court, thus, that confession can be the sole basis of con-
viction in view of Section 108 of the Customs Act, thus, appear
to be incorrect.
E 102. An inference that the appellant was subjected to du-
ress and coercion would appear from the fact that he is an Afgan
National. He may know English but the use of expressions such
as 'homogenous mixture', 'drug detection kit', 'independent
witnesses' which evince a knowledge of technical terms derived
F from legal provisions, possibly could not be attributed to him.
Possibility offabrication of confession by the officer concerned,
thus, cannot altogether be ruled out.
103. The constitutional mandate of equality of law and equal
protection of law as adumbrated under Article 14 of the Consti-
G
tution of India cannot be lost sight of. The courts, it is well settled,
would avoid a construction which would attract the wrath of Ar-
ticle 14. It also cannot be oblivious of the law that the Act is
"
complete code in itself and. thus, the provisions of the 1962 Act
cannot be applied to seek conviction thereunder.
H
NOOR AGA v. STATE OF PUNJAB & ANR. 433
.[S.B. SINHA, J]

104. This Court in Alok Nath Dutta v. State of West Ben- A
gal [2006 (13) SCALE 467], stated :
"We are not suggesting that the confession was not
proved, but the question is what would be the effect of a
retracted confession. It is now a well-settled principle of
law that a retracted confession is a weak evidence. The 8
court while relying on such retracted confession must
satisfy itself that the same is truthful and trustworthy.
Evidences brought on records by way of judicial confession
which stood retracted should be substantially corroborated
by other independent and cogent evidences, which would C
lend adequate assurance to the court that it may seek to
rely thereupon."
[See also Babubhai Udesinh Parmar v. State of Gujarat,
(2006) 12 sec 268 ]. D,
105. In Pon Adithan v. Deputy Director, Narcotics Con-
trol Bureau, Madras [(1999) 6 SCC 1], whereupon reliance has
been placed by the High Court, this Court had used retracted
confession as a corroborative piece of evidence and not as the
evidence on the basis whereof alone, a judgment of conviction E
could be recorded.
106. There is another aspect of the matter which cannot
also be lost sight of.
A search and seizure or an arrest made for the purpose of F
proceeding against a person under the Act cannot be different
only because in one case the authority was appointed under
the Customs Act and in the other under another. What is rel-
evant is the purpose for which such arrest or search and sei-
zure is made and investigation is carried out. The law appli- G
cable in this behalf must be certain and uniform.
107. Even otherwise Section 1388 of the 1962 Act must
be read as a provision containing certain importanHeatures,
namely:
H
434 SUPREME COURT REPORTS [2008] 10 S.C. R.

A (a) There should be in the first instance statement made
and signed by a person before a competent custom
official.
(b) It must h?ve been made during the course of enquiry
and proceedings under the Customs Act.
8
108. Only when these.things are established, a statement
11Jade by an accused would become relevant in a prosecution
under'the Act. Only then, it can be used for the purpose of prov-
ing the truth of the facts contained therein. It deals with another
C category of case which provides for a further clarification.
Clause (a) of sub-section (1) of Section 1388 deals with one
type of persons and clause (b) deals with another. The Legisla-
ture might have in mind its experience that sometimes witnesses
do not support the prosecution case as for example panch wit-
D nesses and only. in such an event an additional opportunity is
afforded to th~ prosecution to criticize the said witness and to
invite.a finding from the court not to rely on the assurance of the
court on the basis of the statement recorded by the Customs
Department and for that purpose it is envisaged that a person
E may be such whose statement was recorded but while he was
examined before the court, it arrived at an opinion that is state-
ment should be admitted in evidence in the interest of justice
which was evidently to make that situation and to confirm the
witness who is the author of such statement but does not sup-
F port the prosecution although he made a statement in terms of
Section 108. of the Customs Act. We are not concerned with
such category of witnesses. Co~fessional statement of an ac-
cused, therefore, cannot be made use of in any manner under
Section 1388 of the Customs Act. Even otherwise such an evi-
.G dence is considered to be of weak nature.
{See Gopal Govind Chogale v. Assistant Collector of
Central Excise and another, [1985 (2) BomCR 499 Paras 12-
14]}
H ,t
.r-
NOOR AGA v. STATE OF PUNJAB & ANR. 435
[S.B. SINHA, J]

NON PRODUCTION OF PHYSICAL EVIDENCE A
109. The prosecution alleged that 1.4 kgs heroin was con-
cealed in a cardboard container for carrying grapes and were
recovered from the appellant at Raja Sansi Airport. Essential
key items necessary to prove the same were:
B
"i) The cardboard carton allegedly used for carrying the
heroin to test the veracity.
ii) The bulk, which establishes the quantity recovered.
iii) The three homogenous samples of five grams each c
taken from the bulk amount of heroin, which would
be essential in ascertaining whether the substance
that the accused was allegedly in possession of was,
in fact, heroin."
110. Indisputably, the cardboard carton was not produced D
in court being allegedly missing. No convincing explanation was
rendered in that behalf. The High Court, in its judgment, stated:
"The case set up by the prosecution is that the appellant
being a member of a crew party, was in possession of his
luggage, which included the cardboard carton, from which E •
the recovery of heroin was allegedly effected. The appellant ·
himself had presented the said carton along with the other
luggage for custom clearance. From these facts, at least
one thing is clear that the carton which was carrying the
contraband, was under his immediate control. The F
·argument advanced by Mr. Guglani is that the luggage
which was being carried by the crew members, had no
specific identification slips as in the case of an ordinary
passenger travelling in an aircraft. So what was being
carried in the carton was within the knowledge of the Gi
appellant alone and, therefore, the element of possession
and control of the contraband qua the appellant is writ
large and the presumption of culpable mental state under
Section 35 and 54 of the Act has to be drawn against
him." H'
436 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 111. The inference was drawn only on the basis of a mere
assertion of the witness.that the cardboard carton wherefrom
the contraband was allegedly recovered as the one which had
been in possession of the appellant without any corroboration
as regards the purported "apparent practice of crew members
B carrying their own luggage" and there being no identification
marks on the same. No material in this behalf has been pro-
duced by the respondent. No witness has spoken of the pur-
ported practice. For all intent and purport another presumption
has been raised by the High Court wherefor no material had
c been brought on record. No explanation has been given as to
what happened to the container. Its absence significantly un-
dermines the case of the prosecution. It reduces the eviden-
tiary value of the statements made by the witnesses referring
the fact of recovery of the contraband therefrom.
D 112. Preservance of original wrappers, thus, comes within
the purview of the direction issued in terms of Section 3.1 of the
Standing Order No. 1 of 1989. Contravention of such guide-
lines could not be said to be an error which in a case of this
nature can conveniently be overlooked by the Court.
E 113. We are not oblivious of a decision of this Court in
Chief Commercial Manager, South Central Railway,
Secunderabad & Ors. v. G Ratnam & Ors. ((2007) 8 SCC 212]
relating to disciplinary proceeding, wherein such guidelines were
held not necessary to be complied with but therein also this Court
F stated:
/ "In the cas~s on hand, no proceedings for commission of
/penal offences were proposed to be lodged against the
_,,.. respondents by the investigating officers."
G ::f 14. In Moni Shankar v. Union of India & Anr. [(2008) 3
SCC 484], however, this Court upon noticing G Ratnam (su-
pra), stated.the law thus:
"15. It nas been noticed in that judgments that P.aras 704
and 705 cover the procedures and guidelines to be
H
- ....
NOOR A~ STATE OF PUNJAB & ANR.
[S.B. SINHA, J]

followed by the investigating officers, who are entrusted
437

A
with the task of investigation of trap cases and departmental
trap cases against the railway officials. This Court
proceeded on the premise that the executive orders do
~.
not confer any legally enforceable rights on any persons
and impose no legal obligation on the subordinate B
authorities for whose guidance they are issued.
16. We have, as noticed hereinbefore, proceeded oo the
assumption that the said paragraphs being executive
instructions do not create any legal right but we inter;id to
emphasise that total violation of the guidelines together c
with other factors could be taken into consideration for the
purpose of arriving at a conclusion as to whether the
department has been able to prove the charges against
the delinquent official.
D
17. The departmental proceeding is a quasi judicial bne.
Although the provisions of the Evidence Act are not
applicable in the said proceeding, principles of natural
justice are required to be complied with. The Court
exercising power of judicial review are entitled to consider
as to whether while inferring commission of misconduct E
on the part of a delinquent officer relevant piece of
evidence has been taken into consideration and irrelevant
facts have been excluded therefrom. Inference on facts
must be based on evidence which m~et the requirements
of legal principles. The Tribunal was, thus, entitled to arrive F
· at its own conclusion on the premise that the evidence
adduced by the department, even if it is taken on its face
value to be correct in its entirety, meet the requirements of
burden of proof, namely - preponderance of probabilit~. If
on such evidences, the test.of the doctrine of proportionality G
..,. has not been satisfied, the T~ibunal was within its domain
to interfere. We must place on record that the doctrine of
unreasonableness is giving way to the doctrine :of
proportionality. (See - State of UP v. Shea Shanker Lal
Srivastava [(2007) 4 SCC 669] and C_oimbatore District H
438 SUPREME COURT REPORTS [2008] 10 S.C.R.

A Central Cooperative Bank v. Coimbatore Distarict Central
Cooperative Bank Employees Association and Anr.
[2004 QB 1004]."
It was furthermore opined :

B "It may be that the said instructions were for
compliance of the Vigilance Department, but
substantial compliance therewith was necessary,
even if the same were not imperative in character. A
departmental instruction cannot totally be ignored.
c The Tribunal was entitled to take the same into
consideration along with other materials brought on
record for the purpose of arriving at a decision as to
whether normal rules of natural justice had been
complied with or not." ·
D 115. Guidelines issu.ed should not only be substantially
complied, but also in a case involving penal proceedings, vis-
a-vis a departmental proceeding, rigours of such guidelines may
be insisted upon. Another importantfactorwhich must be borne
in mind is as to whether such directions have been issued in
E terms of the provisions of the statute or not. When directions
are issued by an authority having the legal sanction granted
therefor, it becomes obligatory on the part of the subordinate
authorities to comply therewith.
116. Recently, this Court in State of Kera/a & Ors. v. Kurian
F Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582], following the ear-
lier decision of this Court in Union of India v. Azadi Bachao
Ando/an [(2004) 10 SCC 1] held that statutory .instructions are
mandatory in nature.
G 1'17. Logical corollary of these discussions is that the
guidelines such as those present in the Standing Order cannot
be blatantly flouted and substantial compliance therewith must
be insisted upon for so that sanctity of physical evidence in such
cases remains intact. Clearly, there has been no substantial
H compliance of these guidelines by the investigating authority

•,,
NOOR AGA v. STATE OF PUNJAB & ANR. 439
[S.B. SINHA, J]

which leads to drawing of an adverse inference against them to A
the effect that had such evidence been produced, the same
would have gone against the prosecution.
118. Omission on the part of the prosecution to produce
evidence in this behalf must be linked with second important
piece of physical evidence that the bulk quantity of heroin alleg- 8
edly recovered indisputably has also not been produced in court.
Respondents contended that the same had been destroyed.
However, on what authority it was done is not clear. Law re-
quires that such an authority must flow from an order passed by
the Magistrate. Such an order whereupon reliance has be~n C
placed is Exhibit PJ; on a bare perusal whereof, it is apparent
that at no point of time any prayer had been made for destruc-
tion of the said goods or disposal thereof otherwise. What was
necessary was a certificate envisaged under Section 110(18)
of the 1962 Act. An order was required to be passed under the D
aforementioned provision providing for authentication, inven-
tory etc. The same does not contain within its mandate any
direction as regards destruction. The only course of action the
prosecution should have resorted to is to obtain an order from
the competent court of Magistrate as envisaged under Section E
52A of the Act in terms whereof the officer empowered under
Section 53 upon preparation of an inventory of narcotic drugs
containing such details relating to their description, quality, quan-.
tity, mode of packing, marks, numbers or such other identifying
particulars of the narcotic drugs or psychotropic substances or. F
the packing in which they are packed, country of origin and other
particulars as he may consider relevant to the identity of the
narcotic drugs or psychotropic substances in any proceedings
thereunder make an application for any or all of the following
purposes:
G
"(a) Certifying correctness of the inventory so prepared;
or

(b) Taking, in the presence of such Magistrate,
photographs substances and certifying such H
440 SUPREME COURT REPORTS [2008] 10 S.C.R.

A photographs as true; or "' '
(c) Allowing to draw representative samples of such
drugs or substances, in the presence of such
Magistrate and certifying the correctness of any list
of samples so drawn."
B .'r
119. Sub-section (3) of Section 52A of the Act provides
that as and when such an application is made, the Magistrate
may, as soon as may be, allow the application. The reason
wherefor such a provision is made would be evident from sub-
c . section (4) of Section 52A which reads as under:
"52A. Disposal of seized narcotic drugs and
psychotropic substances.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1972) or the Code of Criminal
D
Procedure, 1973 (2of1974), every Court trying an offence
under this Act, shall treat the inventory, the photographs of
narcotic drugs or psychotropfc substances and any list of
samples drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such
E offence."
120. Concededly neither any such application was filed
nor any such order was passed. Even no notice has been given
to the accused before such alleged destruction.
F 121. We must also notice a distinction between Section
110(1 B) of the 1962 Act and Section 52A(2) of the Act as sub-
section (4) thereof, namely, that the former does not contain any
provision like sub-section (4) of Section 52A. It is of some im-
portance to notice that paragraph 3.9 of the Standing Order re-
•G quires pre-trial disposal of drugs to be obtained in terms of
Section 52A of the Act. Exhibit PJ can be treated as nothing
other than an order of authentication as it is a certificate under
Section 110(1 Bfof the 1962Act as the aspect of disposal clearly
-
" "'!

provided for under Sedion 52A of the Act is not alluded to. The
-I High Court in its judgment purported to have relied upon an
NOOR AGA v. STATE OF PUNJAB & ANR. 441
[S.B. SINHA, J]

assertion made by the prosecution with regard to prevalence of A
a purported general practice adopted by the Customs Depart-
ment to obtain a certificate in terms of the said provision prior
to destruction of case property, stating:
"To aspecific query put to Mr. Guglani by the Court with
regard to aforesaid arguments, he fairly states that the 8
general practice adopted by the Customs Department is
that before destroying the case property, a certificate is
obtained u/s 100 (1 B) of Customs Act. He states that in
this regard, a sample as per the provisions contained in
sub clause (c) to clause (1 B) is also drawn for the purposes C
of certification of correctness so that at a later stage, the
identity of the case property is not disputed.
May be, in my view, some irregularities are committed in
this case by the Customs Department while obtaining the D
order Exhibit PJ) from the court for the reason that if the
case property was to be destroyed, at least a notice should
have been given to the accused on the application moved
u/s 100 (1B) of the Customs Act or at least a specific
request in this regard should have been made in the
application but at the same time, the aforesaid irregularity E
cannot be said to be a vital flaw in the case of the
prosecution for which the appellant can derive any benefit
especially under the circumstances when confessional
statements made by the appellant are held to be made
voluntary as observed by me hereinabove ... Similarly, non- F
production of cardboard card board carton is also not
fatal to the prosecution."
122. The question which arises for our consideration is as
to whether it is permissible to do so. Evidently it is not. Firstly G
because taking recourse to the purported general practice
adopted by the Customs Department is not envisaged in re:-
gard to prosecution under the Act. Secondly, no such general
practice has been spoken of by any witness. A statement made
at the Bar as regards existence of such a purported general H
442 SUPREME COURT REPORTS [2008] 10 S.C.R.

A practice to say the least cannot be a substitute of evidence
whereupon only the court could rely upon. Secondly, the High
Court failed to take into consideration that a certificate issued
under Section 110(18) of the 1962 Act can be recorded as a
certificate of authentication and no more; authority for disposal
B would require a clear direction of the Court in terms of Section
52A of the Act. Thirdly, the High Court failed and/or neglected
to consider that physical evidence being the property of the Court
and being central to the trial must be treated and disposed of in
strict compliance of the law.
C 123. Th'e High Court proceeded on the basis that non-pro-
duction of P.hysical evidence is not fatal to the prosecution case
but the fact remains that a cumulative view with respect to the
discrepancies in physical evidence creates an overarching in-
ference which dents the credibility of the prosecution. Even for
D the said purpose the retracted confession on the part of the
accused could not have been taken recourse to.
124. The last but not the least, physical evidence relating
to three samples taken from the bulk amount of heroin were
E also not produced. Even if it is accepted for the sake of argu-
ment that the bulk quantity was destroyed, the samples were
essential to be produced and proved as primary evidence for
the purpose of establishing the fact of recovery of heroin as
envisaged under Section 52A of the Act.
F · 125. The fatia of these samples is not disputed. Two of
them although were kept in the malkahana along with the bulk
but were not produced. No explanation has been offered in this
regard. So far as the third sample which allegedly was sent to
the Central Forensic Science Laboratory, New Delhi is con-
G cerned, it stands admitted that the discrepancies in the docu-
mentary evidence available have appeared before the court,
namely: ;J.

i) While original weight of the sample was 5 gms, as
evidenced by Ex. PB, PC and the letter
H accompanying Ex.PH, the weight of the sample in
NOOR AGA v. STATE OF PUNJAB & ANR. 443
_.,, ., [S.B. SINHA, J]

the laboratory was recorded as 8. 7 gms . A
ii) Initially, the colour of the sample as recorded was
brown, but as per the chemical examination report,
the colour of powder was recorded as white.
126. We are not oblivious of the fact that a slight differ- B
ence in the weight of the sample may not be held to be so cru-
cial as to disregard the entire prosecution case as ordinarily an
officer in a public place would not be carrying a good scale with
him. Here, however, the scenario is different. The place of sei-
zure was an airport. The officers carrying:out the search and c
seizure were from the Customs Department. They must be hav-
ing good scales with them as a marginal increase or decrease
of quantity of imported articles whether contraband or other-
wise may make a huge difference under the Customs Act.
r
127. We cannot but also take notice other discrepancies D
in respect of the physical evidence which are:
i) The bulk was kept in cotton bags as per the
Panchnama, Ex PC, while at the time of receiving
them in the malkhana, they were packed in tin as per
the deposition of PW 5. E

ii) The seal, which ensures sanctity of the physical
evidence, was not received along with the materials
neither at the malkhana nor at the CFSL, and was
not produced in Court. F
128. Physical evidence of a case of this nature being the
property of the court should have been treated to be sacrosanct.
Non-production thereof would warrant drawing of a negative
inference within the meaning of Section 114(g) of the Evidence
Act. While there are such a large number of discrepancies, if a G
cumulative effect thereto is taken into consideration on the ba-
):
sis whereof the permissive inference would be that serious
doubts are created with respect of the prosecution's endeav-
our to prove the fact of possession of contraband from the ap-
pellant. H
444 SUPREME COURT REPORTS (2008] 10 S.C.R.
~ ''"
A This aspect of the matter has been considered by this Court
in Jitendra v. State of UP [(2004) 10 SCC 562], in the follow-
ing terms:

"In the trial it was necessary for the prosecution to establish
"\
by cogent evidence that the alleged quantities of charas
8 and ganja were seized from the possession of the accused.
The best evidence would have been the seized materials
which ought to have been produced during the trial and
marked as material objects. There is no explanation for
this failure to produce them. Mere oral evidence as to
c their features and production of panchanama does not
discharge the heavy burden which lies on the prosecution,
particularly where the offence is punishable with a stringent
sentence as under the NDPS, Act."
't ·•'
130. Several other lacunae in the prosecution case had
D
been brought to our notice. The samples had been kept at the
airport for a period of three days. They were not deposited at
the malkhana. It was obligatory on the part of the Customs De-
partment to keep the same in the safe custody. Why such pre-
cautions were not taken is beyond anybody's comprehension.
E
131. The High Court, however, opined that the physical
evidence was in safe custody. Such an inference was drawn on
the basis that the seals were intact but what was not noticed by
the High Court is that there are gaping flaws in the treatment,
F disposal and production of the physical evidence and the con-
clusion that the same was in safe custody required thorough
evidence on the part of the prosecution which suggests that the
sanctity of the physical evidence was not faulted. It was not done
in the present case.
G PW-1 Kulwant Singh, Inspector-Customs, in his deposition,
stated: :)

"I had told the accused that I asked the accused that
his search be conducted under Sectio.n 50 of the
N.D.P.S. Act before a gazetted officer or a magistrate.
H
NOOR AGA v. STATE OF PUNJAB & ANR. 445
[S.B. SINHA, J]

I did not mention this fact in the panchanama Ex. PC. A
It is incorrect to suggest that version in Ex. PA was
roughly drafted by the department and given to the
accused for writing. It is also incorrect to suggest
that the accused was not aware of the provisions of
Section 50 of the N.D.P.S. Act, 1985. It is incorrect B
to suggest that after the recovery of heroin from the
cartoon, the option for the personal search of the
accused was given to the accused that whether he
be searched before a gazetted officer or before a
magistrate. It is correct that on the panchanama Ex. c
PC on thumb impression mark 'A', witl')ess No. 2 is
written but his name is not specifically written."
132. The samples taken allegedly contained the signa-
ture of the appellant as also those of the custom officials. PW-
r 1, in his deposition, stated: D
"I have also not brought the relevant samples in the court
today. It is incorrect to suggest that I have deliberately not
produced the samples in the court today. So far as I
remember, three seals were affixed on the test memo
sent to the Chemical Examiner. The sample was sent to E
the office of Chemical Examiner on 4.8.1997. I do not
send the samples myself. The signatures of both the
independent witnesses were not appended on the sealed
samples and the case property. Volunteered, the accused
" had signed the remaining bulk and the samples. It is F
incorrect that portion Ex.PG/1 was later on incorporated
at my instance."
133. However, in Exhibit PH against the column 'marking
on envelope (s)/ packet (s)' there was a blank line. It did not say G
a word with regard to the accused's signature on the sample.
Exhibit PC, however, suggests that the samples bore the
1
appellant's signature. The sample, thus, with only a seal of cus-
tom by itself cannot be stated to be one recovered from the
appellant specially when the prosecution case is that it contained H
446 SUPREME COURT REPORTS [2008] 10 S.C.R.

A accused's signature and date of it which is not found on the
original. The independent witnesses did not sign the samples.
The original seal was not produced. It is a mystery to whom the
seal was entrusted. Thus, the change in colour, weight of the
sample as also the absence of the accused's signature there-
s upon cannot be totally ignored. >-
PW-2 Shri K.K. Gupta stated:
''The panchnama was prepared after the recovery at
about 8.30 P.M. before me. I did not make offer to
c the accused myself regarding the search of the
accused that whether he wants to be searched before ·
a gazetted officer or before a magistrate. In my
presence, the panchnama was not read over to the
accused. It is correct that the only signatures of the
accused were obtained on panchnama Ex. PC in
D
my presence. I had gone through the panchnarna
and then I signed the same."
He furthermore accepted:
"It is correct that many recoveries have been effected
E from the passengers Arian Afghan Airlines earlier to
this recovery and cases are pending before this
court."
134. PW-1 stated that seal had been given to PW-4,
F Rajesh Sodhi, Deputy Commissioner, but PW~4 denied the ..,
same.
His deposition, inter alia, is to the following effect:
"In August 1997, I was posted atA.C. In charge Raja
Sansi Airport. On 1.8.1997, heroin One kg. 460
G
grams was recovered from the accused (1.460 Kgs.).
This recovery was made by Inspector Kulwant Singh 1
and K.K. Gupta Supdt. Customs and I was informed
of this recovery. Samples and remaining bulk were
handed over to me by Kulwant Singh, Inspector
H
NOOR AGA v. STATE OF PUNJAB & ANR. 447
'":'-" -1 [S.B. SINHA, J]

bearing seal No.122 of the Customs Divn. Amritsar. A
There is no Malkhana of the Customs department at
the Raja Sansi Airport. On 4.8.1997 samples were
handed over to Ashok Kumar for taking to the Central
Revenue Control Laboratory, Delhi. Remaining case
-'!.
property was given to Kulwant Singh for depositing B
the same in Malkhana at Amritsar. So long as the
case property remained in my possession the same
was not tampered with.
Cross-examination by Sh. D.S. Attari, Adv.
c
I was not given sample seal along with the case
property by Inspector Kulwant Singh. Sample was
of 5 grams. I do not remember whether 5 grams
weight was gross or net. I did not made entry
regarding receipt of sample and the case property.
D
I also did not make any entry regarding sending the
samples to the Central Revenue Control Laboratory
at New Delhi. It is wrong to suggest that sample and
the case property was not deposited with me by
Kulwant Singh. I also did not produce the case
property in the court. It is wrong to suggest that I have E
deposed falsely being official witness."
135. The seal was not even deposited in the malkhana.
As no explanation whatsoever has been offered in this behalf, it
r
is difficult to hold that sanctity of the recovery was ensured. F
136. Even the malkhana register was not produced. There
exist discrepancies also in regard to the time of recovery. The
recovery memo Exhibit PB shows that the time of seizure was
11.20 pm. PW1, Kulwant Singh and PW2, K.K. Gupta, how-
ever, stated that the time of seizure was 8.30 pm. Appellant's G
>. defence was that some carton left by some passenger was
passed upon him being a crew member in this regard assumes
importance (See Jitendra (supra) Para 6).
137. Panchnama was said to have been drawn at 10.00
H
448 SUPREME COURT REPORTS [2008] 10 S.C.R.
~ •--.
•~

A pm as per PW1 whereas PW2 stated that panchnama was
drawn at 8.30 pm. Exhibit PA, containing the purported option
to conduct personal search under Section 50 of the Act, only
mentioned time when the flight landed at the airport.
In Baldev Sin.gh (supra), it was stated : .>-
B
"28. This Court cannot overlook the context in which
the NDPS Act operates and particularly the factor of
widespread illiteracy among persons subject to
investigation for drug offences. It must be borne in
c mind that severer the punishment, greater has to be
the care taken to see that all the safeguards provided
in a statute are scrupulously followed. We are not
able to find any reason as to why the empowered
officer should shirk from affording a real opportunity
1
to the suspect, by intimating to him that he has a right
D
"that if he requires" to be searched in the presence
of a Gazetted Officer or a Magistrate, he shall be
searched only in that manner. As already observed
the compliance with the procedural safeguards
contained in Section 50 are intended to serve dual
E purpose - to protect a person against false
accusation and frivolous charges as also to lend
credibility to the search and seizure conducted by
the empowered officer. The argument that keeping
in view the growing drug menace, an insistence on 'f
F compliance with all the safeguards contained in
Section 50 may result in more acquittals does not I

appeal to us. If the empowered officer fails to comply
with the requirements of Section 50 and an order or
acquittal is recorded on that ground, the prosecution
G must think itself for its lapses. Indeed in every case
the end result is important but the means to achieve J

it must remain above board. The remedy cannot be
worse than the disease itself. ·The legitimacy of
judicial process may come under cloud if the Court
H is seen to condone acts of lawlessness conducted
NOOR AGA v. STATE OF PUNJAB & ANR. 449
[S.B. SINHA, J]
.,. A ~

by the investigating agency during search operations A
and may also undermine respect for law and may
have the effect of unconscionably compromising the
administration of justice. That cannot be permitted."
Independent Witnesses
B
138. It is accepted that when the appellant allegedly opted
for being searched by a Magistrate or a Gazetted Officer, Kuldip
Singh called K.K. Gupta, Superintendent Customs, PW2) and
independent witnesses Mahinder Singh and Yusaf. Whereas
K.K. Gupta was examined as PW2, the said Mahinder Singh
and Yusuf were not examined by the prosecution. There is noth-
c
ing on record to show why they could not be produced. Their
status in life or location had also not been stated. It is also not
known as to why only the said two witnesses were sent for. The
fact remains that they had not been examined. Although exami-
-t nation of independent witnesses in all situations may not be D
imperative, if they were material, in terms of Section 114(e) of
the Evidence Act, an adverse inference could be drawn.
139. In a case of his nature, where there are a large num-
ber of discrepancies, the appellant has been gravely prejudiced
by their non-examination. It is true that what matters is the qua I- E
ity of the evidence and not the quantity thereof but in a case of
this nature where procedural safeguards were required to be
strictly complied with, it is for the prosecution to explain why the
material witnesses had not been examined. Matter might have
r been different if the evidence of the Investigating Officer who F
recovered the material objects was found to be convincing. The
statement of the Investigating Officer is wholly unsubstantiated.
There is nothing on record to show that the said witnesses had
turned hostile. Examination of the independent witnesses was
all the more necessary inasmuch as there exist a large number G
of discrepancies in the statement of official witnesses in regard
to search and seizure to which we may now take note of.
••
Discrepancies in the Statements of Official Witnesses
140. Section 50 of the Act provides for an option to be
H
450 SUPREME COURT REPORTS [2008] 10 S.C.R.
~ i.._

A given. This Court in Baldev Singh (supra) quoted with approval
the decision of the Supreme Court of United States in Miranda
v. Arizona [(1966) 384 US 436] in the following terms :
"The Latin maxim salus populi suprema lex (the safety of
the people is the supreme law) and salus republicae
B ~
suprema lex (safety of the State is the supreme law) coexist
and are not only important and relevant but lie at the heart
of the doctrine that the welfare of an individual must yield
to that of the community. The action of the State, however,
must be 'right, just and fair'."
c
141. Justness and fairness of a trial is also implicit in Ar-
ticle 21 of the Constitution. ·~

142. A fair trial is again a human right. Every action of the
authorities under the Act must be construed having regard to
[j t
the provisions of the Act as also the rig ht of an accused to have
a fair trial.
143. The courts, in order to do justice between the par-
ties, must examine the materials brought on record in each case
on its own merits. Marshalling and appreciation of evidence
E
must be done strictly in accordance with the well known legal
principles governing the same; wherefor the provisions of the
Code of Criminal Procedure and Evidence Act must be followed.
144. Appreciation of evidence must be done on the basis
F of materials on record and not on the basis of some reports '1
~
which have nothing to do with the occurrence in question.
145. Article 12 of the Universal Declaration of Human
Rights provides for the Right to a fair trail. Such rights are en-
shrined in our Constitutional Scheme being Article 21 of the
G Constitution of India. If an accused has a right of fair trial,· his . ~

case must be examined keeping in view the ordinary law of the
-j
land.
146. It is one thing to say that even applying the well-known
principles of law, they are found to be guilty of commission of
H
NOOR AGA v. STATE OF PUNJAB & ANR. 451
[S.B. SINHA, J]

.-·* --'1 offences for which they are charged but it is another thing to say A
that although they cannot be held guilty on the basis of the ma-
terials on record, they must suffer punishment in view of the past
experience or otherwise.
147. PW1 states that he had asked the accused that a
search be conducted under the Act before a Gazetted Officer B
or a Magistrate but the same was not mentioned in the ,
panchnama Exhibit PC. If the evidence of PW1 in that behalf is
correct, we fail to understand how PW2 satisfied himself that
an option had been given to the accused to be searched be-
fore a gazetted officer. Exhibit PA shows that option to search · C
was given after the recovery was made since it is stated therein:
"After recovery the custom officer informed his senior
officer and was asked whether I would like to present
myself for personal search before a Magistrate or a
0
Gazetted Officer"
148. The said document, therefore, indicates that the gazet-
. ted officer or the independent witnesses were not present at
the time of purported recovery. Exhibit PC, however, shows the
presence of independent witnesses at the time of recovery. The E
credibility of the statements, having regard to these vital dis-
crepancies stands er,oded.
149. A person who is sought to be arrested or searched
has some rights having regard to.the decision of this Court in
D.K. Basu v. State of West Bengal [(1997) 1 SCC 416]. D.K. F
Basu rule states that if a person in custody is subjected to inter-
rogation, he must be informed in clear and unequivocal terms
as to his right to silence. This rule was also invoked in Balbir
Singh (supra). ·
G
150. We are not oblivious that the decision of State of
Himachal Pradesh v. Pawan Kumar [(2005) 4 SCC 350]
wherein Section 50 of the Aci having been held to be inappli-
cable in relation to a search of a bag but in this case the
appellant's person had also been searched. The High Court H
452 SUPREME COURT REPORTS [2008) 10 S.C.R.

1-- ... ....,
A disregarded that although Exhibit PA may not affect a technical
compliance of Section 50 of the Act on taking a complete and
circumspect view of the materials brought on record, but the
same, in our opinion, affect the credibility of the documentary
evidence and the statements of the official witnesses, namely,
B PW1 and PW2. If origin of principle has not been followed and
discrepancies and contradictions have occurred in the state- f-
ments of PW1 and PW2 the same would cause doubt on the
credibility of prosecution case and their claim of upholding pro-
cedure established by law in effecting recovery.
c CONCLUSION
151. Our aforementioned findings may be summarized as
follows:
1. The provisions of Sections 35 and 54 are not ultra
D vires the Constitution of India.
2. However, procedural requirements laid down therein
'
are required to be strictly complied with.
3. There are a large number of discrepancies in the
E treatment and disposal of the physical evidence. ~

There are contradictions in the statements of official
witnesses. Non-examination of independent
witnesses and the nature of confession and the I,
circumstances of the recording of such confession
F do not lead to the conclusion of the appellant's guilt.
'f
4. Finding on the discrepancies although if individually
examined may not be fatal to the ~ase of the
prosecution but if cumulative view of the scenario is f
taken, the prosecution's case must be held to be
G lacking in credibility.
5. The fact of recovery has not been proved beyond all
reasonable doubt which is required to be established 1
before the doctrine of reverse burden is applied.
Recoveries have not been made as per the
H
NOOR AGA v. STATE OF PUNJAB & ANR. 453
[S.S. SINHA, J]

procedure established by law. A
6. The investigation of the case was not fair.
We, therefore, are of the opinion that the impugned judg-
ment cannot be sustained which is set aside accordingly.
152. Before, however, parting with this judgment, we woµld 8
like to place emphasis on the necessity of disposal of such
cases as quickly as possible. The High Courts should be well
advised to device ways and means for stopping recurrence of
such a case where a person undergoes entire sentence befdre
he gets an opportunity of hearing before this Court. C
153. The appeal is allowed with the aforementioned ob-
servations.
K.K.T. Appeal allowed.