NEW DELHI, OCT 09, 2006 : A document as, is well known, does not prove itself. The prosecution was required to prove its case beyond all reasonable doubt. If the prosecution has failed to prove its case, it cannot fill up the lacuna by contending that Appellant has not proved its defence.

++ yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.

++ It must be recalled that the well established rule of criminal justice is that "fouler the crime higher the proof". In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made."

In the euphoria of getting a case, our ace investigators forget to comply with the minimum requirements of law and hopes to win cases based on strong sentiments, but courts depend on evidence and not sentiments.

This is an appeal against a judgment passed by the High Court of Madhya Pradesh affirming the judgment of conviction and sentence dated 3.4.2001 passed by the Special Judge, Indore in Special Case No. 44 of 2000 under Section 8 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The seizure, the investigation and the evidence (or rather the lack of)

One Sabiha Khatun, an Inspector in Central Bureau of Narcotics (Bureau) received an information from an informer on 2.8.2000 that a person would carry around 1.5 kg. of opium from Indore to Mhow. The informer allegedly disclosed that the person carrying the contraband would be boarding a bus for Mhow at about 4.00 p.m. at Shivaji Vatika. The information was recorded in writing. S.K. Bajpai, Inspector and Girwar Puri were witnesses thereto. Shivaji Vatika is almost on the other side of the Bureau. There was a pan shop just in front of the Bureau of which Girish was the owner.

A raiding team was constituted which included S.K. Bajpai, Inspector (who was then in charge of the office of the Superintendent of the Bureau) Girwar Puri was also member of the said team. Appellant was allegedly seen proceeding to catch a bus for Mhow. He was seen having a black rexene bag in his hand. Girwar Puri, Sub-Inspector of the Bureau apprehended him. He was interrogated. He disclosed his name. The search was conducted and opium weighing 1.300 kgs. was recovered. A currency note of Rs. 100/- was also found on his person. A report was prepared purported to be in terms of Section 57 of the NDPS Act and was placed before the superior officer who was none other than the said Bajpai. One Murali Dhamkani was appointed as an investigating officer. He was also a party to the raid.

Although information was received by Sabiha Khatun, she for reasons known only to the prosecution was not examined. Inspector Shri S.K. Bajpai was also not examined. Both Premchand an autorickshaw driver and Girish, owner of Pan shop, who were witnesses to the search, were declared hostile. The entire prosecution case rested on the testimony of Girwar Puri, Sub-Inspector.

The informer in his statement declared, "On 2.8.2000 at about 1300 hrs. during day time, the information from Mukhbir has been received that Ritesh Chakravorty, R/O 43, Tilak Nagar Extension, Indore will go to Mahu from Indore by bus. He will come at the Bus Stand near Shivaji Vatika holding about 1.500 kgs. Opium in a leather bag at about 1600 hrs. during day time. Therefore, you may initiate appropriate proceeding and to arrest the accused."

Although names of Shri S.K. Bajpai, acting as Incharge of the Bureau and Girwar Puri were shown as departmental witnesses, the following endorsement was made: "The aforesaid officers have been acknowledged with the aforesaid information."

What does this mean? The Supreme Court tried to understand it as, “What was probably meant was that they were apprised of the report of the said information by Ms. Sabiha Khatun.”

The auto driver in his deposition contended that:-

1.  His signatures had been obtained on blank papers.

2.  the search was not carried out in his presence.

3.  It is right to say that officers of Narcotic Department had intervened him at Shivaji Vatika A.B. Road.

4.  At this place no person namely Girish was intervened before him.

5.  It is wrong to say that officers of Narcotic Department told him that person namely Ritesh will come with opium who is to be caught.

6.  He had not seen accused at 5 o'clock with a bag in his hand at Shivaji Vatika.

7.  He had not seen on spot, before him, accused was not interrogated.

Girish was the owner of the Pan Shop situated in front of CGO Complex which houses the Narcotics Department. According to him also, the departmental officials obtained his signatures on 3-4 blank papers. He also denied that any search was conducted or any seizure was made in his presence.

The next prosecution witness, Girwar Puri disclosed that the investigation team consisted of Inspector Bajpai, Inspector Murli Dhamkani, Inspector Sabiha Khatun, himself, a few constables and a driver of government vehicle.

The Supreme Court noted that the raiding party waited at the bus stop for about an hour, although the same was just in front of their office. The identity of Appellant had not been disclosed still then. The evidence of the Prosecution fell apart when the Supreme Court noticed that:-

·   Although a large number of persons might have passed through the road, Appellant alone was suspected and apprehended.

·  How his identity came to be known is a mystery. A weighing scale was with the raiding party.

++ A first information report was submitted to the Superintendent who was none other than the said Shri Bajpai, who indisputably was a part of the raiding team.

++ It has not been disputed that the information from the informer was received by Ms. Sabiha Khatun.

++ It was at about 1 O'clock in the noon. It is curious that PW-5 stated that he was also present at the time when the informer was making his statement before Ms. Sabiha Khatun although, as indicated hereinbefore, the information recorded by the said Sabiha Khatun was said to have been made known to the witnesses.

++ According to PW-5, Girwar Puri, he was the only person present with Ms. Sabiha Khan but, if that be so, how Shri S.K. Bajpai also became a witness to the said document has not been explained.

++ The informer was said to be present in the police station for 5 to 10 minutes only. PW-5 did not meet him thereafter.

++ The description of accused does not appear to have been disclosed. He did have any talks with him in regard to the prize amount.

++ He accepted that the office of the Bureau in CGO Complex is near Shivaji Vatika. Other offices are also there. There must have been several persons passing through the road. Why they had chosen the owner of the Pan Shop and an autorickshaw driver as witnesses has not been explained.

++ Why nobody from the public was called to be witness to the occurrence has also not been disclosed.

++ Strangely enough, it is PW-5 himself who had spotted the accused first. The accused was said to be only at a distance of 10 feet from where they had been standing. Apart from spotting the accused, he searched him, recovered the contraband, interrogated him. He also carried out the sealing operations. Although a large number of people gathered, he did not enquire their names or asked them to be witnesses to the occurrence. Why other officers and constables being present, all works were done only by him is difficult to perceive.

The Supreme Court observed that “a doubt arises as to whether all the documents were signed at the spot without the same being kept on a table as it is accepted that all the exhibits including the signatures of the accused were in 'thick ink'. Signatures of the accused on the material exhibits were also obtained in 'thick ink' which does not appear to be probable.”

The Supreme Court also noted that “ An offence committed under the NDPS Act is a grave one. Procedural safeguards to the accused provided under a statute require strict compliance. By reason of the provisions of the NDPS Act, Parliament has reposed confidence on the gazetted officers. Shri Bajpai being a Superintendent of Bureau was a gazetted officer. If he was present, it was expected that he would disclose his identity and would invoke his power under proviso to Section 42 of the NDPS Act.”

It was further noticed that:-

++ Why everything was left to be done by PW-5 alone is a mystery.

++ Why Shri Bajpai and Inspectors attached to the Bureau had not been examined has not been explained.

++ The genesis of the occurrence was obtaining of secret information from the informer.

++ Concededly the informer gave full particulars thereof only to Ms. Sabiha Khatun. She was, therefore, the only competent witness.

++ A document as, is well known, does not prove itself. The contents are required to be proved by the maker thereof. Ms. Sabiha Khatun alone could have proved the correctness or otherwise of the contents of the said document. It was all the more necessary as PW-5 conceded that all conversations between Ms. Sabiha Khatun and the informer did not take place in his presence.

++ In a case under the NDPS Act, recovery of contraband in presence of the independent person assumes importance.

++ The seizure witnesses, ( auto driver and panwallah) cannot be said to be independent in that way. The pan shop was in front of the Narcotics office. Despite the fact that he was to carry on his business in front of the Bureau, he did not support the prosecution case. Why he was chosen to be a witness has not been disclosed.

++ If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken.

++ Appellant has been gravely prejudiced by non-examination of Ms. Sabiha Khatun and Shri Bajpai. Moreover, if the seizure witnesses are to be believed, their signatures had been obtained on blank papers. In that view of the matter, seizure of the contraband becomes doubtful.

++ but if the procedural safeguards were required to be strictly complied with, there was no reason as to why the main prosecution witnesses should not be examined.

++ It was submitted that although PWs 1 and 2 were declared hostile, their signatures on the seizure documents had not been disbelieved. They categorically stated that their signature were obtained on blank papers and they were not witnesses to seizure. On the face of such statements made by the said witnesses, it was all the more necessary to examine all the departmental witnesses.

++ It may be that the articles seized had been sent for chemical analysis and were found to be analysed but that loses much of its significance as the prosecution must prove its case of recovery of the contraband beyond all reasonable doubt.

Who should prove ? Prosecution or defence?

Okay, prosecution did not prove the case but they argued that the appellant had also not proved his defence. The Supreme Court held that It was not necessary for him to do so. The prosecution was required to prove its case beyond all reasonable doubt. If the prosecution has failed to prove its case, it cannot fill up the lacuna by contending that Appellant has not proved its defence.

The Supreme Court referred to some of its decided casers to drive home the point.

1.  In Jagdish vs. State of M.P, the Court set aside a judgment of conviction where independent witnesses denied that search and seizure for recovery of opium took place in their presence. An adverse inference was further drawn as to why PW-1 Narcotic Sub-Inspector therein brought down only one passenger from the bus if he did not have any prior information or entertain any suspicion regarding involvement of Appellant therein being in possession or smuggling of opium.

2.  Gopal vs. State of M.P : - The court should also take care of the fact that a person may not be convicted on a misguided suspicion.

3.  State of Punjab vs. Balbir Singh :- Although the effect of illegal search may not have any direct impact on the prosecution case but the same will have a bearing on the appreciation of evidence of the official witnesses and other materials depending on the facts and circumstances of each case.

4.  Jadunandan Roy vs. The State of West Bengal :- The law requires that such search should normally be conducted by a magistrate or a gazetted officer. Even presence of a gazetted officer in the raiding team would not subserve the requirements of Section 50 of the Act.

5.  Mousam Singha Roy and others vs. State of West Bengal :- It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.

6.  Sharad Birdhichand Sarda vs. State of Maharashtra : - We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.

The Supreme Court further cautioned, “There is another aspect of the matter which cannot be lost sight of. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth.”

The Supreme Court concluded with, It must be recalled that the well established rule of criminal justice is that "fouler the crime higher the proof". In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made."

Therefore the Supreme Court held that the appellant is entitled to benefit of doubt. He is directed to be set at liberty.

(See 2006-TIOL-128-SC-NDPS in 'Customs' + 2006-TIOL-128-SC-NDPS in 'Legal Corner')