Conviction could not be based on a foundation of conjectures and surmises to conclude guilt of the accused without establishing it beyond reasonable doubt, Supreme Court
The Supreme Court has set aside an individual’s conviction under the Narcotics Drugs and Psychotropic Substances Act while stating that the police investigation extremely casual, perfunctory and shoddy in nature.
A Division Bench of Justice RF Nariman and Justice Navin Sinha observed that the appellant was denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution, which resulted in the appellant having to suffer incarceration for an offence he had never committed.
An appeal was filed challenging conviction under relevant sections of the Narcotics Drugs and Psychotropic Substances Act, 1985 for recovery of 48 Kgs 200 gms. cannabis (ganja), and sentence of 10 years of rigorous imprisonment with a default stipulation. The appellant was held to be the owner of the House in question from which the ganja was recovered, relying upon the voters list of 2008.
Counsel for the appellant submitted before the Court that the conviction was based on a mere presumption of ownership of the house, without any finding of conscious possession was unsustainable. Why would the appellant take the police to his own house, and have the lock broken to recover the contraband and implicate himself.
The Court noted that the stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission, etc do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.
The Court observed that its apparent that the police being in a quandary with regard to the ownership and possession of the house in question due to a flawed, defective and incomplete investigation found it convenient to implicate the appellant also, so that at least one of the two would be convicted.
According to the Court, the panchayat records being public documents would have been the best evidence to establish the ownership and possession of the house, and despite those being available , the police didn’t investigate it’s genuineness.
The Court noted that considering the nature of evidence available, it cannot be held that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband.
The Court held that conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt.
Read the Judgment here;22820-2019-34-1503-23302-Judgement-05-Aug-2020
-India Legal Bureau