IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1034      OF 2008 [Arising out of SLP (Crl.) No. 5597 of 2006]

Noor Aga …Appellant

  Versus

State of Punjab & Anr. …Respondents

J U D G M E N T

S.B. SINHA,  J :

Leave granted.

INTRODUCTION   

Several  questions  of  grave  importance  including  the  constitutional

validity of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short  “the  Act”),  the  standard  and  extent  of  burden  of  proof  on  the

prosecution vis-à-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 and

whereunder  an  appeal  filed  by  the  applicant  against  the  judgment  of

conviction and sentence dated 7.6.2000 under Section 22 and 23 of the Act

has been dismissed.   

PROSECUTION CASE  

Appellant is an Afghan national.   

He was arrested and later on prosecuted under Sections 22 and 23 of

the Act allegedly for carrying 1 kg 400 grams of heroin as a member of crew

of Ariana Afghan Airlines.

Appellant arrived at Raja Sansi Airport at about 6 p.m. on 1.08.1997.

He presented himself before the authorities under the Customs Act, 1962

(for short  “the Customs Act”) for customs clearance.  He was carrying a

carton with 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  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.   

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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 his  option for the latter,  whereupon one Shri  K.K.

Gupta,  Superintendent  of  the  Customs  Department  and  two  independent

witnesses, Mohinder Singh and Yusaf were sent for.  K.K. Gupta disclosed

his identity to the appellant as a Gazetted officer working in the Customs

Department.   

The  layers  of  the  walls  of  the  carton  were  thereafter  separated,

wherefrom  22  packets  of  polythene  containing  brown  powder  were

allegedly recovered.  The same was weighed; the gross weight whereof was

found to be 1 kg. 400 grams.  Representative homogeneous samples from

each packet  in small  quantities  were taken weighing 5 gms. each.   They

were  purported  to  have  been  sealed  with  a  seal  bearing  No.  122  of  the

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),  Panchanama  (Ex.  PC)  prepared  by  Shri

Kulwant Singh.  The entire bulk was put into cotton bags and sealed.   

ARREST AND PURPORTED CONFESSION

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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 been 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.   

Appellant purported to have confessed his guilt on 2.08.1997 as also

on 4.08.1997.   

INVESTIGATION  

Samples were sent to the Central Forensic 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 the words “net weight” were crossed and

converted into ‘gross weight’.

The alleged contraband was found to be of white colour containing

Diacetyl Morphine.  The report was submitted on 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 trial having been charged under Sections 22

and 23 of the Act.   

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The  contraband  articles  were  produced  before  the  Magistrate  on

30.01.1999.  The purpose for production is mired in controversy.  Whereas

the  appellant  contends  that  the  same  was  done  for  the  purpose  of

authentication, according to the respondent, it was produced for the purpose

of obtaining a judicial  order for destruction thereof.   No order,  however,

was passed by the learned Magistrate for destruction of the contraband.  No

application for destruction was also filed.

PROCEEDINGS  

At the trial, the following witnesses were examined on behalf of the

State:

PW-1             Kulwant Singh-lnspector Customs  

(Complainant and investigating officer)

PW-2 KK Gupta- Superintendent-Customs (A Gazzeted Officer)

PW-3 Ashok Kumar- Inspector, Customs Department (Deposited  

sample)

PW-4          Rajesh Sodhi-Deputy Commissioner

Custodian of case property from 1-8-97 to 4-897

PW-5 KK Sharma-lnspector Incharge- Malkhana

Appellant,  in  his  examination  under  section  313  of  the  Code  of

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Criminal Procedure in categorical terms denied that the carton belonged to

him.  He also retracted from his alleged confession.

The  learned  Additional  Sessions  Judge  by his  order  and judgment

dated 7.06.2000 convicted the appellant under Sections 22 and 23 of the Act

and sentenced him to undergo rigorous imprisonment for 10 years and also

imposed a fine of Rs. 1 lakh on him.

Aggrieved by and dissatisfied with the said judgment and order of the

learned Additional Sessions Judge, the appellant filed an appeal before the

High Court  of  Punjab and Haryana.  The High Court  dismissed the said

appeal by a judgment and order dated 9.06.2006.  Appellant is, thus, before

us.   

CONTENTIONS

Ms. Tanu Bedi, learned counsel appearing on behalf of the appellant,

in support of this appeal, submits:

(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 the International Covenant on Civil

and Political Rights 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.

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(ii) Burden of proof under the Act being on the accused, a heightened

standard of proof in any event is 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.   

(iii) The prosecution having not produced the physical 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, the prosecution

must  held  to  have  failed  to  establish  actual  recovery  of  the

contraband from the appellant.   

(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.   

(vi) The  purported  confessions  of  the  appellant  before  the  customs

authorities  are  wholly  inadmissible  in  evidence  being  hit  by

Section  25  of  the  Indian  Evidence  Act,  as  Section  108  of  the

Customs  Act  should  be  read  in  terms  thereof  coupled  with

Sections 53 and 53A of the Act.

Mr. Kuldip Singh, learned counsel appearing on behalf of the State,

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on the other hand, would contend:

(i) The  learned  Trial  Judge  as  also  the  High  Court  upon  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.

(ii) Appellant  having  exercised  his  option  of  being  searched  by  a

Gazetted Officer; and the legal requirements of Sections 42 and 50

of the Act must be held to have been fully complied with.  In any

event,  search  and  seizure  of  the  carton  did  not  attract  the

provisions of Section 50 of the Act.  

(iii) Despite some discrepancies in the statements of the witnesses 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.  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 judgments do not warrant any interference.   

(iv) Any confession made before the customs authorities in terms of

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Section 108 of the Customs Act is  not hit  by Section 25 of the

Indian  Evidence  Act  and  the  same,  thus,  being  admissible  in

evidence could have been relied upon for the purpose of recording

a judgment of conviction.   

AN OVERVIEW OF THE STATUTORY PROVISIONS

Before embarking upon the rival contentions of the parties, as noticed

hereinbefore, it is appropriate to notice the relevant provisions of the Act as

also the Customs Act, 1962.

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.

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 provisions  of  the International  Conventions  on

Narcotic  Drugs  and  Psychotropic  Substances  and  the  matters  connected

therewith.

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Section 2(xiv) of the Act defines “narcotic drug” to mean coca leaf,

cannabis (hemp), opium poppy straw and includes all manufactured drugs.   

“Illicit  traffic”,  in  relation  to  narcotic  drugs  and  psychotropic

substances,  has been defined in Section 2(viiia)  of  the Act,  inter  alia,  to

mean:

“(iv) dealing in any activities in narcotic drugs or 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);”

“Commercial quantity” has been defined in Section 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.  

“International Conventions” have been specified in Section 2(ix) of

the Act.

Chapter  II  of  the  Act  enables  the  Central  Government  to  take

measures  as  may be  necessary or  expedient  inter  alia  for  the purpose  of

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preventing  and  combating  abuse  of  and  illicit  traffic  therein  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

taking  measures  with  respect  to  such  of  the  matters  referred  to  in  sub-

section (2) as being specified therein, subject, of course, to the supervision

and control of the Central Government.   

Chapter III provides for prohibition, control and regulation.  Section 8

inter  alia  bars  possession,  sale,  purchase,  transport  of  any narcotic  drugs

except for medical or scientific purposes and in the manner and the extent

provided  by  the  provisions  of  the  Act  or  the  Rules  or  orders  framed

thereunder.   Section  9  of  the  Act  empowers  the  Central  Government  to

make  rules  inter  alia  permitting  and  regulating  possession  of  narcotic

substance,  subject,  however,  to  the  provisions  contained  in  Section  8

thereof.

Chapter IV provides for offences and penalties.  Section 22 provides

for  punishment  for  contravention  in  relation  to  psychotropic  substances.

Section  23  provides  for  punishment  for  illegal  import  into  India,  export

from India or transshipment of narcotic drugs and psychotropic substances.   

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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 extend to twenty years and shall also be

liable to fine which shall not be less than one lakh rupees but which may be

extended  to  two  lakh  rupees.   The  proviso  appended  thereto,  however,

empowers the court, for reasons to be recorded in the judgment, to impose a

fine exceeding two lakh rupees.   

Section 35 of the Act provides for presumption of culpable mental

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.

Section 54 of the Act places the burden of proof on the accused as regards

possession of the contraband to account for the same satisfactorily.

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:

“(i)  the  Public  Prosecutor  has  been  given  an opportunity  to  oppose  the  application  for  such release, and

(ii)  where  the  Public  Prosecutor  opposes  the application,  the  court  is  satisfied  that  there  are reasonable  grounds  for  believing  that  he  is  not

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guilty of such offence and that he is not likely to commit any offence while on bail.”

The  said  limitations  on  the  power  of  the  court  to  grant  bails  as

provided for in clause (b) of Section (1) of Section 37 of the Act are in

addition  to  the  limitations  provided  for  under  the  Code  of  Criminal

Procedure, 1973 or any other law for the time being in force.   

Section  39  provides  for  the  power  of  the  court  to  release  certain

offenders on probation.   

We may notice  that  the  restrictions  on  the  power  of  the  court  to

suspend the sentence as envisaged in Section 39 of the Act has been held to

be unconstitutional in  Dadu @ Tulsidas  v. State of Maharashtra [(2000) 8

SCC  437],  subject,  of  course,  to  the  restrictions  for  grant  of  bail  as

contained in Section 37 of the Act.

Section  42  provides  for  power  of  entry,  search,  seizure  and  arrest

without  any  warrant  or  authorization  by  an  officer  who  is  otherwise

empowered by the Central Government by general or special order.   

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 punishable under the Act has been committed,

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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.   

Section  43,  however,  empowers  an  officer  of  any  department

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 provides for the conditions under which search of persons

are to be conducted.  Section 51 provides for application of the Code of

Criminal  Procedure,  1973  insofar  as  they  are  not  inconsistent  with  the

provisions of the Act.  Section 52 provides for disposal of persons arrested

and articles seized.  Section 52-A provides for disposal of seized narcotic

drugs and psychotropic 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  under  Section  53,  the officer referred to in sub-section (1) shall prepare an  inventory  of  such  narcotic  drugs  or, psychotropic  substances  containing  such  details relating  to  their  description,  quality,  quantity, mode of  packing,  marks,  numbers  or  such  other identifying  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  of  the

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narcotic  drugs or psychotropic substances in any proceedings  under  this  Act  and  make  an application, to any purpose of,- (a)  Certifying  correctness  of  the  inventory  so prepared; or (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 drugs or substances, in the presence of such Magistrate  and  certifying  the  correctness  of  any list of samples so drawn.”

Indisputably, the proper officers of the 1962 Act are authorized to

take action under the Act as regards seizure of goods, documents and things.

We may notice  Section  110  of  the  1962,  sub-section  (1)  whereof

reads as under:

“110.  Seizure of  goods,  documents  and things.  - (1) If the 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 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 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 relevant considerations, by notification  in  the  Official  Gazette,  specify  the goods  or  class  of  goods  which shall,  as  soon as may be after  its  seizure under subsection  (1), be

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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. (1B)  Where  any  goods,  being  goods  specified under  sub-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  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 (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, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1C)  Where  an  application  is  made  under  sub- section (1B), the Magistrate shall, as soon as may be, allow the application.”

Indisputably,  the Central  Government  has  issued  guidelines  in  this

behalf being Standing Order No. 1 of 1989 dated 13.06.1989 which is in the

following terms:

“WHEREAS the Central Government considers it necessary and expedient to determine the manner in  which  the  narcotic  drugs  and  psychotropic substances,  as  specified in  Notification  No. 4/89 dated  the  29th May,  1989  (F.  No.  664/23/89-

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Opium, published as S.O. 381(E) ), which shall, as soon as may be, after their seizure, be disposed of, having  regard  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 Psychotropic Substances Act, 1985 (61 of 1985), (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…”

These  guidelines  under  the  Standing  order  have  been  made  under

Statute,  and  Heroin  is  one  of  the  items as  substances  listed  for  disposal

under Section I of the Standing Order.   

Paragraphs 3.1 and 6.1 of the Standing Order read as under:

“Preparation of inventory 3.1 After  sampling,  detailed  inventory of  such packages/containers  shall  be  prepared  for  being enclosed  to  the  panchnama.  Original  wrappers shall also be preserved for evidentiary purposes.

Certificate of destruction 6.1 A  certificate  of  destruction  (in  triplicate (Annexure III) 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

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copy shall be posted in the godown register after making  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. ”

CONSTITUTIONALITY

Presumption of innocence is a human right as envisaged 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  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 Constitution of India).

The Act contains draconian provisions.  It must, however, be borne in

mind that the Act was enacted having regard to the mandate contained in

International Conventions on Narcotic 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.   

A  right  to  be  presumed  innocent,  subject  to  the  establishment  of

certain foundational facts and burden of proof, to a certain extent, can be

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placed  on  an  accused.   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 may be constitutional but a prosecution

thereunder may not be held to be one.  Indisputably, civil liberties and rights

of citizens must be upheld.   

A Fundamental Right is not absolute in terms.   

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.   

The procedures laid down under  the Act being stringent  in  nature,

however, must be strictly complied with.   

In  Directorate of Revenue and Another v.  Mohammed Nisar Holia

[(2008) 2 SCC 370], this Court held:

“11. Power to make search and seizure as also to arrest an accused is founded upon and subject to satisfaction  of  the  officer  as  the  term "reason to believe"  has  been  used.  Such  belief  may  be founded  upon  secret  information  that  may  be orally  conveyed  by  the  informant.  Draconian

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provision  which  may  lead  to  a  harsh  sentence having regard to the doctrine of “due process” as adumbrated 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.”

Application of international law in a case involving war crime was

considered by the Constitutional Court of South Africa in  State v.  Basson

[2004 (6) BCLR 620 (CC)] opining:

“The  rules  of  humanitarian  law  constitute  an important  ingredient  of  customary  international law.  As the  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 all  States  whether  or  not  they have ratified the Conventions 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 Conventions merely give specific expression.”   

It was furthermore observed:

“When  allegations  of  such  serious  nature  are  at issue,  and  where  the  exemplary  value  of constitutionalism as against lawlessness is the very

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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 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.”

[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]

The provision for reverse burden is not only provided for under the

special acts like the present one but also under the general statutes like the

Indian Penal Code.  The Indian Evidence Act provides for such a burden on

an accused  in  certain  matters,  as,  for  example,  under  Section  113A and

113B thereof.   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, burden is shifted to the accused.   

21

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 constitutionality of a penal provision placing burden of proof on

an accused, thus, must be tested on the anvil of the State’s responsibility to

protect innocent citizens.   

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 limits

the right.  {See S v. Dlamini;  S v. Dladla and others  1999(7) BCLR 771

(CC)}

While, however, saying so, we are not unmindful of serious criticism

made by the academies in this behalf.

In Glanville Williams, Textbook of Criminal Law (2nd 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 exception”. … Many statutes shift the persuasive burden. It has become a matter of  routine for  Parliament,  in  respect  of  the  most

22

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.”  

But then the decisions rendered in different jurisdictions are replete

with cases where validity of the provisions raising a presumption against an

accused, has been upheld.   

The presumption raised in a case of this nature is one for shifting the

burden subject to fulfillment of the conditions precedent therefor.   

The issue of reverse burden vis-à-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 guilty.  Indisputably this common

law principle was subject to parliamentary legislation to the contrary. The

concern now 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 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 appear to violate the presumption.  (See – The

Presumption of Innocence in English Criminal Law, 1996 Crim.L.R. 306, at

309).   

23

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 law….”   

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 International Covenant on Civil and Political

Rights (1966).   

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  of  the  European

Convention for the Protection of Human Rights and Fundamental Freedoms

(1950),  the  doctrine of reverse burden passes  the test  of constitutionality

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 convention  rights  when the  court  is  hearing  an  appeal from  a  decision  which  was  taken  before  the  Human

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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 innocence contained in  article 6.2  of  the  European  Convention  for  the  Protection  of Human Rights and Fundamental Freedoms.”    

Sub-section (2) of Section 28 of the Misuse of Drugs Act, 1971, with

which the House was concerned, reads as under:-

"(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 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 :-

“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  derogates  from  the  presumption  of innocence. I would, 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 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

25

necessary  to  concentrate  not  on  technicalities  and niceties of language but rather on matters of substance. 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 authorities";  

Section 28 of the Misuse of Drugs Act, 1971 was read in the manner

which was compatible with convention rights opining that Section 28(2) and

(3) create an evidential burden on the accused.      

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.   

Sections 35 and 54 of the Act may have to be read in the light of

Articles 14 and 21 of the Constitution of India.    

We may notice that Sachs, J. in State  v.  Coetzee [(1997) 2 LRC 593]

explained the significance of the presumption of innocence in the following

terms :-  

"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 accused  become.  The  starting  point  of  any  balancing enquiry where constitutional  rights  are concerned must

26

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  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 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  of  a  justificatory  balancing exercise. If  this were not  so, the 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  defender  of rights in the most trivial of cases".  

In  R. v.  Hansen [(2007) NZSC 7], while construing Section 6(6) of

the Misuse of Drugs Act, 1975 the New Zealand Supreme Court  held as

under :

“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.  While  the  Crown  must  prove  to  that standard that the person charged was in possession of  the  stipulated  quantity  of  drugs,  the  jury can

27

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 Steyn pointed out in R v Lambert, the jury is obliged to convict if the version of the accused is as likely to be true as not.”

However,  in  our  opinion,  limited  inroad  on presumption  would  be

justified.  We may consider the question from another angle.

The doctrine of  res ipsa loquitur  providing for a reverse burden has

been applied not only in civil proceedings but also in criminal proceedings.

[See  Alimuddin Vs.  King Emperor (1945 Nagpur  Law Journal  300].   In

Home vs.  Dorset  Yacht  Company [1970  (2)   ALL E.R.  294],  House  of

Lords developed the common law principle and evolved a presumptive duty

to care.

It is, however, of some interest to note that in Syed Akbar vs. State of

Karnataka [AIR 1979 SC 1848] this Court held:

“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  the  first  instance,  the  burden  on  the defendant who in order to exculpate himself must rebut 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

28

negligent  or  rash  act.  The  primary  reasons  for  non- application of this abstract doctrine of res ipsa loquitur to criminal trials are: 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 is  presumed to  be  innocent until the contrary is proved, 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  negligence against  the  accused  where  the  accident  “tells  its  own story” of negligence of somebody. 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  is sufficient, and the defendant is not necessarily entitled to the  benefit  of  every reasonable  doubt;  but  in  criminal 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 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 under the criminal law “a very high degree of negligence is required to be proved. Probably, of  all  the  epithets  that  can  be  applied  ‘reckless’  most nearly covers the case”.  

(emphasis supplied)

The said  dicta  was  followed  in  Jacob Mathew  vs.  State  of  Punjab

[(2005) 6 SCC 1].  We may, however, notice that the principle of ‘res ipsa

loquitur’ has been applied in  State of A.P.  v.  C. Uma Maheswara Rao &

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Anr. [2004 (4) SCC 399] {see also B. Nagabhushanam v. State of Karnataka

(2008) 7 SCALE 716}.   

The Act specifically provides for the exceptions.  

It is a trite law that Presumption of innocence being a human right

cannot be thrown aside, but it has to be applied subject to exceptions.

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.  We may incidentally notice a

decision  of  the  Privy  Council  in  an  appeal  from the  Supreme Court  of

Mauritius in  The State v.  Abdul Rashid Khoyratty, [2006] UKPC 13.  In

that case, an attempt 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 individual liberty stating that the

power  to  grant  bail  is  exclusively  within  the  judicial  domain.   A

constitutional amendment to overcome the impact of the said decision was

also  held  to  be unconstitutional  by the  Supreme Court  of  Mauritius.   In

Abdul Rashid Khoyratty (supra), the Privy Council upheld the said view.

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Dealing  with  the  provisions  of  Sections  118(b)  and  139  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 SCC 16], opined:

“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 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 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  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 also gravity thereof  may be taken into 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

31

consideration the decisions operating in the field where the difficulty of proving a negative has been emphasized.   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.  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  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  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 regulatory environment.”  

The above stated principles  should be applied  in  each case having

regard to the statutory provisions involved therein.

We may, however, notice that recently in  M/s. Seema Silk & Sarees

& Anr. v.  Directorate of Enforcement & Ors. [2008 (7) SCALE 624], in a

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case where the constitutionality of the provisions of Sections 18(2) and 18

(3) of the Foreign Exchange Regulation Act, 1973 were questioned on the

ground of  infringing  the  ‘equality  clause’  enshrined  in  Article  14  of  the

Constitution of India, this Court held:

“16. A  legal  provision  does  not  become unconstitutional  only  because  it  provides  for  a reverse burden.  The question as regards burden of proof is procedural in nature.  [See Hiten P. Dalal v.  Bratindranath  Banerjee,(2001)  6  SCC 16  and M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39] 17. The presumption raised against the trader is a rebuttable one.  Reverse burden as also statutory presumptions can be raised in several statutes as, for  example,  the  Negotiable  Instruments  Act, Prevention  of  Corruption  Act,  TADA,  etc. Presumption  is  raised  only  when  certain foundational  facts  are  established  by  the prosecution.  The accused in such an event 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 think that the appellants are entitled to take the benefit thereof at this stage.  Such contentions must be raised before the criminal court. 18.  Commercial  expediency  or  auditing  of books  of  accounts  cannot  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 mean the statute is unconstitutional or the criminal prosecution becomes vitiated in law.

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Provisions  imposing  reverse  burden,  however,  must  not  only  be

required to be strictly complied with but also may be subject to proof of

some basic facts as envisaged under the statute in question.   

The provisions of Section 35 of the Act as also Section 54 thereof, in

view of the decisions of this Court, therefore, cannot be said to be ex facie

unconstitutional.   We  would,  however,  keeping  in  view  the  principles

noticed hereinbefore examine the effect thereof, vis-à-vis the question as to

whether the prosecution has been able to discharge its burden hereinafter.   

BURDEN OF PROOF

The  provisions  of  the  Act  and  the  punishment  prescribed  therein

being indisputably stringent  flowing from elements  such as  a heightened

standard  for  bail,  absence  of  any  provision  for  remissions,  specific

provisions  for  grant  of  minimum sentence,  enabling  provisions  granting

power to the Court to impose fine of more than maximum punishment of

Rs.2,00,000/- as also the presumption of guilt emerging from possession of

Narcotic Drugs and Psychotropic substances, the extent of burden to prove

the foundational facts on the prosecution, i.e., ‘proof beyond all reasonable

doubt’  would  be  more  onerous.   A  heightened  scrutiny  test  would  be

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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 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  provisions  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  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 SCC 977, it was stated:

“It  must  be  borne  in  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.”

[See also Ritesh Chakravarty v. State of Madhya Pradesh, JT 2006 (12) SC

416]

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

35

but  it  is  well  settled that  suspicion,  however  high may be,  can under no

circumstances, be held to be a substitute for legal evidence.   

Sections  35  and 54 of  the 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 this behalf on the accused; but a bare perusal the said

provision would clearly 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 innocence 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

‘preponderance of probability’on the accused.   If the prosecution fails to

prove the foundational facts so as to attract the rigours of Section 35 of the

Act, the actus reus which is possession of contraband by the accused cannot

be said to have been established.   

With a view to bring within its purview the requirements of Section

54 of the Act, element of possession of the contraband was essential so as to

shift  the burden on the accused.   The provisions being exceptions  to the

36

general rule, the generality thereof would continue to be operative, namely,

the element of possession will have to be proved beyond reasonable doubt.   

Whether the burden on the accused is a legal burden or an evidentiary

burden would depend on the statute in question.   The purport and object

thereof  must  also  be  taken  into  consideration  in  determining  the  said

question.   It  must  pass  the  test  of  doctrine  of  proportionality.   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 and not merely a legal burden.  The trial must be fair.

The  accused  must  be  provided  with  opportunities  to  effectively  defend

himself.  In Sheldrake v. Director of Public Prosecutions [(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 presumptions  of  fact  or  law but  requires that these should 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 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

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presumption,  maintenance  of  the  rights  of  the defence,  flexibility  in  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 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 facts and circumstances of the particular provision as applied in the particular case.”

(emphasis added)

It is, however, interesting to note the recent comments on Sheldrake

(supra)  by  Richard  Glover  in  an  Article  titled  “Sheldrake  Regulatory

Offences  and  Reverse  Legal  Burdens  of  Proof”  [(2006)  4  Web  JCLI]

wherein it was stated:

“It  is  apparent  from  the  records  in  Hansard (implicitly if  not  expressly) that  the Government was content for a legal onus to be on the defendant when  it  drafted  the  Road  Traffic  Act  1956.  An amendment to the Bill was suggested in the Lords “which puts upon the accused the onus of showing that he had no intention of driving or attempting 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 Mancroft 1955, col 586). It is submitted that this

38

tends  to suggest  that  the Government intended a reverse legal burden.  

The reverse legal burden was certainly in-keeping with the tenor of the 1956 Act to “keep death off the  road”  (Lord  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  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  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).  

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 under the Human Rights  Act 1998 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:   

39

“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 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  judgment  (R  v  DPP,  ex  p 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  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:  

“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 change (‘develop’)  the common law and thereby depart  from the  law  as  declared  by  Parliament” (para 22).  

Parliament’s intentions also appear to have been of particular importance in the recent  case Makuwa [2006]  EWCA  Crim  175,  which  concerned  the

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application  of  the  statutory  defence  provided  by the Immigration and Asylum 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 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).  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 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 case in Sheldrake.  

In  light  of  the  above  it  is  submitted  that  their Lordships in Sheldrake, as in Brown v Stott [2000] UKPC D3; [2003] 1 AC 681, 711C-D, PC, were entitled to uphold a legal 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,  article  2).  That  is,  there  were  sound policy reasons for imposing a reverse legal burden,

41

which will be the subject of further discussion in the second part to this article.”  

Whereas  in  India  the  statute  must  not  only  pass  the  test  of

reasonableness as contained in Article 14 of the Constitution of India but

also the ‘liberty’ clause contained in Article 21 of the Constitution of India,

in England it must satisfy the requirements of the Human Rights Act 1998

and  consequently  the  provisions  of  European  Conventions  of  Human

Rights.   

Placing  persuasive  burden on the accused persons  must  justify the

loss  of  protection  which  will  be  suffered  by  the  accused.   Fairness  and

reasonableness of trial as also maintenance of the individual dignity of the

accused must be uppermost in the court’s mind.   

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  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 ‘widespread  phenomenon  with  a  global  impact.’ Urgent steps are needed to combat counterfeiting and  piracy  (see  the  Green  Paper,  Combating Counterfeiting  and  Piracy  in  the  Single  Market

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(COM  (98)  569  final)  and  its  follow up  (COM (2000)  789  final).   Protection  of  consumers  and honest  manufacturers  and  traders  from counterfeiting  is  an  important  policy consideration.  (2)  The  offences  created  by  s  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 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 suppliers and keep records and of the risks they take if they do not.  (5)  The s 92 (5) defence relates 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  supply  are known to him.  (6)  Conversely, by and large it is to be expected that those who supply 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.  

[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  loss  of protection  which  will  be  suffered  by  the individual.  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

43

reasonable to require a trader, should need arise, to prove  on  the  balance  of  probability  that  he honestly and reasonably believed the goods were genuine.”   

The same principle applies to this case.

CASE AT HAND

Confession of the Appellant

With  the  aforementioned  principles  in  mind,  let  us  consider  the

evidence brought on record by the respondents.

We  may,  at  the  outset,  notice  that  a  fundamental  error  has  been

committed by the High Court in placing explicit reliance upon Section 108

of the Customs Act.   

It refers to leading of evidence, production of document or any other

thing in an enquiry in connection of smuggling of goods.  Every proceeding

in terms of sub-section (4) of Section 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.

44

Appellant  contended  that  the  purported  confessions  recorded  on

2.08.1997  and  4.08.1997  were  provided  by  an  officer  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.   

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.   

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 there is a conflict between the two.  A retracted

confessional  statement  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 prosecution.  It may

not be necessary for us to enter into the question as to whether the decisions

of  this  Court  that  a  Custom  Officer  is  not  a  Police  Officer  should  be

revisited  in  view of the decision of  this  Court  in  Balkrishna  Chhaganlal

Soni v. State of West Bengal [(1974) 3 SCC 567, wherein it was stated :

45

“On the proved facts the gold bar is caught in the criminal 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.”

It may also be of some interest to note the decision of this Court in

State of Punjab v. Barkat Ram [AIR 1962 SC 276], holding:

“17.  There  has,  however,  arisen  a  divergence  of opinion  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  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  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 are conferred on him.”

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 penalty for loss  of revenue being

46

different, they were not Police Officers but then the court took notice of the

general image of police in absence of legislative power to enforce other law

enforcing 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  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 hold possession of the thing confiscated and every officer of police, on request of such officer, shall  assist  him  in  taking  and  holding  such possession. This leaves no room for 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 produce a document or any other thing  in  any  enquiry  which  he  be  making  in connection with the smuggling of any goods.”

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

Covenants chartered in Human Rights.  We cannot lose sight of the fact that

criminal justice delivery system prevailing in our country lacks mechanisms

to  remedy systemic violations  of  the  accused’s  core  constitutional  rights

which include the right to effective assistance of counsel, the right to have

47

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 California Law Review Vol. 95 No.2 page 385 at 393).

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  detection  of  crime and bringing  an accused to

book.   

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  Chapter  XIV of  the Code of

Criminal  Procedure has  been conferred are  police  officers  or  not  for  the

purpose of Section 25 of the Act, open, stating:

34. In the Oxford Dictionary, the word "police" is defined thus :

"The  department  of  government  which  is concerned  with  the  maintenance  of  public order and safety, and the enforcement of the law;  the  extent  of  its  functions  varying greatly in different countries and at different periods.

The  civil  force  to  which  is  entrusted  the duty of maintaining public order, enforcing regulations  for  the  prevention  and

48

punishment  of  breaches  of  the  law  and detecting  crime;  construed  as  plural,  the members of a police force; the constabulary of a locality."

Shortly stated, the main duties of the police are the 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 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,  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  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 and  discharge  the  duties  of  prevention  and detection of crime? If be does, he will be a police officer.”

Section  25  of  the  Evidence  Act  was  enacted  in  the  words  of

Mehmood J in Queen Empress v. Babulal [ILR (1884) 6 All. 509] to put a

stop to the extortion of confession, by taking away from the police officers

49

as the advantage  of  proving  such  extorted  confession  during  the  trial  of

accused persons.  It was, therefore, enacted to subserve a high purpose.

The Act is a complete code by itself.  The customs officers have been

clothed  with  the  powers  of  police  officers  under  the  Act.   It  does  not,

therefore, deal only with a matter of imposition of penalty or an order of

confiscation  of  the  properties  under  the  Act  but  also  with  the  offences

having serious consequences.   

Section 53 of the Act empowers the customs officers with the powers

of  the  Station  House Officers.   An officer  invested  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 Section 25 of the Act shall be applicable.   

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]

Section  53A  of  the  Act  makes  such  a  statement  relevant  for  the

purposes of the said Act.  The observations of the High Court,  thus, that

confession can be the sole basis of conviction in view of Section 108 of the

Customs Act, thus, appear to be incorrect.

50

An inference that  the appellant  was subject  to duress 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  from  legal  provisions,  possibly  could  not  be

attributed  to  him.  Possibility  of  fabrication  of  confession  by the  officer

concerned, thus, cannot altogether be ruled out.

The constitutional mandate of equality of law and equal protection of

law as adumbrated under Article 14 of the Constitution of India cannot be

lost sight of.  The courts, it is well settled, would avoid a construction which

would attract the wrath of Article 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.

This Court in  Alok Nath Dutta v.  State of West Bengal [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  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

51

which  stood  retracted  should  be  substantially corroborated  by  other  independent  and  cogent evidences,  which would lend adequate  assurance to the court that it may seek to rely thereupon.”

[See also Babubhai Udesinh Parmar  v.  State of Gujarat,  (2006) 12

SCC 268 ].

In  Pon  Adithan v.  Deputy  Director,  Narcotics  Control  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 could be recorded.   

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 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 relevant is the purpose for which such arrest or search and

seizure is made and investigation is carried out.  The law applicable in this

behalf must be certain and uniform.

52

Even  otherwise  Section  138B of  the  1962  Act  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 competent custom official.   

(b) It must have been made during the course of enquiry and proceedings

under the Customs Act.

Only  when  these  things  are  established,  a  statement  made  by  an

accused would become relevant in a prosecution under the Act.  Only then,

it can be used for the purpose of proving the truth of the facts contained

therein.  It deals with another category of case which provides for a further

clarification.  Clause (a) of sub-section (1) of Section 138B deals with one

type of persons and clause (b) deals with another.  The Legislature might

have in mind its  experience that  sometimes witnesses  do not  support  the

prosecution case as for example panch witnesses and only in such an event

an additional opportunity is afforded to the 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  may  be  such  whose

statement  was  recorded  but  while  he  was  examined  before  the  court,  it

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arrived at an opinion that is statement 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 support 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.

Confessional statement of an accused, therefore, cannot be made use of in

any manner under Section 138B of the Customs Act.  Even otherwise such

an evidence 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]}  

NON PRODUCTION OF PHYSICAL EVIDENCE

The  prosecution  alleged  that  1.4  kgs  heroin  was  concealed  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:

“i) The  cardboard  carton  allegedly  used  for carrying the heroin to test the veracity.

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ii) The bulk, which establishes the quantity recovered.

iii) The three homogenous samples of five grams each 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.”

Indisputably, the cardboard carton was not produced 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  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  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  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.”

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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  carrying  their  own  luggage”  and  there  being  no

identification  marks  on  the  same.   No material  in  this  behalf  has  been

produced  by the  respondent.   No witness  has  spoken  of  the  purported

practice.  For all intent and purport another presumption has been raised

by the High Court wherefor no material had been brought on record.  No

explanation  has  been  given  as  to  what  happened  to  the  container.   Its

absence significantly undermines the case of the prosecution.  It reduces

the evidentiary value of the statements made by the witnesses referring the

fact of recovery of the contraband therefrom.

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 guidelines could not be said to be an error

which  in  a  case  of  this  nature  can  conveniently  be  overlooked  by  the

Court.

We are not oblivious of a decision of this Court in Chief Commercial

Manager, South Central Railway, Secunderabad & Ors. v.  G. Ratnam &

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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 stated:

“In  the  cases  on  hand,  no  proceedings  for commission of penal offences were proposed to be lodged  against  the  respondents  by  the investigating officers.”

In  Moni  Shankar v.  Union  of  India  & Anr. [(2008)  3  SCC 484],

however, this Court upon noticing G. Ratnam (supra), stated the law thus:

“15. It  has  been noticed  in  that  judgments  that  Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted 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  authorities  for  whose  guidance  they  are issued.  

16. We have,  as  noticed  hereinbefore,  proceeded  on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together 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.  

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17. The  departmental  proceeding  is  a  quasi  judicial one. 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 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  meet  the requirements of legal principles. The Tribunal was, thus, entitled to arrive 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 probability. If on such evidences, the test  of  the  doctrine  of  proportionality  has  not  been satisfied, the Tribunal 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 U.P. v. Sheo Shanker Lal Srivastava [(2007) 4 SCC 669] and Coimbatore District Central  Cooperative  Bank v.  Coimbatore  Distarict Central  Cooperative  Bank  Employees  Association  and Anr. [2004 QB 1004].”

It was furthermore opined :

“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.   The  Tribunal  was  entitled  to  take  the same into consideration along with other materials brought on record for the purpose of arriving at a

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decision  as  to  whether  normal  rules  of  natural justice had been complied with or not.”

Guidelines issued should not only be substantially complied, but also

in  a  case  involving  penal  proceedings,  vis-à-vis  a  departmental

proceeding,  rigours  of  such guidelines  may be  insisted  upon.   Another

important  factor  which  must  be  borne  in  mind  is  as  to  whether  such

directions have been issued in 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.   

Recently, this Court in State of Kerala & Ors. v. Kurian Abraham (P)

Ltd.  & Anr. [(2008)  3 SCC 582],  following the earlier  decision  of this

Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held

that statutory instructions are mandatory in nature.

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  compliance  of  these  guidelines  by  the  investigating

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authority which leads to drawing of an adverse inference against them to

the effect  that  had such evidence been produced,  the same would have

gone against the prosecution.   

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 allegedly 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

requires  that  such an authority must  flow from an order  passed by the

Magistrate.  Such an order whereupon reliance has been placed is Exhibit

PJ; on a bare perusal whereof, it is apparent that at no point of time any

prayer had been made for destruction of the said goods or disposal thereof

otherwise.  What was necessary was a certificate envisaged under Section

110(1B) of the 1962 Act.  An order was required to be passed under the

aforementioned provision providing for authentication, inventory 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  52A  of  the  Act  in  terms  whereof  the  officer

empowered under Section 53 upon preparation of an inventory of narcotic

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drugs  containing  such  details  relating  to  their  description,  quality,

quantity,  mode  of  packing,  marks,  numbers  or  such  other  identifying

particulars of the narcotic drugs or psychotropic substances or 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 :

“(a) Certifying  correctness  of  the  inventory  so prepared; or

(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 drugs or substances, in the presence of such  Magistrate  and  certifying  the correctness of any list of samples so drawn.”

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-section (4) of Section 52A which reads as under :

“52A.  Disposal  of  seized  narcotic  drugs  and psychotropic substances.  

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(4)  Notwithstanding  anything  contained  in  the  Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure,  1973  (2  of  1974),  every  Court  trying  an offence  under  this  Act,  shall  treat  the  inventory,  the photographs  of  narcotic  drugs  or  psychotropic substances  and  any  list  of  samples  drawn  under  sub- section  (2)  and certified by the Magistrate,  as  primary evidence in respect of such offence.”

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.

We must  also  notice a distinction  between Section  110(1B) 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 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 the Act.  Exhibit PJ can be treated as nothing other than

an order of authentication as it is a certificate under Section 110(1B) of the

1962 Act as the aspect of disposal clearly provided for under Section 52A of

the Act is not alluded to.  The High Court in its judgment purported to have

relied upon an assertion made by the prosecution with regard to prevalence

of  a  purported  general  practice  adopted  by  the  Customs  Department  to

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obtain a certificate in terms of the said provision prior to destruction of case

property, stating:

“To a  specific  query put  to  Mr.  Guglani  by the Court with regard to aforesaid arguments, he fairly states  that  the  general  practice  adopted  by  the Customs Department is that before destroying the case property, a certificate is obtained u/s 100 (1B) of Customs Act.   He states that in this  regard,  a sample  as  per  the  provisions  contained  in  sub clause  (c)  to  clause  (1B)  is  also  drawn  for  the purposes 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  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 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- production of cardboard card board carton is also not fatal to the prosecution.”

The question which arises for our consideration is as to whether it is

permissible to do so.  Evidently it is not.  Firstly because taking recourse to

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the purported general practice adopted by the Customs Department is not

envisaged  in  regard  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 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(1B) of the 1962 Act can be recorded as

a certificate  of  authentication  and no more;  authority for  disposal  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.   

The  High  Court  proceeded  on  the  basis  that  non-production  of

physical 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 inference which dents the credibility of the

prosecution.  Even for the said purpose the retracted confession on the part

of the accused could not have been taken recourse to.  

The last but not the least, physical evidence relating to three samples

taken from the bulk amount of heroin were also not produced.  Even if it is

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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 of establishing the fact of recovery of heroin as envisaged under

Section 52A of the Act.   

The fate 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  concerned,  it  stands  admitted  that  the  discrepancies  in  the

documentary evidence available have appeared before the court, namely:

i) While original weight of the sample was 5 gms, as evidenced by Ex. PB, PC and the letter  accompanying  Ex.PH,  the  weight  of the sample in the laboratory was recorded as 8.7 gms.

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.

We are not oblivious of the fact that a slight difference in the weight

of the sample may not be held to be so crucial 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.

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The place of seizure was an airport.  The officers carrying out the search and

seizure were from the Customs Department.   They must be having good

scales with them as a marginal increase or decrease of quantity of imported

articles whether contraband or otherwise may make a huge difference under

the Customs Act.   

We cannot but also take notice other discrepancies 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.

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.

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 cumulative effect thereto is taken into consideration on

the basis whereof the permissive inference would be that serious doubts are

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created  with  respect  of  the  prosecution’s  endeavour  to  prove  the  fact  of

possession of contraband from the appellant.   

This  aspect  of  the  matter  has  been  considered  by  this  Court  in

Jitendra v. State of U.P. [(2004) 10 SCC 562], in the following terms :

“In the trial it was necessary for the prosecution to establish  by  cogent  evidence  that  the  alleged quantities  of  charas  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  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.”  

Several other lacunae in the prosecution case had 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 Department to keep the same in the safe custody.  Why such

precautions were not taken is beyond anybody’s comprehension.

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

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intact but what was not noticed by the High Court is that there are gaping

flaws in the treatment, disposal and production of the physical evidence and

the conclusion 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.

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  Section  50 of  the N.D.P.S. Act before a gazetted officer or a magistrate.  I did not mention  this  fact  in  the  panchanama  Ex.  PC.   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 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.  PC  on  thumb  impression  mark  ‘A’, witness No. 2 is written but his name is not specifically written.”

The samples taken allegedly contained the signature of the appellant

as also those of the custom officials.  PW-1, in his deposition, stated:

“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

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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 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 incorrect that portion Ex.PG/1  was  later  on  incorporated  at  my instance.”

However, in Exhibit PH against the column ‘marking on envelope (s)/

packet (s)’ there was a blank line.  It did not say a word with regard to the

accused’s signature on the sample.  Exhibit PC, however, suggests that the

samples bore the appellant’s signature.  The sample, thus, with only a seal

of custom by itself cannot be stated to be one recovered from the appellant

specially when the prosecution case is that it contained 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  thereupon

cannot be totally ignored.   

PW-2 Shri K.K. Gupta stated:

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“The panchnama was prepared after the recovery at about 8.30 P.M. before me.  I did not make offer to 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  my  presence.   I  had  gone  through  the panchnama and then I signed the same.”

He furthermore accepted:  

“It  is  correct  that  many  recoveries  have  been effected  from  the  passengers  Arian  Afghan Airlines  earlier  to  this  recovery  and  cases  are pending before this court.”   

PW-1 stated that seal had been given to PW-4, 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 at A.C. In charge Raja Sansi Airport.  On 1.8.1997, heroin One kg. 460 grams was recovered from the accused (1.460 Kgs.).   This  recovery  was  made  by  Inspector Kulwant  Singh  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 bearing seal No.122 of the  Customs  Divn.  Amritsar.   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

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case  property  was  given  to  Kulwant  Singh  for depositing 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.

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. 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 deposed falsely being official witness.”

The seal was not even deposited in the malkhana.  As no explanation

whatsoever has been offered in this behalf, it is difficult to hold that sanctity

of the recovery was ensured.   

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, however, stated that the time of seizure was

8.30 pm.  Appellant’s defence was that some carton left by some passenger

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was  passed  upon  him  being  a  crew  member  in  this  regard  assumes

importance (See Jitendra (supra) Para 6).   

Panchnama was said to have been drawn at 10.00 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 Singh (supra), it was stated :

“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  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  to  the  suspect,  by intimating  to  him that  he  has  a  right  "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 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 compliance  with  all  the  safeguards  contained  in Section 50 may result in more acquittals does not

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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 must think itself for its lapses. Indeed in every case the end result  is  important  but  the means to achieve 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 is seen to condone acts of lawlessness conducted by the investigating agency during search operations 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

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

nothing 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  examination  of  independent  witnesses  in  all

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situations may not be imperative, if they were material, in terms of Section

114(e) of the Evidence Act, an adverse inference could be drawn.   

In  a  case  of  his  nature,  where  there  are  a  large  number  of

discrepancies,  the  appellant  has  been  gravely  prejudiced  by  their  non-

examination.  It is true that what matters is the quality 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 been different if the evidence of the Investigating Officer

who  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 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

Section 50 of the Act provides for an option to be given.  This Court

in  Baldev Singh (supra) quoted with approval the decision of the Supreme

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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 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’.”

Justness  and fairness of a trial  is  also implicit  in Article 21 of the

Constitution.

A fair  trial  is again a human right.   Every action of the authorities

under the Act must be construed having regard to the provisions of the Act

as also the right of an accused to have a fair trial.   

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 appreciation of evidence 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.   

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Appreciation of evidence must be done on the basis of materials on

record and not on the basis of some reports which have nothing to do with

the occurrence in question.    

Article 12 of the Universal Declaration of Human Rights provides for

the Right  to a fair  trail.   Such rights  are enshrined in  our Constitutional

Scheme being Article 21 of the 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 land.   

It is one thing to say that even applying the well-known principles of

law, they are found to be guilty of commission of offences for which they

are charged but it is another thing to say that although they cannot be held

guilty on the basis of the materials on record, they must suffer punishment

in view of the past experience or otherwise.

PW1 states that he had asked the accused that a search be conducted

under the Act before a Gazetted Officer 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

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option  had  been  given  to  the  accused  to  be  searched  before  a  gazetted

officer.  Exhibit PA shows that option to search 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 Gazetted Officer”

The said document, therefore, indicates that the gazetted 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 credibility of the statements, having regard to these

vital discrepancies stands eroded.   

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.  Basu rule  states  that  if  a  person  in

custody  is  subjected  to  interrogation,  he  must  be  informed  in  clear  and

unequivocal terms as to his right to silence. This rule was also invoked in

Balbir Singh (supra).   

We are not oblivious that the decision of State of Himachal Pradesh

v. Pawan Kumar [(2005) 4 SCC 350] wherein Section 50 of the Act having

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been held to be inapplicable in relation to a search of a bag but in this case

the appellant’s person had also been searched.  The High Court 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,

PW1  and  PW2.   If  origin  of  principle  has  not  been  followed  and

discrepancies  and contradictions have occurred in the statements of PW1

and PW2 the same would cause doubt on the credibility of prosecution case

and  their  claim  of  upholding  procedure  established  by  law  in  effecting

recovery.

CONCLUSION

Our aforementioned findings may be summarized as follows :

1. The  provisions  of  Sections  35  and  54  are  not  ultra  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  treatment  and

disposal  of  the physical  evidence.   There are  contradictions  in  the

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statements  of  official  witnesses.   Non-examination  of  independent

witnesses and the nature of confession and the circumstances of the

recording of  such  confession  do  not  lead  to  the  conclusion  of  the

appellant’s guilt.

4. Finding on the discrepancies although if individually examined may

not be fatal to the case of the prosecution but if cumulative view of

the  scenario  is  taken,  the  prosecution’s  case  must  be  held  to  be

lacking in credibility.

5. 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.   Recoveries  have  not  been  made  as  per  the

procedure established by law.

6. The investigation of the case was not fair.

We, therefore, are of the opinion that the impugned judgment cannot

be sustained which is set aside accordingly.   

Before, however, parting with this judgment, we would 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

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stopping recurrence of such a case where a person undergoes entire sentence

before he gets an opportunity of hearing before this Court.

The appeal is allowed with the aforementioned observations.

………………………….J. [S.B. Sinha]

..…………………………J.     [V.S. Sirpurkar]

New Delhi; July 09, 2008

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