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2022 (10) TMI 575 - SUPREME COURTSmuggling - Ganja - possession of contraband item - lack of corroboration of the testimony of police witnesses by independent witnesses - raising of presumption - shifting of burden on accused - section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- Exhibit C-1 is the notice purportedly served on the independent witness Firuturam Banware. This notice directs the said witness to appear at 17:10 hrs. at the place indicated therein namely, “Saida Tiwari Para By-pass Main Road”. Even according to PW-7 this notice to the witness was sent only at 17:10 hrs., to be served at the residence of the witness located 1 Km. away. Therefore, there was no way that PW-7 could have expected the witness to be available at the place of incident at 17:10 hrs - Exhibit C-2 is the notice served on the appellant herein (A-1) under Section 50 of the Act. The time shown therein is 18:00 hrs. This notice requires the appellant to indicate whether he would like to be searched in the presence of Magistrate or Gazetted Officer. It is also stated in the notice that the contents thereof were read over in the presence of witnesses. Exhibit C-3 is the consent Panchnama of the appellant agreeing to be searched by the police officer. This Panchnama contains the names of Sunil Malghani and Firuturam Banware (CWs 1 and 2). Even the search Panchnama of the accused marked as Exhibit C-4 refers to the presence of CWs 1 and 2 at the time of search. Right from the beginning, the co-accused Reena Das (A-2) was implicated at every stage. Admittedly, the information received by PW-7 at 16:50 hrs. on 31.05.2014 contained a reference to the appellant as well as the co-accused Reena Das. But for some strange reason, PW-7 chose to serve a notice under Section 50 of the Act only on the appellant and not on the co-accused. PW-7 also omitted deliberately or otherwise, to record, (i) the consent Panchnama of co-accused; (ii) the search Panchnama of the co-accused; and (iii) the recovery Panchnama in relation to the coaccused. It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant will also be entitled to the same benefit as given by the Special Court to the co-accused. The appellant is also entitled to the benefit of doubt. Therefore, the appeal is allowed.
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