TMI Blog2008 (7) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not been made as per the procedure established by law. 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 stopping recurrence of such a case where a person undergoes entire sentence before he gets an opportunity of hearing before this Court. Appeal allowed. - CRIMINAL APPEAL NO. 1034 OF 2008 - - - Dated:- 9-7-2008 - SINHA, S.B. AND SIRPURKAR,V.S., JJ. 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-`-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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act enables the Central Government to take measures as may be necessary or expedient inter alia for the purpose of 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 punishmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant 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, 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 dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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: "WHER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, 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. 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 lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional 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 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-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 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 end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording 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 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 Bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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-`-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 gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try to find some means of getting over this technical difficulty" (Lord Mancroft 1955, col 586). It is submitted that this 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reasonable to require a trader, should need arise, to prove on the balance of probabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 everyone 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers 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 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, Fores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfession 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 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 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes 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 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 authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obtain a certificate in terms of the said provision prior to destruction of case property, stating: "To a specific query put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence 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 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 samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 tol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 beari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme 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. 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 Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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