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TMI Blog2006 (9) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... e other side of the Bureau. There was a pan shop just in front of the Bureau of which Girish (PW-2) was the owner. A raiding team was constituted which included Shri S.K. Bajpai, Inspector (who was then incharge of the office of the Superintendent of Police of the Bureau). Girwar Puri (PW-5) was also member of the said team. Appellant was allegedly seen proceeding to catch a bus for Mhow. He was seen having a black rexene bag in his hand. Girwar Puri, Sub-Inspector of the Bureau apprehended him. He was interrogated. He disclosed his name. He allegedly was given an option of search by a magistrate or a gazetted officer in terms of Section 50 of the NDPS Act or by the said PW-5. The search was conducted and opium weighing 1.300 kgs. was recovered. A currency note of Rs. 100 was also found on his person. A report was prepared purported to be in terms of Section 57 of the NDPS Act and was placed before the superior officer who was none other than the said Shri Bajpai. One Murali Dhamkani (PW-6) was appointed as an investigating officer. He was also a party to the raid. Although information was received by Sabiha Khatun, she for reasons known only to the prosecution, was not examined. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sisted of Inspector Bajpai, Inspector Murli Dhamkani (PW-6), Inspector Sabiha Khatun, himself, a few constables and a driver of government vehicle. They waited at the bus stop for about an hour, although the same was just in front of their office. The identity of Appellant had not been disclosed still then. Although a large number of persons might have passed through the road, Appellant alone was suspected and apprehended. How his identity came to be known is a mystery. A weighing scale was with the raiding party. A chemical kit was also being carried by them. Allegedly, statement of the accused was also recorded. A first information report was submitted to the Superintendent who was none other than the said Shri Bajpai, who indisputably was a part of the raiding team. It has not been disputed that the information from the informer was received by Ms. Sabiha Khatun. It was at about 1 O'clock in the noon. It is curious that PW-5 stated that he was also present at the time when the informer was making his statement before Ms. Sabiha Khatun although, as indicated hereinbefore, the information recorded by the said Sabiha Khatun was said to have been made known to the witnesses. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not known to him. According to him, the informer before him did not say that the opium would be concealed in a leather bag. As regards the identity of the superior officer before whom the information was disclosed by Ms. Sabiha Khatun also is inconsistent, as it was stated: "43. Before proceeding to spot from office, we have given information of our departure to Narcotic Superintendent Shri Ratanlal Goudia, then said that Madam might have given. Whether it was given in writing or orally, I have no information about it. I, on my own have not given information to my superior officer. Before proceeding Madame Sabiha had got acquainted with the informer's information to superior officer Shri Godia. Then said, at that time senior Inspector Shri S.K. Bajpai was in charge Superintendent and he was got acquainted with informer's information. This statement is made by witness after perusing Ex. P/16. I am stating this fact because on Ex. P/16 there are signatures of Bajpai Sahab." He, thus, had to refresh his memory as who was the incharge of the office of the Superintendent from the document only which was exhibited as Ex. P/16. He accepted that PWs 1 and 2 were called in office before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, is well known, does not prove itself. The contents are required to be proved by the maker thereof. Ms. Sabiha Khatun alone could have proved the correctness or otherwise of the contents of the said document. It was all the more necessary as PW-5 conceded that all conversations between Ms. Sabiha Khatun and the informer did not take place in his presence. In a case under the NDPS Act, recovery of contraband in presence of the independent person assumes importance. The seizure witnesses, viz., PWs 1 and 2 cannot be said to be independent in that way. PW-2 was having a Pan Shop in front of the Bureau. Despite the fact that he was to carry on his business in front of the Bureau, he did not support the prosecution case. Why he was chosen to be a witness has not been disclosed. As noticed hereinbefore, PW-1 was an autorickshaw driver. A constable on duty ordinarily would not know him. Why PW-5 had sent for PWs 1 and 2 as search witnesses and that too half an hour before leaving the office has not been explained. If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of such statements made by the said witnesses, it was all the more necessary to examine all the departmental witnesses. It may be that the articles seized had been sent for chemical analysis and were found to be analysed but that loses much of its significance as the prosecution must prove its case of recovery of the contraband beyond all reasonable doubt. It was furthermore urged that Appellant has not been able to prove the defence raised by him. It was not necessary for him to do so. It was contended that the burden to prove the defence set up by him was on Appellant and he failed to discharge the same. In a case like the present one, the said submission cannot be appreciated. The prosecution was required to prove its case beyond all reasonable doubt. If the prosecution has failed to prove its case, it cannot fill up the lacuna by contending that Appellant has not proved its defence. Our attention has been drawn to Section 103 of the Indian Evidence Act. The said provision has no application in this case. Appellant did not raise a plea of alibi. Plea of alibi by way of defence stands on a different footing. As and when such a defence is raised, ordinarily other defences a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, this Court as also various High Courts have emphasized the need of conducting a search in presence of independent persons. The law-requires that such search should normally be conducted by a magistrate or a gazetted officer. Even presence of a gazetted officer in the raiding team would not subserve the requirements of Section 50 of the Act. [See Jadunandan Roy v. The State of West Bengal, (2000) CWN 373 and Harun Rashid v. State of West Bengal & Anr., (2005) 2 Cal LT 262]. There is another aspect of the matter which cannot be lost sight of. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth. In Mousam Singha Roy and Ors v. State of West Bengal, [2003] 12 SCC 377, this Court held : "It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused." In Sharad Birdhichand Sarda v. State of Maharashtra, [1984] 4 SCC 116, it was held : "We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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