TMI Blog2020 (8) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... , the guilt of the appellant without establishing the same beyond reasonable doubt - The police investigation was very extremely casual, perfunctory and shoddy in nature. The appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution. The consideration of evidence by the Trial Court, affirmed by the High Court, borders on perversity to arrive at conclusions for which there was no evidence. Gross misappreciation of evidence by two courts, let alone poor investigation by the police, has resulted in the appellant having to suffer incarceration for an offence he had never committed. The conviction of the appellant is held to be unsustainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness to the panchnama for breaking open the lock to the house when the contraband was recovered. It stands to reason why the appellant would take the police to his own house, have the lock broken to recover the contraband and implicate himself. Ghasiram and P.W.11, were both witnesses to the sale agreement dated 12.06.2009, Exhibit P28 executed by the appellant in favour of Gokul Dangi. It was produced before the police by the appellant the very next day but was never investigated, Ghasiram has not been examined for no explicable reasons. The entries in the village panchayat records with regard to ownership of the house had not been investigated. The appellant was subsequently made an accused during investigation because of the failure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.6, the witness stated that the gram panchayat records had been looked into by the former. No explanation was offered for not investigating the sale agreement. The appellant was acknowledged not to be living in the house from where the contraband was recovered, but was alleged to be using it as a store room on basis of no evidence whatsoever. 7. P.W. 3 and P.W.7, the police constable who had accompanied P.W. 6, deposed that the appellant and Ghasiram had identified the house as belonging to Gokul Dangi which was corroborated by the panchayat records. 8. Ghasiram, as the village chowkidar was the best person in the know of the ownership and possession of the house. He was one of the two witnesses to the sale agreement Exhibit P28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 59. 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. 10. The stringent provisions of the NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered it sufficient to obtain a certificate Exhibit P37 signed by P.W. 14 who acknowledged her signature but denied knowledge of the contents of the certificate. The voters list entry of 2008 being prior to the sale is of no consequence. It is not without reason that the coaccused had absconded. 13. The appellant was held guilty and convicted in view of his name being recorded as the owner of the house in the voters list 2008, ignoring the fact that sale agreement was subsequent to the same on 12.06.2009. The prosecution cannot be held to have proved that Exhibit P18 was a fabricated and fictitious document. No appeal has been preferred by the prosecution against the acquittal of the co accused. 14. In view of the nature of evide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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