Summary
In a prosecution under Sections 25A and 29 of the NDPS Act over the seizure of 1,364 kg of ephedrine (a controlled substance) from a leased godown, the Court upheld the conviction of the lessee found in conscious possession of the godown despite the panch witnesses turning hostile, reducing his sentence to the period undergone, but acquitted the three co-accused because the only material against them was the lessee's statement to the ATS at the time of the raid, which had no evidentiary value and could not found a conviction, and the statutory presumptions under Sections 35 and 54 could not be invoked without proof of foundational facts.
Issues
- Whether the recovery of ephedrine from the godown could be disbelieved merely because the independent panch witnesses did not support the prosecution, and whether the presumption under Section 54 of the NDPS Act could be invoked against the lessee in possession.
- Whether the presumptions under Sections 35 and 54 of the NDPS Act could be raised against the co-accused from whom nothing was recovered, without the prosecution first proving foundational facts.
- Whether a statement made by the co-accused to the ATS officials at the time of the raid, not recorded under Section 67 of the NDPS Act, could be used under Section 30 of the Evidence Act to prove the conspiracy against the other accused.
- Whether the High Court's affirmance, which adopted the trial court's findings without analysing the evidence of conspiracy, could be sustained.
Provisions considered
- Section 9A, Narcotic Drugs and Psychotropic Substances Act, 1985Empowers the Central Government to regulate or prohibit the production, manufacture, supply, distribution, possession, transport and sale of controlled substances used in making narcotic drugs or psychotropic substances. Ephedrine is listed in the Schedule to the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013 and is therefore a controlled substance subject to that Order. (¶¶ 32, 37, 38, 39)
- Section 25A, Narcotic Drugs and Psychotropic Substances Act, 1985Punishes contravention of an order made under Section 9A with rigorous imprisonment up to ten years and fine up to one lakh rupees. The trial court had imposed the maximum sentence on all accused; the Court sustained the conviction of the lessee alone. (¶¶ 33, 39, 41, 70, 71)
- Section 29, Narcotic Drugs and Psychotropic Substances Act, 1985To fasten liability for abetment or criminal conspiracy the prosecution must prove abetment, a conspiracy denoting a meeting of minds and agreement to commit an offence, and some overt act in furtherance of that agreement; the evidence against the co-accused did not establish this. (¶¶ 34, 40, 41, 69)
- Section 35, Narcotic Drugs and Psychotropic Substances Act, 1985The presumption of culpable mental state operates only after the prosecution proves beyond reasonable doubt the foundational facts constituting the actus reus; an accused cannot be asked to prove a negative before that. Once raised, the presumption is rebutted only if the accused proves a contrary fact beyond reasonable doubt. (¶¶ 35, 53, 54, 55, 57, 58, 59, 60)
- Section 54, Narcotic Drugs and Psychotropic Substances Act, 1985The presumption from possession of illicit articles requires proof of possession beyond reasonable doubt. It was invoked against the lessee found in possession and control of the godown, who offered only a bare denial in his Section 313 statement, but not against the co-accused from whom nothing was recovered. (¶¶ 36, 47, 49, 50, 51, 53, 55)
- Section 67, Narcotic Drugs and Psychotropic Substances Act, 1985The statement of the lessee relied on by the prosecution was not recorded under this provision but was taken by the ATS officials at the godown when he was apprehended; it therefore had no evidentiary value. (¶ 64)
- Section 30, Indian Evidence Act, 1872The courts below treated the lessee's statement as a confession of a co-accused under this provision. Following Kashmira Singh, Chandrakant Chimanlal Desai and Haricharan Kurmi, a co-accused's confession is not evidence in the ordinary sense and cannot found a conviction; the court must first marshal the other legal evidence and may use the confession only to lend assurance to it. (¶¶ 61, 62, 65, 66, 67, 68)
- Section 313, Code of Criminal Procedure, 1973The lessee's statement contained a total denial and no explanation for the contraband found in the godown under his control, which supported invoking the presumption under Section 54 against him. (¶¶ 15, 16, 48, 49)
Held
- The hostility of the independent panch witnesses does not by itself render a search illegal or a recovery unbelievable; the court may rely on the oral evidence of the members of the raiding party. Where the accused had taken the godown on lease, was present at the raid and was in possession and control of the premises from which 55 boxes of ephedrine weighing 1,364 kg were recovered, and offered only a bare denial under Section 313 CrPC, he was in conscious possession and the presumption under Section 54 of the NDPS Act applies. (¶¶ 43, 44, 45, 46, 47, 49, 50, 51)
- The statutory presumptions under Sections 35 and 54 of the NDPS Act come into play only after the prosecution establishes the foundational facts, that is the facts constituting the actus reus, beyond reasonable doubt (the 'rule of foundational facts' from Baldev Singh and Noor Aga). Without an actus reus there is nothing from which mens rea can be presumed, and the presumption cannot be allowed to substitute for proof of guilt by asking the accused to prove a negative. (¶¶ 54, 55, 56, 57, 58, 59)
- Once the presumption is raised, the accused may rebut it by showing the prosecution case to be improbable or absurd or by leading defence evidence, but it stands rebutted only where the accused establishes a fact contrary to the presumption beyond reasonable doubt. (¶ 60)
- The statement of the lessee made to ATS officials at the time of the raid, not recorded under Section 67 of the NDPS Act, has no evidentiary value, and in any event a co-accused's confession cannot be the foundation of a conviction. The court must first marshal the other legal evidence excluding the confession; only if some legal evidence connects the accused with the crime may the confession be used in aid of it. (¶¶ 61, 64, 65, 66, 67, 68)
- The High Court, in a judgment of over 141 pages, recorded the prosecution case and submissions and adopted the trial court's findings on Sections 42, 50, 52 and 57 of the NDPS Act without returning findings of its own, and never discussed or analysed the evidence of conspiracy or contravention of Section 9A; it failed to address the core issues. (¶¶ 23, 27, 28, 29, 30)
- As the witnesses on the alleged meeting in Kenya, the hawala transfers, the truck transport and the SIM cards all turned hostile or did not support the prosecution, no phone was recovered, no nodal officer was examined and the investigating officer did not prove the conspiracy, there was no legal evidence connecting the other three appellants with the seizure; their conviction under Sections 25A and 29 could not stand. (¶¶ 44, 53, 73)
Result
Appeals of Narendra Kacha partly allowed: conviction affirmed but sentence reduced to the period already undergone (about 8 years 10 months) and bail bonds discharged. Appeals of the other three appellants allowed; they are acquitted of all charges and their bail bonds discharged. Pending applications disposed of.