GANGADHAR alias GANGARAM V. STATE OF MADHYA PRADESH CRIMINAL APPEAL NO. 504 OF 2020 (Arising out of SLP (Crl.) No.7415 of 2019), 05th August, 2020.
The Bench comprising of Hon’ble Justice Navin Sinha and Hon’ble Justice R.F. Nariman pronounced the judgement against the verdict given Madhya Pradesh High court
The appellant was held to be the owner of the House in question from which the ganja was recovered, relying upon the voters list of 2008 rejecting his defence that he had sold the house to co-accused Gokul Dangi on 12.06.2009. Gokul Dangi has been acquitted in trial.
Shri Puneet Jain, learned counsel for the appellant submitted that the conviction based on a mere presumption of ownership of the house, without any finding of conscious possession was unsustainable. Reliance was placed on Gopal vs. State of Madhya Pradesh, (2002) 9 SCC 595. The police had received information that Gokul Dangi had kept contraband in his house. The appellant and Ghasiram, the village chowkidar had identified the house of the accused to the police when it came to the village for search and seizure. Both of them were witness 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 the police to investigate properly.
Ms. Swarupama Chaturvedi, learned Addl. Advocate General for the State, submitted that P.W.11 had denied being a witness to the sale agreement alleging that his thumb impression had been impersonated. The deed was therefore rightly held to be a forged and fabricated document confirmed by the voter list entry of 2008 that the house belonged to the appellant. The village panchayat records also mentioned the ownership of the appellant.
The Court observed that;
In view of the nature of evidence available it is not possible to hold that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, 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.Normally this Court in exercise of its jurisdiction under Article 136 of the Constitution does not interfere with concurrent findings of facts delving into appreciation of evidence. But in a given case, concerning the liberty of the individual, if the Court is satisfied that the prosecution had failed to establish a prima facie case, the evidence led was wholly insufficient and there has been gross misappreciation of evidence by the courts below bordering on perversity, this Court shall not be inhibited in protecting the liberty of the individual.
The conviction of the appellant is held to be unsustainable and is set aside. The appellant is acquitted. He is directed to be set at liberty forthwith unless wanted in any other case.
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– Karthik K.P (School of Law, SASTRA Deemed to be University)
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