# 'f NOOR AGA v. STATE OF PUNJAB & ANR

- **Citation:** [2008] 10 S.C.R. 379
- **Court:** Supreme Court of India
- **Decided:** 2008-07-09
- **Case number:** Criminal Appeal No. 1034 of 2008
- **Bench:** S.B. Sinha, V.S. Sirpurkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-noor-aga-v-state-of-punjab-anr-23468
- **Pages:** 75

## Headnote

Narcotic Drugs and Psychotropic Substances Act, 1985:
ss. 22, 23, 52A, 53 and 53A -Possession of contraband
- Recovery - Prosecution - Confessions made by accused c
before Customs authorities - During trial confession retracted
-
Conviction by courts below -
On appeal, held: Conviction
not justified - In the facts of the case, recovery not proved
*-+
beyond reasonable doubt - Investigation of the case not fair
and reasonable -
There are discrepancies in the treatment D
and disposal of physical evidence leading to drawl of negative inference - Cumulative effect of the facts of contradiction
in the statements of the official witnesses, failure to examine
independent witnesses and nature of confession and circumstances of recording of confession and other lacunae in the
E
prosecution case, do not lead to guilt of accused -
Constitution of India, 1950 - Articles 14 and 21 -
Standing Order No.
1of1989- Section 3.1- Evidence Act, 1872- s. 114 (e) and
"' -;.
(g) - Customs Act, 1962 - s.110(18).
ss. 35 and 54 - Reverse burden of proof - Constitutional
F
validity of - Held: Are ex faciedel not unconstitutional - A
right to be presumed innocent has to be applied subject to
exceptions - Such presumption is a human right and cannot
be equated with fundamental right enshrined under Article 21
- Constitutionality of penal provision providing for reverse burG
..,.
den of proof must be tested on the anvil of State's responsibil-
+
ity to protect innocent citizens - Procedural requirements are
required to be strictly complied with -Evidence Act, 1872 - s.
25 - Customs Act, 1962 - ss. 108 and 1388 - International
379
H
380
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
Covenant on Civil and Political Rights (1966) - Article 14(2) -
Universal Declaration of Human Rights (1948) - Article 12Eutopean Convention for Protection of Human Rights and
Fundamental Freedoms- Article 6.2Evidence -
Reverse
burden of proof
B
Evidence -
Confession -
Retracted confession -
Reliance on - For con'viction under NDPS Act- Confession made
under s. 108 of Customs Act -
Plea of accused that confession was not voluntary but under threat and distress -
Held:
Provisions of Customs Act cannot be applied for conviction
C under any other statute -
Customs Officer, by virtue of legal
fiction would be deemed to be police officer -
Thus confession made to them would run counter to s. 25 of Evidence Act
- s. 108 must give way to Article 20(3) of the Constitution - A
retracted confession can be relied on only if it is voluntary -
D Burden to prove that confession was made voluntarily is on
the prosecution - Narcotic Drugs and Psychotropic Substances Act, 198~ ss. 53 and 53A - Constitution of India,
1950 - Article 20(3) -Penal Code, 1860 -
ss. 193 and 228 -
Customs Act, 1962 - ss. 108 and 1388.
E
International Law:
International Covenant on civil and Political Rights -
Article 14 (2) - Presumption of innocence - Held: It is a human right - It cannot per se be equated with fundamental right
F
under Article 21 of the Constitution -
Constitution of India,
1950 - Article 21.
Doctrines/Principles:
(i) Doctrine of Compatibility.
G
(ii) Doctrine of constitutionality.
(iii) Doctrine of res ipsa loquitur.
Appellant-an Afghan national, presented himself before authorities for Customs clearance at airport. He was
H searched by the Gazetted Officer of the Customs Depart-
NOOR AGA v. STATE OF PUNJAB & ANR.
381
~-.,
ment and 22 packets of brown power weighing 1 Kg. 400
A
gms. were recovered from a carton be·longing to him. Appellant was taken into custody immediately thereafter by
the customs authorities. He was formally arrested 15
r\
hours after the recovery. Appellant confessed his guilt on
two occasions. As per the Forensic Report, the alleged
B
contraband was found to be of white colour. Appellant in
his examination u/s 313 Cr.P.C. denied in categorical terms
that the carton belonged to him. He also retracted from
his alleged confession. Trial Court convicted the appellant u/s. 22 and 23 of Na

## Text

_Characters 0–39,797 of 142,428. This is a partial read: ask again with offset=39797 for what follows._

[2008] 10 S.C.R. 379
-'f
NOOR AGA
A
v.
STATE OF PUNJAB & ANR.
(Criminal Appeal No. 1034 of 2008)
JULY 9, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985:
ss. 22, 23, 52A, 53 and 53A -Possession of contraband
- Recovery - Prosecution - Confessions made by accused c
before Customs authorities - During trial confession retracted
-
Conviction by courts below -
On appeal, held: Conviction
not justified - In the facts of the case, recovery not proved
*-+
beyond reasonable doubt - Investigation of the case not fair
and reasonable -
There are discrepancies in the treatment D
and disposal of physical evidence leading to drawl of negative inference - Cumulative effect of the facts of contradiction
in the statements of the official witnesses, failure to examine
independent witnesses and nature of confession and circumstances of recording of confession and other lacunae in the
E
prosecution case, do not lead to guilt of accused -
Constitution of India, 1950 - Articles 14 and 21 -
Standing Order No.
1of1989- Section 3.1- Evidence Act, 1872- s. 114 (e) and
"' -;.
(g) - Customs Act, 1962 - s.110(18).
ss. 35 and 54 - Reverse burden of proof - Constitutional
F
validity of - Held: Are ex faciedel not unconstitutional - A
right to be presumed innocent has to be applied subject to
exceptions - Such presumption is a human right and cannot
be equated with fundamental right enshrined under Article 21
- Constitutionality of penal provision providing for reverse burG
..,.
den of proof must be tested on the anvil of State's responsibil-
+
ity to protect innocent citizens - Procedural requirements are
required to be strictly complied with -Evidence Act, 1872 - s.
25 - Customs Act, 1962 - ss. 108 and 1388 - International
379
H
380
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
Covenant on Civil and Political Rights (1966) - Article 14(2) -
Universal Declaration of Human Rights (1948) - Article 12Eutopean Convention for Protection of Human Rights and
Fundamental Freedoms- Article 6.2Evidence -
Reverse
burden of proof
B
Evidence -
Confession -
Retracted confession -
Reliance on - For con'viction under NDPS Act- Confession made
under s. 108 of Customs Act -
Plea of accused that confession was not voluntary but under threat and distress -
Held:
Provisions of Customs Act cannot be applied for conviction
C under any other statute -
Customs Officer, by virtue of legal
fiction would be deemed to be police officer -
Thus confession made to them would run counter to s. 25 of Evidence Act
- s. 108 must give way to Article 20(3) of the Constitution - A
retracted confession can be relied on only if it is voluntary -
D Burden to prove that confession was made voluntarily is on
the prosecution - Narcotic Drugs and Psychotropic Substances Act, 198~ ss. 53 and 53A - Constitution of India,
1950 - Article 20(3) -Penal Code, 1860 -
ss. 193 and 228 -
Customs Act, 1962 - ss. 108 and 1388.
E
International Law:
International Covenant on civil and Political Rights -
Article 14 (2) - Presumption of innocence - Held: It is a human right - It cannot per se be equated with fundamental right
F
under Article 21 of the Constitution -
Constitution of India,
1950 - Article 21.
Doctrines/Principles:
(i) Doctrine of Compatibility.
G
(ii) Doctrine of constitutionality.
(iii) Doctrine of res ipsa loquitur.
Appellant-an Afghan national, presented himself before authorities for Customs clearance at airport. He was
H searched by the Gazetted Officer of the Customs Depart-
NOOR AGA v. STATE OF PUNJAB & ANR.
381
~-.,
ment and 22 packets of brown power weighing 1 Kg. 400
A
gms. were recovered from a carton be·longing to him. Appellant was taken into custody immediately thereafter by
the customs authorities. He was formally arrested 15
r\
hours after the recovery. Appellant confessed his guilt on
two occasions. As per the Forensic Report, the alleged
B
contraband was found to be of white colour. Appellant in
his examination u/s 313 Cr.P.C. denied in categorical terms
that the carton belonged to him. He also retracted from
his alleged confession. Trial Court convicted the appellant u/s. 22 and 23 of Narcotic Drugs and Psychotropic c
Substances Act, 1985. The conviction was confirmed by
High Court.
~-~
In appeal to this court appellant contended that ss. 35
and 54 of the Act imposing reverse burden on an accused
is contrary to Article 14 (2) of the International Covenant on D
Civil and Political Rights which provides that an accused
is innocent until proved 'guilty' and thus ultra vires Articles
14 and 21 of the Constitution of India; that confessions of
the accused before customs authorities are inadmissible
in evidence being hit by s. 25 of Evidence Act, as s. 108 of E
customs Act should be read coupled with ~. 53 and 53A of
the Act; that a heightened standard of proof is required to
be discharged by the prosecution to establish foundational
~ 1'
fac-ts and the same has not been done in the instant case;
that in view of the facts that there was failure to produce
F
physical evidence before the Court, there was failure to
examine independent witnesses and there were discrepancies in the statements of the official witnesses with regard to search and seizure, conviction is not sustainable.
""
:~
Allowing the appeal, the Court
G
HELD: 1.1 The provisions of Sections 35 and 54 of
Narcotic Drugs and Psychotropic Substances Act, 1985
are not ultra vires the Constitution of India. However, procedural requirements laid down therein are required to H
382
SUPREME COURT REPORTS
- [2008] 10 S.C.R.
A be strictly complied with. Only because the burden of proof
under certaifl circumstances is placed on the accused, the
same, by itself, would not render the impμgned provisions
unconstitutional. [Paras 43 and 151] [408-8, 452-C,D]
1.2 Sections 35 and 54 of NDPS Act may have to be
)- ,
B read in the light of Articles 14 and 21 of the Constitution
of India. However, limited inroad on presumption would
be justified. The Act specifically provides for the exceptions. It is a trite law that presumption of innocence being
a human right cannot be thrown aside, but it has .to be
C applied subject to exceptions. [Paras 65, ·67 and 71] [413F, 415-A, 416-F]
1.3 Presumption of innocence is a human right as
envisaged under Article 14(2) of the International Cov1_
0
enant on Civil and Political Rights. It, however, cannot
per se be equated with the fundamental right and liberty
adumbrated in Article 21 of the Constitution of India. [Para
42] [407-G]
E
State v. Basson 2004 (6) BCLR 620 (CC) - referred to.
'War; Violence, 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 43- referred to
F
1.4 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.
The provision for reverse burden is not only provided for
under the special· Acts like the present one but also unG der the general statutes like IPC. The Evidence Act provides for such a burden on an accused in certain matters,·as, for example, under Section 113Aand 113Bthereof.
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,
H
NOOR AGA v. STATE OF PUNJAB & ANR.
383
... ...,
burden is shifted to the accused. The doctrine of res ipsa
A
loquitur providing for a reverse burden has been applied
not only in civil proceedings but also in criminal proceedings. [Paras 44, 50 and 68] [408-C, 410-A,B,C, 415-B]
Mis. Seema Silk and Sarees and Anr. v. Directorate of
'
~
Enforcement and Ors. 2008 (7) SCALE 624 - relied on
8
Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 (1)
SCALE 421; Hiten P Dalal v. Bratindranath Banerjee 2001
(6) SCC 16; Alimuddin vs. King Emperor 1945 Nagpur Law
Journal 300; Syed Akbar vs. State of Kamataka AIR 1979 c
SC 1848 Jacob Mathew vs. State of Punjab 2005 (6) SCC 1 ;
State of A.P v. C. Uma Maheswara Rao and Anr. 2004 (4) SCC
399; B. Nagabhushanam v. State of Kamataka 2008 (7)
SCALE 716 - referred to.
·-~
Regina v. Lambert 2001 UKHL 37 : 2001 (3) All ER 577; D
State v. Coetzee 1997 (2) LRC 593; R. v. Hansen 2007 NZSC
7; Home vs. Dorset Yacht Company 1970 (2) ALL E.R. 294referred to.
The Presumption of Innocence in English Criminal Law,
E
1996 Crim.LR. 306- referred to.
1.5 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
,,. t
may be constitutional but a prosecution thereunder may
F
not be held to be one. 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
G
accused, thus, must be tested on the anvil of the State's
\.
responsibility to protect innocent citizens. [Paras 44, 51
and 52] [408-C,D, 410-C,D,E]
1.6 The procedures laid down under the Act being
stringent in nature, however, must be strictly complied
H
384
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A with. Provisions imposing reverse burden, however, must not
only be required to be strictly complied with but a1so may be
subject to proof of some basic facts as envisaged under the
statute in question. 'Reason fo believe', as provided in several provisions of the Act and as defined in Section 26 of IPC
B on the part of the officer concerned is essentially a question
offact. [Paras 46, 47 and 75] [408-E,F, 419-E,G]
Directorate of Revenue and Anr. v. Mohammed Nisar
Holia 2008 (2) SCC 370 - referred to.
c
1. 7 The court must assess the importance of the right
being limited to our society and this must be weighed
against the purpose of the limitation. The purpose of the
limitation is the reason for the law or conduct which limits the right. [Para 53] [410-E,F]
D
S v. Olamini; S v. Dladla and Ors. 1999 (7) BCLR 771 (CC)
i--.
- referred to.
Glanville Williams, Textbook of Criminal Law (2"d Edn.)
page 56 - referred to.
E
1.8 Independence of judiciary must be upheld. The
superior courts should not do something that would lead
to impairment of basic fundamental and human rights of
an accused. [Para 72] [416-G]
The State v. Abdul Rashid Khoyratty, 2006 UKPC 13 -
F
referred ·to.
2.1 The fact of recovery has not been proved beyond
all reasonable doubt which is required to be established
before the doctrine of reverse burden is applied. RecovG eries have not been made as per the procedure established by law. The investigation of the case was not fair.
[Para 151] [452-G, 453-A]
2.2 The provisions of NDPS Act and the punishment
prescribed therein being indisputably stringent, the exH tent of burden to prove the foundational facts on the pros-
NOOR AGA v. STATE OF PUNJAB & ANR.
385
ecution, i.e., 'proof beyond all reasonable doubt' would A
be more onerous. A heightened scrutiny test would be
necessary to be invoked. Whereas, on the one hand, the
court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold B
the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon
scrupulous compliance of the provisions of the Act for the
purpose of upholding the democratic values. It is necessary for giving effect to the concept of 'wider civilization'. It c
is a well settled principle of criminal jurisprudence that more
serious the offence, the stricter is the degree of proof. A
higher degree of assurance, thus, would be necessary to
convict an accused. [Para 77] [420-B,C,D,E,F]
State of Punjab v. Baldev Singh, 1999 (3) SCC 977; D
Ritesh Chakravarty v. State of Madhya Pradesh, JT 2006 (12)
SC 416 - relied on.
2.3 Sections 35 and 54 of NDPS Act, no doubt, raise
presumptions with regard to the culpable mental state on
the part of the accused as also place burden of proof in
E
this behalf on the accused; but the said provision would
clearly show that presumpt_ion would operate in the trial
of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden .exists
upon the prosecution and only when it stands satisfied,
F
the legal burden would shift. Even then, the standard of
proof required for the accused to prove his innocence is
not as high as that of 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 'preG
ponderance of probability'on the accused. If the prosecution fails to prove the foundational facts so as to attract the
rigours of Section 35 of NDPS Act, the actus reus which is
possession of contraband by the accused cannot be said
to have been established. [Para 79] [421-8,C,D, E]
H
·,.
;·
:..,.,!~
38~
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
2.4 With a view to bring within its purv_iew the requirements of Section 54 of the Act, element of possession of
the contraband was essential so as to shift the burden
on tt:ie accused. The provisions being exceptions to the
general rule, the generality thereof would continue to be
s operative, namely, the element of possession will have to
be proved beyond reasonable doubt. [Para 80] [421-E,F]
. 2.5 Whether the burden' on the accused is a legal
bu.rden· or an evidentiary burden would depend on the
statute in question. The purport and object thereof must
C also be taken into consideration in determining the said
qu_estion. It must pe1ss 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 is an evidentiary burden
.0 and not merely a legal burden. The trial must be fair. The
.accused must be provided with opportunities to effectively defend himself. [Para 81] [421-G, 422-A]
E
She/drake v. Director of Public Prosecutions 2005 (1) All
ER 237 - refe.rred to.
. · Article by Richard Glover titled "She/drake Regulatory
Offences and Reverse Legal Burdens of Proof' 2006 (4) Web
JCLI - referred to.
2.6 In India the statute mw~t not only pass the test of
F
reasonableness as contained in Article 1.4 of the Consti-
:tution of India but also the 'liberty' clause contained in
Article 21 of the Constitution of India. Placing persuasive
b~rden on the accused persons must justify the loss of
protection which will be suffered by the accused. FairG ness and reasonableness of trial as also maintenance of
. the, individual dignity of the accused must be uppermost
-~n the court's mind .. [Paras 83 and 84] [425-G, 426-A,B]
R. v. Johnstone (2003) 3 All ER 884 - referred to.
H
3.1 A fundamental error has been committed by the
\
). ,
•
:r
" ,
•
NOOR AGA v. STATE OF PUNJAB & ANR.
387
High Court in placing explicit reliance upon Section 108 A
of the Customs Act. Every proceeding in terms of subsection (4) of Section 108 would be a judicial proceeding·
within the meaning of Sections 193 and 228 IPC. The enquiry contemplated under Section 108 is for the purpose
of Customs Act and not for the purpose of convicting an s
accused under any other statute including the provisions
of the Act. [Paras 87 and 88] [427-F,G, 428-A]
3.2 The High Court should have considered the question having regard to the stand taken by the appella"t that '
the confessions made by him were under threat and disC
tress and not made voluntarily. Only because certain personal facts known to him were written, the same by itself
would not lead to the conclusion that they were free and
voluntary. [Para 90] [428-C]
3.3 Clause (3) of Article 20 of the Constitution proD
vides that no person accused of any offence shall be compelled to be a witness against himself. Any confession
made under Section 108 of the Customs Act must give
way to Article 20(3) wherefor there is a conflict between
the two.[Para 91] [428-D,E]
E
3.4 A retracted confessional statement may be relied upon but a rider must be attached thereto namely if it
is made voluntarily. The burden of proving that such a
confession was made voluntarily would, thus, be on the
F
prosecution. [Para 91] [428-E]
3.5 The ·extent of right to a fair trail of an accused
must be determined keeping in view the fundamental
rights as adumbrated under Article 21 of the Constitution
of India as also the International Convention and CovG
enants chartered in Human Rights. Criminal justice delivery system prevailing in India lacks mechanisms to remedy systemic violations of the accused's core constitutional rights which include the right to effective assistance
of counsel, the right to have exculpatory evidence disH
388
SUPREME COURT REPORTS
(2008] 10 S.C.R.
A closed, and the right to be free from suggestive· eyewitness identifications, coerced custodial interrogation and
the fabrication of evidence. (Para 94] (430-A,B,C]
Aggregation in Criminal Lawby Brandon L. Garrett April
2007 California Law Review Vol. 95 No.2 page 385 at 393
8 - referred to.
3.6 When, however, the custom officers exercise their
power under Customs Act, it is not exercising i~ power
as an officer to check smuggling .of goods; .it acts for the
c purpose of detection of crime and bringing an accused
to book. [Para 95] [430-D]
State of Punjab v. Harkat Ram AIR 1962 SC 276- referred to
D
3. 7 Section 25 of the Evidence Act was enacted to
put a stop to the extortion of confession, by taking away
from the police officers as the advantage ·of proving such
exforted confession during the trial of accused persons.
[Para 97] (431-F,G]
E
Queen Empress v. Babula/ ILR (1884) 6 All. 509 - referred to.
3.8 NDPS Act is a complete code by itself. The customs .officers have been clothed with the powers of police officers under NDPS Act. It does not, therefore, deal
only with a matter of imposition of, penalty or an order of
F confiscation of the properties under the Act but also with
the offences having serious consequences. Section 53
of NDPS Act empowers the customs officers with the powers of the Station House Officers. An officer invested with
the power of a police officer by reason of a special statG ute in terms of sub-section (2) of Section 53 would, thus,
be rleemed to be police officers and for the said purposes
of Section 25 of Evidence Act shall be applicable. A legal
fiction must be given its fult effect. [Paras 98, 99and 100]
(431-G, 432-A,B,C]
.
H
J.
NOOR AGA v. STATE OF PUNJAB & ANR.
389
UCO Bank and Anr. v. Rajinder Lal Capoor 2008 (6) A
SCALE 1 - referred to.
3.9 Section 53A of NDPS Act makes such a statement
relevant for the purposes of the said Act. The observations of the High Court that confession can be the sole
basis of conviction in view of Section 108 of the Customs 8
Act, thus, appear to be incorrect. the provisions of the
Customs Act cannot be applied to seek conviction thereunder. [Paras 101 and 103] [432-0,G]
Alok Nath Dutta v. State of West Bengal 2006 (13) , c
SCALE 467; Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras 1999 (6) SCC 1 - relied on.
Balkrishna Chhaganlal Soni v. State of West Bengal 197 4 ,
(3) SCC 567; Babubhai Udesinh Parmar v. State of Gujarat,
• 12006 (12) SCC 268 - referred to.
D
3.10 A search and seizure or an arrest made for the
purpose of proceeding against a person under the Act
cannot be different only because in one case the author- '
ity was appointed under the Customs Act and in the other
under another. What is relevant is the purpose for which E
such arrest or search and seizure is made and investigation is carried out. The law applicable in this behalf must
be certain and uniform. [Para 106] [433-F,G]
3.11 Even otherwise Section 1388 of Customs Act ; F
must be read as a provision containing certain important
features, namely: (a) There should be in the first instance
statement made and signed by a person before a competent custom official. (b) It must have been made during
the course of enquiry and proceedings under the CusG
toms Act. [Para 107] [433-G, 434-A,B]
"-
3.12 Confessional statement of an accused, therefore,
cannot be made use of in any manner under Section 1388
of the Customs Act. Even otherwise such an evidence is
considered to be of weak nature. [Para 108] [434-F,G]
· H
390
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
Gopal Govind Chogale v. Assistant Collector of Central
Excise and Anr. 1985 (2) Born CR 499 - referred to.
4.1 There are a large number of discrepa'1cies in the
treatment and disposal of the physical evidence. there
are contradictions in the statements of official witn"esses.
8
Non-examination of independent witnesses and the nat1.:1re of confession and the circumstances of the recording of such confession do 11ot lead to the conclusion of
the appellant's guilt. Finding on the discrepancies although if individually examined may not be fatal to the
C case of the prosecution but if cumulative view of the scenario is taken, the prosecution's case must be held to be
lacking in credibility. [Para 151) [452-D,E,F,G]
4.2 The cardboard carton was not produced in court
0
being allegedly missing. No convincing explanation was
rendered in that behalf. The inference was drawn only on
the basis of a mere assertion of the witness without any
corroboration. No explanation has been given as to what
happened to the container. Its absence significantly undermines th~ case of the prosecution. It reduces the eviE dentiary value of the statements made by the witnesses
referring the fact of recovery of the contraband therefrom.
[Para 110 and 111) [435-D, 436-A,C]
4.3 Preservance of original wrappers comes within
p the purview of the .direction issued in terms of Section 3.1
of the Standing Order No. 1 of 1989. The guidelines such
as those presen't in the Standing Order cannot be blatantly
floμted _and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in
G 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 inferen.ce against them to the effect that had such evidence
been produced, the same would have gone against the
H prosecution. [Paras 112 and 117] [436-D, 438-G, 439-A]
1·
\ ;·
NOOR AGA v. STATE OF PUNJAB & ANR.
391
Mani Shankar v. Union of India and Anr 2008 (3) SCC. A
484; State of Kera/a and Ors. v. Kurian Abraham (P) Ltd. and
Anr. 2008 (3) SCC 582; Union of India v. Azadi Bachao
Ando/an 2004 (10) SCC 1 - relied on.
Chief Commercial Manager, South Central Railway,
Secunderabad and Ors. v. G. Ratnam and Ors. 2007' (8) SCC , B
212 - referred to.
4.4 The bulk quantity of heroin allegedly recovered
indisputably has also not been produced in court. Respondents contended that the same had been destroyed. c
However, on what authority it was done is not clear. Law
requires that such an authority must flow from an order
passed by the Magistrate u/s. 52 of NDPS Act. Such an
order whereupon reliance has been placed is Exhibit PJ;
on a bare perusal whereof, it is apparent that at no point 0
of time any prayer had been made for destruction of the
said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(18)
of Customs Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory etc. The same does not contain within E
its mandate any direction as regards destruction. [Para
118] [439-8,C,D]
4.5 There is a distinction between Section 110(18) of
Customs Act and Section 52A(2) of NDPS Act as sub-secF
tion (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 NDPS Act. Exhibit PJ
G
can be treated as nothing other than an order of authentication as it is a certificate under Sec~ion 110(18} of Customs Act as the aspect of disposal clearly provided for
under Section 52A of the Act is not alluded to. [Para 121]
[440-F,G]
H
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SUPREME COURT REPORTS
[2008] 10 S.C.R.
~ ..
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4.6 Pre-trial disposal of drugs is not permissile on
certificate obtained u/s 110 (1 B) of Customs Act. Firstly
I<
because taking recourse to the purported general practice adopted by the Customs Department is not envisaged
in regard to prosecution under the Act. Secondly, no such·
fB general practice has been spoken of by any witness. A
statement made at the Bar as regards existence of such a
purported general practice cannotbe a substitute of evidence whereupon only the court could rely upon. [Para
122] [441-F,G, 442-A]
c
4.7 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
1D of establishing the fact of recovery of heroin as envisaged
under Section 52A of the Act. [Para 124] [442-D,E]
4.8 A slight difference in the weight of the sample may
not be held to be so crucial as to disregard the entire prosE ecution case as ordinarily an officer in a publ.ic place
would not .be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was
an airport. The officers carrying out the search and seizure were from the Customs Department. They must be
having good scales with them as a marginal increase or
~ ..
F
decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the
Customs Act. [Para 126] [443-A,B,C]
4.9 Physical evidence of a case of this nature being
G the property of the court should have been treated to be
sacrosanct. Non-production thereof would warrant draw-
,A
ing of a negative inference within the meaning of Section
114(g) of the Evidence Act. While there are such a large
number of discrepancies, if a cumulative effect thereto is
H taken into consideration on the basis whereof the per-
f
•
I
--
NOOR AGA v. STATE OF PUNJAB & ANR.
393
missive inference would be that serious doubts are ere-' A
ated with respect of the prosecution's endeavour to prove
the fact of possession of contraband from the appellant.
[Para 48] [443-F,G]
Jitendra v. State of UP 2004 (10) sec 562 - relied on., 8
4.10 . Several other lacunae in the prosecution case .
had been brought to the notice of the Court. 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 ' c
same in the safe custody. 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
0
evidence was not faulted. It was not done in the present
case. [Paras 130 and 131] [444-C,D,E,F]
4.11 The sample, thus, with only a seal of custom by
itself cannot be stated to be one recovered from the appellant specially when the prosecution case is that it con-
. E
tained accused's signature and date of it which is not
found on the original. The independent witnesses did not
sign the samples. The original seal was not produced. It
is a mystery to whom the seal was entrusted. Thus, the
change in colour, weight of the sample as also the abF
sence of the accused's signature thereupon cannot be
totally ignored. The seal was not even deposited in the
malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the
recovery was ensured. Even the malkhana register was G
not produced. There exist discrepancies also in regard
to the time of recovery. [Paras 133, 135 and 136] [445-G,
446-A,B, 447-E,F,G]
State of Punjab v. Baldev Singh, 1999 (3) SCC 977 -
relied on.
H
394
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
4.12 Although examinati'on of independent witnesses in all situations may not be imperative, if they were
material, in terms of Section 114(e) of the Evidence Act, an
adverse inference could be drawn. In a case of his nature,
where tl:lere are a large number of discrepancies, the ap8
pellant has been gravely prejudiced by their non-examination. It is true that what matters is the quality of the evidence and not the quantity thereo~ but in a case of this
nature w.here procedural safeguards were required to be
strictly complied with, it is for the prosecution to explain
c why the material witnesses (independent witnesses) had
not been examined. [Paras 138 and 139] [449-C,D,E]
4.13 Article 12 of the Universal Declaration of Human
Rights provides for the Right to a fair trial. Such rights are
enshrined in our Constitutional Scheme being Article 21
D of. the .Constitution of India. If an a·ccused has a right of
fair trial, his case must be examined keeping in vi.ew the
ordinary law of the land. 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
E 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
F on record and not on the basis of some reports which
have nothing to do with the occurrence in question.
[Paras 143, 144 and 145] [450-D,E,F,G]
4.14 Exbt PA indicates that the gazetted officer or the
independent witnesses were not present at the time of
G purported recovery. Exhibit PC, however, shows the pres~
ence of independent witnesses at the time of recovery.
The credibility of the statements, having regard to these
vital discrepancies stand eroded. [Para 148] [451-D,E]
H
4.15 The High Court disregarded that although ExI=
"
1' ..(
NOOR AGA v. STATE OF PUNJAB & AN~.
395
hibit PA may not affect a technical compliance of Section A
50 of the Act on taking a complete and circumspect view
of the materials brought on record, ,but the-same, affect
the credibility of the documentary evidence and the statements of the official witnesses, namely, PW1 and PW2. If
origin of principle has not been followed and discrepan~ B
cies 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. [Para
150] [451-G, 452-A,B]
,
State of Himachal Pradesh v. Pawan Kumar 2005 (4)
sec 350 - distinguished.
State of Punjab v. Baldev Singh, 1999 (3) SCC 977; D.K.
c
Basu v. State of West Bengal 1997 (1) SCC 416 - referred to D
Miranda v. Arizona 1966 (384) US 436- referred to.
5. There is 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 E
before he gets an opportunity of hearing before this
Court. [Para 152] [453 8-C]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1034 of 2008
From the Judgment dated 9.6.2006ofthe High Court of Punjab
and Haryana at Chandigarh in Crl. Appeal No. 81 O-SB/2000
Tanu Bedi, D.P. Singh, Sanjay Jain, Rajat Vohra; Prayanat
Singh, Rachana Golchha and Sunil Roy for the Appellant.
Vikas Sharma and B.V. Balaramdas (for B. Krishna
Prasad) for the Respondent.
Kuldip Singh and A.K, Mehta for the state.
The Judgment of the Court was delivered by
F
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396
SUF'REME COURT REPORTS
[2008] 10 S.C.R.
A
SJ~. SINHA, J: Leave granted.
INTRODUCTION
1 . Several question$ of grave importance including the
constitutional validity of the Narcotic Drugs and Psychotropic
B
Substances Act, 1985 (for short "the Act"), the standard and
f- •
extent of burden of proof on the prosecution vis-a-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
c and whereunder an appeal filed by the applicant against the
judgment of conviction and sentence dated 7.6.2000 under
Section 2"2 and 23 of the Act has been dismissed.
0
PROSECUTION CASFE.
2. Appellant is an Afghan national.
3. He was arrested and later on prosecuted under Sections 22 and 23 of the Act allegedly for carrying 1 kg 400 grams
of heroin as a member of crew of Ariana Afghan Airlines.
E
4. Appellant arrived at Raja Sansi Airport at about 6 p.m.
on 1.08.1997. He presented himself before the authorities underthe Customs Act, 1962 (for short "the Cu:)toms Act") for customs clearance. He was carrying a carton wit_h him said to be
containing grapes. the.cardboard walls of the said carton were
said to have two layers. As some concealment in between the
F
layers was suspected by one Kulwant Singh, an Inspector of
the Customs Department, the appellant was asked as to whether
he had been carrying any contraband or any other suspicious
item. Reply thereto having been rendered in the negative, a
search was purported to have been conducted.
5. Kulwant Singh, who examined himself as PW-1 before
the trial court, allegedly asked the appellant as to whether he
intended to be searched by a Magistrate or a Gazetted officer
of the Customs Department in response whereto, he exercised
H
his option for the latter, whereupon one Shri K.K. Gupta, Super-
NOOR AGA v. STATE OF PUNJAB & ANR.
397
., -"!
[S.B. SINHA, J]
intendent of the Customs Department and two independent witA
.,
nesses, Mohinder Singh and Yusaf were sent for. K.K. Gupta
disclosed his identity to the appellant as a Gazetted officer
working in the Customs Department.
, -\
6. The layers of the walls of the carton were thereafter separated, wherefrom 22 packets of polythene containing brown
B
powder were allegedly recovered. The same was weighed; the
gross weight whereof was found to be 1 kg. 400 grams. Representative homogeneous samples from each packet in small
quantities were taken weighing 5 gms. each. They were purported to have been sealed with a seal bearing No. 122 of the c
Customs Department. The cardboard carton was also sealed
with the same seal. The recovered item being of brown colour
was taken in possession vide recovery memo (Ex. PB),
.,_ r
Panchanama (Ex.PC) prepared by Shri Kulwant Singh. The en~
tire bulk was put into cotton bags and sealed.
D
ARREST AND PURPORTED CONFESSION
7. Although the appellant had all along been in the custody
of the Customs Department, he was formally arrested at about
3 p.m. on 2.08.1997, i.e., 15 hours after the recovery having
E
peen 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.
' 'r
8. Appellant purported to have confessed his guilt on
2.08.1997 as also on 4.08.1997.
F
INVESTIGATION
9. Samples were sent to the Central F~rensic 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 G
,l
the words "net weight" were crossed and converted into 'gross
weight'.
10. The alleged contraband was found to be of white colour
containing Diacetyl Morphine. The report was submitted on
H
398
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
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' foal having been charged under Sections 22 and 23 of the
Act.
11. The contraband articles were produced before the MagB istrate on 30.01.1999. The purpose for production is mired in
controversy. Whereas the appellant contends that the same was
..
•
•
1
done for the purpose of authentication, according to the respondent, i~ was produced .for the purpose of obtaining a judicial
c
order f~r destruction thereof. No order, however, was passed
by the learned Magistrate for destruction of the contraband. No
application forcestruction was also filed.
PROCEEDINGS
12. At .the t.rial, the following witnesses were examined on.
D behalf of the State:
PW-1
Kulwant Singh-Inspector Customs
(Complainant and investigating officer)
E
PW-2
KK Gupta- Superintendent-Customs (A Gazzeted
Officer)
PW-3
Ashok Kumar:- Inspector, Customs Department
...
(Deposited sample)
PW-4
Rajesh Sodhi-Deputy Commissioner
F
Custodian of case property from 1-8-97 to 4-8-97
PW-5
KK Sharma-Inspector lncharge- Malkhana
13. Appellant, ·In his examination under section 313 of the
G Code of Criminal Procedure in categorical terms denied that
the carton belonged to him. He also retracted from his alleged
confession.
14. The learned Additional Sessions Judge by his order
and judgment dated 7 .06.2000 convicted the appellant under
H Sections 22 and 23 of the Act and sentenced him to undergo
~
i
~
1'
J.
!
~
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...ii)I
1'
l
NOOR AGA v. STATE OF PUNJAB & ANR.
399
[S.B. SINHA, J]
rigorous imprisonment for 10 years and also imposed a fine of A
Rs. 1 lakh on him.
15. Aggrieved by and dissatisfied with the said judgment
and order of the learned Additional Sessions Judge, the appellant filed an appeal before the High Court of Punjab and B
Haryana. The High Court dismissed the said appeal by a judgment and order dated 9.06.2006. Appellant is, thus, before us.
CONTENTIONS
16. Ms. Tanu Bedi, learned counsel appearing on behalf c
of the appellant, in support of this appeal, submits:
(i)
The provisions of Sections 35 and 54 of the Act being
draconian in nature imposing reverse burden on an
accused and, thus, being contrary to Article 14 (2) of
the International Covenant on Civil and Political Rights D
providing for 'an accused to be innocent until proved
guilty' must be held to be ultra vires Articles 14 and
21 of the Constitution of India.
(ii)
Burden of proof under the Act being on the accused,
a heightened standard of proof in any event is
E
required to be discharged by the prosecution to
establish the foundational facts and the same having
not been done in the instant case, the impugned
judgment is liable to be set aside.
(iii) The prosecution having not produced the physical
F
evidence before the court particularly the sample of
the purported contraband materials, no conviction
could have been based thereupon.
(iv)
Independent witnesses having not been examined,
.•
.G
the prosecution must held to have failed to establish .
actual recovery of the contraband from the 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.
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A
B
c
0
E
F
G
H
400
SUPREME COURT REPORTS
[2008] 10 S.C.R.
.(vi)
The purported confe.ssions of the appellant before
the customs i;luthorities are wholly inadmissible in
evidence being hit by Seciion 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.
17. Mr. Kuldip Singh, learned coun~.el 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 haying .exercised his option of being
searched by;,.a Gaz.etted Officer; and the legal
requirements of Sections 42 and 50 of the Act must
be held to ha.ve been fully complied with.