NOOR AGA v. STATE OF PUNJAB & ANR

Citation: [2008] 10 S.C.R. 379

Court: Supreme Court of India

Bench: S.B. SINHA, V.S. SIRPURKAR

Case summary

NOOR AGA v. STATE OF PUNJAB & ANR.pdf

Judgment text

[2008] 10 S. C. R. 379 -'f NOOR AGA v. STATE OF PUNJAB & ANR. (Criminal Appeal No. 1034 of 2008) JULY 9, 2008 [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 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 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 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 ofproof- Constitutional validity of - Held: Are ex faciedel not unconstitutional 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 ofpenal provision providing for reverse bur- .. ,. den ofproof 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 Covenant on Civil and Political Rights (1966) - Article 14(2) - Universal Declaration of Human Rights (1948) - Article 12- Eutopean Convention for Protection of Human Rights and Fundamental Freedoms- Article 6. 2- Evidence - Reverse burden of proof 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 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 - 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.

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 under Article 21 of the Constitution - Constitution of India, 1950 - Article 21. Doctrines/Principles: (i) Doctrine of Compatibility. (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 searched by the Gazetted Officer of the Customs Depart- ~-. , ment and 22 packets of brown power weighing 1 Kg. 400 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 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 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 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 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 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 "" :~ 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 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 )- , 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 applied subject to exceptions. [Paras 65, ·67 and 71] [413- F, 415-A, 416-F] 1. 3 Presumption of innocence is a human right as envisaged under Article 14(2) of the International Cov- _ 1 enant on Civil and Political Rights. It, however, cannot 0 per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. [Para 42] [407-G] 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 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 under 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, ... ... , burden is shifted to the accused. The doctrine of res ipsa 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 8 ' ~ Enforcement and Ors. 2008 (7) SCALE 624 - relied on 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 SC 1848 Jacob Mathew vs. State of Punjab 2005 (6) SCC 1; State ofA. 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; ·-~ 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, 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 may be constitutional but a prosecution thereunder may ,,. t 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 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 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 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. 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] 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. 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 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. Recoveries 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 extent of burden to prove the foundational facts on the pros- ecution, i. e. , 'proof beyond all reasonable doubt' would 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 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 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; 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 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, 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 '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 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] ·,. ;· :.. ,. ,! ~ 2. 4 With a view to bring within its purv_iew the require- \ ments 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 also be taken into consideration in determining the said qu_estion. It must pe1ss the test of doctrine of proportion- • :r ality. 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] 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 ", 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. Fairness 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. 3. 1 A fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 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 distress 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 provides 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] 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 confession was made voluntarily would, thus, be on the 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 Covenants 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 dis- 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 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 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] 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 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 statute in terms of sub-section (2) of Section 53 would, thus, be rleemed to be police officers and for the said purposes J. 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] . UCO Bank and Anr. v. Rajinder Lal Capoor 2008 (6) 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 8 basis of conviction in view of Section 108 of the Customs 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) , 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 1974 , (3) SCC 567; Babubhai Udesinh Parmar v. State of Gujarat, • 1- 2006 (12) SCC 268 - referred to. 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 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 ; 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 Customs 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] · 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 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 being allegedly missing. No convincing explanation was 0 1· 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 evidentiary 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 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 prosecution. [Paras 112 and 117] [436-D, 438-G, 439-A] Mani Shankar v. Union of India and Anr 2008 (3) SCC. 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 , 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. 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 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-section (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 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] ~ .. 4. 6 Pre-trial disposal of drugs is not permissile on I certificate obtained u/s 110 (1 B) of Customs Act. Firstly - 17. Mr. Kuldip Singh, learned coun~. el appearing on behalf ofthe 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. 0 (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.

In any event, search and seizure of the carton did not attract the provisions of Section 50 of the Act. ... (iii) Despite some discrepanc;:ies in the statements of the w. itnesses as regards recovery, the same cannot be said to be a vital flaw in the casE? of the prosecution so as to make the impugned judgment unsustainable. The learned Trial Judge as also the High Court had considered the practices prevailing in the Customs Department for the purpose of appreciating the evidence brought on record, and having recorded 'their satisfaction with regard thereto, the impugned judgments do not warrant any interference. (iv) Any confession made before the custom$ authorities ·in terms of Section 108 of the Customs Act is not hit t;>y Section 25 of the Indian Evid~nce Act and the same, thus, being admissible in evidence could have ·~~ been relied upon for the purpose of recording a judgment of conviction. AN OVERVIEW OF THE STATUTORY PROVISIONS 18.

Before embarking upon the rival contentions of the par- . ties, as noticed hereinbefore, it is appropriate to notice the rel- -\ 8 evant provisions of the Act as also the Customs Act, 1962. 19. The purported recovery was made by the Customs Department. In terms of the provisions of the Act they were entitled to make investigations as also file the chargesheet. 20. The Act was enacted to consolidate and amend the law relating to narcotic drugs to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. It was enacted to implement the provisions of the International Conventions on Narcotic Drugs '" r and Psychotropic Substances and the matters connected therewith. 21 . Section 2(xiv) of the Act defines "narcotic drug" to mean coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. 22.

"Illicit traffic", in relation to narcotic drugs and psychotropic substances, has been defined in Section 2(viiia) pf the Act, inter alia, to mean: .. ~ "(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or . (v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv);" 23. "~mmercial quantity" has been defined in Section... 4' ' • ~ ~ 2(viia) to mean any quantity greater than the quantity specified by the Central Government by notification in the official gazette. Indisputably, the commercial quantity prescribed for heroin is only 250 gms. 11- 24. "international Conventions" have been specified in Section 2(ix) of the Act. 25. Chapter II of the Act enables the Central Government to-take measures as may be necessary or expedient inter alia .. . for the purpose of preventing and combating abus. e of and illicit >- .

: 8 traffic·ther~in including constitution of an authority or hierarchy of authorities by such name or names as may be specified in ·;the order for the purpose of exercising such of the powers and functions of the Central Government under the Act and for taking measures with respec,t to such of the matters referred to in ·c sub-section ,(2) as being specified therein, subject, of course, · •to the supervision and control of the Centra. 1 ~overnment. 26. Chapter Ill proyides for prohibition,' control and regulation~ Section 8. ,inter alia bars possession, sale, purchase, trans- ~port of any narcotic drugs except for medical or scientific pur- i '· poses and in· the manner and the extent provided by the provisions of the Act or the Rules or orders framed thereunder. Sec- .

-tiqp- 9 of the, Act empowers the Central Government t ishable under the Act has been committed, they may enter into and search such building, conveyance or enclosed place at any time between sunrise and sunset and detain, search and arrest any person whom he has reason to believe to have committed an offence punishable under the Act. 36. Section 43, however, empowers an officer of any department mentioned in Section 42 to detain and search any person who he has reason to believe has committed an offence punishable under the Act in a public place. Section 50 provides for the conditions under which search of persons are to .... ,( be conducted. Section 51 provides for application of the Code ,__ 'tof Criminal Procedure, 1973 insofar as they are not inconsistent with the provisions. of the Act. Section 52 provides for disposal of persons arrested and articles seized.

Section 52-:A provides for disposal of seized narcotic drugs and psychotropie substances; sub-section (2) whereof reads as under: "(2) Where any narcotic drugs or psychotropic substances has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or, psychotropic substances containing such detail~ relating to their description, quality, quantity, mode ofpacking, marks, numbers or such other identifyir]g particulars of the narcotic drugs or psychotropic substances or the· packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity qt the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any purpose of,- (a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or -~ (c) Allowing to draw representative samples of such drugs or substances, in the presence of such !

Magistrate and certifying the correctness of any list of samples so drawn. " 37. Indisputably, the proper officers of the 1962 Act are authorized to take action under the Act as regards seizure of goods, documents and things. 38. We may notice Section 110 of the 1962 Act, sub-section (1) whereof reads as under: "110. Seizure of goods, documents and things. - (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the ,E goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.

(1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, 1 constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under subsection (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified.

(1 B) Where any goods, being goods specified under sub- section (1A), have been seized by a proper officer under sub-section (1 ), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act }and shall make an application to a Magistrate for the purpose of - (a) certifying the correctness ofthe inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or .. (c) allowing to draw representative samples of such goods, i. h the· presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1 C) Where. an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application. " 39. Indisputably, the Central Government has isa.

dguidelines in this behalf being Standing Order No. 1 of T989 dated 13. 06. 1989 which is in the following terms: "WHEREAS. the Central Government. . considers it 1 .... necessary and expedient to dete. rmine the manner in which the narcotic drugs and psychotropic substances, as specified in Notification No. 4/89 dateq. the i9th May, 1989 (F. No. 664/23/89-0pium, published as S. O. 381(E) ), · which shall, as soon as may be, after thefr seizure, be disposed of, having rega'rd to their hazardous' nature, vulnerability to theft, substitution and constraints of proper storage space; Now, therefore, In exercise of the powers conferred by sub-section (1) of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985}, (hereinafter referred to as 'the Act'), the Central Government hereby determines that the drugs specified in the aforesaid Notification shall be disposed off in the following manner... " 8 40.

These guidelines under the Standing order have been made under Statute, and Heroin is one of the items as substances listed for disposal under Section I of the Standing Order. 41. Paragraphs 3. 1 and 6. 1 of the Standing Order read as under: "Preparation of inventory. 3. 1 After sampling, detailed inventory of such packages/ containers shall be prepared for being enclosed to the panchnama. Original wrappers shall also be preserved for evidentiary purposes. Certificate of destruction 6. 1 A certificate of destruction (in triplicate (Annexure Ill) E. containing all the relevant data like godown entry, no. , file No. , gross and net weight of the drugs seized etc. shall be prepared and duly endorsed by the signature of the Chairman as well as Members of the· Committee.

This , could also serve the purpose ofpanchanama, The original copy shall be posted in the godown regfster after making necessary entries to this effect, the duplicate to be retained in the seizure case file and the triplicate copy will be kept by the Disposal Committee. " I CONSTITUTIONAL/TY 42. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant 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. It having regard to the extent thereof would I not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitut~on of India). . ,.. . 43. The A~~ontains draconian provisions.

It must, however, be borne in mind that the Act was enacted having regard 8 to the mandate contained in International Conventions on Narcotic Drugs and Psychotropic Substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional. 44. 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. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitu- 0 tional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld. 45. A Fundamental Right is not absolute in terms. 46.

It is the consistent view of this Court that 'reason to believe', as provided in several provisions of the Act and as defined in Section 26 of the Indian Penal Code, on the part of the officer concerned is essentially a question of fact. 47. The procedures laid down under the Act being stringent in nature, however, must be strictly complied with. 48. In Directorate of Revenue and Another v. Mohammed Nisar Holia [(2008) 2 SCC 370], this Court held: t:e "11. Power to make search and seizure as also to arrest _ vn aq,CJRC·~,s. ~~,j~J9~nded upon and subject to satisfaction of 21 9 0 1 , ,. , nthe,ot. ficei:,as,the·term "reason to believe" has been used. ;IVIJ U n,1:>;;::>\/UO 1oi1CJ1Jbl• '· · rlhv-i ,,~\. },S~J? Ej~el£T:l~~ P&if. Rund~d upon secret\nformation t~at -~id~ m_,,ay: btfA9fiCl! l. Y conveyed by the informant. Dracon~an i·f..

i L ic proyision ,~hich may le~d to a harsh sentence having ·-\ regard to the doctrine of "due process" as adumbrated under Article 21 of the Constitution of India require striking , of balance between the need of law and enforcement thereof, on the one hand, and protection. of citizen from oppression and injustice on the other. " ""'· 8 49. Application of inte~ational law in a case involving war crime was considered by ~ Constitutional Court of South Af- . rica in State v. Basson [2004 (6) BCLR 620 (CC)f qpining: 1 "The rules of humanitarian law constitute an important ingredient of customary international law. As the International Court of Justice [("the ICJ)] has stated, they ' are fundamental to the respect of the human person and "elementary considerations of humanity.

The rules of ' humanitarian law in armed conflicts are to be observed by I all States whether or not they have ratified the Conventions 0 that contain them because they constitute intransgressible principles of international customary law. The ICJ has · also stressed that the obligation on all governments to , respect the Geneva Conventions in all circumstances does · not derive from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression. " It was furthermore observed: .. t "When allegations of such serious nature are at issue, and where the exemplary value of constitutionalism as , against lawlessness is the very issue at stake, it is particularly important that the judicial and prosecutorial · functions be undertaken with rigorous and principled respect for basic constitutional rights. The effective • prosecution of war crimes and the rights of the accused to a fair trial are not antagonistic concepts.

On the contrary, ' both stem from the same constitutional and humanitarian foundation, namely the need to uphold the rule of law and the basic principles of human dignity, equality and freedom. " [See also 'War, Violence, Human Rights, and the overlap between national and international law: Four cases before the South African Constitutional Court' byAlbie Sachs, 28 Fordham International Law Journal 432) 50. The provision for reverse burden is not only provided 8 for under the special acts like the present one but also under the general statutes like the Indian Penal Code. The Indian Evidence Act provides for such a burden on an accused in certain matters, as, for example, under Section 113A and 1138 thereof. 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, burden is shifted to the accused. 51.

Enf9rcement of law, on the one hand and protection of citizen from operation of injustice in the hands of the law en- 0 forcement machinery, on the other, is, thus, required to be baJ: anced. 52. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens. 53. The court must assess the importance of the. right being limited to our society and this mustbe weighed against the purpose of the limitation. The purpose ofthe·limitation isthe reason for the law or conduct which limits the right. {See S v. 1 - Dlamini; S v. Dladla and others 1999(7) BCLR 771(CC)} 54. While, however, saying so, we are not unmindful of serious criticism made by the academies in this behalf. 55. In Glanville Williams, Textboo·k of Crim·inal Law (2"d . Edn.

) page 56, it is stated: -\ "Harking back to Woolmington, it will be remembered that Viscount Sankey said that "it is the duty of the prosecution to prove the prisoner's guilt, . subject to the defence of insanity and subject also to any statutory exception".... Many statutes shift the persuasive burden. It has become a matter of routine for Parliament, in respect of the most trivial offences as well as some serious ones, to enact that the onus of proving a particular fact shall rest on the defendant, so that he can be convicted "unless he proves" it. " 56. But then the decisions rendered in different jurisdictions are replete with cases where validity of the provisions raising a presumption against an accused, has been upheld. 57. The presumption raised in a case of this nature is one for shifting the burden subject to fulfillment of the conditions precedent therefor. 58. The issue of reverse burden vis-a-vis the human rights regime must also be noticed.

The approach of the Common Law is that it is the duty of the prosecution to prove a person guilty. Indisputably this common law principle was subject to parliamentary legislation to the contrary. The concern n. ow shown worldwide is that the Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately unlike other countries no systematic study has been made in India as to how many offences are triable in the Court, where the legal burden is on the accused. In the United Kingdom it is stated that about 40% of the offences triable in the Crown Court appear to violate the presumption. (See - The Presumption of Innocence in English Criminal Law, 1996 Crim. LR. 306, at 309). 59. In Article 11 (1) of the Universal Declaration of Human Rights (1948) it is stated :- "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.... " 60. Similar provisions have been made in Article 6.

2 of the European Convention for the protection of Human Rights and Fundamental Freedoms (195) and Article 14. 2 of the International Covenant on Civil and Political Rights (1966). 61. The legal position has, however, undergone a drastic change in the United Kingdom after coming into force of the Human Rights Act, 1998. The question as to whether on the face of Article 6. 2 ofthe European Convention for the Protection of Human Rights and Fundamental Freedomst(1950), the s doctrine of reverse burden passes the te~f:SFconstitutionality )r came up for consideration before the House'of Lords in Regina v. Lambert :([2001] UKHL 37 : [2001] 3 All ER 577) wherein the following two questions came up for consideration:- "The first is whether a defendant is entitled to rely· on convention rights when the court is hearing an appeal from a decision which was taken before the Human Rights Act, 1998 came into effect.

The second is whether a reverse burden provision in section 28(2) and (3) of the Misuse of Drugs Act, 1971 is a compatible with the presumption of i ~innocence contained in article 6. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. " 62. Sub-section (2) of Section 28 of the Misuse of Drugs Act, 1971, with which the House was concerned, reads as under:- "(2) Subject to sub-section (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.

" Lord Steyn stated the law thus :- "Taking into account that section 28 deals directly with the situation where the accused is denying moral blameworthiness and the fact that the maximum prescribed penalty is life imprisonment, I conclude that the appellant's interpretation is to be preferred. It follows that section 28 derogates from the presumpticfn of innocence. I would, however, also reach this conclusion on broader grounds. The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance.

I do not have in mind cases within the narrow exception "limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified 0 authorities"; 63. Section 28 of the Misuse of Drugs Act, 1971 was read in the manner which was compatible with convention rights opining that Section 28(2) and (3) create an evidential burden on the accused. 64. Applicability of the doctrine of compatibility may be somewhat equated (essential differences although cannot be ignored) with the applicability of the doctrine of constitutionality in our country. 65. Sections 35 and 54 of the Act may have to be read in the light of Articles 14 and 21 of the Constitution of lntjja. 66. We may notice that Sachs, J. in State v.

Coetzee [(1997) 2 LRC 593) explained the significance of the pre>Sumption of innocence in the following terms :- "There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the H' accused become. 'he starting point . of ~ny balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in )'ensuring that a particular criminal is brought to -book... Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system.

Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, ·against which the presumption of innocence is pitted from the beginning, _not a new element to be put into the scales as part ofa justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drugsmuggling, corruption ... the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases". · . 67. In R. v.

Hansen[(2007) NZSC 7], while construing Section 6(6) of the Misuse ofDrugs Act, 1975 the New Zealand Supreme Court held as under : "In the context of a prosecution for an offence of possession of controlled drugs for the purpose of supply, that reversal of the onus of proof is obviously inconsistent with the aspect of the presumption of innocence that requires the Crown to prove all elements of a crime beyond reasonable doubt. While the Crown must prove to that standard that the person charged was in possession of the stipulated quantity of drugs, the jury can convict even if it is left with a reasonable doubt on the evidence over whether the accused had the purpose of supply of the drugs concerned. Indeed, as Lord Steyn pointed out in R v Lambert, the jury is obliged to convict if the version of the accused is as likely to be true as not. " However, in our opinion, limited inroad on presumption would be justified. We may consider the question from another angle. 68.

The doctrine of res ipsa loquitur ·providing for a reverse burden has been applied not only in. civil proceedings but also in criminal proceedings. [See Alimuddin Vs. King Emperor (1945 Nagpur Law Journal 300]. In Home vs. Dorset Yacht Company [1970 (2) ALL E. R. 294], House of Lords developed the common law principle and evolved a presumptive duty to care. 69. It is, however, of some interest to note that in Syed Akbar vs. State of Kamataka [AIR 1979 SC 1848] this Court he~: "28.

In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down · that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must reb~t the presumption of ·negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. ·The primary reasons for non-application of this abstract doctrine. of res ipsa loquitur to criminal trials a. ~e: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man r is presumed to be innocent until the contrary is proved, and criminality is. never to be presumed subject to statutory exception.

No such statutory exception has been made by requiring the drawing of a mandatory presumption of Pegligence against the accused where the accident "tells its own story" of negligence of somebody. ): -~~ Secondly, there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. r In civil proceedings, a mere preponderance of probability . is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such ,, a moral certainty as convinces the mind of the Court, as a· reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v.

Director of Public Prosecutions, "simple lack of care such as will constitute civil liability, is not enough"; for liability und_er the criminal law "a very high degree of negligence is required to be proved. Probably, of all the rt. : epithets that can be applied 'reckless' most nearly covers ' the case". (emphasis supplied) 70. The said dicta was followed in Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1]. We may, however, notice that the prindple of 'res ipsa /oquitur' has been applied in State ofA. P v. C. Uma Maheswara Rao & Anr [2004 (4) SCC. 399] {see also B. Nagabhushanam v. State of Karnataka (2008) 7 SCALE 716}. ,.... --J. _ 71. 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 applied subject to exceptions. 1. \ 72. Independence of judiciary must be upheld.

The superior courts should not do something that would lead to impair- J, ment of basic fundamental and human rights of an accused. We may incidentally notice a decision of the Privy Council in an appeal from the Supreme Court of Mauritius in The State v. Abdul_Rashid Khoyratty, [2006] UKPC 13. In that case, an attempt on the part of the Parliament to curtail the power of the court to grant bail in respect of the Dangerous Drugs Act (Act No. 32 of 1986) was held to be unconstitutional being contrary to the doctrine of separation of power, necessary to protect individual liberty stating that the power to grant bail is exclusively within the judicial ~omain. A constitutional amendment to overcome the impact of the said decision was also held· to be unconstitutional by the Supreme Court of Mauritius. In Abdul Rashid Khoyratty (supra), the Privy Council upheld the said view. 73.

Dealing with the provisions of Sections 118(b) and 139 of the Negotiable Instruments Act, 1881 in Krishna Janardhan Bhat v. Dattatraya G. Hegde [2008 (1) SCALE 421] this Court upon referring to Hiten P Dalal v. Bratindranath Banerjee [(2001) 6 sec 16], opined: "32. But, we may at the same time notice the development of law in this area in some jurisdictions. The presumption of innocence is a human right. [See Narender Singh & Anr. v. State of M. P (2004) 10 SCC 699, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC 294 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (2007) 1 SCC 70] Article 6(2) of he European Convention on Human Rights provides : "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as aiso gravity thereof may be taken into . consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a. negative has been emphasi? :ed.

It is not suggested that a negative can never ·be proved but there are. cases where such difficulties are faced by the accused e,g;. honest and reasonable mistake of fact. In a recent Article "The Presumption of Innocence and Reverse Burdens : A Balancing Duty" published in [2007] C;l. J. (March Part) 142 it has been stated :- "In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guiltwithout the reverse burden? How easily could an innocent defendant discharge the . reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk ofgreat injustice - where the offence is not too serious or the reverse burden · only concerns a matter incidental to guilt.

And greater weight will be given to prosecutorial efficiency in the regulatory environment. " · The above stated principles should be applied in each case having regard to the statutory provisions involved therein. 74. We may, however, notice that recently in Mis. Seema . . • :, t i. i . I . . 1· I ' ·. ' ' '. ~- . G. Silk &Sarees & Anr. v. D1req_tofate ofEnforcement &Ors. [200. 8 (7) SCALE 624], in a case where the constitutionality of the provisions ofSections 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973 were questioned on the ground of infringing . the '. equa1i~ etause' enshrined in Article 14 of the Constitution of India, this Court held: · , . __ NOOR AGA v. STATE OF PUNJ/~B & ANR. 419 "16. A legal provision does not ber. :orne unconstitutional only because it provides for a rewerse burden. The 1 question as regards burden of proof is procedural in nature. [See Hiten P Dalal v. Bratindra. nath Banerjee, (2001) 6 SCC 16 and M. S. Narayana N/enon v.

State of Kera/a, (2006) 6 sec 391 17. The presumption raised against the trader is a rebuttable one. Reverse burden as also statuto·(y presumptions can be raiSf.! d in several statutes as. , for example, the Negotiable ~nstruments Act, Pmver. 'cion of Corruption Act, TADA, 'dtc. Presumption is raijsed only when certain foundatio,nal facts are establish. ed by the prosecution. The accused in such an ever1t would be entitled to show that he has not violated the; provisions of. the Act. In a case of this nature, particularly, when an appeal against the order of the Tribunal is pending, we do not think that the appellants are entitled trJ take the benefit thereof at thi~~ stage. Such contentions must be raised before the criminal court. 18. Commercial expediency or auditing of books of 1 accounts canr:iot be a ground for questioning the constitutional validity of a Parliamentary Act.

If the Parliamentary Act is valid and constitutional, the same cannot be declared ultra vires only because the appellant faces some difficulty in writing off the bad debts in his books of accounts;. He may do so. But that does not mean the statute is unconstitutional or the criminal i prosecution becomes vitiated in law. 75. Provisions imposing reverse burden, however, must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the statute in question. 76. The provisions of Section 35 of the Act as also Section 54 thereof, in view of the decisions of this Court, therefore, cannot be said to be ex facie unconstitutional. We would how- ever, keeping in view the principles noticed hereinbefore examine the effect thereof, vis-a-vis the question as to whether the prosecution has been able to discharge its burden hereinafter. BURDEN OF PROOF 77.

The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from element? such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisionsgranting power to the Court to impose fine of more than maximum punishment of Rs. 2,00,00d/- as also the presumpti9n of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i. e. , 'proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would 'be necessary to be invoked.

It is so because 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 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'. The courts must always remind itself that it 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. In State of Punjab v. Baldev Singh, (1999) 3 .

sec 977, it was stated: "It must be borne in mind that severer the punishment, greater has to be the car~ taken to see that all the safeguards provided in a statute are scrupulously followed. " [See also Ritesh Chakravarty v. State of Madhya Pradesh, JT 2006 (12) SC 416] 78. It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking, the conscience of any court but it is well settled that suspicion, however high may be, can under no circumstances, be held to be a substitute for legal evidence. 79. Sections 35 and 54 of the 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 this behalf on the accused; but a bare perusal the said provision would clearly show that presumption 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, the legal burden would shift. Even then, the standard of proof required for the accused to prove his in- 0 nocence 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 '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. 80. 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. 81. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereo_f must also be taken into consideration in determining the said question. It must pass 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 and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself. In She/drake v. Director ofPublic Pross ecutions [(2005) 1 All ER 237] in the following terms: "21. From this body of authority certain principles may be derived.

The overriding concern is that a trial should be fair, and the presumption of innocence·is a fundamental right directed to that end. The convention does not outlaw 1 presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirements of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face · in the absence of a presumption.

Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the fa9ts and circumstances of the particular provision as applied in the particular case. " (emphasis added) 82. It is, however, interesting to note the recent comments ' on She/drake (supra) by Richard Glover in an Article titled "Sheldrake Regulatory Offences and Reverse Legal Burdens of Proof' [(2006) 4 Web JCLI] wherein it was stated: [S. 8. SINHA, J] "It is apparent from the records in Hansard (implicitly if hot expressly) that the Government was content for legal onus to be on the defendant when if drafted the Ro,ad Traffic Act 1956. An amendment to the Bill was suggest13d in the Lords "which puts upon the accused the onus . of showing that he had no intention of driving or attempting to drive a motor vehicle" (Lord Brabazon 1955, col 582).

Lord Mancroft, for the Government, although critical of the amendment stated:"... the Government want to do exactly what he wants to do. We have, therefore, to try to find some means of getting over this technical difficulty" (Lord Mancroft 1955, col 586). It is submitted that this tends to suggest that the Government intended a reverse legal burden. The reverse legal bu;den was certainly _in-keeping with + the tenor of the 1956 Act to "keep death off the road" (Lord Mancroft 1954, col 637) by increased regulation of road transport, particularly in the light of a sharp increase in reported road casualties in 1954 - there was an 18 per cent increase (Lord Mancroft 1954, col 637). The Times lead article for the 4 July 1955 (at 9d) stressed the Bill's importance for Parliament: "They have the casualty lists - 5,000 or more killed on the roads every year, 10 times as many killed and more than 30 times:as many slightly hurt". This was "a national scandal".

The Earl of Selkirk, who introduced the Bill in the Lords, remarked that "we require a higher standard of discipline on the roads" (The Earl of Selkirk 1954, col 567) and Lord Mancroft commented specifically in relation to 'being drunk in charge' that "... we should be quite right if we erred on the side of strictness" (Lord Mancroft 1955, col 586). Notwithstanding this historical background it was, of ' course, open to their Lordships in Sheldrake to interpret · section 5(2) as only imposing an evidential burden on the defendant. Lord Bingham referred to the courts' interpretative obligation unaer the Human Rights A~t 1998 s3 as "a very strong and far-reaching one, and may require the court to depart from the legislative intention of Parliament" ([2004] UKHL 43, para 28).

However, he must also have had in mind further dicta from the recent judgment in Ghaidan v Godin-Mendoza: "Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention rights" (Lord Nicholls, [2004] UKHL 30, para 19. Also see Johnstone (2003) UKHL 28, para 51 ). That is, the Courts should generally defer (11) to the Legislature or, at least, allow them a discretionary area of judgment (R v OPP, exp Kebilene [1999] UKHL 43; [2000] 2 AC 326, 380-381). (Lord Hoffman has criticised the use of the term 'deference' because of its "overtones of servility, or perhaps gratuitous concession" R (Prolife Alliance) v BBC (2003) UKHL 23, paras 75-762; WLR 1403, 1422.

) This principle now appears firmly established, as is evident from the decision of an enlarged Privy Council sitting in Attorney-General for Jersey v Holley (2005] UKPC 23. Lord Nicholls, who again delivered the majority judgment (6-3), stated: "The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change ('develop') the common law and thereby depart from the law as declared by Parliament" (para 22). Parliam~nt's intentions also appear to have been of particular importance in the recent case Makuwa [2006) EWCA Crim 175, which concerned the application of the statutory defence provided by the Immigration and Asylum Act 1999 s31 (1) to an offence under the Forgery and Counterfeiting Act 1981 s3 of using a false instrument.

The question was whether there was an onus on a refugee to prove that he (a) presented himself without delay to the authorities; (b) showed good cause for his illegal entry and (c) made an asylum claim as soon as was reasonably practicable. Moore-Bick LJ's judgment was, with respect, rather confused. He appeared to approve gravamen analysis when he stated that the presumption of innocence was engaged by a reverse burden (paras 28 and 36). However, he then stated that the statutory defence did not impose on the defendant the burden of disproving an essential ingredient of the offence (para 32), in which case it is clear that the presumption of innocence was not engaged. Nonetheless, he did, at least, recognise the limits 0 of gravamen analysis, which was clearly inapplicable to sections 3 and 31 as the statutory defence applied to a number of other offences under the same Act and the Immigration Act 1971 (para 32).

His Lordship acknowledged that particular attention should be paid to Parliament's actual intentions (para 33), as had been the case in Sheldrake. In light of the above it is submitted that their Lordships in Sheldrake, as in Brown v Stott [2000] UKPC 03; [200~] 1 AC 681, 711C-D, PC, were entitled to uphold a legal rather than an evidential burden on the defendant and to take into account other Convention rights, namely the right to life of members of the public exposed to the increased danger of accidents from unfit drivers (European Convention on Human Rights and Fundamental Freedoms,, article 2). That is, there were sound policy reasons fo~ imposing a reverse legal burden, which will be the subjec~ of further discussion in the second part to this article. " 83. Whereas in India the statute must not only pass the test of reasonableness as contained in Article 14 of the Consti- ' tuti.

on of India but also the 'liberty' clause contained in Article 21 of the Constitution of India, in England it must satisfy the requirements of the Human Rights Act 1998 and consequently the provisions of European Conventions of Human Rights. / , 84. Placing ,persuasive burden on the accused persons 8 riust justify the loss of protection which will be suffered by the 1 accused. Fairness and reasonableness of trial as also mainte- . · nance of the individual dignity of the accused must be uppermost in the court's mind. _In a case involving infringement of trade mark, the House of Lords in R. v. Johnstone [(2003) 3 All ER 884] stated the law, thus: "[52] I turn to s 92. (1) Counterfeiting is fraudulent trading. It is a serious contemporary problem. Counterfeiting has • • adverse economic effects on genuine trade. It also has adverse effects on consumers, in terms of quality of goods and, sometimes, on the health or safety of consumers.

The Commission of the European Communities has noted the scale of this iwidespread phenomenon with a global impact. ' Urgent steps are needed to combat counterfeiting and piracy (~ee the Green Paper, Combating Counterfeiting and Piracy in the Single Market (COM (98) 569 final) and its follow up (COM (2000) 789 final). Protection of consumers and honest manufacturers and traders from counterfeiting is an important policy consideration. (2)The offences created bys 92 have rightly been described as offences of 'near absolute liability'. The prosecution is not required to prove intent to infringe a registered trade mark. (3) The offences attract a serious level of punishment: a maximum penalty on indictment of an unlimited fine or imprisonment for up to ten years or both, together with the possibility of confiscation and deprivation orders. (4) Those who trade in brand products are aware of the need to be on guard against counterfeit goods.

They are aware of the need to deal with reputable [S. S. SINHA, J] w;. > .. -'( suppliers and keep records and of the risks they take if they do not. (5) The s 92 (5) defence relat~s to facts within the accused person's own knowledge: his state of mind, and the reasons why he held the belief in question. His sources of SU. Pply are knmyn to him. (6) Conversely, by and large it is to be expected that those who supply I 1 traders with counterfeit products, if traceable at all by outside investigators, are unlikely to be co-operative. So, in practice, if the prosecution must prove that a trader acted dishonestly, fewer investigations will be undertaken and fewer prosecutions will take place. [53] In my view factors (4) and (6) constitute compelling reasons why the s 92(5) defence should place a persuasive burden on the accused person. Taking all the factors mentioned above into account, these reasons justify the t loss of protection which will be suffered by the individual.

Given the importance and difficulty of combating counterfeiting, and given the comparative ease with which an accused can raise an issue about his honesty, overall it is fair and reasonable to require a trader, should need arise, to prove on the balance of probability that he honestly and reasonably believed the goods were genuine. " The same principle applies to this case. CASE AT HAND ... Confession of the Appellant 86. With the aforementioned principles in mind, let us consider the evidence brought on record by the respondents. 87. We may, at the outset, notice that a fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 of the Customs Act. 88. It refers to leading of evidence, production of document or any other thing in an enquiry in connection of smuggling of goods. Every proceeding in terms of sub-section (4) of Sec- tion 108 would be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.

The enquiry contemplated under Section 108 is for the purpose of 1962 Act and not for the purpose of convicting an accused under any other statute including the provisions of the . Act. 89. Appellant contended that the purported confessions recorded on 2. 08. 1997 and 4. 08. 1997 were provided by an officer of the Customs Department roughly and later the same were written by him under threat, duress and under gun point and had, thus, not been voluntarily made. 90. The High Court should have considered the question having regard to the stand taken by the appellant. 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. • 0 91. Clause (3) of Article 20 of the Constitution provides 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. A retracted confessional statement may be relied upon but a rider must be attached thereto namely if it is made voluntary. The burden of proving that such a confession was made voluntarily would, thus, be on the prosecution. It may not be necessary for us to enter into the question as to whether the decisions of this Court that a Custom Officer • is not a Police Officer should be revisited in view of the decision of this Court in Balkrishna Chhaganlal Soni v. State of West Bengal [(1974) 3 SCC 567, wherein it was stated : "On the proved facts the gold bar is caught in the criminal coils of Section 135, read with Sections 111 and 123, Customs Act, as the High Court has found and little has been made out before us to hold to the contrary. " ~ 92. It may also be of some interest to note the decision of this Court in State ofPunjab v.

Barkat Ram [AIR 1962 SC 276], holding: ~.... _,, [S. S. SINHA, J] "17. There has, however, arisen a divergence of opinion about officers on whom some powers analogous to those of police officers have been conferred being police officers for the purpose of S. 25 of the Evidence Act. The view which favours their being held police officers, is based on their possessing powers which are usually possessed by the police and on the supposed intention of the legislature at the time of the enactment of S. 25 of the Evidence Act to be that the expression 'police officer, should include every one who is engaged in the work of detecting and preventing crime. The other view is based on the plain meaning of the expression and on the consideration that the mere fact that an officer who, by no stretch of imagination is a police officer, does not become one merely because certain officers similar to the powers of a police officer t are conferred on him. " 93.

It was pointed out that the power of a Police Officer as crime detection and custom officer as authorities invested with a power to check the smuggling of goods and to impose penalty for loss of revenue being different, they were not Police Officers but then the court took notice of the general image of po- E: lice in absence of legislative power to enforce other law enforcing agencies for the said purpose in the following terms : "23. It is also to be noticed that the Sea Customs Act itself refers to police officer in contradistinction to the Customs Officer. Section 180 empowers a police officer to seize articles liable to confiscation under the Act, on suspicion that they had been stolen. Section 184 provides that the officer adjudging confiscation shall take and h~ possession of the thing confiscated and every office? }6f police, on request of such officer, shall assist him in taking and holding such possession.

This leaves no room for 'f doubt that a Customs Officer is not an officer of the Police.. 24. Section 171-A of the Act empowers the Customs Officer to summon any person to give evidence or to .... , )'... ... ,,_. produce a document or any other thing in any enquiry which he be making in connection with the smuggling of any goods. " 94. The extent of right to a fair trail of an accused must be determined keeping in view the fundamental rights as adum- 'r brated under Article 21 of the Constitution of India as also the International Convention and Covenants chartered in Human Rights.

We cannot lose sight of the fact that criminal justice delivery system prevailing in our country 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 disclosed, and the right to be free from suggestive eyewitness identifications, coerced custodial interrogation and the fabrication of evidence. (See Aggregation in Criminal Law by Brandon L. Garrett : April 2007 t California Law Review Vol. 95 No. 2 page 385 at 393). 95. When, however, the custom officers exercise their power under the Act, it is not exercising its power as an officer to check smuggling of goods; it acts for the purpose of detection of crime and bringing an accused to book. 96.

This Court in Barkat Ram (supra) left the question, as to whether officers of departments other than the Police on whom the powers of Officer-in-charge of a Police Station under Chapter XIV of the Code of Criminal Procedure has been conferred 4 are police officers or not for the purpose of Section 25 of the Act, open, stating: 34. In the Oxford Dictionary, the word "police" is defined thus: "The department of government which is concerned with the maintenance of public order and safety, and the enforcement of the law; the extent of its functions Y varying greatly in different countries and at different periods. · The civil force to which is entrusted the duty of maintaining public order, enforcing regulations for the prevention and punishment of breaches of the law and detecting crime; construed as plural, the members of a police force; the constabulary of a locality. " 1 Shortly stated, the main duties of the police are the prevention and detection of crimes.

A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State's power and duties increased manifold, acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes etc. , came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that m