Madhya Pradesh High Court
Gopal Krishna Gautam @ Pandit vs State Of Mp on 28 July, 2021
Author: Anand Pathak
1 M.Cr.C.No.31747/2021
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
:SINGLE BENCH:
{HON'BLE SHRI JUSTICE ANAND PATHAK}
MISCELLANEOUS CRIMINAL CASE NO.31747/2021
Gopal Krishna Gautam alias Pandit
Vs.
State of Madhya Pradesh & Anr.
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Shri Vijay Dutt Sharma, learned counsel for applicant.
Shri G.P. Chaurasiya, learned Public Prosecutor for respondent
No.1/State.
Shri Praveen Kumar Newaskar, learned Assistant Solicitor General
for respondent No.2/CBN.
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Whether approved for reporting : Yes
Law laid down:
1. Sections 35, 54 and 66 under NDPS Act raise presumptions
(which are rebuttable) over accused to prove his innocence,
although the standard of proof required for the accused to
prove his innocence is Preponderance of Probability which
accused shall have to establish. NDPS Act carries reverse
burden of proof under Sections 35 and 54. Noor Aga Vs. State
of Punjab, (2008) 16 SCC 417 relied.
2. An initial burden exists upon the prosecution and when it
stands satisfied, then legal burden would shift over accused to
establish his case for innocence.
3. Meaning of Presumption as rule of evidence. Explained.
4. Statement under Section 67 of NDPS Act cannot be taken into
account in order to convict an accused and enquiry under
Section 67 of NDPS Act is a stage prior to investigation as per
2 M.Cr.C.No.31747/2021
Section 53 of NDPS Act or said enquiry is distinct from the
enquiry under Section 53-A of NDPS Act which is during the
course of investigation of offences. Judgment of Apex Court in
the case of Tofan Singh Vs. State of Tamilnadu (2021) 14
SCC 1 relied and discussed.
5. Implications of Section 27 of Evidence Act regarding
discovery of information or recovery of articles/documents/
equipments are still available to trial Court to reach to the
truth.
*************
ORDER
(Passed on 28th day of July, 2021)
The applicant has filed this first bail application u/S.439
of Code of Criminal Procedure, 1973 for grant of bail.
Applicant has been arrested on 10-04-2021 by Police Station
Central Bureau of Narcotics, District Gwalior in connection
with Crime No.02/2021 registered for offence punishable
under Sections 8/18(c) and 29 of the Narcotics Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as
'NDPS Act').
2. It is the submission of learned counsel for the applicant that he
is suffering confinement since 10-04-2021 and private
complaint has been filed by the department, therefore, now
chance of tampering with evidence or witnesses is remote.
Learned counsel referred the statement of prime accused
Laxminarayan alias Lachchhi dated 08-03-2021 and 09-03-
2021 as well as of Ranvir Singh dated 08-03-2021 and 09-03-
2021 who are allegedly prime accused in the case but they did
not refer name of the present applicant. They referred names of
other persons who were allegedly involved in illegal
cultivation of opium. Statement of applicant was recorded later
on and on the basis of his statement, he has been arrested.
3. It is the submission of learned counsel for the applicant that
only on the basis of his statement taken by respondent
authority purportedly under Section 67 of NDPS Act he has
been implicated. Scope of Section 67 vis-a-vis Section 53 and
53-A of NDPS Act, has been considered by recent judgment of
the Apex Court in the case of Tofan Singh Vs. State of
Tamilnadu (2021) 14 SCC 1 wherein it has been held that
statement under Section 67 of NDPS Act can only be
construed as confessional statement as per Section 25 of the
Indian Evidence Act before the police officer and therefore, on
such statement accused cannot be convicted.
4. Learned counsel for the applicant Shri Vijay Dutt Sharma
referred the statement of applicant to submit that the land in
question (Khasra No.87) wherein alleged illegal cultivation
of opium carried out is a vast stretch of land in which some
part of the land has been purchased by him around 10 years
back in which many persons are owners of the said land
including his two brothers and he was not cultivating the
opium over his land. It was the land under the possession of
Munni Devi W/o late Radha Govind and many other persons,
therefore, he cannot be fastened with the liability. He further
referred Annexure A/7 filed with the complaint under Section
36-A of NDPS Act by respondent department in which
description of Khasra No.87 through tentative map has been
depicted in which land of applicant appears to be far distant
than the land where alleged cultivation took place. Since
charge-sheet/complaint under Section 36-A of NDPS Act has
already been filed and applicant does not bear any criminal
record, therefore, chance of tampering with evidence is
remote.
5. He fairly admits on query that Sections 35, 54 and 66 of
NDPS Act raise certain presumptions against accused but it
cannot run to the detriment of the accused because stringent
provisions are made under NDPS Act and therefore, as per
the mandate of the State of Punjab Vs. Baldev Singh, (1999)
6 SCC 172 safeguards provided in NDPS Act are to be
scrupulously followed.
6. Applicant undertakes to perform community service to purge
his misdeeds, if any and will use his agriculture field for
plantation of saplings as part of community service and to
serve National/Environmental/ Social cause voluntarily, if bail
is granted as per the spirit of judgment rendered in the case of
Sunita Gandharva Vs. State of M.P., in 2020 (3)
MPLJ(Cri.) 247 by this Court.
7. Learned counsel for respondent No.1/State opposed the prayer
and prayed for dismissal of the bail application. According to
learned counsel on the basis of documents made available at
the instance of applicant, it appears that he was owner of the
land in question. He prayed for dismissal of bail application.
8. Learned counsel for respondent No.2/CBN Shri Newaskar
opposed the prayer and submitted that applicant was found
cultivating opium on vast stretches of land. He took land on
lease/rent from Munni Bai and used his irrigation pump for
irrigating the crop of opium. Many occupants of land vide
survey No.87 revealed the fact in their statements about
possession of land and cultivation of opium by applicant. His
source of implication is also on the basis of his statement
under Section 67 of NDPS Act as well other statements but
beside that certain more documents have been filed in which it
has been indicated that he was involved in illegal cultivation
of opium and trial would crystallized the facts.
9. It is further submitted that oral evidence in the trial would
further strengthen the case of prosecution and looking to the
serious nature of allegations against applicant, his case for bail
be rejected. He prayed for dismissal of bail application.
10. Heard learned counsel for the parties at length through video-
conferencing and perused the documents appended thereto.
11. In the case in hand, applicant has raised the point in respect of
statement made purportedly under Section 67 of NDPS Act.
Interplay of Section 67 vis-a-vis Section 53 and 53-A of
NDPS Act and their mutual effect has been elaborately
considered by the Hon'ble Apex Court in a recent judgment in
the case of Tofan Singh (supra) and crystallized the
controversy while answering the reference.
12. The Apex Court in the case of Tofan Singh (supra)
considered the word enquiry finding place in Section 67 of
NDPS Act and held that information gathered at antecedent
stage prior to commencement of investigation and therefore,
question of its being admissible in trial as confessional
statement against accused does not arise. Hence, the same
cannot be taken into account in order to convict an accused for
this foundational reason. It is further held that even if it is
accepted for the sake of argument that a statement obtained
under Section 67 of NDPS Act amounts to a confessional
statement, permitting the same to be admissible against the
accused would violate the Fundamental Right of such accused
and Section 67 of NDPS Act would have to be read down
accordingly.
13. Therefore, according to Apex Court, enquiry under Section 67
is a stage prior to investigation as referred in Section 53 of
NDPS Act or said enquiry is distinct from the enquiry under
Section 53-A of NDPS Act which is during the course of
investigation of offences. Therefore, law so far as Section 67
vis-a-vis Sections 53 and 53-A of NDPS Act is concerned
stands settled.
14. At the same time, NDPS Act contains some provisions in the
form of Sections 35, 54 and 66 relating to presumptions and
burden of proof on accused. These presumptions as contained
in NDPS Act raise certain questions:
First, at what time, the applicability of rule of
presumption will start and at which stage will it come into play
and to what extent the original rule of criminal jurisprudence
of innocence of accused until proven guilty beyond reasonable
doubt is relaxed.
Secondly, what is the degree of proof required by the
prosecution in the cases where they are aided with the
provisions of presumptions and reverse onus.
Thirdly, when the presumption is raised against an
accused and onus of proof is reversed then to what extent
accused need to prove a fact so as to proving his innocence.
15. Meaning of "Presumptions" have been succinctly explained by
the Apex Court in the case of Izhar Ahmad Khan Vs. Union
of India, AIR 1962 SC 1052:
"18. ..........The term "'presumption" in its largest
and most comprehensive signification, may be
defined to be an inference, affirmative or
disaffirmative of the truth or falsehood of a
doubtful fact or proposition drawn by a process of
probable reasoning from something proved or
taken for granted. Thus, according to Best, when
the rules of evidence provide for the raising of a
rebuttable or irrebuttable presumption, they are
merely attempting to assist the judicial mind in
the matter of weighing the probative or
persuasive force of certain facts proved in
relation to other facts presumed or inferred."
Further it was held in the case of State of West Bengal Vs.
Mir Mohammad Omar, (2000) 8 SCC 382:
"33. Presumption of fact is an inference as to the
existence of one fact from the existence of some
other facts, unless the truth of such inference is
disproved. Presumption of fact is a rule in law of
evidence that a fact otherwise doubtful may be
inferred from certain other proved facts. When
inferring the existence of a fact from other set of
proved facts, the court exercises a process of
reasoning and reach a logical conclusion as the
most probable position. The above principle has
gained legislative recognition in India
when Section 114 is incorporated in the Evidence
Act. It empowers the court to presume the
existence of any fact which it thinks likely to have
happened. In that process court shall have regard
to the common course of natural events, human
conduct etc. in relation to the facts of the case."
16. It is now well settled that presumption is rule of evidence
which has evolved and is essentially invoked to plug certain
gaps or remove lacuna in the evidence as observed by the
Apex Court in Narayan Govind Gavate Vs. State of
Maharashtra, (1997) 1 SCC 133:
"21. In judging whether a general or a particular
or special onus has been discharged, the Court
will not only consider the direct effect of the oral
and documentary evidence led but also what-may
be indirectly inferred because certain facts have
been proved or not proved though easily capable
of proof if they existed at all which raise either a
presumption of law or of fact. Section 114 of the
Evidence Act covers a wide range of presumptions
of fact which can be used by Courts in the course
of administration of justice to remove lacunae in
the chain of direct evidence before it. It is,
therefore, said that the function of a presumption
often is to "fill a gap" in evidence."
17. In our country, there are numerous statutes including POCSO
Act, which have incorporated this principle of reverse burden
in varying degrees. To mention a few, Sections 35, 54 and 66
of NDPS Act, Sections 7,11,20 of the Prevention of Corruption
Act, 1988, Section 21 of the Prevention of Terrorist and
Disruptive Activities (Prevention) Act, 1987 (now repealed),
Section 43-E of the Unlawful Activities Prevention Act, 1967,
Sections 118, 119, 137, 138, 139 of the Negotiable Instruments
Act, 1881, Section 304-B of IPC, Sections 79 to 90A, 111-A,
113-A, 113-B, 114, 114-A of the Evidence Act etc. provide for
presumption of guilt against the accused.
18. Sections 35 and 54 of NDPS Act raise presumptions with
regard to culpable mental state on the part of the accused and
these provisions carry reverse burden of proof on the accused.
Since NDPS Act carries stringent provisions as well as
punishments and at the same time it is promulgated for wider
National and Social Interest, therefore, an ambivalent
approach has been adopted by the Apex Court while
interpreting the said provisions in the case of Noor Aga Vs.
State of Punjab, (2008) 16 SCC 417. Relevant paragraphs
deserve reiteration for clarity purpose:
"40. 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 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 113B 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.
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. 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. While, however, saying so,
we are not unmindful of serious criticism made by
the academies in this behalf.
56. The provisions of the Act and the punishment
prescribed therein being indisputably stringent
flowing from elements such as a heightened
standard for bail, absence of any provision for
remissions, specific provisions for grant of
minimum sentence, enabling provisions granting
power to the Court to impose fine of more than
maximum punishment of Rs.2,00,000/- as also the
presumption 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."
19. Learned counsel for the applicant also referred the judgment
of Apex Court in the case of Baldev Singh (supra) in which
the Apex Court has cautioned in following words:
"28. .........It must be borne in mind that severer
the punishment, greater has to be the care taken
to see that all the safeguards provided in a statute
are scrupulously followed.:
20. Concluding the debate on presumption vis-a-vis NDPS Act,
the Apex Court in Noor Aga (supra) explained in following
words:
"58. 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 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 the Act, the actus reus which is
possession of contraband by the accused cannot
be said to have been established."
21. Same principle was reiterated in Mohan Lal Vs. State of
Punjab, (2018), 17 SCC 627 while interpreting the provisions
of Section 35 and 54 of NDPS Act and in the recent judgment
of Gangadhar alias Gangaram Vs. State of Madhya
Pradesh, (2020) 9 SCC 202.
22. However, one thing which emerges from above discussion is
that because of Sections 35 & 54 of NDPS Act, the standard of
proof required for the accused under NDPS Act to prove his
innocence is "Preponderance of Probability" at least which
accused shall have to establish. Therefore, "presumption of
culpable mental state" as per Section 35 and "presumption
from possession of illicit articles", as per Section 54(b) are to
be countered by accused on the touchstone of Preponderance
of Probability, at least.
23. An initial burden exists upon the prosecution and when it
stands satisfied, then legal burden would shift over accused to
lead evidence or establish his case for innocence as per the
standard of proof required (Here, it is Preponderance of
Probability). Accused cannot wriggle out from such liability
and trial Court must weigh this aspect of "Presumptions"
while appreciating evidence. Even implications of Section 27
of Evidence Act regarding discovery of information and/or
recovery of articles/documents/equipments are still available
to trial Court to reach to the truth.
24. CBN establishes the ownership of some part of land of an
accused, along with relevant documents like sale deed, Khasra
entries etc., some part of land taken on lease through
documents (or oral agreement) and use of irrigation pump -set
of accused for irrigating opium crop and such other related
proofs, then initial burden existed upon the prosecution would
be satisfied and legal burden would shift over accused to
discharge.
25. Even otherwise, the statements of other owners or occupants
of the land of same survey number whether they are accused or
not as well as seizure of crop also have material bearing.
Discovery of information u/S 27 of Evidence Act is also to be
seen with all these assorted pieces of evidence.
26. Coming to the facts of the case, here, the applicant prima facie
facing prosecution on the basis of his statement purportedly
under Section 67 of NDPS Act along with seizure of crop and
statements of some occupants about his involvement as lease
holder. As per the complaint, statement of Laxminarayan alias
Lachchhi on dated 08-03-2021 and 09-03-2021 as well as
statement of Ranvir Singh dated 08-03-2021 and 09-03-2021
did not refer the name of present applicant. Similarly statement
of present applicant also refers the fact about vast stretch of
land vide survey No.87 (filed as Annexure A/7) in which land
of the applicant is mentioned but placed at some distance
from where the opium was cultivated prima facie. Some of the
co-owners of the land have been prosecuted and roles of some
are yet to be enquired/investigated and they are yet to be
prosecuted. Applicant who is saddled with presumptions as
per Sections 35, 54 and 66 of NDPS Act would have to
discharge such presumptions in the trial as per the provisions
of the statute and mandate of Apex Court in this regard. From
the documents collected (or may be produced during trial) by
the prosecution regarding ownership of land in question if
would be seen in juxtaposition to statements of applicant and
other accused/witnesses and articles/equipments recovered
then it all would also have material bearing. Therefore,
applicant does not bring home the analogy advanced for
getting bail on the basis of Section 67 of NDPS Act only
because it is not a case based upon statement under Section 67
of NDPS Act only. Some more layers are present into it.
Nevertheless, applicant still made out a case for grant of bail
because of reasons assigned in succeeding paragraphs.
27. Applicant in the present case is aged 52 years and from the
facts it appear that he is first time offender without any
previous criminal record and is a land owner and family man
residing in District Gwalior, therefore, chance of absconsion is
remote. Besides that, complaint under Section 36-A of NDPS
Act has already been filed by the respondent in which many
witnesses are official witnesses (Government employees),
therefore, cumulatively chance of tampering with
witnesses/evidence is remote. He already suffered more than 3
months of incarceration which amounts to pretrial detention.
Above all, applicant himself has expressed his intention to
perform community service and therefore, a chance be
given to reform himself as per the spirit echoed in Sunita
Gandharva (supra) so that instead of cultivating "Misery
and Death", he may be directed to plant saplings of "Life
and Hope". Therefore, on these grounds, this Court intends to
allow the application. It is hereby directed that applicant shall
be released on bail on his furnishing personal bond of
Rs.1,00,000/- (Rupees One Lac only) along with two solvent
sureties of the like amount to the satisfaction of trial Court.
This order will remain operative subject to compliance
of the following conditions by the applicant:-
1. The applicant will comply with all the terms and
conditions of the bond executed by him;
2. The applicant will cooperate in the investigation/trial, as
the case may be;
3. The applicant will not indulge himself in extending
inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade them from
disclosing such facts to the Court or to the Police
Officer, as the case may be;
4. The applicant shall not commit an offence similar to the
offence of which he is accused;
5. The applicant will not seek unnecessary adjournments
during the trial;
6. The applicant will not leave India without previous
permission of the trial Court/Investigating Officer, as
the case may be; and
7. Applicant would not commit same nature of offence
during trial and would not indulge in any criminal
activity in future.
8. Applicant shall not tamper with the evidence or
witnesses in any manner and shall not be a source of
embarrassment and harassment to any witnesses in any
manner.
9. Applicant shall not allow his piece of land for
cultivation of any contraband material in illegal manner
and would not help by providing water facility or any
other raw material or labour to produce such contraband
material over his piece of land till conclusion of trial.
10(a). As per the undertaking given by the applicant and as per
the spirit echoed in case of Sunita Gandharva (supra),
it is hereby directed that applicant shall plant 10
saplings (either fruit bearing trees or Neem/ Peepal)
alongwith tree guards or has to make arrangement
for fencing for protection of the trees because it is the
duty of the applicant not only to plant the saplings but
also to nurture them. "o`{kkjksi.k ds lkFk] o`{kkiks"k.k Hkh
vko';d gSA" He shall plant saplings/ trees preferably of
6-8 ft., so that they would grow into full fledged trees at
an early time. For ensuring the compliance, he shall
have to submit all the photographs of plantation of
trees/saplings before the concerned trial Court
alongwith a report within 30 days from the date of
release of the applicant. The progress reports shall be
submitted by the applicant before the trial Court on
expiry of every two months for three years.
(b) It is the duty of the trial Court to monitor the
progress of the trees because human existence is at stake
because of the environmental degradation and Court
cannot put a blind fold over any casualness shown by
the applicant regarding compliance. Therefore, trial
Court is directed to submit a report regarding progress
of the trees and the compliance made by the applicant by
placing a short report before this Court every quarterly
(every three months), which shall be placed under the
caption "Direction" before this Court.
(c) It is expected from the applicant that he shall
submit photographs by downloading the mobile
application (App) prepared at the instance of High Court
for monitoring the plantation through satellite/Geo-
Tagging.
(d) The applicant shall be at liberty to plant these
saplings/ trees at any place of his choice if he intends to
protect the trees on his own cost by providing tree
guards or fencing.
(e) This direction is made by this Court as a test case
to address the Anatomy of Violence and Crime by
process of Creation and a step towards Alignment with
Nature. The natural instinct of compassion, service, love
and mercy needs to be rekindled for human existence as
they are innately engrained attributes of human
existence.
(f) "It is not the question of Plantation of a Tree but
the Germination of a Thought."
28. Bail Application stands allowed and disposed of in above
terms.
29. E- copy of this order be sent to the trial Court concerned for
compliance, if possible for the office of this Court.
C.C. as per rules.
(Anand Pathak)
Anil* Judge
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
DN: c=IN, o=HIGH COURT OF
KUMAR
MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
CHAURAS st=Madhya Pradesh,
2.5.4.20=8512f40a1a9eaa50b6802d
068b51dae27e84c266b09d283f079
IYA
9e67cdc7df50f, cn=ANIL KUMAR
CHAURASIYA
Date: 2021.07.29 10:37:20 -07'00'
