Noor Aga vs State Of Punjab & Anr

2.08.1997, i.e., 15 hours after the recovery having been effected. Grounds of arrests allegedly were supplied to him. His body was also searched wherefor his jamatalashi was prepared which was marked as Ex. PE.

Appellant purported to have confessed his guilt on 2.08.1997 as also on 4.08.1997.

INVESTIGATION Samples were sent to the Central Forensic Laboratory on 5.08.1997. The weight of the said samples was found to be 8.7 gms. The document is said to have been tinkered with, as the words "net weight" were crossed and converted into `gross weight'.

The alleged contraband was found to be of white colour containing Diacetyl Morphine. The report was submitted on 2.09.1997; on the basis whereof a complaint Ex. PL was filed in the Court and in a consequence thereof, appellant was to put on trial having been charged under Sections 22 and 23 of the Act.

PW-1 Kulwant Singh-lnspector Customs (Complainant and investigating officer) PW-2 KK Gupta- Superintendent-Customs (A Gazzeted Officer) PW-3 Ashok Kumar- Inspector, Customs Department (Deposited sample) PW-4 Rajesh Sodhi-Deputy Commissioner Custodian of case property from 1-8-97 to 4-897 PW-5 KK Sharma-lnspector Incharge- Malkhana Appellant, in his examination under section 313 of the Code of 6 Criminal Procedure in categorical terms denied that the carton belonged to him. He also retracted from his alleged confession.

The learned Additional Sessions Judge by his order and judgment dated 7.06.2000 convicted the appellant under Sections 22 and 23 of the Act and sentenced him to undergo rigorous imprisonment for 10 years and also imposed a fine of Rs. 1 lakh on him.

Aggrieved by and dissatisfied with the said judgment and order of the learned Additional Sessions Judge, the appellant filed an appeal before the High Court of Punjab and Haryana. The High Court dismissed the said appeal by a judgment and order dated 9.06.2006. Appellant is, thus, before us.

[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 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 44 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."

We cannot but also take notice other discrepancies in respect of the physical evidence which are:

PW-2 Shri K.K. Gupta stated:

He furthermore accepted:

The seal was not even deposited in the malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the recovery was ensured.

Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question.

The said document, therefore, indicates that the gazetted officer or the independent witnesses were not present at the time of purported recovery. Exhibit PC, however, shows the presence of independent witnesses at the time of recovery. The credibility of the statements, having regard to these vital discrepancies stands eroded.

We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly.

The appeal is allowed with the aforementioned observations.

July 09, 2008