LexNOOR AGA versus STATE OF PUNJAB & ANR.
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[2008] 10 S.C.R. 379 -'f NOOR AGA A v. STATE OF PUNJAB & ANR. (Criminal Appeal No. 1034 of 2008) JULY 9, 2008 B [S.B. SINHA AND V.S. SIRPURKAR, JJ.] Narcotic Drugs and Psychotropic Substances Act, 1985: ss. 22, 23, 52A, 53 and 53A -Possession of contraband - Recovery - Prosecution - Confessions made by accused c before Customs authorities - During trial confession retracted - Conviction by courts below - On appeal, held: Conviction not justified - In the facts of the case, recovery not proved *-+ beyond reasonable doubt - Investigation of the case not fair and reasonable - There are discrepancies in the treatment D and disposal of physical evidence leading to drawl of nega- tive 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 circum- stances of recording of confession and other lacunae in the E prosecution case, do not lead to guilt of accused - Constitu- tion of India, 1950 - Articles 14 and 21 - Standing Order No. 1of1989- Section 3.1- Evidence Act, 1872- s. 114 (e) and "' -;. (g) - Customs Act, 1962 - s.110(18). ss. 35 and 54 - Reverse burden of proof - Constitutional F validity of - Held: Are ex faciedel not unconstitutional - A right to be presumed innocent has to be applied subject to exceptions - Such presumption is a human right and cannot be equated with fundamental right enshrined under Article 21 - Constitutionality of penal provision providing for reverse bur- G ..,. den of proof must be tested on the anvil of State's responsibil- + ity to protect innocent citizens - Procedural requirements are required to be strictly complied with -Evidence Act, 1872 - s. 25 - Customs Act, 1962 - ss. 108 and 1388 - International 379 H 380 SUPREME COURT REPORTS [2008] 10 S.C.R. A Covenant on Civil and Political Rights (1966) - Article 14(2) - Universal Declaration of Human Rights (1948) - Article 12- Eutopean Convention for Protection of Human Rights and Fundamental Freedoms- Article 6.2- Evidence - Reverse burden of proof B Evidence - Confession - Retracted confession - Reli- ance on - For con'viction under NDPS Act- Confession made under s. 108 of Customs Act - Plea of accused that confes- sion was not voluntary but under threat and distress - Held: Provisions of Customs Act cannot be applied for conviction C under any other statute - Customs Officer, by virtue of legal fiction would be deemed to be police officer - Thus confes- sion made to them would run counter to s. 25 of Evidence Act - s. 108 must give way to Article 20(3) of the Constitution - A retracted confession can be relied on only if it is voluntary - D Burden to prove that confession was made voluntarily is on the prosecution - Narcotic Drugs and Psychotropic Sub- stances Act, 198~ ss. 53 and 53A - Constitution of India, 1950 - Article 20(3) -Penal Code, 1860 - ss. 193 and 228 - Customs Act, 1962 - ss. 108 and 1388. E International Law: International Covenant on civil and Political Rights - Article 14 (2) - Presumption of innocence - Held: It is a hu- man right - It cannot per se be equated with fundamental right F under Article 21 of the Constitution - Constitution of India, 1950 - Article 21. Doctrines/Principles: (i) Doctrine of Compatibility. G (ii) Doctrine of constitutionality. (iii) Doctrine of res ipsa loquitur. Appellant-an Afghan national, presented himself be- fore authorities for Customs clearance at airport. He was H searched by the Gazetted Officer of the Customs Depart- NOOR AGA v. STATE OF PUNJAB & ANR. 381 ~-., ment and 22 packets of brown power weighing 1 Kg. 400 A gms. were recovered from a carton be·longing to him. Ap- pellant was taken into custody immediately thereafter by the customs authorities. He was formally arrested 15 r\ hours after the recovery. Appellant confessed his guilt on two occasions. As per the Forensic Report, the alleged B contraband was found to be of white colour. Appellant in his examination u/s 313 Cr.P.C. denied in categorical terms that the carton belonged to him. He also retracted from his alleged confession. Trial Court convicted the appel- lant u/s. 22 and 23 of Narcotic Drugs and Psychotropic c Substances Act, 1985. The conviction was confirmed by High Court. ~-~ In appeal to this court appellant contended that ss. 35 and 54 of the Act imposing reverse burden on an accused is contrary to Artic
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