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Synopsis

The Supreme Court recently set free a woman in a drug trafficking case after holding that the guilt had not been proved beyond a reasonable doubt and the prosecution had adduced no evidence to show that the appellant was the one who was arrested on March 4, 2016.

A bench of Justices Abhay S Oka and Ujjal Bhuyan acquitted appellant K Shikha Barman, who was projected to be Seema Choudhari.

Court noted the prosecution’s evidence clearly showed that on March 4, 2016, one Seema Choudhari was found sitting with another accused in a Wagon R car. All the contemporary documents, including the memo of arrest of the same date, did not mention the name of the appellant as the accused. The accusedwas described as Seema Choudhari, the bench said.

In the examination of the appellant under Section 313 of the Code of Criminal Procedure, 1973, it was not put to the appellant that she was the same person as Seema Choudhari, who was arrested on March 4, 2016. Therefore, the appellant was deprived of an opportunity to deal with the prosecution case.

This causes prejudice to her, the bench said.

The appellant was arraigned as accused no.2 along with three other accused in a prosecution for the offence punishable under Sections 8 and 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

A police team led by Sub-Inspector Bhawna Tiwari, acting on a tip-off, found that three men and two women were sitting in a Wagon R. The women were Seema and Preeti. On search, bags containing Ganja, totally weighing 38.200 kgs, were seized. Samples were drawn, and further procedure was followed. The accused were arrested. In the memo of arrest, one Seema Choudhari was shown as arrested, whose age was recorded as 17 years in the arrest memo.

The appellant contended, in fact, one Seema Choudhari was the accused and she was shown as arrested. Said Seema Choudhari was released, and the appellant, who was begging on the road, was caught and falsely implicated.

While deciding the bail application filed by the appellant, an order was passed on September 6, 2016, holding that the real name of Seema Choudhari was Shikha Barman. By the order of September 6, 2016, by recording a finding that Seema Choudhari and Shikha Barman were the same, the bail application of the appellant was rejected. 

The appellant's counsel, appointed by SC Legal Services Committee, submitted there was no evidence adduced at the time of the final hearing to show that the present appellant was Seema Choudhari who was caught sitting in WagonR car and both the high court and special court had erroneously relied upon the order of September 6, 2016 passed on the application for grant of bail. 

The counsel said that only a summary inquiry was held at that time without oral evidence being adduced by the parties. Therefore, on the basis of the said order, the argument of the appellant that she was not the accused and that one Seema Choudhari was the real accused could not be discarded.         

In the absence of any evidence adduced by the prosecution to show that Seema Choudhari and the present appellant were one and the same, the conviction of the appellant could not be sustained, the counsel said.

The state counsel, on the contrary, said, the findings were based on documents such as the Aadhar card. He submitted that the said order was not challenged by the appellant and hence, had become final.

Considering the submission, the bench said the burden was on the prosecution to prove that the present appellant was found sitting in a Wagon R car on March 4, 2016, from which contraband was recovered. Therefore, it was the duty of the prosecution to prove that the accused Seema Choudhari, as described in all documents, including documents of seizure, arrest memo, etc, was the present appellant.

The court noted the order of September 6, 2016 showed that a summary inquiry was conducted by the Special Judge under the NDPS Act on the basis of the documents produced on record. He had also relied on an inquiry report submitted by the investigation officer. The officer had recorded statements of some persons. The said order could not be treated as a final adjudication of the contention raised by the appellant. The reason was that there was no oral evidence adduced at that stage. Moreover, this inquiry was for a limited purpose of deciding the appellant’s bail application, the bench said.

The court also pointed out that in none of the documents, produced along with the charge sheet, appellant K Shikha Barman was mentioned as an accused. The FIR, the memorandum sent to the medical officer for medical examination, the seizure memo, the arrest memo, the remand report all mentioned the name of the person as Seema Choudhari.

After referring to the statement of the police officer who arrested all the accused, the bench finally set aside and quashed the impugned judgment of the trial court of July 9, 2018 and the impugned judgment of the High Court of Madhya Pradesh at Jabalpur of July 12, 2022 in criminal appeal only insofar as the appellant (K Shikha Barman) was concerned.

"The appellant is acquitted of the offences alleged against her. If the appellant is still in prison, she shall be forthwith set at liberty," the bench said, allowing her appeal.

Case Title: K Shikha Barman Vs State of Madhya Pradesh