Linda
Sorry Mr. Public Prosecutor, You Still Have to Do Your Job
Linda Louis 5 Aug 2017

Sorry Mr. Public Prosecutor, You Still Have to Do Your Job

On July 28th, the Supreme Court passed down a judgment that didn't make too many waves in the legal community, but should have. It held that the provisions regarding 'presumptions against the accused' in the Narcotics, Drugs and Psychotropic Substances (NDPS) Act, does not relieve  the Prosecutor from discharging his obligation to prove the case beyond reasonable doubt.

Quick reminder - S. 35, and S. 54 of the NDPS Act deal with a 'presumption' against the accused - that is, if the accused is found to be in possession of the drugs, it moves the burden on to him to satisfactorily explain the possession and to rebut the presumption of guilt.

For obvious reasons, in a country with a police force as prone to abuse and misuse of powers as India - this has caused a lot of trouble, with complaints of being framed and wrongfully accused brought to activist lawyers every few days. But worse, is the fact that Public Prosecutors began to treat such cases as if they were a fundamental shift in the way criminal law is practised - that is, they considered that now their jobs were only to prove cases on a 'preponderance of probability' - NOT ' beyond reasonable doubt'. In this judgment on the 27th of July, the Court has dismissed that notion and said the presumptions DO not guarantee conviction on the preponderance of probability.

What's going to be even more interesting is the implication of this judgment for enforcement of the Protection of Children from Sexual Offences Act, 2012, whose S. 30 was modeled on the NDPS Act. Put simply, it assumes that if the commission of the 'act' that constitutes the offence is proved, then the existence of the mental state 'mens rea' is considered proved. That is - the accused is assumed to have meant to commit that Act. Even at the time of passage, this section worried child rights activists and social workers, who feared misuse of the law.

Today, one must ask ourselves - does this mean the Prosecutor should still seek to prove the existence of the mental state in addition to the physical act under POCSO as well? Interesting times lie ahead.

with the obligation of the prosecution to prove the charge beyond all reasonable doubt....

Read more at: http://www.livelaw.in/presumptions-ndps-act-not-dispense-prosecutions-burden-prove-charge-beyond-reasonable-doubt-sc-read-judgment/


with the obligation of the prosecution to prove the charge beyond all reasonable doubt....

Read more at: http://www.livelaw.in/presumptions-ndps-act-not-dispense-prosecutions-burden-prove-charge-beyond-reasonable-doubt-sc-read-judgment/


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