The seizure, the investigation and the evidence (or rather the lack of it)
The legal procedure requires that a raiding party has to take two independent witnesses who will have to sign the seizure report and who may later be cross examined in a court of law. But investigators, especially the ace ones usually have contempt for the law and the courts. Even if they have respect, most often they cannot follow the procedure. So in practice, what happens is you go book a case and after writing the mahazar catch hold of the tea shop boy, the pan wallah, the auto driver or some such fellow available in the vicinity and make him sign the mahazar to the effect that he has been called before the seizure, that he has witnessed the seizure and everything went on perfectly fine. Later when he is asked to identify the accused in the court, he simply cannot for the simple reason he had never seen the accused. Why is that our ace preventive officers shy away from taking witnesses with them? Maybe easier said than done. Where do you get witnesses? And who will waste three or four hours of his time to witness your search and perhaps later appear in court? But look at the way the CBI does it! They call the witnesses to their offices, tell them about the search operation, record a mahazar and then take them to the scene of operation where a fresh mahazar is recorded. Witnesses can hardly go back in such situations.
In the euphoria of getting a case, the small details are neglected and these prove costly as it happened in the Supreme Court case we are reporting today. The witnesses - auto driver and panwallah told the court that they were made to sign blank papers and they had not seen the search.
The case was lost because of these minor details. Incidentally the Prosecution argued that “alright we failed to prove his guilt, but he also failed to prove his innocence”. “He was not required to”, asserted the Supreme Court. The prosecution was required to prove its case beyond all reasonable doubt. If the prosecution has failed to prove its case, it cannot fill up the lacuna by contending that Appellant has not proved its defence.
The Supreme Court further explained that suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.
So to get conviction in a court of law, you need something more than your righteousness – you need unassailable evidence.