MUKESH SINGH versus STATE (NARCOTIC BRANCH OF DELHI) on 31 August 2020

[2020] 9 S.C.R. 245

MUKESH SINGH

v.

STATE (NARCOTIC BRANCH OF DELHI)

(Special Leave Petition (Criminal) Diary No. 39528 of 2018)

AUGUST 31, 2020

[ARUN MISHRA, INDIRA BANERJEE,VINEET SARAN,M. R. SHAH AND S. RAVINDRA BHAT, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –Informant-police officer who is the complainant himself conductsinvestigation – Trial, if vitiated; and the accused if entitled toacquittal – Conflicting opinions – Matter initially referred to threeJudge Bench – Further referred to five Judge Bench – Held: Underthe scheme of CrPC, there is no bar to a police officer receivinginformation for commission of a cognizable offence, recording thesame and then investigating it – On the contrary, ss.154, 156 and157, CrPC permits the officer in charge of a police station to reducesuch information in writing and thereafter to investigate the same –As per s.51, NDPS Act, the provisions of CrPC shall apply, insofaras they are not inconsistent with its provisions, to all warrants issuedand arrests, searches and seizures made under the Act – NDPS Actbeing a special Act with special procedure to be followed underChapter V, does not specifically bar the informant/complainant tobe an investigator and officer in charge of a police station forinvestigation of offences under the NDPS Act – On the contrary, itpermits – In view of the safeguard provided under the Act itself ins.58, there cannot be any general proposition of law that in everycase where the informant is the investigator, the trial is vitiated andthe accused is entitled to acquittal – Further, whether theinvestigation by the concerned informant was fair or not is alwaysto be decided at the time of trial – Merely because the informant isthe investigator, by that itself the investigation would not suffer thevice of unfairness/bias – Matter has to be decided on a case tocase basis – Contrary decision in Mohan Lal v. State of Punjab(2018) 17 SCC 627 and any other decision taking a contrary vieware not good law and are overruled – Code of CriminalProcedure,1973 – ss.2(o), 100, 154, 156, 157, 173, 465 –

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AConstitution of India – Art.21– Evidence Act,1872 – Illustration(e)to s.114.

Code of Criminal Procedure, 1973 – ss.2(o), 154, 156, 157 –Held: Officer in charge of a police station defined u/s.2(o) has toreduce an information alleging commission of a cognizable offenceBin writing which may be termed as FIR and he is required to furtherinvestigate the information, which is reduced in writing.

Words & Expressions –”information” in s.154, CrPC – Held:Use of expression “information” without any qualification denotesthat police has to record information despite it being unsatisfied byCits reasonableness or credibility – Code of Criminal Procedure, 1973– s.154.

Narcotic Drugs and Psychotropic Substances Act, 1985 –ss.41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57, 57A, 67, 68 – Procedureto issue warrant; seizure and arrest in public place; entry; stop andDsearch conveyance, persons – Scheme of the Act – Discussed.

Narcotic Drugs and Psychotropic Substances Act, 1985 –ss.41, 42, 43, 44, 53 – Held: s.53 authorises the Central Governmentor the State Government, as the case may be, to invest any officerof the department of drugs control, revenue or excise or any otherEdepartment or any class of such officers with the powers of anofficer in charge of a police station for investigation of offencesunder the NDPS Act – It does not speak that all such officers shallbe other than those officers authorised u/ss.41, 42, 43, and 44 –Code of Criminal Procedure, 1973.

FNarcotic Drugs and Psychotropic Substances Act, 1985 –ss.50, 52, 58 – Inbuilt safeguards under the Act – Discussed.

Conclusion

Narcotic Drugs and Psychotropic Substances Act, 1985 –ss.35, 54 – Reverse burden of proof – Held: Presumption under theAct is against the accused as per ss.35 and 54 – In the cases ofreverse burden of proof, the presumption can operate only after theGinitial burden existing on the prosecution is satisfied – Preventionof Corruption Act, 1988 – Penal Code, 1860 – s.304B – Code ofCriminal Procedure, 1973 – s.157– Constitution of India – Art.21.

Answering the reference, the Court

HELD: 1.1 In the case of Mohan Lal, after having notedthe conflicting opinions expressed by different two JudgeBenches of this Court, one in the cases of Bhagwan Singh andMegha Singh and other in the cases of State of Punjab v. BaldevSingh (1999) 6 SCC 172; Bhaskar Ramappa Madar; and Surender,this Court observed and held that in a case where the informant/complainant and the investigator is the same, the trial is vitiatedand the accused is entitled to acquittal. However, thereafter thevery decision of this Court in the case of Mohan Lal fell forconsideration before another three Judges Bench of this Courtin the case of Varinder Kumar, to which two Hon’ble Judges werealso there in the case of Mohan Lal and it is observed that thefacts in Mohan Lal were indeed extremely telling insofar as thedefaults on part of the prosecution was concerned and in thatbackground it was held that the issue could not be left to bedecided on the facts of a case, impinging on the right of a fair trialto an accused under Article 21 of the Constitution of India. Inlight of the observations made by this Court in the case of VarinderKumar that the law laid down by this Court in the case of MohanLal shall be applicable prospectively and shall not affect thepending criminal prosecutions, trials and the appeals, prior tothe law laid down in Mohan Lal, meaning thereby that the sameshall be applicable prospectively, still this Court has to considerthe issue referred to this Court on its own merits. It appears thatin Mohan Lal also the Court did not consider in detail the relevantprovisions of the Cr.P.C. under which the investigation can beundertaken by the investigating officer, more particularly Sections154, 156 and 157 and the other provisions, namely, Section 465Cr.P.C. and Section 114 of the Indian Evidence Act. Even in thesaid decision, this Court did not consider the aspect of prejudiceto be established and proved by the accused in case theinvestigation has been carried out by the informant/complainant,who will be one of the witnesses to be examined on behalf of theprosecution to prove the case against the accused. This Courtalso did not consider in detail and/or misconstrued both thescheme of the NDPS Act and the principle of reverse burden.[Para 8.1.4][279-E-H; 280-A-E]

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A1.2 Section 154 Cr.P.C. provides that every informationrelating to the commission of a cognizable offence, if given orallyto an officer in charge of a police station, shall be reduced towriting by him or under his direction. Section 156 Cr.P.C. providesthat any officer in charge of a police station may investigate anycognizable offence without the order of a Magistrate. It furtherBprovides that no proceeding of a police officer in any such caseshall at any stage be called in question on the ground that thecase was one which such officer was not empowered under thissection to investigate. Therefore, as such, a duty is cast on anofficer in charge of a police station to reduce the information inCwriting relating to commission of a cognizable offence andthereafter to investigate the same. Section 157 Cr.P.C. specificallyprovides that if, from information received or otherwise, an officerin charge of a police station has reason to suspect the commissionof an offence which he is empowered under Section 156 toinvestigate, he shall forthwith send a report of the same to aDMagistrate empowered to take cognizance of such offence upona police report and shall proceed in person to the spot toinvestigate the facts and circumstances of the case and, ifnecessary, to take measures for the discovery and arrest of theoffender. Therefore, considering Section 157 Cr.P.C., either onEreceiving the information or otherwise (may be from other sourceslike secret information, from the hospital, or telephonic message),it is an obligation cast upon such police officer, in charge of apolice station, to take cognizance of the information and to reduceinto writing by himself and thereafter to investigate the facts andcircumstances of the case, and, if necessary, to take measuresFfor the discovery and arrest of the offender. Take an example, ifan officer in charge of a police station passes on a road and hefinds a dead body and/or a person being beaten who ultimatelydied and there is no body to give a formal complaint in writing, insuch a situation, and when the said officer in charge of a policeGstation has reason to suspect the commission of an offence, hehas to reduce the same in writing in the form of an information/complaint. In such a situation, he is not precluded from furtherinvestigating the case. He is not debarred to conduct theinvestigation in such a situation. It may also happen that an officerin charge of a police station is in the police station and he receivesH

a telephonic message, may be from a hospital, and there is nobody to give a formal complaint in writing, such a police officer isrequired to reduce the same in writing which subsequently maybe converted into an FIR/complaint and thereafter he will rushto the spot and further investigate the matter. There may be somany circumstances like such. That is why, Sections 154, 156and 157 Cr.P.C. come into play. Under Section 173 Cr.P.C., theofficer in charge of a police station after completing theinvestigation is required to file the final report/chargesheet beforethe Magistrate. Thus, under the scheme of Cr.P.C., it cannot besaid that there is a bar to a police officer receiving informationfor commission of a cognizable offence, recording the same andthen investigating it. On the contrary, Sections 154, 156 and 157permit the officer in charge of a police station to reduce theinformation of commission of a cognizable offence in writing andthereafter to investigate the same. Officer in charge of a policestation has been defined under Section 2(o) of the Cr. P.C. and itincludes, when the officer in charge of the police station is absentfrom the station-house or unable from illness or other cause toperform his duties, the police officer present at the station-housewho is next in rank to such officer and is above the rank ofconstable or, when the State Government so directs, any otherpolice officer so present. As observed and held by this Court inthe case of Lalita Kumari v. Government of Uttar Pradesh, theword “shall” used in Section 154 leaves no discretion in policeofficer to hold preliminary enquiry before recording FIR. Use ofexpression “information” without any qualification also denotesthat police has to record information despite it being unsatisfiedby its reasonableness or credibility. Therefore, the officer incharge of a police station has to reduce such information allegingcommission of a cognizable offence in writing which may be termedas FIR and thereafter he is required to further investigate theinformation, which is reduced in writing. [Paras 9-9.2][287-B-H;288-A-H]

Lalita Kumari v. Government of Uttar Pradesh (2014)2 SCC 1 : [2013] 14 SCR 713 – relied on.

1.3 Section 67 of the NDPS Act authorises/permits anyofficer referred to in section 42 to call for information from any AB

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Aperson for the purpose of satisfying himself whether there hasbeen any contravention of the provisions of the NDPS Act or anyrule or order made thereunder, during the course of any enquiry.Section 68 of the NDPS Act provides that no officer acting inexercise of powers vested in him under any provision of the NDPSAct or any rule or order made thereunder shall be compelled toBsay from where he got any information as to the commission ofany offence. From the aforesaid scheme and provisions of theNDPS Act, it appears that the NDPS Act is a complete Code initself. Section 41(1) authorises a Metropolitan Magistrate or aMagistrate of the first class or any Magistrate of the second classCspecially empowered by the State Government in this behalf, mayissue a warrant for the arrest of any person whom he has reasonto believe to have committed any offence punishable under theNDPS Act, or for the search, whether by day or by night……Sub-section 2 of Section 41 authorises any such officer of gazettedrank of the Departments of Central Excise…… as is empoweredDin this behalf by general or special order by the CentralGovernment, or any such officer of the Revenue…….police orany other department of a State Government as is empowered inthis behalf by general or special order, if he has reason to believefrom personal knowledge or information given by any person andEtaken in writing that any person has committed an offencepunishable under the NDPS Act, authorising any officersubordinate to him but superior in rank to a peon, sepoy or aconstable to arrest such a person or search a building, conveyanceor place whether by day or by night or himself arrest such a personor search a building, conveyance or place. As per Section 42, anyFofficer of the Department of Central Excise…. as is empoweredin this behalf by general or special order by the CentralGovernment or any such officer…..of the revenue, drugscontrol…police or any other department of a State Governmentas is empowered in this behalf by general or special order of theGState Government, if he has reason to believe from personalknowledge or information given by any person and taken downin writing that any narcotic drug, or psychotropic substance, orcontrolled substance in respect of which an offence punishableunder the NDPS Act has been committed, enter into and searchany such building, conveyance or place; in case of resistance,H

break open any door and remove any obstacle to such entry;seize such drug or substance and all materials used in themanufacture thereof and any other article and any animal orconveyance which he has reason to believe to be liable toconfiscation under this Act and any document or other articlewhich he has reason to believe may furnish evidence of thecommission of any offence punishable under this Act or furnishevidence of holding any illegally acquired property which is liablefor seizure or freezing or forfeiture under Chapter VA of this Act;and detain and search, and, if he thinks proper, arrest any personwhom he has reason to believe to have committed any offencepunishable under this Act. As per sub-section 2 of Section 42,such an officer has to send a copy of the information taken downin writing under sub-section 1 or his grounds for belief, to hisimmediate official superior within 72 hours. [Paras 9.3.1-9.3.4][295-E-H; 296-A-G]

1.4 There are inbuilt safeguards provided under the NDPSAct itself, such as, Sections 50 and 52. Section 50 of the NDPSAct provides that when any officer duly authorised under section42 is about to search any person under the provisions of section41, 42 or 43, he shall inform the person to be searched in thepresence of a Gazetted Officer of any of the departmentsmentioned in Section 42 or to the nearest Magistrate and if suchperson so desires, he shall take such person without unnecessarydelay to the nearest Gazetted Officer as mentioned in sub-section1 of Section 50. As per sub-section 5 of Section 50, when anofficer duly authorised under section 42 has reason to believethat it is not possible to take the person to be searched to thenearest Gazetted Officer or Magistrate without the possibility ofthe person to be searched parting with possession of any narcoticdrug or psychotropic substance, or controlled substance or articleor document, he may, instead of taking such person to the nearestGazetted Officer or Magistrate, proceed to search the person asprovided under Section 100 of the Code of Criminal Procedure,1973. Sub-section 6 of Section 50 provides that after a search isconducted under sub-section (5), the officer shall record thereasons for such belief which necessitated such search and withinseventy-two hours send a copy thereof to his immediate officialsuperior. Section 52 of the NDPS Act mandates that any officer AB

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Aarresting a person under Sections 41, 42, 43 or 44 to inform theperson arrested of the grounds for such arrest. Sub-section 2 ofSection 52 further provides that every person arrested and articleseized under warrant issued under sub-section 1 of Section 41shall be forwarded without unnecessary delay to the Magistrateby whom the warrant was issued. As per sub-section 3 of SectionB52, every person arrested and article seized under sub-section 2of Section 41, 42, 43, or 44 shall be forwarded without unnecessarydelay to the officer in charge of the nearest police station, or theofficer empowered under section 53. That thereafter theinvestigation is to be conducted by the officer in charge of a policeCstation. As per Section 51 of the NDPS Act, the provisions of theCr.P.C. shall apply, insofar as they are not inconsistent with theprovisions of the NDPS Act, to all warrants issued and arrests,searches and seizures made under the NDPS Act. Therefore, upto Section 52, the powers are vested with the officers dulyauthorised under Sections 41, 42, or 43 and thereafter so far asDthe investigation is concerned, it is to be conducted by an officerin charge of a police station. [Paras 9.3.5-9.3.7][296-H; 297-A-G]

1.5 Section 53 of the NDPS Act does not speak that all thoseofficers to be authorised to exercise the powers of an officer inEcharge of a police station for the investigation of the offencesunder the NDPS Act shall be other than those officers authorisedunder Sections 41, 42, 43, and 44 of the NDPS Act. It appearsthat the legislature in its wisdom has never thought that theofficers authorised to exercise the powers under Sections 41,F42, 43 and 44 cannot be the officer in charge of a police stationfor the investigation of the offences under the NDPS Act.Investigation includes even search and seizure. As theinvestigation is to be carried out by the officer in charge of apolice station and none other and therefore purposely Section 53

authorises the Central Government or the State Government, asGthe case may be, invest any officer of the department of drugscontrol, revenue or excise or any other department or any classof such officers with the powers of an officer in charge of a policestation for the investigation of offences under the NDPS Act.Section 42 confers power of entry, search, seizure and arrestHwithout warrant or authorisation to any such officer as mentioned

in Section 42 including any such officer of the revenue, drugscontrol, excise, police or any other department of a StateGovernment or the Central Government, as the case may be,and as observed hereinabove, Section 53 authorises the CentralGovernment to invest any officer of the department of centralexcise, narcotics, customs, revenue intelligence or any otherdepartment of the Central Government….or any class of suchofficers with the powers of an officer in charge of a police stationfor the investigation. Similar powers are with the StateGovernment. The only change in Sections 42 and 53 is that inSection 42 the word “police” is there, however in Section 53 theword “police” is not there. There is an obvious reason as forpolice such requirement is not warranted as he always can be theofficer in charge of a police station as per the definition of an“officer in charge of a police station” as defined under the Cr.P.C. Therefore, as such, the NDPS Act does not specifically barthe informant/complainant to be an investigator and officer incharge of a police station for the investigation of the offencesunder the NDPS Act. On the contrary, it permits, as observedhereinabove. To take a contrary view would be amending Section53 and the relevant provisions of the NDPS Act and/or addingsomething which is not there, which is not permissible. [Paras9.3.8-9.5][298-D-H; 299-A-C]

1.6 Now so far as the submission on behalf of the accusedthat NDPS Act carries a reverse burden of proof under Sections35 and 54 and therefore if the informant who himself has seizedthe offending material from the accused and he himself thereafterinvestigates the case, there shall be all possibilities ofapprehension in the mind of the accused that there shall not befair investigation and that the concerned officer shall try to provehis own version/seizure and therefore there shall be denial of the“fair investigation” enshrined under Article 21 of the Constitutionof India is concerned, it is required to be noted that whether theinvestigation conducted by the concerned informant was fairinvestigation or not is always to be decided at the time of trial.The concerned informant/investigator will be cited as a witnessand he is always subject to cross-examination. There may be casesin which even the case of the prosecution is not solely basedupon the deposition of the informant/informant-cum-investigator AB

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Abut there may be some independent witnesses and/or even theother police witnesses. The testimony of police personnel willbe treated in the same manner as testimony of any other witnessand there is no principal of law that without corroboration byindependent witnesses his testimony cannot be relied upon. Asper illustration (e) to Section 114 of the Indian Evidence Act, inBlaw if an official act has been proved to have been done, it shallbe presumed to be regularly done. Credit has to be given to publicofficers in the absence of any proof to the contrary of their notacting with honesty or within limits of their authority. In caseswhere any person empowered under Sections 42, 43 or 44 of theCNDPS Act acts vexatiously or maliciously, the statute itself hasprovided the punishment as per section 58 and it is an offenceunder section 58 which is a cognizable offence and such an offenceis required to be investigated by the “officer in charge of a policestation” other than the officer who exercised the power of entry,search, seizure or arrest under Sections 42, 43, or 44 as naturallyDin such a case he would be a proposed accused and therefore hecannot be permitted to investigate and to be a judge in his owncause. However, so far as the investigation against the accusedfor the offence under the NDPS Act is concerned, the sameanalogy may not apply. Now so far as the observations made byEthis Court in para 13 in Mohan Lal that in the nature of reverseburden of proof, the onus will lie on the prosecution todemonstrate on the face of it that the investigation was fair,judicious with no circumstance that may raise doubt about itsveracity, it is to be noted that the presumption under the Act isagainst the accused as per Sections 35 and 54 of the NDPS Act.FThus, in the cases of reverse burden of proof, the presumptioncan operate only after the initial burden which exists on theprosecution is satisfied. The reverse burden does not merelyexist in special enactments like the NDPS Act and the Preventionof Corruption Act, but is also a part of the IPC – Section 304BGand all such offences under the Penal Code are to be investigatedin accordance with the provisions of the Cr.P.C. and consequentlythe informant can himself investigate the said offences underSection 157 Cr.P.C. [Paras 10-10.3][299-D-H; 300-A-G]

Karamjit Singh v. State (Delhi Administration) (2003) 5

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SCC 291 : [2003] 3 SCR 25; Devender Pal Singh v.State (NCT of Delhi) (2002) 5 SCC 234 : [2002] 2 SCR767 – relied on.

1.7 Therefore, as such, there is no reason to doubt thecredibility of the informant and doubt the entire case of theprosecution solely on the ground that the informant hasinvestigated the case. Solely on the basis of some apprehensionor the doubts, the entire prosecution version cannot be discardedand the accused is not to be straightway acquitted unless anduntil the accused is able to establish and prove the bias and theprejudice. The question of prejudice or bias has to be establishedand not inferred. The question of bias will have to be decided onthe facts of each case. NDPS Act is a Special Act with the specialpurpose and with special provisions including Section 68 whichprovides that no officer acting in exercise of powers vested inhim under any provision of the NDPS Act or any rule or ordermade thereunder shall be compelled to say from where he gotany information as to the commission of any offence. Therefore,considering the NDPS Act being a special Act with specialprocedure to be followed under Chapter V, there is no specificbar against conducting the investigation by the informant himselfand in view of the safeguard provided under the Act itself, namely,Section 58, there cannot be any general proposition of law to belaid down that in every case where the informant is the investigator,the trial is vitiated and the accused is entitled to acquittal.Similarly, even with respect to offences under the IPC, there isno specific bar against the informant/complainant investigatingthe case. Only in a case where the accused has been able toestablish and prove the bias and/or unfair investigation by theinformant-cum-investigator and the case of the prosecution ismerely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely uponother witnesses, more particularly the independent witnesses,in that case, where the complainant himself had conducted theinvestigation, such aspect of the matter can certainly be givendue weightage while assessing the evidence on record. [Para11][300-H; 301-A-F]

State of Rajasthan v. Ram Chandra (2005) 5 SCC 151

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256SUPREME COURT REPORTS

[2020] 9 S.C.R.

A: [2005] 3 SCR 496; Union of India v. Vipan KumarJain (2005) 9 SCC 579; State v. V. Jayapaul (2004) 5SCC 223 : [2004] SCR 330; Bhaskar Ramappa Madarv. State of Karnataka (2009) 11 SCC 690 : [2009] 5SCR 256 – relied on.

B1.8 The reference is answered as under:

I. The observations of this Court in the cases of BhagwanSingh v. State of Rajasthan; Megha Singh v. State of Haryana; andState by Inspector of Police, NIB, Tamil Nadu v. Rajangam and theacquittal of the accused by this Court on the ground that as theCinformant and the investigator was the same, it has vitiated thetrial and the accused is entitled to acquittal are to be treated tobe confined to their own facts. It cannot be said that in theaforesaid decisions, this Court laid down any general propositionof law that in each and every case where the informant is theinvestigator there is a bias caused to the accused and the entireDprosecution case is to be disbelieved and the accused is entitledto acquittal;

II. In a case where the informant himself is the investigator,by that itself cannot be said that the investigation is vitiated onthe ground of bias or the like factor. The question of bias orEprejudice would depend upon the facts and circumstances of eachcase. Therefore, merely because the informant is the investigator,by that itself the investigation would not suffer the vice ofunfairness or bias and therefore on the sole ground that informantis the investigator, the accused is not entitled to acquittal. TheFmatter has to be decided on a case to case basis. A contrarydecision of this Court in the case of Mohan Lal v. State of Punjab(2018) 17 SCC 627 and any other decision taking a contrary viewthat the informant cannot be the investigator and in such a casethe accused is entitled to acquittal are not good law and they arespecifically overruled. [Para 12][302-B-G]GMohan Lal v. State of Punjab (2018) 17 SCC 627 :[2018] 9 SCR 1006 – overruled.

Bhagwan Singh v. State of Rajasthan (1976) 1 SCC

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15; Megha Singh v. State of Haryana (1996) 11 SCC709; State by Inspector of Police, NIB, Tamil Nadu v.Rajangam (2010) 15 SCC 369; Varinder Kumar v. Stateof Himachal Pradesh (2020) 3 SCC 321 : [2019] 2 SCR707; Menaka Gandhi v. Union of India (1978) 1 SCC248 : [1978] 2 SCR 621; H.N. Rishbud v. State of DelhiAIR 1955 SC 196 : [1955] 1 SCR 1150; Manu Sharmav. State (NCT of Delhi) (2010) 6 SCC 1 : [2010] 4 SCR103; Romila Thapar v. Union of India (2018) 10 SCC753 : [2018] 11 SCR 951; Hema v. State (2013) 10SCC 192 : [2013] 3 SCR 1; Babubhai v. State of Gujarat(2010) 12 SCC 254 : [2010] 10 SCR 651; Rafiq Ahmadv. State of U.P (2011) 8 SCC 300 : [2011] 11 SCR 907;Willie (William) Staney v. The State of Madhya Pradesh[1955] SCR 1140; Sunil Kumar Banerjee v. State ofWest Bengal (1980) 3 SCC 304 : [1980] 3 SCR 179; S.Jeevantham v. State (2004) 5 SCC 230 : [2004] 1 Suppl.SCR 607; Vinod Kumar v. State of Punjab (2015) 3SCC 220 : [2015] 1 SCR 504; Surender v. State ofHaryana (2016) 4 SCC 617 : [2016] 1 SCR 174;Jamuna Chaudhary v. State of Bihar (1974) 3 SCC 774: [1974] 2 SCR 609; Kashmeri Devi v. Delhi Admn.,(1988) Suppl. SCC 482 : [1988] SCR 700; Vinay Tyagiv. Irshad Ali (2013) 5 SCC 762 : [2012] 13 SCR 1005;Niranjan Singh v. State of U.P. [1956] SCR 734;Paramjit Singh v. State of Punjab (2007) 13 SCC 530 :[2007] 11 SCR 776; Rekha v. State of Maharashtra(2010) 15 SCC 725; Union of India v. T. Nathamuni(2014) 16 SCC 285 : [2014] 12 SCR 297; Hardip Singhv. State of Punjab (2008) 8 SCC 557 : [2008] 12 SCR311; State of Punjab v. Noor Aga (2008) 16 SCC 417 :[2008] 10 SCR 379; State of Punjab v. Baldev Singh(1999) 6 SCC 172 : [1999] 3 SCR 977; State of U.P. v.Bhagwant Kishore Joshi, AIR 1964 SC 221 : [1964] 3SCR 71 – referred to.

Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 –referred to.

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MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI)

CRIMINAL APPELLATE JURISDICTION: Special LeavePetition (Criminal) Diary No. 39528 of 2018.

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From the Judgment and Order dated 08.04.2016 of the High Courtof Delhi at New Delhi in Criminal Appeal No. 1598 of 2013.

With

Special Leave Petition (Criminal) Nos. 5648, 5894 and 8499 of2019.

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Tushar Mehta, S.G., Aman Lekhi, ASG, A.K. Srivastava, Sr. Adv.,Kanu Agrawal, A.K. Shrivastav, Ms. Shradha Deshmukh, Shivani Misra,Ritwiz Rishabh, Shantanu Sharma, Manan Popli, Saurabh Mishra, RajatNair, B.V. Balram Das, Udit Atul Kumar, Ujjwal Sinha, Mehak Huria,Adnan Siddiqui, Ms. Lakshika Sachdeva, B.Krishna Prasad, Puneet Jain,Ms. Christi Jain, Harsh Jain, Harshit Khanduja, Abhinav Deshwal,Ms. Sugam Gupta, Pankaj Sharma (for Ms. Pratibha Jain) Ajay Garg,Manish Shankar, Ashwani K Sood, Ms. Vanika Bajaj, Ms. Tirpti Gola,Syed Imtiyaz Ali, Rajiv Shankar Dvivedi, Advs. for the appearing parties.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Having doubted the correctness of the decision of this Court inthe case of Mohan Lal v. State of Punjab reported in (2018) 17 SCC627 taking the view that in case the investigation is conducted by thepolice officer who himself is the complainant, the trial is vitiated and theaccused is entitled to acquittal, initially by order dated 17.01.2019 thematter was referred to a larger Bench consisting of three Judges.Athree Judge Bench vide order dated 12.09.2019 has referred to a largerBench of five Judges to consider the matter. That is why, the presentmatter is placed before the Bench consisting of five Judges.

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A2. At the outset, it is required to be noted that the decision of thisCourt in the case of Mohan Lal (supra) taking the view that in case theinvestigation is conducted by the police officer who himself is thecomplainant, the trial is vitiated and the accused is entitled to acquittal,came up for consideration subsequently before this Court in the case ofVarinder Kumar v. State of Himachal Pradesh 2019 (3) SCALE 50B= (2020) 3 SCC 321 and a three Judge Bench of this Court [out ofwhich two Hon’ble Judges were also in the Bench in the case of MohanLal (supra)] held that the decision of this Court in the case of MohanLal (supra) shall be applicable prospectively, meaning thereby, all pendingcriminal prosecutions, trials and appeals prior to the law laid down inCMohan Lal (supra) shall continue to be governed by individual facts ofthe case. The relevant observations in the case of Varinder Kumar(supra)to be referred and considered hereinbelow.

3. Shri Sushil Kumar Jain, learned Senior Advocate appearing onbehalf of the accused – Devendra Singh has made the followingDsubmissions in support of his submission that as rightly held by this Courtin the case of Mohan Lal (supra) in a given case where the complainanthimself has conducted the investigation the entire trial would be vitiatedand the accused would be entitled to acquittal:

3.1 The decision in Mohan Lal (supra) rests and is based uponEsubstantive constitutional foundation and principles of criminaljurisprudence. In the said decision in para 5, this Court specifically dealtwith and considered the question whether in a criminal prosecution, itwill be in consonance with the principles of justice, fair play and a fairinvestigation, if the informant and the investigating officer were to bethe same person and in such a case, is it necessary for the accused toFdemonstrate prejudice, especially under laws such as the NDPS Act,carrying a reverse burden of proof. In the said decision, this Courtconsidered in detail the reverse burden of proof under Sections 35 and54 of the NDPS Act. That thereafter, this Court had considered in detailthe constitutional guarantee of fair trial to an accused under Article 21Gwhich takes within its fold “Fair Investigation”. Thereafter it is observedby this Court that in the nature of the reverse burden of proof, the onuswill lie on the prosecution to demonstrate on the face of it that theinvestigation was fair, judicious with no circumstances that may raisedoubts about its veracity. It is further observed that if the investigationitself is unfair, to require the accused to demonstrate prejudice will beH

fraught with danger vesting arbitrary powers in the police which maywell lead to false implication also.Thereafter this Court considered inparagraphs 17 and 29 the role and obligations of the investigator and theinvestigation itself. Thereafter after having placed reliance on the decisionsof this Court in the cases of Bhagwan Singh v. State of Rajasthan(1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam(2010) 15 SCC 369, this Court specifically observed and held that incase the investigation is conducted by the police officer who himself isthe complainant, the trial is vitiated and the accused is entitled to acquittal.In the said decision, it is specifically observed that to leave the matterfor being determined on the individual facts of a case, may not only leadto a possible abuse of powers but more importantly will leave the police,the accused, the lawyer and the courts in a state of uncertainty andconfusion which has to be avoided. Thereafter it is held that a fairinvestigation which is but the very foundation of a fair trial, necessarilypostulates that the informant and the investigator must not be the sameperson. Justice must not only be done, but must appear to be done also.Any possibility of bias or a pre-determined conclusion has to be excluded.This requirement is all the more imperative in laws carrying a reverseburden of proof; 3.2 The reasons which found favour in Mohan Lal (supra) areinherent and inbuilt by the legislature in Chapter V – “Procedure”, whichwould be the “…procedure established by law” for the purpose of Article21; 3.3 As is now settled after the decision in the case of MenakaGandhi v. Union of India (1978) 1 SCC 248 that the procedureestablished by law under Article 21 cannot be “any procedure” but hasto be a just and a reasonable procedure and hence right of the accusedto have a fair and independent investigation and trial, being inherent hasbeen “read into” into the statutes not confirming to fair procedure tomake them constitutionally compatible; 3.4 Learned Senior Advocate appearing on behalf of the accusedhas thereafter taken us to the “Scheme” of the NDPS Act, moreparticularly Section 8(c) and Sections 15 to 22. He submitted that Section54 gives rise to a presumption that the accused has committed an offenceunder the Act and places a reverse burden of proof upon an accused“found” to be in possession and which he fails to account for satisfactorily.

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ASection 35 mandates the Court to culpable mental state unless contraryis proved. It is submitted that thus “recovery” and “possession” becomesan important and vital aspect of investigation under the NDPS Act. Ifthe accused is “found” to be in possession of the prohibited substance,Section 54 gives rise to a presumption of commission of offence andSection 35 gives rise to a presumption of culpable mental state. TheBofficer or the raiding party which effects recovery are witnesses to thesaid fact which would constitute an offence and therefore investigationof the said aspect has to be carried out by an independent agency.Investigation being a systemic process and not a forgone conclusionmaking the FIR itself lodged by the informant who himself effectsCrecoveries to be treated as a gospel truth; 3.5 In order to safeguard the interest of the accused, the legislationhas provided inbuilt safeguards under the NDPS Act. That the Actrequires recovery and investigation to be made by different officers, i.e.,by officers empowered under Section 42 and 53. The role of an officerDunder Section 42 being limited to effect “entry”, “search”, “seizure” and“arrest”. It is submitted that an officer under Section 42 has no power ofinvestigation;

3.6 That Section 52(3) requires an officer under Section 42 tohandover every person arrested or article seized to an officer empoweredunder Section 53 (who has been conferred with power of investigationEunder the Act) or an officer in charge of a police station who has powerof investigation under the Cr.P.C. At the stage when the officer underSection 42 is required to handover the person arrested or the articlesseized by him to the officer in charge of a police station or the officerunder Section 53 of the NDPS Act, the information given by him to suchFofficers would then be categorised as the first information report. As theinvestigation starts on information relating to commission of an offencegiven to an officer in charge of a police station and recorded underSection 154 Cr.P.C.

3.7. A cryptic message on telephone etc. which under the NDPSGAct is similar to the information provided by a secret informer etc. cannottherefore constitutean FIR. It is only after recoveries are effected and/or arrests made, information regarding commission of a cognizableoffence crystallises. After such handing over, the Role of a Section 42officer comes to an end, except he has to make a report of his action tohis superior officer within 48 hours under Section 57 of the NDPS Act.HFor all practical purposes, the time when Section 42 officer hands over the person arrested or the goods seized, is the first-time information isreceived by the “investigating officer” and that is the time ofcommencement of investigation. Heavy reliance is placed upon thedecisions of this Court in the cases of H.N. Rishbud v. State of DelhiAIR 1955 SC 196; and Manu Sharma v. State (NCT of Delhi) (2010)6 SCC 1;

3.8 If the officer under Section 41(2) or Section 42 receives somesecret information, he is statutorily required to inform the same underSection 42(2) of the Act to his superior officer after 72 hours. The officeris not obliged and cannot be compelled to give the source of his informationin view of the bar contained in Section 68 of the Act. Thus, there is nomechanism to verify, except the oral testimony of Section 42 officerhimself or his subordinate officers who are part of his raiding party, thathe has acted on some prior secret information or that the recovery etc.was a chance recovery or that the officer was acting maliciously forextraneously. Even after effecting arrests or seizures, while the officerunder Section 42 is required to forward the articles seized and personsarrested “without unnecessary delay” to the investigation officers, he isrequired to report to his immediate superior officer in 48 hours. Thus,there is no person other than the officer under Section 42 who is the“complainant”, i.e., the one who alleges commission of a cognizableoffence based on the arrests and the recoveries effected by himself orhis raiding party. He is the witness who “claims” seizures/recovery ofprohibited substances from possession of the accused. These claims arerequired to be verified and substantiated during investigation by theinvestigating officer.Once the person arrested and the articles seizedcome in the control of the “Investigating Officer”, he is required underSection 52(4) of the Act to take measures for their disposal. The personarrested is produced before the magistrate under Section 167 Cr.P.C.and the narcotic substance seized is then required to be dealt with by theofficer under Section 53 of the NDPS Act or the SHO in accordancewith Section 52A. In the process of investigation, the conduct of theofficer under Sections 42, 43 and 44 is also required to be investigated.If after investigation it is found that the claim made by the complainant/informant is justified, he would file a police report against the accusedfor offences under the Act, however, in case he finds that the officerunder Section 42 has acted vexatiously or maliciously, he can also bepunished under Section 58 and therefore he would file a police reportagainst such officer for offence under Section 58. The offence under A

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ASection 58 is also a cognizable offence and hence on an allegation madethe “officer incharge of police station” is under an obligation to takecognizance of that and investigate. An independent investigation by aseparate agency lends credibility and fairness to both the sides. If theofficer under Section 42 is to be proceeded against, his trial would alsobe based upon “investigated” material. It would also exclude possibilityBof abuse and source of corruption due to the wide powers under theNDPS Act; 3.9 Handing over or continuation of investigation by the officerwho has acted under Section 42 to effect search, seizure or arrest is nottherefore be comprehended under the scheme. It would render SectionC58 completely redundant and otiose as he would not investigate againsthimself and file a chargesheet against himself. If the accused is notfound to be in possession, the Investigating Officer would have to explainhis source or else “possession” of a contraband in his possession wouldalso attract Section 8. The scheme of making two separate sections i.e.DSections 42 and 53 empowering officers for different purposes wouldhave been unnecessary. If the legislative intent was such, officer underSection 42 would have been given an additional power of investigationand then Section 53 was unnecessary;

3.10 There was no need for a provision like Section 52(3) whichEmandates handover of articles seized and persons arrested to a SHO oran officer under Section 53; 3.11 NDPS Act does not contemplate “Joint Authorisations”, forif that were the case, Section 42 would have conferred power of both“entry, search, seizure or arrest” as well as “investigation” on the sameFofficer. The very fact that two separate sections, namely, Section 42and Section 53 have been provided and Section 52(3) contemplates“handing over” by Section 42 officer to either Section 53 officer or toSHO, meaning thereby that there ought to be two separate officers; 3.12 The object of “fair and independent investigation” is to unearthGthe truth. The “fair and independent investigation” is a right of an accusedflowing from Article 21 of the Constitution. Reliance is placed upon thedecisions of this Court in the case of Romila Thapar v. Union of India(2018) 10 SCC 753 (para 67); Manu Sharma (supra)(paras 200 to202); Hema v. State (2013) 10 SCC 192 (para 10); and Babubhai v.State of Gujarat (2010) 12 SCC 254 (para 32);H

3.13 “Liberty” of a person would be at serious peril if the schemeof the NDPS Act is interpreted and left over in the hands of a singleperson without any checks and safeguards to protect the rights of theaccused. It is impermissible and beyond comprehension to allow a personto (i) make an accusation; (ii) the fact that he accuses is “sufficientingredient” to make a penal offence; (iii) “investigate” that accusationwhich he himself makes; and (iv) become a “witness” to prove theaccusation and then based on his testimony a person is convicted andpunished; 3.14 In order to bring home a conviction under the provisions ofthe NDPS Act, prosecution is required to establish ingredients of anoffence “beyond reasonable doubt”; 3.15 If the defence of the accused is not properly investigated torule out all other possibilities, it cannot ever be said that the prosecutionhas established the guilt “beyond reasonable doubt”. A tainted investigationby a complaint who is a “witness” himself to a substantial ingredient ofan offence, would in fact give rise to a “doubt” and it is impossible thatthe case can be established on the parameter of “beyond reasonabledoubt”; 3.16 A person accused of criminal offence punishable with a perilto his life or liberty, enjoys certain rights under the Constitution or throughlong standing development of criminal jurisprudence. Any action whichimpinges or affects those rights would be said to cause “prejudice to anaccused”. That in the case of Rafiq Ahmad v. State of U.P (2011) 8SCC 300, it is observed and held that prejudice to an accused or failureof justice has to be examined with reference to (i) right to fair trial (ii)presumption of innocence until pronouncement of guilt and (iii) thestandards of proof. It is observed in the said decision that whenever aplea of prejudice is raised by the accused, it must be examined withreference to the above rights and safeguards, as it is the violation ofthese rights alone that may result in the weakening of the case of theprosecution and benefit to the accused in accordance with law; 3.17 Section 457 Cr.P.C. in effect saves an order of convictionand sentence despite there being an error, omission or irregularity in thecomplaint, summons, warrant, proclamation, order, judgment or otherproceedings before or during trial or in any inquiry or other proceedingsunder Cr.P.C., or in any sanction for the prosecution unless in the opinion A

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Aof the Court “failure of justice” has been occasioned thereby. Accordingto the prosecution therefore before an order ofconviction and sentenceis set aside the Court must be satisfied that there is a “actual prejudice”caused to the accused. However, Section 457 Cr.P.C. does not includewithin its fold the term “investigation” which has been specifically definedunder Section 2(h) separate from inquiry defined under Section 2(g).BSection 457 contemplates errors committed in judicial proceedings beforeor during the commencement of trial and not “investigation” by the officersof the police etc. Heavy reliance is placed upon the decision of thisCourt in the case of Willie (William) Staney v. The State of MadhyaPradesh 1955 SCR 1140 on the test for “failure of justice”.ThereforeCallowing the informant/complainant to be the investigator in which hecould himself faced prosecution if independently investigated would notonly violate the fundamental principles of fair trial which includes fairinvestigation, but would be a denial of an opportunity of getting thedefence investigated and hence would also be abhorrent to the well-established notion of natural justice rendering the trial a mockery.D

3.18 Making the above submissions and relying upon the aforesaiddecisions, it is submitted that the law laid down by this Court in the caseof Mohan Lal (supra) taking the view that in case the investigation isconducted by the police officer who himself is the complainant, the trialis vitiated and the accused is entitled to acquittal is a correct law.

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4. Shri Ajay Garg, learned Advocate appearing on behalf ofMukesh Singh has made the following additional submissions other thanthe submissions made by Shri Sushil Kumar Jain, learned counselappearing on behalf of the accused;F4.1 Right from Bhagwan Singh (supra) till the recent judgment F4.1 Right from Bhagwan Singh (supra) till the recent judgmentin the case of Varinder Kumar (supra), this Court is of the firm viewthat the complainant/informant and the investigator must not be the sameperson. The same is in consonance with the age-old principles of lawthat “Nemo debetessejudex in causa proporiasua” (no person can bea judge in his own cause) and that “justice should not only be done butGappears to have been done”; 4.2 The aforesaid principles of law are touchstone of the principlesof natural justice and is a useful tool to maintain free, fair and unbiasedinvestigation and adjudication across legal systems; 4.3 Considering the scheme of the NDPS Act, more particularlySections 41, 42, 43, 52(3) and 53 of the Act require that the officerempowered to raid, seize and arrest who may be the complainant shallbe different from the investigator of the case; 4.4 The criminal proceedings stand vitiated if the complainant/informant and the investigator of the case is the same person in view ofthe following reasons:

a) If the complainant/informer and the Investigator are samepersons, it will violate the principle of Rule against Bias which is apart of Principles of Natural Justice and included in FundamentalRight enshrined in Article 14 and 21 of the Constitution of India.In this regard he is relying upon para 14, 18 and 31 of Mohan Lal(Supra).

b) In such case like NDPS where there is reverse burden ofproof in sections 35, 54, 66 and 68, the burden shall be on theprosecution to prove that no prejudice is caused to the accused inthe investigation conducted by the complainant/Informer. In thisregard he is relying upon para 14 and 18 of Mohan Lal (Supra).

c) In such case, the complainant will always be interested in filingcharge sheet against the accused (which is normal humanbehavior). He will have personal bias against the accused andthere will be no objectivity in the Investigation. He is relying uponMegha Singh (Supra), Bhagwan Singh (supra), Mohan Lal(supra).

d) This Hon’ble Court has consistently considered this as a seriousinfraction to the guaranteed constitutional rights of accused anddeclared it to be the grave infirmity which reflects on the credibilityof the prosecution case.

e) Giving due weightage as observed in Mukeshsingh (supra)will have same result because if the evidence of the Complainant/Investigating officer is discarded, nothing remains in the prosecutioncase and the entire Criminal proceedings stands vitiated.

f) The Accused will be deprived of his valuable rights of crossexamining the complainant/informer and the Investigation officerseparately if both are same. Further, the accused will also be A

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deprived of his valuable right of contradicting the previousinformation recorded under section 154 or 155 Cr.P.C. and previousstatements of the witnesses, being a police officer, complaintrecorded under section 151 Cr.P.C. enjoined in section 145 and157 of Indian Evidence Act and proviso to section 152 Cr.P.C.

Bg) The meaningful reading of the scheme of NDPS Act asdiscussed above also indicate that the Informer/complainant/raidingofficer cannot Investigate the said case.

h) There is no compulsion for the Police/any other agency to getthe Investigation conducted by the complainant/informer and onCthe other hand it can be an easy tool of false implication.

i) Investigating Officer could not be placed on any pedestal higherthan of a complainant and the complainant himself cannot be thesole agency of investigation. The whole bedrock of the investigationon the basis of which the appellant has been prosecuted is foundDbe unfair and against the basic tenets of criminal jurisprudence,the conviction and sentence based on such a highly infirminvestigation as aforesaid cannot be sustained in the eye of lawand accordingly the whole proceedings based on such investigationas aforesaid deserve to be quashed and set aside.

E5. Shri Tushar Mehta, learned Solicitor General of India has madethe following submissions:

5.1 Section 2(h) defines “investigation”. “Investigation” includesall the proceedings under the Cr.P.C. for the collection of evidenceconducted by a police officer or by any person other than a magistrateFwho is authorised by a magistrate in this behalf. Section 2(o) defines“officer in charge of a police station” and it includes when the officer incharge of the police station is absent from the station-house or unablefrom illness or other cause to perform his duties, the police officer presentat the station-house who is next in rank to such officer and is above therank of a constable or, when the State Government so directs, any otherGpolice officer so present. It is submitted that under Cr.P.C., the criminallaw is set into motion either under Chapter XII which relates to informationto police officers; or Chapter XV which relates to complaints tomagistrates. The present case relates to Chapter XII, Cr.P.C. where theinformant of the offence is a police officer; H

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5.2 As per Section 154 Cr.P.C., every information relating to thecommission of a cognizable offence, if given orally to an officer in chargeof a police station shall be reduced in writing by him or under his direction,and be read over to the informant; and every such information, whethergiven in writing or reduced in writing shall be signed by the person givingit, and the substance thereof shall be entered in a book to be kept bysuch officer in such form as the State Government may prescribe in thisbehalf. As per sub-section 3 of Section 154 Cr.P.C., any person aggrievedby a refusal on the part of an officer in charge of a police station torecord the information referred to in sub-section 1 may send the substanceof such information, in writing and by post to the Superintendent of Policeconcerned, who if satisfied that such information discloses thecommission of a cognizable offence shall either investigate the casehimself or direct an investigation to be made by any police officersubordinate to him and such officer shall have all the powers of an officerin charge of the police station in relation to that offence; 5.3 Section 156 Cr.P.C. provides that any officer in charge of apolice station may investigate a cognizable offence without an order ofthe magistrate. Thus, even where the FIR under Section 154 Cr.P.C. isregistered at the instance of a police officer, there is no bar under Section156 Cr.P.C. to an officer in charge of a police station to investigate thesame. Further, the competence of such investigating officer cannot becalled in question in any proceedings; 5.4 Section 157 Cr.P.C. provides that if some information receivedor otherwise, an officer in charge of a police station has reason to suspectthe commission of an offence which he is empowered under Section156 of the Code to investigate, he shall proceed in person to the spot toinvestigate and if necessary to take measures for the discovery andarrest of the offender. Thus, an officer in charge of a police station whohimself receives information of commission of cognizable offence isempowered to investigate the case. It is submitted that thus, under thescheme of Cr.P.C., there is no bar on a police officer receiving informationof commission of a cognizable offence, recording the same and theninvestigate it; 5.5 Cr.P.C. itself has provisions for vitiation and non-vitiation oftrial if there is illegality committed by the magistrate. Section 460 of theCode enumerates that if a magistrate does any of the acts specified inthe said section, which he is not empowered to, then his proceedings A

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Awould not be set aside only on this ground. Section 461 of the Codeenumerates that if a magistrate does any of the acts specified in the saidsection, which he is not empowered to, then his proceedings would bevoid. However, the illegalities under both these provisions are by themagistrate and not by the investigating officer;B5.6 Section 462 of the Code provides that no finding, sentence ororder of any Criminal Court shall be set aside merely on the ground thatthe inquiry, trial or other proceedings took place in a wrong sessionsdivision, district, sub-division or other local area, unless it appears thatsuch error has in fact occasioned a failure of justice. Section 463 of theCode provides that even if there is non-compliance in recording theCconfession under Section 164 of the Code, even then the same may beadmissible if such non-compliance has not injured the accused in hisdefence on the merits and that he duly made the statement recorded,admit such statement. Section 465 of the Code provides that no finding,sentence or order passed by a court of competent jurisdiction shall beDreversed or altered by a Court of Appeal on account of any error, omissionor irregularity in the complaint, summons, warrant, proclamation, order,judgment or other proceedings before or during trial or in any enquiry orother proceedings under this Code, or any error or irregularity in anysanction for the prosecution, unless in the opinion of that Court, a failureof justice has in fact been occasioned thereby. Thus, under Section 465,Eirregularity in other proceedings under the Code shall not lead to reversalof conviction unless it led to failure of justice. Irregularity in investigationwould not lead to acquittal unless failure of justice is shown; 5.7 Further, illustration (e) to Section 114 of the Indian EvidenceAct which permits the Court to raise a presumption that official actsFhave been regularly performed; 5.8 The decisions of this Court in the cases of Bhagwan Singh(supra); Megha Singh (supra); Rajangam (supra) and Mohan Lal(supra) were, as such, can be said to be on facts; G5.8.1 In the case of Bhagwan Singh (supra), the head constablewho caught the accused for smuggling of grains lodged an FIR underSection 161 IPC for offering Rs.510/- as bribe to the head constable.The head constable himself was the complainant and the IO. Therewere no independent witnesses in the case. Even, this Court alsocommented that no effort was made by the IO to have independentH

witnesses. That thereafter, it was held by this Court that the complainanthimself cannot be an investigator. Therefore, the said decision can besaid to be on the facts and circumstances of that case and cannot besaid to be an absolute general proposition of law that in any case thecomplainant cannot be the investigator and in such a case the accused isentitled to acquittal.

5.8.2 In the case of Megha Singh (supra) also, no independentwitnesses were examined. Head constable who arrested the accusedwith a country made pistol and cartridges lodged the complaint and heonly proceeded with the investigation. In the said case, it was found thatthere were discrepancies in depositions of public witnesses. Therefore,this Court held that PW3 – Head Constable himself being a complainantought not to have proceeded with the investigation; 5.8.3 In the case of Rajangam (supra), this Court followed itsearlier judgment in the case of Megha Singh (supra);

5.8.4 Now so far as the decision of this Court in the case ofMohan Lal (supra) is concerned, the same again came to be consideredby this Court in the case of Varinder Kumar (supra) and it is specificallyobserved that the facts in Mohan Lal (supra) were indeed extremelytelling insofar as the defaults on the part of the prosecution wereconcerned. It is further observed that in that background it was held thatthe issue could not be left to be decided on the facts of a case, impingingon the right of a fair trial to an accused under Article 21 of the Constitutionof India. It is further observed in the said decision in para 11 that theparamount consideration being to interpret the law so that it operatesfairly, the facts of that case did not show any need to visualise what allexceptions must be carved out and provided for. The attention of theCourt was also not invited to the need for considering the carving out ofexceptions. It is further observed that individual rights of the accusedare undoubtedly important, but equally important is the social interest forbringing the offender to book and for the system to send the right messageto all in the society – be it the law-abiding citizen or the potential offender.It is further observed that the social interest mandates that the law laiddown in Mohan Lal (supra) cannot be allowed to become a springboard by an accused for being catapulted to acquittal, irrespective of allother considerations pursuant to an investigation and prosecution whenthe law in that regard was nebulous. Therefore, even as observed bythis Court in the case of Varinder Kumar (supra), the facts in the case A

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Aof Mohan Lal (supra) were glaring and on facts it was held that theaccused was entitled to acquittal; 5.9 On the contrary there is a line of judgments wherein this Courtheld that the investigating officer and the complainant being the sameperson, does not vitiate the investigation. Reliance is placed upon theBdecisions of this Court in the cases of Sunil Kumar Banerjee v. Stateof West Bengal (1980) 3 SCC 304; State v. V. Jayapaul (2004) 5SCC 223; S. Jeevantham v. State (2004) 5 SCC 230; BhaskarRamappaMadar v. State of Karnataka (2009) 11 SCC 690;VinodKumar v. State of Punjab (2015) 3 SCC 220; and Surender v. Stateof Haryana (2016) 4 SCC 617.C

Therefore, it may be seen that this Court declined to lay down ahard and fast rule with regard to the said question despite taking note ofthe judgments, which in peculiar facts, had held that the investigatingofficer and the complainant cannot be the same person; D5.10 Relying upon the decisions of this Court in the cases ofJamuna Chaudhary v. State of Bihar (1974) 3 SCC 774; KashmeriDevi v. Delhi Admn., 1988 Supp. SCC 482; and Vinay Tyagi v. IrshadAli (2013) 5 SCC 762, it is submitted that the duty of the investigatingofficers is not merely to bolster up a prosecution casewith such evidenceas may enable the court to record a conviction but to bring out the realEunvarnished truth; D

5.10.1 As held by this Court in the case of Vinay Tyagi (supra),what ultimately is the aim or significance of the expression “fair andproper investigation” in criminal jurisprudence? It has a twin purpose,firstly, the investigation must be unbiased, honest, just and in accordanceFwith law, secondly, the entire emphasis on a fair investigation has to beto bring out the truth of the case before the court of competent jurisdiction.Once these twin paradigms of fair investigation are satisfied, there willbe the least requirement for the court of law to interfere with theinvestigation, much less quash the same, or transfer it to another agency.GBringing out the truth by fair and investigative means in accordancewith law would essentially repel the very basis of an unfair, taintedinvestigation or cases of false implication. Thus, it is inevitable for acourt of law to pass a specific order as to the fate of the investigation,which in its opinion is unfair, tainted and in violation of the settled principlesof investigative canons. Therefore, failure of justice – defect in H

investigation does not vitiate the trial unless prejudice is caused to theaccused; 5.10.2 The second concept is with regard to failure of justice andprejudice to the accused. This involves the shifting of the burden on theaccused to illustrate how the procedure and the factual circumstances/countervailing factors, have resulted in grave prejudice to the investigationand to him/her in particular. Reliance is placed upon the decisions of thisCourt in the cases of H.N. Rishbud v. State of Delhi 1955 (1) SCR1150; Niranjan Singh v. State of U.P. 1956 SCR 734; Paramjit Singhv. State of Punjab (2007) 13 SCC 530; Rekha v. State ofMaharashtra (2010) 15 SCC 725; and Union of India v. T.Nathamuni (2014) 16 SCC 285; 5.10.3 In light of the aforesaid twin tests, it is prayed to lay downa flexible rule wherein the right to fair investigation does not become aspring board for acquittal in cases wherein investigations are proper andas per the statutory principles.

6. Shri Aman Lekhi, learned Additional Solicitor General of Indiahas made the following submissions:

6.1 This Court in Mohan Lal (supra) proceeded sub-silentioSection 157 of the Code of Criminal Procedure under which investigationcan be undertaken by the investigating officer on the basis of his ownknowledge of the commission of a cognizable offence; ignored Illustration(e) to Section 114 of the Indian Evidence Act which permits the Court toraise a presumption that official acts have been regularly performed;disregarded the principle enunciated in the case of H.N. Rishbud (supra)that illegality in investigation has no direct bearing on cognizance and avalid police report is not necessarily the foundation for the Court to takecognizance; did not deal with Section 465 of the Cr.P.C. under whichany illegality, whether before or during trial or in any other proceeding,will not justify reversal of any finding, sentence or order unless a failureof justice is occasioned thereby; overlooked the rule that an objection toan illegality if not raised at the right stage will be deemed to have beenwaived; did not consider the principle that mala fides have to be establishedand not inferred and that mala fides are of secondary importance if thetrial otherwise discloses impeccable evidence; and misconstrued boththe scheme of the NDPS Act and the principle of reverse burden; andfailed to take notice of the principle that investigation is exclusively A

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Areserved for the investigating agency under the Act, functions of theinvestigating agency and the judiciary are complementary and notoverlapping and interference is warranted only is a clear case of abuseof power which will be decided in the facts of each case; 6.2 In the case of Varinder Kumar (supra), this Court specificallyBheld that in Mohan Lal (supra), the attention of the Court was also notinvited to the “need for considering the carving out of exceptions” andthat “human rights are not only of the accused but, extent apart, also ofthe victim, the symbolic member of society as the potential victim andthe society as a whole”. The Court therefore held that the law in MohanLal (supra) “cannot be allowed to become a spring board by an accusedCto be catapulted to an acquittal, irrespective of all other considerationspursuant to an investigation”. The Court however, yet held that onlytrials and appeals prior to the law laid down in Mohan Lal (supra) shallcontinue to be governed by the individual facts of the case. It is submittedthat this distinction is artificial and unjustified in law;D

6.3 The order of Reference dated 17.01.2019 correctly recordsthat in a given case, where the complainant himself had conductedinvestigation, such aspect of the matter can certainly be given dueweightage while assessing the evidence on record but it would becompletely a different thing to say that the trial itself would be vitiatedEfor such infraction. But Mohan Lal (Supra) has ruled that the trial itselfwould stand vitiated on that count; 6.4 The decision of this Court in Mohan Lal (supra) has notconsidered Section 157 of the Cr.P.C. The interference with the exerciseof power under Section 157 would be warranted only if the peculiarFfacts of each case require. This is more so because there are safeguardsin the statute itself and Section 157 has to be read with Sections 158 and159 of the Cr.P.C.; 6.5 An information report is not a condition precedent for settingcriminal investigation to motion and an officer in charge of a police stationGcan undertake the same even “otherwise”. Thus, investigation cancommence if an officer in charge of the police station is in possessionthrough his own knowledge or credible informal intelligence of thecommission of a cognizable offence. Reliance is placed on the decisionof the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad,AIR 1945 PC 18;H

6.6 In the case of V. Jayapaul (supra), wherein the inspector ofpolice prepared the FIR upon receiving information himself about therespondent indulging in corrupt practices and proceeded to take up theinvestigation himself, eventually filed a chargesheet. This Court set asidethe order of the High Court which had quashed the proceedings on theground that investigation was by the same police officer who registeredthe case. In the case of V. Jayapaul (supra), this Court distinguishedthe cases of Bhagwan Singh (supra) and Megha Singh (supra),wherein the Court had held that the complainant cannot be theinvestigating officer; 6.6.1 In the case of Bhaskar Ramappa Madar (supra), thisCourt also held that the judgments of Bhagwan Singh (supra) andMegha Singh (supra) were to be confined to their own facts; 6.6.2 the decision of this Court in the case of V. Jayapaul(supra)was approved in the case of Hardip Singh v. State of Punjab(2008) 8 SCC 557 wherein the investigating officer was the one whohad seized the opium for the possession of which the appellant had beenconvicted; 6.6.3 It is held by this Court in the case of State of Rajasthan v.Ram Chandra (2005) 5 SCC 151, the question of prejudice or bias hasto be established and not inferred. Reliance is also placed on the decisionof this Court in the case of Union of India v. Vipan Kumar Jain (2005)9 SCC 579;

6.7 Even in cases of reverse burden, the presumption can operateonly after the initial burden which exists on the prosecution is satisfiedand even thereafter, the standard of proof on the accused is only that ofpreponderance of probability. Without the foundational facts beingestablished, provisions raising presumptions against the accused cannotoperate. Reliance is placed on the decision of this Court in the case ofState of Punjab v. Noor Aga (2008) 16 SCC 417; 6.8 Reverse burden does not merely exist in special enactmentslike the NDPS Act and Prevention of Corruption Act, but is also a partof the IPC, namely Section 304B and all offences under the IPC are tobe investigated in accordance with the provisions of the Cr.P.C. andconsequently the informant himself can investigate the said offencesunder Section 157 Cr.P.C. Law, in other words, does not disapprove ofnor frowns upon this practice. These protections will remain even whenthe complainant is the investigating officer; AB

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A6.9 That this Courtin the case of Mohan Lal (supra) also did notconsider the scheme of the NDPS Act; 6.10 Investigation of an offence is a field exclusively reserved forthe police whose powers remain unfettered as long as they remaincomplaint with the provisions of the Code of Criminal Procedure. It isBonly in extraordinary circumstances of abuse of authority that the Courtmay interfere. The rule as laid down in Mohan Lal (supra) imposed arestriction on the procedure of investigation which is not contemplatedby the Code and disregards the principle that the functions of the judiciaryand the investigating agency are complementary and not overlappingand each should be left to exercise its function in the area demarcatedCfor it subject to intervention in an appropriate case. In other words, unlessthe facts of a particular case show prejudice, no rule can be judiciallyenacted that in no case can a complainant be the investigating officer; 6.11 Abuse of power cannot be presumed. Fairness of investigationwould always be a question of fact. In the absence of an expressDprohibition in the code barring investigation by a complainant himself,the statutory incorporation of the rule that credit should be given to publicofficers who have acted in the limits of their authority. The law is thatinvalidity of investigation has no relation to the competence of the Court.And the object of the Code that matters of failure of justice should beEleft to the discretion and vigilance of the Courts; hence, the formulationof a general rule as contained in paragraph 25 of Mohan Lal (supra) iswrong;

7. In rejoinder, Shri Sushil Kumar Jain, learned Senior Advocateappearing on behalf of the accused has submitted that reliance placedFupon Section 157 Cr.P.C. for the offence under the NDPS Act ismisplaced. NDPS Act is a special statute and all provisions of Cr.P.C.have not been made applicable to the proceedings under the NDPS Act.That the scheme of NDPS Act, being a special Act, overrides Section157 Cr.P.C. to the extent of enabling taking of cognizance on personalinformation and proceeding on that basis, more particularly the provisionsGof Section 42 of the NDPS Act.

8. The question which is referred to the larger Bench is, whetherin case the investigation is conducted by the informant/police officerwho himself is the complainant, the trial is vitiated and in such a situation,the accused is entitled to acquittal?H

8.1 While deciding the question referred, few earlier decisions ofthis Court on one side taking the view that in case the investigatingofficer in the complaint being the same person, trial is vitiated and theaccused is entitled to acquittal, and on the other side taking contraryview are required to be referred to and considered in detail.

8.1.1 The first decision relied upon on behalf of the accused is thedecision in the case of Bhagwan Singh (supra), which has beensubsequently followed and even considered in the subsequent decisions.It is true that in the case of Bhagwan Singh (supra), this Court acquittedthe accused by observing and holding that the complainant himself cannotbe an investigator. However, it is required to be noted that in that casethe investigation was conducted by a Head Constable who himself wasthe person to whom the bribe was alleged to have been offered and wholodged the first information report as informant or the complainant. Itwas noted that the entire case of the prosecution rests solely on thetestimony of the Head Constable – Ram Singh and four other policeconstables. It was found that there was not a single independent witnessto depose to the offer of bribe by the accused. It was noticed that theHead Constable – Ram Singh did not make any effort to get independentrespectable witnesses in whose presence the seizure could be made.This Court also noticed that the Head Constable could have easily sentone of the four police constables accompanying him to a nereby villagein order to get some independent respectable witnesses, if for any reasonthat was not possible, he could have taken the accused and one anothertogether with the cart to the police station and then made a seizurememo in the presence of independent respectable Panch witnesses. ThisCourt also noticed from the statement made by the accused under Section342 Cr.P.C. that some other independent witnesses were present whenthe incident took place and therefore this Court noticed that any of themcould have been asked to witness the seizure memo. Thereafter, onappreciation of evidence, this Court found inherent improbability in thestory of offer of bribe by the accused to the Head Constable. Thereafter,this Court observed that the trial Court and the High Court failed tonotice the circumstances mentioned in para 7 which throw considerabledoubt on the prosecution case against the accused. This Court furtherobserved that the Court is not at all satisfied that the evidence led onbehalf of the prosecution excludes reasonable doubt in regard to theguilt of the accused. It was further observed that since the prosecutioncase against the accused cannot be said to be free from reasonable A

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Adoubt, the accused is entitled to acquittal. Therefore, on facts andconsidering the entire evidence on record having doubted the prosecutioncase against the accused and more particularly in the absence of anyindependent witnesses, though the independent witnesses were available,this Court acquitted the accused by giving him benefit of doubt.Therefore, as such, the decision of this Court in the case of BhagwanBSingh (supra) can be said to be a decision on its own facts and cannotbe said to be laying an absolute proposition of law that in no case theinformant/complainant can be the investigator and that in all the caseswhere the complainant/informant and the investigating officer is the same,the entire trial is vitiated and the accused is entitled to acquittal.

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8.1.2 The next decision which is relied upon on behalf of theaccused is the decision in the case of Megha Singh (supra). On factsand on appreciation of evidence on record, this Court held that theinvestigation by the very police officer who lodged the complaint wasnot conducive to fair and impartial investigation. In this case, the accusedDwas apprehended by Constables PW2 and PW3 and a pistol and livecartridges without any licence were recorded from the accused. On thecomplaint of PW3 that a formal FIR was lodged. On facts, and onappreciation of evidence on record, a discrepancy was found in theevidence of PW2 and PW3 regarding number of cartridges recoveredand as to the place from where the pistol was recovered. No otherEindependent witnesses were examined. In paragraph 4, it is observedand held as under:

“4. After considering the facts and circumstances of the case, itappears to us that there is discrepancy in the depositions of PWs2 and 3 and in the absence of any independent corroboration suchFdiscrepancy does not inspire confidence about the reliability ofthe prosecution case. We have also noted another disturbing featurein this case. PW3, Siri Chand, Head Constable arrested the accusedand on search being conducted by him a pistol and the cartridgeswere recovered from the accused. It was on his complaint a formalGfirst information report was lodged and the case was initiated.He being complainant should not have proceeded with theinvestigation of the case. But it appears to us that he was not onlythe complainant in the case but he carried on with the investigationand examined witnesses under Section 161 Cr.P.C. Such practice,to say the least, should not be resorted to so that there may not beHany occasion to suspect fair and impartial investigation.”

Therefore, the decision of this Court in the case of Megha Singh(supra) also can be said to be on the peculiar facts of that case andafter appreciation of evidence having doubted the reliability of theprosecution case and thereafter having noted that in such a case theHead Constable who himself was the complainant ought not to havecarried on with the investigation. Therefore, it cannot be said that in thisdecision also, there is an absolute proposition of law laid down by thisCourt that in each and every case where the complainant himself is theinvestigating officer, the trial is vitiated and the accused is entitled toacquittal.

At this stage, it is required to be noted that in neither of thecases this Court considered in detail the relevant provisions of the Cr.P.C.with respect to the investigation which shall be referred to and dealtwith hereinbelow.

8.1.3 The next decision which has been relied upon on behalf ofthe accused is the decision in the case of rajangam (supra). In thiscase, this Court acquitted the accused solely following the decision inthe case of Megha Singh (supra). There is no further discussion onthe point in the said decision by this Court.

8.1.4 In the case of Mohan Lal (supra), after having noted theconflicting opinions expressed by different two Judge Benches of thisCourt, one in the cases of Bhagwan Singh (supra) and Megha Singh(supra) and other in the cases of State of Punjab v. Baldev Singh(1999) 6 SCC 172; Bhaskar Ramappa Madar (supra); and Surender(supra), thereafter this Court observed and held that in a case wherethe informant/complainant and the investigator is the same, the trial isvitiated and the accused is entitled to acquittal. However, it is required tobe noted that thereafter the very decision of this Court in the case ofMohan Lal (supra) fell for consideration before another three JudgesBench of this Court in the case of Varinder Kumar (supra), to whichtwo Hon’ble Judges were also there in the case of Mohan Lal (supra)and it is observed that the facts in Mohan Lal (supra) were indeedextremely telling insofar as the defaults on part of the prosecution wasconcerned and in that background it was held that the issue could not beleft to be decided on the facts of a case, impinging on the right of a fairtrial to an accused under Article 21 of the Constitution of India. Thatthereafter in the case of Varinder Kumar (supra), it is held that thedecision in the case of Mohan Lal (supra) shall be applicable A

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Aprospectively and shall not affect the cases, pending criminal prosecutions,trials and appeals and they shall be governed by the individual facts ofthe case. That thereafter on merits and despite the fact that in that casealso the informant/complainant and the investigator was the same, thisCourt has confirmed the conviction.

BTherefore, in light of the observations made by this Court in thecase of Varinder Kumar (supra) that the law laid down by this Court inthe case of Mohan Lal (supra) shall be applicable prospectively andshall not affect the pending criminal prosecutions, trials and the appeals,prior to the law laid down in Mohan Lal (supra), meaning thereby thatthe same shall be applicable prospectively, still this Court has to considerCthe issue referred to this Court on its own merits. On considering theentire decision of this Court in the case of Mohan Lal (supra), it appearsthat in this case also the Court did not consider in detail the relevantprovisions of the Cr.P.C. under which the investigation can be undertakenby the investigating officer, more particularly Sections 154, 156 and 157Dand the other provisions, namely, Section 465 Cr.P.C. and Section 114 ofthe Indian Evidence Act. Even in the said decision, this Court did notconsider the aspect of prejudice to be established and proved by theaccused in case the investigation has been carried out by the informant/complainant, who will be one of the witnesses to be examined on behalfof the prosecution to prove the case against the accused. This CourtEalso did not consider in detail and/or misconstrued both the scheme ofthe NDPS Act and the principle of reverse burden.

8.2 Now let us consider the decisions taking the contrary viewholding that even in a case where the complainant himself had conductedthe investigation, the trial is not vitiated.F

8.2.1 In the case of V. Jayapaul (supra), after considering theentire scheme of investigation under the Cr.P.C., it is held that investigationby the same police officer who lodged the FIR is not barred by law. It isfurther observed that such investigation could only be assailed on theground of bias or real likelihood of bias on the part of the investigatingGofficer and the question of bias would depend on the facts andcircumstances of each case. It is further observed that it is not proper tolaw down a broad and unqualified proposition that such investigationwould necessarily be unfair or biased. In this decision, the decisions ofthis Court in the cases of Bhagwan Singh (supra) and Megha SinghH(supra) were pressed into service on behalf of the accused, however this Court observed that both the decisions are on their own facts andcircumstances and do not lay down a proposition that a police officer inthe course of discharge of his duties finds certain incriminating materialto connect a person to the crime, shall not undertake further investigationif the FIR was recorded on the basis of the information furnished byhim. In this decision, this Court also considered the scheme of Sections154, 156 and 157 Cr.P.C. and another decision of this Court in the caseof State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221(para8). That thereafter this Court did not agree with the submission on behalfof the accused that as the investigation was carried out by the informantwho himself submitted the final report, the trial is vitiated. This Courtconfirmed the conviction by setting aside the order passed by the HighCourt acquitting the accused solely on the ground that the very samepolice officer who registered the case by lodging the first informationought not to have investigated the case and that itself had caused prejudiceto the accused. The relevant observations of this Court in the case of V.Jayapaul (supra) are as under:

“4. We have no hesitation in holding that the approach of theHigh Court is erroneous and its conclusion legally unsustainable.There is nothing in the provisions of the Criminal Procedure Codewhich precluded the appellant (Inspector of Police, Vigilance) fromtaking up the investigation. The fact that the said police officerprepared the FIR on the basis of the information received by himand registered the suspected crime does not, in our view, disqualifyhim from taking up the investigation of the cognisable offence. Asuo motu move on the part of the police officer to investigate acognisable offence impelled by the information received from somesources is not outside the purview of the provisions contained inSections 154 to 157 of the Code or any other provisions of theCode. The scheme of Sections 154, 156 and 157 was clarifiedthus by Subba Rao, J. speaking for the Court in State of U.P. v.Bhagwant Kishore Joshi: (AIR p. 223, para 8).

“Section 154 of the Code prescribes the mode of recording theinformation received orally or in writing by an officer in charge ofa police station in respect of the commission of a cognisableoffence. Section 156 thereof authorises such an officer toinvestigate any cognisable offence prescribed therein. Thoughordinarily investigation is undertaken on information received by A

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a police officer, the receipt of information is not a conditionprecedent for investigation. Section 157 prescribes the procedurein the matter of such an investigation which can be initiated eitheron information or otherwise. It is clear from the said provisionsthat an officer in charge of a police station can start investigationeither on information or otherwise.”

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6. Though there is no such statutory bar, the premise on whichthe High Court quashed the proceedings was that the investigationby the same officer who “lodged” the FIR would prejudice theaccused inasmuch as the investigating officer cannot be expectedto act fairly and objectively. We find no principle or binding authorityto hold that the moment the competent police officer, on the basisof information received, makes out an FIR incorporating his nameas the informant, he forfeits his right to investigate. If at all, suchinvestigation could only be assailed on the ground of bias or reallikelihood of bias on the part of the investigating officer. Thequestion of bias would depend on the facts and circumstances ofeach case and it is not proper to lay down a broad and unqualifiedproposition, in the manner in which it has been done by the HighCourt, that whenever a police officer proceeds to investigate afterregistering the FIR on his own, the investigation would necessarilybe unfair or biased. In the present case, the police officer received C

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certain discreet information, which, according to his assessment,warranted a probe and therefore made up his mind to investigate.The formality of preparing the FIR in which he records the factumof having received the information about the suspected commissionof the offence and then taking up the investigation after registering Fthe crime, does not, by any semblance of reasoning, vitiate theinvestigation on the ground of bias or the like factor. If the reasonwhich weighed with the High Court could be a ground to quashthe prosecution, the powers of investigation conferred on the policeofficers would be unduly hampered for no good reason. What isexpected to be done by the police officers in the normal course ofGdischarge of their official duties will then be vulnerable to attack.

7. There are two decisions of this Court from which support wasdrawn in this case and in some other cases referred to by theHigh Court. We would like to refer to these two decisions in somedetail. The first one is the case of Bhagwan Singh v. State of H

Rajasthan. There, the Head Constable to whom the offer of bribewas allegedly made, seized the currency notes and gave the firstinformation report. Thereafter, he himself took up the investigation.But, later on, when it came to his notice that he was not authorisedto do so, he forwarded the papers to the Deputy Superintendentof Police. The DSP then reinvestigated the case and filed thecharge-sheet against the accused. The Head Constable and theaccompanying constables were the only witnesses in that case.This Court found several circumstances which cast a doubt onthe veracity of the version of the Head Constable and hiscolleagues. This Court observed that “the entire story soundsunnatural”. While so holding, this Court referred to “a ratherdisturbing feature of the case” and it was pointed out that: (SCCp. 18, para 5)

“Head Constable Ram Singh was the person to whom the offerof bribe was alleged to have been made by the appellant and hewas the informant or complainant who lodged the first informationreport for taking action against the appellant. It is difficult tounderstand how in these circumstances, Head Constable RamSingh could undertake investigation…. This is an infirmity whichis bound to reflect on the credibility of the prosecution case.”

8. It is not clear as to why the Court was called upon to make thecomments against the propriety of the Head Constable, informantinvestigating the case when the reinvestigation was done by theDeputy Superintendent of Police. Be that as it may, it is possibleto hold on the basis of the facts noted above, that the so-calledinvestigation by the Head Constable himself would be a mereritual. The crime itself was directed towards the Head Constablewhich made him lodge the FIR. It is well-nigh impossible to expectan objective and undetached investigation from the HeadConstable who is called upon to check his own version on whichthe prosecution case solely rests. It was under those circumstancesthe Court observed that the said infirmity “is bound to reflect onthe credibility of the prosecution case”. There can be no doubtthat the facts of the present case are entirely different and thedicta laid down therein does not fit into the facts of this case.

10. In Megha Singh case PW 3, the Head Constable, found acountry-made pistol and live cartridges on search of the person of AB

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the accused. Then, he seized the articles, prepared a recoverymemo and a “rukka” on the basis of which an FIR was recordedby the SI of Police. However, PW 3, the Head Constable himself,for reasons unexplained, proceeded to investigate and record thestatements of witnesses under Section 161 CrPC. The substratumof the prosecution case was sought to be proved by the HeadConstable. In the appeal against conviction under Section 25 ofthe Arms Act and Section 6(1) of the TADA Act, this Court foundthat the evidence of PWs 2 and 3 was discrepant and unreliableand in the absence of independent corroboration, the prosecutioncase cannot be believed. Towards the end, the Court noted“another disturbing feature in the case”. The Court then observed:(SCC p. 711, para 4)

“PW 3 Siri Chand, Head Constable arrested the accused and onsearch being conducted by him a pistol and the cartridges wererecovered from the accused. It was on his complaint a formalfirst information report was lodged and the case was initiated. Hebeing complainant should not have proceeded with the investigationof the case. But it appears to us that he was not only thecomplainant in the case but he carried on with the investigationand examined witnesses under Section 161 CrPC. Such practice,to say the least, should not be resorted to so that there may not beany occasion to suspect fair and impartial investigation.”

12. At first blush, the observations quoted above might conveythe impression that the Court laid down a proposition that a policeofficer who in the course of discharge of his duties finds certainincriminating material to connect a person to the crime, shall notundertake further investigation if the FIR was recorded on thebasis of the information furnished by him. On closer analysis ofthe decision, we do not think that any such broad proposition waslaid down in that case. While appreciating the evidence of themain witness i.e. the Head Constable (PW 3), this Court referredto this additional factor, namely, the Head Constable turning out tobe the investigator. In fact, there was no apparent reason why theHead Constable proceeded to investigate the case bypassing theSub-Inspector who recorded the FIR. The fact situation in thepresent case is entirely different. The appellant Inspector of Police,after receiving information from some sources, proceeded to MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI)[M. R. SHAH, J.]

MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI)[M. R. SHAH, J.]

investigate and unearth the crime. Before he did so, he did nothave personal knowledge of the suspected offences nor did heparticipate in any operations connected with the offences. Hisrole was that of an investigator — pure and simple. That is theobvious distinction in this case. That apart, the question of testingthe veracity of the evidence of any witness, as was done in MeghaSingh case does not arise in the instant case as the trial is yet totake place. The High Court has quashed the proceedings evenbefore the trial commenced.

13. Viewed from any angle, we see no illegality in the process ofinvestigation set in motion by the Inspector of Police (appellant)and his action in submitting the final report to the Court of SpecialJudge.”

8.2.2 In the case of S. Jeevanantham (supra), though theinvestigation was carried out by the complainant – police officer himselfand it was submitted relying upon the decision of this Court in the caseof Megha Singh (supra), that in case the informant/complainant andthe investigator is the same, the trial is vitiated, this Court refused to setaside the conviction and acquit the accused on the aforesaid ground byobserving that the accused failed to show that the investigation by thecomplainant – police officer himself has caused prejudice or was biasedagainst the accused. It is required to be noted that it was also a caseunder the NDPS Act. The relevant observations are as under:

“2. We heard the learned counsel for the appellants. The counselfor the appellants contended that PW 8, the Inspector afterconducting search prepared the FIR and it was on the basis of thestatement of PW 8 the case was registered against the appellantsand it is argued that PW 8 was the complainant and he himselfconducted the investigation of the case and this is illegal and theentire investigation of the case is vitiated. Reliance was placed onthe decision in Megha Singh v. State of Haryana wherein thisCourt observed that the constable, who was the de factocomplainant had himself investigated the case and this affectsimpartial investigation. This Court said that the Head Constablewho arrested the accused, conducted the search, recovered thepistol and on his complaint FIR was lodged and the case was A

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initiated and later he himself recorded the statement of thewitnesses under Section 161 CrPC as part of the investigationand such practice may not be resorted to as it may affect fair andimpartial investigation. This decision was later referred to by thisCourt in State v. V. Jayapaul wherein it was observed that: (SCCp. 227, para 6)

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“We find no principle or binding authority to hold that themoment the competent police officer, on the basis of informationreceived, makes out an FIR incorporating his name as theinformant, he forfeits his right to investigate. If at all, suchinvestigation could only be assailed on the ground of bias orCreal likelihood of bias on the part of the investigating officer.

The question of bias would depend on the facts andcircumstances of each case and it is not proper to lay down abroad and unqualified proposition, in the manner in which ithas been done….”

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3. In the instant case, PW 8 conducted the search and recoveredthe contraband article and registered the case and the article seizedfrom the appellants was narcotic drug and the counsel for theappellants could not point out any circumstances by which theinvestigation caused prejudice or was biased against the appellants.EPW 8 in his official capacity gave the information, registered thecase and as part of his official duty later investigated the case andfiled a charge-sheet. He was not in any way personally interestedin the case. We are unable to find any sort of bias in the processof investigation.”

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8.2.3 In the case of Bhaskar RamappaMadar (supra), againthis Court considered the very submissions and after considering theentire scheme for investigation under the Cr.P.C., more particularlySections 154, 156 of the Cr.P.C. and after considering the decisions inthe cases of Bhagwan Singh (supra), Megha Singh (supra) and otherdecisions, it is observed and held that there is no legal bar againstconducting/undertaking the investigation by the complainant. It is observedand held that the decisions of this Court in the cases of Bhagwan Singh(supra) and Megha Singh(supra) are to be confined to the facts ofthose cases. It is further observed and held that merely because the G

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complainant conducted the investigation, that would not be sufficient tocast doubt on the prosecution version to hold that the same makes theprosecution version vulnerable. The matter has to be decided on a caseto case basis without any universal generalisation.

9. Now we consider the relevant provisions of the Cr. P. C. withrespect to the investigation.

Section 154 Cr.P.C. provides that every information relating tothe commission of a cognizable offence, if given orally to an officer incharge of a police station, shall be reduced to writing by him or under hisdirection.

Section 156 Cr.P.C. provides that any officer in charge of a policestation may investigate any cognizable offence without the order of aMagistrate. It further provides that no proceeding of a police officer inany such case shall at any stage be called in question on the ground thatthe case was one which such officer was not empowered under thissection to investigate. Therefore, as such, a duty is cast on an officer incharge of a police station to reduce the information in writing relating tocommission of a cognizable offence and thereafter to investigate thesame.

Section 157 Cr.P.C. specifically provides that if, from informationreceived or otherwise, an officer in charge of a police station has reasonto suspect the commission of an offence which he is empowered underSection 156 to investigate, he shall forthwith send a report of the sameto a Magistrate empowered to take cognizance of such offence upon apolice report and shall proceed in person to the spot to investigate thefacts and circumstances of the case and, if necessary, to take measuresfor the discovery and arrest of the offender.

Therefore, considering Section 157 Cr.P.C., either on receivingthe information or otherwise (may be from other sources like secretinformation, from the hospital, or telephonic message), it is an obligationcast upon such police officer, in charge of a police station, to takecognizance of the information and to reduce into writing by himself andthereafter to investigate the facts and circumstances of the case, and, ifnecessary, to take measures for the discovery and arrest of the offender.Take an example, if an officer in charge of a police station passes on aroad and he finds a dead body and/or a person being beaten who ultimatelydied and there is no body to give a formal complaint in writing, in such a A

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Asituation, and when the said officer in charge of a police station hasreason to suspect the commission of an offence, he has to reduce thesame in writing in the form of an information/complaint. In such a situation,he is not precluded from further investigating the case. He is not debarredto conduct the investigation in such a situation. It may also happen thatan officer in charge of a police station is in the police station and heBreceives a telephonic message, may be from a hospital, and there is nobody to give a formal complaint in writing, such a police officer is requiredto reduce the same in writing which subsequently may be converted intoan FIR/complaint and thereafter he will rush to the spot and furtherinvestigate the matter. There may be so many circumstances like such.CThat is why, Sections 154, 156 and 157 Cr.P.C. come into play.

9.1 Under Section 173 Cr.P.C., the officer in charge of a policestation after completing the investigation is required to file the final report/chargesheet before the Magistrate. Thus, under the scheme of Cr.P.C.,it cannot be said that there is a bar to a police officer receivingDinformation for commission of a cognizable offence, recording the sameand then investigating it. On the contrary, Sections 154, 156 and 157permit the officer in charge of a police station to reduce the informationof commission of a cognizable offence in writing and thereafter toinvestigate the same.EOfficer in charge of a police station has been defined under Section2(o) of the Cr. P.C. and it includes, when the officer in charge of thepolice station is absent from the station-house or unable from illness orother cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constableor, when the State Government so directs, any other police officer soFpresent.

9.2 As observed and held by this Court in the case of Lalita Kumariv. Government of Uttar Pradesh AIR 2014 SC 187 = (2014) 2 SCC1, the word “shall” used in Section 154 leaves no discretion in policeofficer to hold preliminary enquiry before recording FIR. Use ofGexpression “information” without any qualification also denotes that policehas to record information despite it being unsatisfied by its reasonablenessor credibility. Therefore, the officer in charge of a police station has toreduce such information alleging commission of a cognizable offence inwriting which may be termed as FIR and thereafter he is required toHfurther investigate the information, which is reduced in writing.

9.3 Now let us consider the relevant provisions under the NDPSAct with respect to the procedure to be followed to issue warrant,authorisation of entry, search, seizure and arrest without warrant orauthorisation; seizure and arrest in public place; entry; stop and searchconveyance and the conditions under which search of persons shall beconducted. The relevant provisions are Sections 41, 42, 43, 49, 50, 51,52, 53, 54, 55, 57, 57A, which are as under:

“41. Power to issue warrant and authorisation.—(l) AMetropolitan Magistrate or a Magistrate of the first class or anyMagistrate of the second class specially empowered by the StateGovernment in this behalf, may issue a warrant for the arrest ofany person whom he has reason to believe to have committedany offence punishable under this Act, or for the search, whetherby day or by night, of any building, conveyance or place in whichhe has reason to believe any narcotic drug or psychotropicsubstance or controlled substance in respect of which an offencepunishable under this Act has been committed or any documentor other article which may furnish evidence of the commission ofsuch offence or any illegally acquired property or any documentor other article which may furnish evidence of holding any illegallyacquired property which is liable for seizure or freezing or forfeitureunder Chapter VA of this Act is kept or concealed.

(2) Any such officer of gazetted rank of the departments of centralexcise, narcotics, customs, revenue intelligence or any otherdepartment of the Central Government including the para-militaryforces or the armed forces as is empowered in this behalf bygeneral or special order by the Central Government, or any suchofficer of the revenue, drugs control, excise, police or any otherdepartment of a State Government as is empowered in this behalfby general or special order of the State Government if he hasreason to believe from personal knowledge or information givenby any person and taken in writing that any person has committedan offence punishable under this Act or that any narcotic drug orpsychotropic substance or controlled substance in respect of whichany offence under this Act has been committed or any documentor other article which may furnish evidence of the commission ofsuch offence or any illegally acquired property or any documentor other article which may furnish evidence of holding any illegally AB

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acquired property which is liable for seizure or freezing or forfeitureunder Chapter VA of this Act is kept or concealed in any building,conveyance or place, may authorise any officer subordinate tohim but superior in rank to a peon, sepoy or a constable to arrestsuch a person or search a building, conveyance or place whetherby day or by night or himself arrest such a person or search abuilding, conveyance or place.

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(3) The officer to whom a warrant under sub-section (1) isaddressed and the officer who authorised the arrest or search orthe officer who is so authorised under sub-section (2) shall haveall the powers of an officer acting under section 42.

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42. Power of entry, search, seizure and arrest withoutwarrant or authorisation.—(l) Any such officer (being an officersuperior in rank to a peon, sepoy or constable) of the departmentsof central excise, narcotics, customs, revenue intelligence or anyother department of the Central Government including para-Dmilitary forces or armed forces as is empowered in this behalf bygeneral or special order by the Central Government, or any suchofficer (being an officer superior in rank to a peon, sepoy orconstable) of the revenue, drugs control, excise, police or anyother department of a State Government as is empowered in thisEbehalf by general or special order of the State Government, if hehas reason to believe from personal knowledge or informationgiven by any person and taken down in writing that any narcoticdrug, or psychotropic substance, or controlled substance in respectof which an offence punishable under this Act has been committedor any document or other article which may furnish evidence ofFthe commission of such offence or any illegally acquired propertyor any document or other article which may furnish evidence ofholding any illegally acquired property which is liable for seizureor freezing or forfeiture under Chapter VA of this Act is kept orconcealed in any building, conveyance or enclosed place, mayGbetween sunrise and sunset,—

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(a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove anyobstacle to such entry; H

(c) seize such drug or substance and all materials used in themanufacture thereof and any other article and any animal orconveyance which he has reason to believe to be liable toconfiscation under this Act and any document or other articlewhich he has reason to believe may furnish evidence of thecommission of any offence punishable under this Act or furnishevidence of holding any illegally acquired property which is liablefor seizure or freezing or forfeiture under Chapter VA of this Act;and (d) detain and search, and, if he thinks proper, arrest any personwhom he has reason to believe to have committed any offencepunishable under this Act:

1 [Provided that in respect of holder of a licence for manufactureof manufactured drugs or psychotropic substances or controlledsubstances granted under this Act or any rule or order madethereunder, such power shall be exercised by an officer not belowthe rank of sub-inspector: Provided further that] if such officerhas reason to believe that a search warrant or authorisation cannotbe obtained without affording opportunity for the concealment ofevidence or facility for the escape of an offender, he may enterand search such building, conveyance or enclosed place at anytime between sunset and sunrise after recording the grounds ofhis belief. (2) Where an officer takes down any information inwriting under sub-section (1) or records grounds for his beliefunder the proviso thereto, he shall within seventy-two hours senda copy thereof to his immediate official superior.

43. Power of seizure and arrest in public place.—Any officerof any of the departments mentioned in section 42 may—

(a) seize in any public place or in transit, any narcotic drug orpsychotropic substance or controlled substance in respect of whichhe has reason to believe an offence punishable under this Act hasbeen committed, and, along with such drug or substance, any animalor conveyance or article liable to confiscation under this Act, anydocument or other article which he has reason to believe mayfurnish evidence of the commission of an offence punishable underthis Act or any document or other article which may furnishevidence of holding any illegally acquired property which is liablefor seizure or freezing or forfeiture under Chapter VA of this Act; A

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A(b) detain and search any person whom he has reason to believeto have committed an offence punishable under this Act, and ifsuch person has any narcotic drug or psychotropic substance orcontrolled substance in his possession and such possession appearsto him to be unlawful, arrest him and any other person in hiscompany.B

Explanation.—For the purposes of this section, the expression“public place” includes any public conveyance, hotel, shop, or otherplace intended for use by, or accessible to, the public.]

49. Power to stop and search conveyance.—Any officerCauthorised under section 42, may, if he has reason to suspect thatany animal or conveyance is, or is about to be, used for the transportof any narcotic drug or psychotropic substance 2 [or controlledsubstance], in respect of which he suspects that any provision ofthis Act has been, or is being, or is about to be, contravened at anytime, stop such animal or conveyance, or, in the case of an aircraft,Dcompel it to land and—

(a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the animal or in theconveyance; E(c) if it becomes necessary to stop the animal or the conveyance,he may use all lawful means for stopping it, and where such meansfail, the animal or the conveyance may be fired upon.

50. Conditions under which search of persons shall beconducted.—F

(1) When any officer duly authorised under section 42 is about tosearch any person under the provisions of section 41, section 42or section 43, he shall, if such person so requires, take such personwithout unnecessary delay to nearest Gazetted Officer of any ofthe departments mentioned in section 42 or to the nearestGMagistrate.

(2) If such requisition is made, the officer may detain the personuntil he can bring him before the Gazetted Officer or the Magistratereferred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom anyHsuch person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall directthat search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reasonto believe that it is not possible to take the person to be searchedto the nearest Gazetted Officer or Magistrate without the possibilityof the person to be searched parting with possession of any narcoticdrug or psychotropic substance, or controlled substance or articleor document, he may, instead of taking such person to the nearestGazetted Officer or Magistrate, proceed to search the person asprovided under Section 100 of the Code of Criminal Procedure,1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officershall record the reasons for such belief which necessitated suchsearch and within seventy-two hours send a copy thereof to hisimmediate official superior.]

51. Provisions of the code of Criminal Procedure, 1973 toapply to warrants, arrests, searches and seizures.—Theprovisions of the Code of Criminal Procedure, 1973 (2 of 1974)shall apply, in so far as they are not inconsistent with the provisionsof this Act, to all warrants issued and arrests, searches and seizuresmade under this Act.

—52. Disposal of persons arrested and articles seized.

(1) Any officer arresting a person under section 41, section 42,section 43 or section 44 shall, as soon as may be, inform him ofthe grounds for such arrest.

(2) Every person arrested and article seized under warrant issuedunder sub-section (1) of section 41 shall be forwarded withoutunnecessary delay to the Magistrate by whom the warrant wasissued.

(3) Every person arrested and article seized under sub-section(2) of section 41, section 42, section 43 or section 44 shall beforwarded without unnecessary delay to—

(a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53.

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(4) The authority or officer to whom any person or article isforwarded under sub-section (2) or sub-section (3) shall, with allconvenient despatch, take such measures as may be necessaryfor the disposal according to law of such person or article.

53. Power to invest officers of certain departments withBpowers of an officer-in-charge of a police station.—(1) TheCentral Government, after consultation with the State Government,may, by notification published in the Official Gazette, invest anyofficer of the department of central excise, narcotics, customs,revenue intelligence [or any other department of the CentralGovernment including para-military forces or armed forces] orCany class of such officers with the powers of an officer-in-chargeof a police station for the investigation of the offences under thisAct.

(2) The State Government may, by notification published in theOfficial Gazette, invest any officer of the department of drugsDcontrol, revenue or excise 3 [or any other department] or anyclass of such officers with the powers of an officer-in-charge ofa police station for the investigation of offences under this Act.

54. Presumption from possession of illicit articles.—In trialsunder this Act, it may be presumed, unless and until the contraryEis proved, that the accused has committed an offence under thisAct in respect of—

(a) any narcotic drug or psychotropic substance or controlledsubstance; F(b) any opium poppy, cannabis plant or coca plant growing on anyland which he has cultivated;

(c) any apparatus specially designed or any group of utensilsspecially adopted for the manufacture of any narcotic drug orpsychotropic substance or controlled substance; or

G(d) any materials which have undergone any process towards themanufacture of a narcotic drug or psychotropic substance orcontrolled substance, or any residue left of the materials fromwhich any narcotic drug or psychotropic substance or controlledsubstance has been manufactured, for the possession of whichhe fails to account satisfactorily].H

—55. Police to take charge of articles seized and delivered.An officer-in-charge of a police station shall take charge of andkeep in safe custody, pending the orders of the Magistrate, allarticles seized under this Act within the local area of that policestation and which may be delivered to him, and shall allow anyofficer who may accompany such articles to the police station orwho may be deputed for the purpose, to affix his seal to sucharticles or to take samples of and from them and all samples sotaken shall also be sealed with a seal of the officer-in-charge ofthe police station.

57. Report of arrest and seizure.—Whenever any person makesany arrest or seizure under this Act, he shall, within forty-eighthours next after such arrest or seizure, make a full report of allthe particulars of such arrest or seizure to his immediate officialsuperior.

57A. Report of seizure of property of the person arrestedby the notified officer.—Whenever any officer notified undersection 53 makes an arrest or seizure under this Act, and theprovisions of Chapter VA apply to any person involved in the caseof such arrest or seizure, the officer shall make a report of theillegally acquired properties of such person to the jurisdictionalcompetent authority within ninety days of the arrest or seizure.”

9.3.1 Section 67 of the NDPS Act authorises/permits any officerreferred to in section 42 to call for information from any person for thepurpose of satisfying himself whether there has been any contraventionof the provisions of the NDPS Act or any rule or order made thereunder,during the course of any enquiry. Section 68 of the NDPS Act providesthat no officer acting in exercise of powers vested in him under anyprovision of the NDPS Act or any rule or order made thereunder shallbe compelled to say from where he got any information as to thecommission of any offence.

9.3.2 From the aforesaid scheme and provisions of the NDPSAct, it appears that the NDPS Act is a complete Code in itself. Section41(1) authorises a Metropolitan Magistrate or a Magistrate of the firstclass or any Magistrate of the second class specially empowered by theState Government in this behalf, may issue a warrant for the arrest ofany person whom he has reason to believe to have committed any offencepunishable under the NDPS Act, or for the search, whether by day or by A

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Anight……Sub-section 2 of Section 41 authorises any such officer ofgazetted rank of the Departments of Central Excise…… as is empoweredin this behalf by general or special order by the Central Government, orany such officer of the Revenue…….police or any other department ofa State Government as is empowered in this behalf by general or specialorder, if he has reason to believe from personal knowledge or informationBgiven by any person and taken in writing that any person has committedan offence punishable under the NDPS Act, authorising any officersubordinate to him but superior in rank to a peon, sepoy or a constable toarrest such a person or search a building, conveyance or place whetherby day or by night or himself arrest such a person or search a building,Cconveyance or place.

9.3.3 As per Section 42, any officer of the Department of CentralExcise…. as is empowered in this behalf by general or special order bythe Central Government or any such officer…..of the revenue, drugscontrol…police or any other department of a State Government as isDempowered in this behalf by general or special order of the StateGovernment, if he has reason to believe from personal knowledge orinformation given by any person and taken down in writing that anynarcotic drug, or psychotropic substance, or controlled substance inrespect of which an offence punishable under the NDPS Act has beencommitted, enter into and search any such building, conveyance or place;Ein case of resistance, break open any door and remove any obstacle tosuch entry; seize such drug or substance and all materials used in themanufacture thereof and any other article and any animal or conveyancewhich he has reason to believe to be liable to confiscation under this Actand any document or other article which he has reason to believe may Ffurnish evidence of the commission of any offence punishable under thisAct or furnish evidence of holding any illegally acquired property whichis liable for seizure or freezing or forfeiture under Chapter VA of thisAct; and detain and search, and, if he thinks proper, arrest any personwhom he has reason to believe to have committed any offence punishableunder this Act.G

9.3.4 As per sub-section 2 of Section 42, such an officer has tosend a copy of the information taken down in writing under sub-section1 or his grounds for belief, to his immediate official superior within 72hours.H9.3.5 There are inbuilt safeguards provided under the NDPS Actitself, such as, Sections 50 and 52. Section 50 of the NDPS Act provides that when any officer duly authorised under section 42 is about to searchany person under the provisions of section 41, 42 or 43, he shall informthe person to be searched in the presence of a Gazetted Officer of anyof the departments mentioned in Section 42 or to the nearest Magistrateand if such person so desires, he shall take such person withoutunnecessary delay to the nearest Gazetted Officer as mentioned in sub-section 1 of Section 50. As per sub-section 5 of Section 50, when anofficer duly authorised under section 42 has reason to believe that it isnot possible to take the person to be searched to the nearest GazettedOfficer or Magistrate without the possibility of the person to be searchedparting with possession of any narcotic drug or psychotropic substance,or controlled substance or article or document, he may, instead of takingsuch person to the nearest Gazetted Officer or Magistrate, proceed tosearch the person as provided under Section 100 of the Code of CriminalProcedure, 1973. Sub-section 6 of Section 50 provides that after a searchis conducted under sub-section (5), the officer shall record the reasonsfor such belief which necessitated such search and within seventy-twohours send a copy thereof to his immediate official superior.

9.3.6 Section 52 of the NDPS Act mandates that any officerarresting a person under Sections 41, 42, 43 or 44 to inform the personarrested of the grounds for such arrest. Sub-section 2 of Section 52further provides that every person arrested and article seized underwarrant issued under sub-section 1 of Section 41 shall be forwardedwithout unnecessary delay to the Magistrate by whom the warrant wasissued. As per sub-section 3 of Section 52, every person arrested andarticle seized under sub-section 2 of Section 41, 42, 43, or 44 shall beforwarded without unnecessary delay to the officer in charge of thenearest police station, or the officer empowered under section 53.

That thereafter the investigation is to be conducted by the officerin charge of a police station.

9.3.7 As per Section 51 of the NDPS Act, the provisions of theCr.P.C. shall apply, insofar as they are not inconsistent with the provisionsof the NDPS Act, to all warrants issued and arrests, searches and seizuresmade under the NDPS Act. Therefore, up to Section 52, the powers arevested with the officers duly authorised under Sections 41, 42, or 43 andthereafter so far as the investigation is concerned, it is to be conductedby an officer in charge of a police station.

9.3.8 Section 53 of the NDPS Act provides that the CentralGovernment, after consultation with the State Government, may, by AB

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Anotification published in the Official Gazette, invest any officer of thedepartment of central excise, narcotics, customs, revenue intelligenceor any other department of the Central Government including para-militaryforces or armed forces or any class of such officers with the powers ofan officer in charge of a police station for the investigation of the offencesunder the NDPS Act. Sub-section 2 of Section 53 further provides thatBthe State Government, may, by notification published in the OfficialGazette, invest any officer of the department of drugs control, revenueor excise or any other department or any class of such officers with thepowers of an officer in charge of a police station for the investigation ofoffences under the NDPS Act. Therefore, other persons authorised byCthe Central Government or the State Government can be the officer incharge of a police station for the investigation of the offences.

Section 53 does not speak that all those officers to be authorisedto exercise the powers of an officer in charge of a police station for theinvestigation of the offences under the NDPS Act shall be other thanDthose officers authorised under Sections 41, 42, 43, and 44 of the NDPSAct. It appears that the legislature in its wisdom has never thought thatthe officers authorised to exercise the powers under Sections 41, 42, 43and 44 cannot be the officer in charge of a police station for theinvestigation of the offences under the NDPS Act.

E9.4 Investigation includes even search and seizure. As theinvestigation is to be carried out by the officer in charge of a policestation and none other and therefore purposely Section 53 authorises theCentral Government or the State Government, as the case may be, investany officer of the department of drugs control, revenue or excise or anyother department or any class of such officers with the powers of anFofficer in charge of a police station for the investigation of offencesunder the NDPS Act.

Section 42 confers power of entry, search, seizure and arrestwithout warrant or authorisation to any such officer as mentioned inSection 42 including any such officer of the revenue, drugs control, excise,Gpolice or any other department of a State Government or the CentralGovernment, as the case may be, and as observed hereinabove, Section53 authorises the Central Government to invest any officer of thedepartment of central excise, narcotics, customs, revenue intelligenceor any other department of the Central Government….or any class ofHsuch officers with the powers of an officer in charge of a police stationfor the investigation. Similar powers are with the State Government.

The only change in Sections 42 and 53 is that in Section 42 the word“police” is there, however in Section 53 the word “police” is not there.There is an obvious reason as for police such requirement is not warrantedas he always can be the officer in charge of a police station as per thedefinition of an “officer in charge of a police station” as defined underthe Cr. P.C.

9.5 Therefore, as such, the NDPS Act does not specifically barthe informant/complainant to be an investigator and officer in charge ofa police station for the investigation of the offences under the NDPSAct. On the contrary, it permits, as observed hereinabove. To take acontrary view would be amending Section 53 and the relevant provisionsof the NDPS Act and/or adding something which is not there, which isnot permissible.

10. Now so far as the submission on behalf of the accused that sofar as the NDPS Act is concerned, it carries a reverse burden of proofunder Sections 35 and 54 and therefore if the informant who himself hasseized the offending material from the accused and he himself thereafterinvestigates the case, there shall be all possibilities of apprehension inthe mind of the accused that there shall not be fair investigation and thatthe concerned officer shall try to prove his own version/seizure andtherefore there shall be denial of the “fair investigation” enshrined underArticle 21 of the Constitution of India is concerned, it is required to benoted that whether the investigation conducted by the concerned informantwas fair investigation or not is always to be decided at the time of trial.The concerned informant/investigator will be cited as a witness and heis always subject to cross-examination. There may be cases in whicheven the case of the prosecution is not solely based upon the depositionof the informant/informant-cum-investigator but there may be someindependent witnesses and/or even the other police witnesses. As heldby this Court in catena of decisions, the testimony of police personnelwill be treated in the same manner as testimony of any other witnessand there is no principal of law that without corroboration by independentwitnesses his testimony cannot be relied upon. [See Karamjit Singh v.State (Delhi Administration) (2003) 5 SCC 291]. As observed andheld by this Court in the case of Devender Pal Singh v. State (NCT ofDelhi) (2002) 5 SCC 234, the presumption that a person acts honestlyapplies as much in favour of a police officer as of other persons, and it isnot judicial approach to distrust and suspect him without good groundstherefor.

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A10.1 At this stage, reference may be made to illustration (e) toSection 114 of the Indian Evidence Act. As per the said provision, in lawif an official act has been proved to have been done, it shall be presumedto be regularly done. Credit has to be given to public officers in theabsence of any proof to the contrary of their not acting with honesty orwithin limits of their authority. Therefore, merely because the complainantBconducted the investigation that would not be sufficient to cast doubt onthe entire prosecution version and to hold that the same makes theprosecution version vulnerable. The matter has to be left to be decidedon a case to case basis without any universal generalisation.

10.2 At this stage, it is required to be noted that in cases whereCany person empowered under Sections 42, 43 or 44 of the NDPS Actacts vexatiously or maliciously, the statute itself has provided thepunishment as per section 58 and it is an offence under section 58 whichis a cognizable offence and such an offence is required to be investigatedby the “officer in charge of a police station” other than the officer whoDexercised the power of entry, search, seizure or arrest under Sections42, 43, or 44 as naturally in such a case he would be a proposed accusedand therefore he cannot be permitted to investigate and to be a judge inhis own cause. However, so far as the investigation against the accusedfor the offence under the NDPS Act is concerned, the same analogymay not apply for the reasons stated hereinabove.E

10.3 Now so far as the observations made by this Court in para13 in Mohan Lal (supra) that in the nature of reverse burden of proof,the onus will lie on the prosecution to demonstrate on the face of it thatthe investigation was fair, judicious with no circumstance that may raisedoubt about its veracity, it is to be noted that the presumption under theFAct is against the accused as per Sections 35 and 54 of the NDPS Act.Thus, in the cases of reverse burden of proof, the presumption can operateonly after the initial burden which exists on the prosecution is satisfied.At this stage, it is required to be noted that the reverse burden does notmerely exist in special enactments like the NDPS Act and the PreventionGof Corruption Act, but is also a part of the IPC – Section 304B and allsuch offences under the Penal Code are to be investigated in accordancewith the provisions of the Cr.P.C. and consequently the informant canhimself investigate the said offences under Section 157 Cr.P.C.

11. Therefore, as such, there is no reason to doubt the credibilityHof the informant and doubt the entire case of the prosecution solely on

the ground that the informant has investigated the case. Solely on thebasis of some apprehension or the doubts, the entire prosecution versioncannot be discarded and the accused is not to be straightway acquittedunless and until the accused is able to establish and prove the bias andthe prejudice. As held by this Court in the case of Ram Chandra (supra)the question of prejudice or bias has to be established and not inferred.The question of bias will have to be decided on the facts of each case[See Vipan Kumar Jain (supra)]. At this stage, it is required to benoted and as observed hereinabove, NDPS Act is a Special Act with thespecial purpose and with special provisions including Section 68 whichprovides that no officer acting in exercise of powers vested in him underany provision of the NDPS Act or any rule or order made thereundershall be compelled to say from where he got any information as to thecommission of any offence. Therefore, considering the NDPS Act beinga special Act with special procedure to be followed under Chapter V,and as observed hereinabove, there is no specific bar against conductingthe investigation by the informant himself and in view of the safeguardprovided under the Act itself, namely, Section 58, we are of the opinionthat there cannot be any general proposition of law to be laid down thatin every case where the informant is the investigator, the trial is vitiatedand the accused is entitled to acquittal.Similarly, even with respect tooffences under the IPC, as observed hereinabove, there is no specificbar against the informant/complainant investigating the case. Only in acase where the accused has been able to establish and prove the biasand/or unfair investigation by the informant-cum-investigator and thecase of the prosecution is merely based upon the deposition of theinformant-cum-investigator, meaning thereby prosecution does not relyupon other witnesses, more particularly the independent witnesses, inthat case, where the complainant himself had conducted the investigation,such aspect of the matter can certainly be given due weightage whileassessing the evidence on record. Therefore, as rightly observed by thisCourt in the case of Bhaskar Ramappa Madar (supra), the matterhas to be decided on a case to case basis without any universalgeneralisation. As rightly held by this Court in the case of V. Jayapaul(supra), there is no bar against the informant police officer to investigatethe case. As rightly observed, if at all, such investigation could only beassailed on the ground of bias or real likelihood of bias on the part of theinvestigating officer the question of bias would depend on the facts andcircumstances of each case and therefore it is not proper to lay down a A

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Abroad and unqualified proposition that in every case where the policeofficer who registered the case by lodging the first information, conductsthe investigation that itself had caused prejudice to the accused andthereby it vitiates the entire prosecution case and the accused is entitledto acquittal.

B12. From the above discussion and for the reasons stated above,we conclude and answer the reference as under:

I.That the observations of this Court in the cases of BhagwanSingh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. Stateof Haryana (1996) 11 SCC 709; and State by Inspector of Police,NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittalCof the accused by this Court on the ground that as the informant and theinvestigator was the same, it has vitiated the trial and the accused isentitled to acquittal are to be treated to be confined to their own facts. Itcannot be said that in the aforesaid decisions, this Court laid down anygeneral proposition of law that in each and every case where theDinformant is the investigator there is a bias caused to the accused andthe entire prosecution case is to be disbelieved and the accused is entitledto acquittal;

II. In a case where the informant himself is the investigator, bythat itself cannot be said that the investigation is vitiated on the ground ofEbias or the like factor. The question of bias or prejudice would dependupon the facts and circumstances of each case. Therefore, merelybecause the informant is the investigator, by that itself the investigationwould not suffer the vice of unfairness or bias and therefore on the soleground that informant is the investigator, the accused is not entitled toacquittal. The matter has to be decided on a case to case basis. A contraryFdecision of this Court in the case of Mohan Lal v. State of Punjab(2018) 17 SCC 627 and any other decision taking a contrary view thatthe informant cannot be the investigator and in such a case the accusedis entitled to acquittal are not good law and they are specifically overruled.

13. The Reference is answered accordingly.G14. Now, respective petitions be placed before the appropriateCourt taking up such matters for deciding the petitions in accordancewith law and on merits and in light of the observations made hereinaboveand our answer to the Reference, as above.

HDivya Pandey