MOHANLAL versus THE STATE OF PUNJAB on 16 August 2018

[2018] 9 S.C.R. 1006

SUPREME COURT REPORTS

[2018] 9 S.C.R.

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MOHAN LAL

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 1880 of 2011)

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AUGUST 16, 2018

[RANJAN GOGOI, R. BANUMATHI ANDNAVIN SINHA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985:Fairness and impartiality in investigation – Informant andCinvestigator, if same person – Sanctity of such investigation –Whether in a criminal prosecution, it will be in consonance with theprinciples of justice, fair play and a fair investigation, if theinformant and the investigating officer were to be the same person– Held: If an informant police official in a criminal prosecution,Despecially when carrying a reverse burden of proof, makes theallegations and is himself asked to investigate, serious doubts wouldnaturally arise with regard to his fairness and impartiality – It isnot necessary to actually prove bias – It would be illogical to presumeand would be contrary to normal human conduct, that he wouldhimself at the end of the investigation submit a closure report toEconclude false implication with all its attendant consequences forthe complainant himself – The result of the investigation would,therefore, be a foregone conclusion – A fair investigation, which isbut the very foundation of fair trial, necessarily postulates that theinformant and the investigator must not be the same person – JusticeFmust not only be done, but must appear to be done also – Anypossibility of bias or a predetermined conclusion has to beexcluded – This requirement is all the more imperative in lawscarrying a reverse burden of proof – Bias – Criminal law – Fairtrial – Investigation – Natural justice – Evidence – Reverse burdenof proof.G

Narcotic Drugs and Psychotropic Substances Act, 1985: s.18– Conviction under – Recovery of opium – The informant-policeofficial PW-1 accompanied by the Sarpanch and another policeoffice recovered 4 kg of opium from a bag carried by appellant –Consent memo signed by the Sarpanch and PW-1 – PW-1 did notH

deposit the narcotics in the malkhana – Conviction by courts below –On appeal, held: The Sarpanch was stated to have beenaccompanying the police official (PW1) and ASI in a police vehiclewhile on official duty – This is certainly not in the normal course ofevents – The consent memo was stated to have been signed by theSarpanch, despite he being an illiterate – There was no explanationfrom the prosecution why the Sarpanch and ASI were not examineddespite service of summons on the official witness and issuance ofbailable warrants against the private witness – In their absence,neither the consent memo nor the seal can be stated to be proved –The presence of a private person in a police vehicle while on patrolduty, the individual being an illiterate, but having signed the consentmemo were surely matters for investigation – The case property wasretained by PW-1 in his private custody in a rented accommodationand was not deposited in the malkhana nor entered in theroznamcha – There was nine days’ delay in sending the sample forchemical analysis – No explanation was furnished in respect of thesame – The delay in sending the sample for chemical analysis, inthe facts and circumstances of the case was again a matter forinvestigation – Prosecution was vitiated because of the infractionof the consitutional guarantee of a fair investigation – Appellantdirected to be set at liberty forthwith.

Narcotic Drugs and Psychotropic Substances Act, 1985: s.55 –Held: It is the duty of the police officer to deposit the seized materialin the police station malkhana.

Narcotic Drugs and Psychotropic Substances Act, 1985:Burden of proof – The stringent provisions of the NDPS Act do notdispense with the requirement of the prosecution to establish a primafacie case beyond reasonable doubt after investigation, only afterwhich the burden of proof shall shift to the accused – The case ofthe prosecution cannot be allowed to rest on a preponderance ofprobabilities.

Investigation: Fair trial – Reverse burden of proof – Onus toprove – In NDPS cases – Held: A fair trial to an accused, aconstitutional guarantee under Art.21 of the Constitution, wouldbe a hollow promise if the investigation in a NDPS case were not tobe fair or raises serious questions about its fairness apparent onthe face of the investigation – In the nature of the reverse burden of AB

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Aproof, the onus will lie on the prosecution to demonstrate on theface of it that the investigation was fair, judicious with nocircumstances that may raise doubts about its veracity – If theinvestigation itself is unfair, to require the accused to demonstrateprejudice will be fraught with danger vesting arbitrary powers inthe police which may well lead to false implication also –BInvestigation in such a case would then become an empty formalityand a farce – Such an interpretation, therefore, naturally has to beavoided.

Allowing the appeal, the Court

CHELD: 1. The presence of a private person in a policevehicle while on patrol duty, the individual being an illiterate, buthaving signed the consent memo were surely matters forinvestigation. Similarly, why the signature of ASI-’BS’ or PW-4was not obtained on the consent memo was again a subject matterof investigation. The veracity of the sample seal handed over toDASI-’BS’ was likewise a matter for investigation as to whether itwas the same as the seal on the case property retained in hisprivate custody by PW-1 and that sent for chemical analysis. Themere fact that there may have been a seal cannot lead to anypresumption in absence of the examination of ASI-’BS’. Likewise,Eit was also a subject of investigation why PW-1 did not make anyroznamcha entry of the seized property and the reason why heretained the case property and sample in his private custody in arented house despite the availability of a malkhana. The delay insending the sample for chemical analysis, in the facts andcircumstances of the case was again a matter for investigation.FHad the investigator been different from the complainant, theissues for consideration may have been entirely different. [Paras 7, 8] [1013-E-H; 1014-A]

2. Unlike the general principle of criminal jurisprudencethat an accused is presumed innocent unless proved guilty, theGNDPS Act carries a reverse burden of proof under Sections 35and 54. But that cannot be understood to mean that the momentan allegation is made and the F.I.R. recites compliance withstatutory procedures leading to recovery, the burden of prooffrom the very inception of the prosecution shifts to the accused,Hwithout the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) providesthat a fact can be said to have been proved if it is establishedbeyond reasonable doubt and not on preponderance of probability.The stringent provisions of the NDPS Act, such as Section 37,the minimum sentence of ten years, absence of any provision forremission, do not dispense with the requirement of theprosecution to establish a prima facie case beyond reasonabledoubt after investigation, only after which the burden of proofshall shift to the accused. The case of the prosecution cannot beallowed to rest on a preponderance of probabilities.[Para 10][1015-D-F]

3. A fair trial to an accused, a constitutional guaranteeunder Article 21 of the Constitution, would be a hollow promiseif the investigation in a NDPS case were not to be fair or raisesserious questions about its fairness apparent on the face of theinvestigation. In the nature of the reverse burden of proof, theonus will lie on the prosecution to demonstrate on the face of itthat the investigation was fair, judicious with no circumstancesthat may raise doubts about its veracity. [Para 11] [1015-G]

Babubhai v. State of Gujarat, (2010) 12 SCC 254:[2010] 10 SCR 651; Bhola Singh v. State of Punjab,2011(11) SCC 653:[2011] 2 SCR 642; Noor Aga v. Stateof Punjab, (2008) 16 SCC 417: [2008] 10 SCR 379 –relied on

4. If an informant police official in a criminal prosecution,especially when carrying a reverse burden of proof, makes theallegations, is himself asked to investigate, serious doubts willnaturally arise with regard to his fairness and impartiality. It isnot necessary that bias must actually be proved. It would beillogical to presume and contrary to normal human conduct, thathe would himself at the end of the investigation submit a closurereport to conclude false implication with all its attendantconsequences for the complainant himself. The result of theinvestigation would therefore be a foregone conclusion. A fairinvestigation, which is but the very foundation of fair trial,necessarily postulates that the informant and the investigatormust not be the same person. Justice must not only be done, butmust appear to be done also. Any possibility of bias or a AB

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Apredetermined conclusion has to be excluded. This requirementis all the more imperative in laws carrying a reverse burden ofproof. In the instant case, the prosecution is held to be vitiatedbecause of the infraction of the constitutional guarantee of a fairinvestigation. [Paras 14, 25 and 26] [1017-G-H; 1018-A-B; 1023-B-D]B

Naushad v. State of Kerala 2000 (1) KLT 785 –approvedKader v. State of Kerala 2001 CriLJ 4044 – overruledBhagwan Singh v. State of Rajasthan (1976) 1 SCCC15; Megha Singh v. State of Haryana 1996 (11) SCC709; State by Inspector of Police, Narcotics IntelligenceBureau, Madurai, Tamilnadu v. Rajangam 2010 (15)SCC 369; State of Punjab v. Baldev Singh (1999) 6SCC 172 : [1999] 3 SCR 977; Bhaskar RamappaDMadar & Ors. v. State of Karnataka (2009)11 SCC 690: [2009] 5 SCR 256; Surender v. State of Haryana,(2016) 4 SCC 617 : [2016] 1 SCR 174; Balasundaranv. State 1999 (113) ELT 785 (Mad.); State rep. byInspector of Police, Vigilance and Anti-Corruption,Tiruchirapalli, Tamil Nadu v. V. Jayapaul 2004 (5) SCCE223; State of Himachal Pradesh v. Atul Sharma 2015(2) shimLC 693; Shri Fayas Ali v. State of MizoramCrl. Appeal No. 26 of 2013 (J) dated 19.09.2013;Gannu and Ors. v. State of Punjab, 2017 (3) RCR(criminal) 566 (Crl. Appeal No. 1688-SB of 2004 datedF26.05.2017) – referred to Case Law Reference B

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1880 of 2011.

From the Judgment and Order dated 19.09.2008 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 486-SBof 1998.

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Chanchal Kumar Ganguli, Sanjoy Mondal, Karunesh K. Shukla,Ms. Narmada Singh, Advs. for the appellant.

Ms. Jaspreet Gogia, Ms. Mandakini Singh, Advs. for therespondent.

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The Judgment of the Court was delivered by NAVIN SINHA, J. 1. The appellant assails his conviction underSection 18 of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred as “the NDPS Act”), sentencing him torigorous imprisonment for 10 years and a fine of Rs.1,00,000/- (Rupeesone lakh only), with a default stipulation.

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2. An F.I.R. was lodged on 03.02.1997 by PW-1, Chand Singh,Sub-Inspector of Balianwali Police Station, that while on patrol duty, hewas accompanied by Darshan Singh, Sarpanch and Assistant Sub-Inspector Balwinder Singh. The witness entertained doubts about theappellant upon seeing him. PW-4, Shri Rajinder N. Dhoke, IPS, a gazettedofficer, was called and the appellant was searched, leading to recoveryof 4 kg of opium in a bag carried by him. The consent memo, Exhibit-PB was signed by Darshan Singh and PW-1. The seized opium wasseparated into a sample of 20 gm. and 3kg 980 gm. The specimen sealwas prepared by PW-1 and after use, the seal was handed over to ASI,Balwinder Singh. “Ruqa” was prepared by PW-1 and forwarded toBalianwali Police Station. PW-3, Assistant Sub-Inspector, Darshan Singhregistered the formal F.I.R. and handed over investigation to PW-1. Uponconclusion of investigation, the appellant was charge-sheeted, put ontrial, and convicted.

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A3.Sh. Chanchal Kumar Ganguli, learned counsel for the appellantsubmitted that the NDPS Act being a stringent law carrying a reverseburden of proof, there had to be strict adherence to the law andprocedures. The investigation was not only required to be fair andjudicious, but must also appear to have been so. The investigation oughtnot to be in a manner leaving a genuine apprehension in the mind of theBaccused that it was not fair and bonafide. No reasons have been furnishedwhy Darshan Singh and ASI Balwinder Singh have not been examinedby the prosecution. No explanation has been furnished by PW-1 why hedid not deposit the seized narcotics in the malkhana. Likewise, the delayof 9 days in sending the sample for chemical analysis also remainsCunexplained. The investigation was fundamentally flawed. PW-1, beingthe informant, he could not have been the investigating officer himself.Reliance was placed on Bhagwan Singh vs. State of Rajasthan, (1976)1 SCC 15, Megha Singh vs. State of Haryana, 1996 (11) SCC 709,State by Inspector of Police, Narcotics Intelligence Bureau, Madurai,Tamilnadu vs. Rajangam, 2010 (15) SCC 369.D

4. Ms. Jaspreet Gogia, learned counsel for the respondentcontended that the appellant was searched in presence of a GazettedOfficer, PW-4. The failure to examine Darshan Singh or ASI BalwinderSingh was inconsequential as the search and recovery were duly provedby PW-1 and PW-4. Merely because they were police officers, theirEevidence does not stand vitiated. There shall be a presumption that officialduties were regularly performed. The burden of proof for innocence layupon the accused in view of the statutory presumption under Sections35 and 54 of the NDPS Act, which he failed to discharge. Theinvestigation was not vitiated because PW-1 may have been the informantFhimself. Reliance was placed on State of Punjab vs. Baldev Singh,(1999) 6 SCC 172, Bhaskar Ramappa Madar & Ors.vs. State ofKarnataka, (2009)11 SCC 690, Surender vs. State of Haryana, (2016)4 SCC 617.

5. We have considered the submissions on behalf of the parties.GThe primary question for our consideration in the present appeal is,whether in a criminal prosecution, it will be in consonance with theprinciples of justice, fair play and a fair investigation, if the informantand the investigating officer were to be the same person. In such acase, is it necessary for the accused to demonstrate prejudice, especiallyunder laws such as NDPS Act, carrying a reverse burden of proof.H

6. Darshan Singh was an illiterate person. He is stated to havebeen accompanying PW-1 in a police vehicle while on official duty alongwith ASI Balwinder Singh. This to our mind, is certainly not in thenormal course of events. The consent memo Exhibit-PB was stated tohave been signed by Darshan Singh, despite his being an illiterate, alongwith PW-1. The seal sample was prepared by PW-1, and signed byDarshan Singh and ASI Balwinder Singh. The seal was then handedover to ASI Balwinder Singh. The case property was retained by PW-1 in his possession and was not deposited in the malkhana nor entered inthe roznamcha. There is no explanation for the same. The sample wasretained by PW-1 in his private custody in a rented accommodation. Noexplanation is forthcoming from the prosecution why Darshan Singh,and ASI Balwinder Singh were not examined despite service of summonson the official witness and issuance of bailable warrants against theprivate witness. In their absence, neither the consent memo nor the sealcan be stated to have been proved. There was nine days’ delay in sendingthe sample for chemical analysis. No explanation has been furnished inrespect of the same. PW-4 acknowledged that the recovery memo,Exhibit-PC was not signed by the accused and that copies of documentswere not supplied to the accused nor any memo in this regard preparedin his presence. Exhibit-PB, the consent memo only mentioned that hewas the ASP, Phul.

7. The presence of a private person in a police vehicle while onpatrol duty, the individual being an illiterate, but having signed the consentmemo were surely matters for investigation. Similarly, why the signatureof ASI Balwinder Singh or PW-4 was not obtained on the consent memowas again a subject matter of investigation. The veracity of the sampleseal handed over to ASI Balwinder Singh was likewise a matter forinvestigation as to whether it was the same as the seal on the caseproperty retained in his private custody by PW-1 and that sent forchemical analysis. The mere fact that there may have been a seal cannotlead to any presumption in absence of the examination of ASI BalwinderSingh. Likewise, it was also a subject of investigation why PW-1 did notmake any roznamcha entry of the seized property and the reason whyhe retained the case property and sample in his private custody in arented house despite the availability of a malkhana. The delay in sendingthe sample for chemical analysis, in the facts and circumstances of thecase was again a matter for investigation. Had the investigator beendifferent from the complainant, the issues for consideration may have AB

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Abeen entirely different. The appellant in his defence under Section 313Cr.P.C. had specifically taken a plea of false implication by PW-1 onaccount of a dispute with regard to purchase of a tractor.

8. The view taken by the High Court that under Section 55 ofthe NDPS Act, that PW-1 was empowered to keep the case propertyBand sample in his individual safe custody is completely erroneous on theface of it. The provision reads as follows:

“55. Police to take charge of articles seized and delivered-

An officer-in-charge of a police station shall take charge ofand keep in safe custody, pending the orders of theCMagistrate, all articles seized under this Act within the localarea of that police station and which may be delivered tohim, and shall allow any officer who may accompany sucharticles to the police station or who may be deputed for thepurpose, to affix his seal to such articles or to take samplesDof and from them and all samples so taken shall also besealed with a seal of the officer-in-charge of the policestation.”(emphasis added)

A plain reading of the provision makes it manifest that it is theduty of the police officer to deposit the seized material in the policestation malkhana.E

9. Standing Order No. 1 of 88 issued by the Narcotics ControlBureau in clause 1.13 reads as follows:

“Mode and time limit for dispatch of sample to Laboratory.

The samples should be sent either by insured post or throughFspecial messenger duly authorised for the purpose. Dispatch ofsamples by registered post or ordinary mail should not be resortedto. Samples must be dispatched to the Laboratory within 72 hoursof seizure to avoid any legal objection.”(emphasis added)

The Drug Law Enforcement-Field Officer’s Hand Book issuedGby the Narcotics Control Bureau also provides that:

“28. Were the seized goods and samples deposited in theMalkhana at the earliest opportunity after seizure, anacknowledgement receipt obtained from the Malkhana-in-Charge? (emphasis added)

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29. Were the samples sent to the designated laboratory foranalysis and report within 72 hours of seizure?”

In Noor Aga vs. State of Punjab, (2008) 16 SCC 417, under theNDPS Act, it was held :

“91. The logical corollary of these discussions is that the guidelinessuch as those present in the Standing Order cannot be blatantlyflouted and substantial compliance therewith must be insistedupon for so that sanctity of physical evidence in such casesremains intact. Clearly, there has been no substantial compliancewith these guidelines by the investigating authority which leadsto drawing of an adverse inference against them to the effectthat had such evidence been produced, the same would havegone against the prosecution.”

10. Unlike the general principle of criminal jurisprudence that anaccused is presumed innocent unless proved guilty, the NDPS Act carriesa reverse burden of proof under Sections 35 and 54. But that cannot beunderstood to mean that the moment an allegation is made and the F.I.R.recites compliance with statutory procedures leading to recovery, theburden of proof from the very inception of the prosecution shifts to theaccused, without the prosecution having to establish or prove anythingmore. The presumption is rebuttable. Section 35 (2) provides that afact can be said to have been proved if it is established beyond reasonabledoubt and not on preponderance of probability. The stringent provisionsof the NDPS Act, such as Section 37, the minimum sentence of tenyears, absence of any provision for remission, do not dispense with therequirement of the prosecution to establish a prima facie case beyondreasonable doubt after investigation, only after which the burden of proofshall shift to the accused. The case of the prosecution cannot be allowedto rest on a preponderance of probabilities.

11. A fair trial to an accused, a constitutional guarantee underArticle 21 of the Constitution, would be a hollow promise if theinvestigation in a NDPS case were not to be fair or raises serious questionsabout its fairness apparent on the face of the investigation. In the natureof the reverse burden of proof, the onus will lie on the prosecution todemonstrate on the face of it that the investigation was fair, judiciouswith no circumstances that may raise doubts about its veracity. Theobligation of proof beyond reasonable doubt will take within its ambit afair investigation, in absence of which there can be no fair trial. If the A

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Ainvestigation itself is unfair, to require the accused to demonstrateprejudice will be fraught with danger vesting arbitrary powers in thepolice which may well lead to false implication also. Investigation insuch a case would then become an empty formality and a farce. Suchan interpretation therefore naturally has to be avoided.

B12. That investigation in a criminal offence must be free fromobjectionable features or infirmities which may legitimately lead to agrievance on part of the accused was noticed in Babubhai vs. State ofGujarat, (2010) 12 SCC 254 as follows:

“32. The investigation into a criminal offence must be free fromCobjectionable features or infirmities which may legitimately leadto a grievance on the part of the accused that investigation wasunfair and carried out with an ulterior motive. It is also the dutyof the investigating officer to conduct the investigation avoidingany kind of mischief and harassment to any of the accused. Theinvestigating officer should be fair and conscious so as to ruleDout any possibility of fabrication of evidence and his impartialconduct must dispel any suspicion as to its genuineness. Theinvestigating officer “is not merely to bolster up a prosecutioncase with such evidence as may enable the court to record aconviction but to bring out the real unvarnished truth”.

E33. In State of Bihar v. P.P. Sharma this Court has held asunder:

“57. … Investigation is a delicate painstaking and dextrousprocess. Ethical conduct is absolutely essential for investigativeprofessionalism. … Therefore, before countenancing suchFallegations of mala fides or bias it is salutary and an onerousduty and responsibility of the court, not only to insist upon makingspecific and definite allegations of personal animosity againstthe investigating officer at the start of the investigation butalso must insist to establish and prove them from the facts andcircumstances to the satisfaction of the court.G

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59. Malice in law could be inferred from doing of wrongful actintentionally without any just cause or excuse or without therebeing reasonable relation to the purpose of the exercise ofHstatutory power. …

61. An investigating officer who is not sensitive to theconstitutional mandates, may be prone to trample upon thepersonal liberty of a person when he is actuated by mala fides.”

13. The duty of the prosecution under the NDPS Act, consideringthe reverse burden of proof, was noticed in Noor Aga (supra) observing:- “58……An initial burden exists upon the prosecution and onlywhen it stands satisfied, would the legal burden shift. Even then,the standard of proof required for the accused to prove hisinnocence is not as high as that of the prosecution. Whereas thestandard of proof required to prove the guilt of the accused onthe prosecution is “beyond all reasonable doubt” but it is“preponderance of probability” on the accused. If the prosecutionfails to prove the foundational facts so as to attract the rigours ofSection 35 of the Act, the actus reus which is possession ofcontraband by the accused cannot be said to have beenestablished.

59. With a view to bring within its purview the requirements ofSection 54 of the Act, element of possession of the contrabandwas essential so as to shift the burden on the accused. Theprovisions being exceptions to the general rule, the generalitythereof would continue to be operative, namely, the element ofpossession will have to be proved beyond reasonable doubt.”

Furthermore, the sample not having been deposited in themalkhana, coupled with non-examination of the private witnesses, anadverse inference was drawn therein against the prosecution. Thisprinciple has been reiterated in Bhola Singh vs. State of Punjab, 2011(11)SCC 653.

14. In a criminal prosecution, there is an obligation cast on theinvestigator not only to be fair, judicious and just during investigation, butalso that the investigation on the very face of it must appear to be so,eschewing any conduct or impression which may give rise to a real andgenuine apprehension in the mind of an accused and not mere fanciful,that the investigation was not fair. In the circumstances, if an informantpolice official in a criminal prosecution, especially when carrying a reverseburden of proof, makes the allegations, is himself asked to investigate,serious doubts will naturally arise with regard to his fairness andimpartiality. It is not necessary that bias must actually be proved. It A

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Awould be illogical to presume and contrary to normal human conduct,that he would himself at the end of the investigation submit a closurereport to conclude false implication with all its attendant consequencesfor the complainant himself. The result of the investigation wouldtherefore be a foregone conclusion.

B15. The discussion in the present case may not be understood asconfined to the requirements of a fair investigation under the NDPS Actonly carrying a reverse burden of proof. Baldev Singh (supra) relatedto a prosecution under Section 165A of the IPC. Nonetheless, it observedthat if the informant were to be made the investigating officer, it wasbound to reflect on the credibility of the prosecution case. Megha SinghC(supra) concerned a prosecution under the Terrorist and DisruptiveActivities (Prevention) Act, 1985. It was held that the Head Constablebeing the complainant himself could not have proceeded with theinvestigation and it was a practice, to say the least, which should not beresorted to so that there may not be any occasion to suspect fair andDimpartial investigation.Rajangam (supra) was a prosecution under theNDPS Act, an objection was taken that PW-6 who apprehended theaccused could not have investigated the case. Upholding the objection,relying on Megha Singh (supra) the accused was acquitted. The viewtaken by the Madras High Court in Balasundaran vs. State, 1999 (113)ELT 785 (Mad.), was also noticed as follows :E

“16. Learned Counsel for the appellants also stated that P.W. 5being the Inspector of Police who was present at the time ofsearch and he was the investigating officer and as such it is fatalto the case of the prosecution. P.W. 5, according to theprosecution, was present with PWs 3 and 4 at the time of search.FIn fact, P.W. 5 alone took up investigation in the case and he hadexamined the witnesses. No doubt the successor to P.W. 5 alonehad filed the charge sheet. But there is no material to show thathe had examined any other witness. It therefore follows thatP.W. 5 was the person who really investigated the case. P.W. 5Gwas the person who had searched the appellants in question andhe being the investigation officer, certainly it is not proper andcorrect. The investigation ought to have been done by any otherinvestigating agency. On this score also, the investigation is boundto suffer and as such the entire proceedings will be vitiated.”

16. Bhaskar Ramappa Madar (supra) concerned a prosecutionunder Section 304B, I.P.C. which also carries a reverse burden of proof.The Trial Court held that the investigating officer who was also thecomplainant could not have investigated, and on that ground, held theprosecution to be tainted. The acquittal was reversed by the High Court.In appeal, this Court declined to interfere with the conviction. Afterreferring to Bhagwan Singh (supra) and Megha Singh (supra), it wasobserved that the principles laid down therein had to be confined to thefacts of the said cases and that the matter would have to be decided onthe facts of each case without any universal generalisation.

17. Hardip Singh vs. State of Punjab, 2008 (8) SCC 557concerned a prosecution under the NDPS Act. The contention was thatthe Inspector, PW-5 being the complainant himself would be an interestedperson and should not have been made the investigating officer. Theargument was repelled relying on State rep. by Inspector of Police,Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu vs. V.Jayapaul, 2004 (5) SCC 223 observing as follows:

“6…. 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 or reallikelihood of bias on the part of the investigating officer. Thequestion of bias would depend on the facts and circumstancesof each case and it is not proper to lay down a broad andunqualified proposition, in the manner in which it has been doneby the High Court, that whenever a police officer proceeds toinvestigate after registering the FIR on his own, the investigationwould necessarily be unfair or biased.”

Significantly, V. Jayapaul, (supra) related to a prosecution underthe Prevention of Corruption Act which sought to distinguish MeghaSingh, (supra) on its facts.

18. Baldev Singh, (supra) relied upon by the State isdistinguishable on its own facts concerning an irregularity in aninvestigation by an officer not especially empowered under the NDPSAct to do so.

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A19. In Surender (supra),theprosecution was under the NDPSAct. There was no independent witness. The objection that PW-6, Sub-inspector Satbir Singh being the complainant could not have investigatedrelying on Rajangam, (supra) and Megha Singh, (supra) was rejectedon the ground that he was not the sole person investigating the case, andthat the ground had not been raised before the High Court in appeal.B

20. In the nature of the controversy, it would be useful to alsonotice the view taken by different High Courts on the issue. In State ofHimachal Pradesh vs. Atul Sharma 2015 (2) shimLC 693 (Crl. AppealNo. 246 of 2008, decided on 28.02.2015), under the NDPS Act, it wasobserved as follows:C

“10.8 In present case it is proved on record that complainant isSI Bahadur Singh as per FIR Ext.PW12/A and it is proved onrecord that entire investigation has been conducted bycomplainant himself and there is no evidence on record in orderto prove that investigation was handed over to some otherDindependent Investigating Officer. It is not the case of prosecutionthat no other independent Investigating Officer was available toconduct impartial investigation. We are of the opinion thatconducting entire investigation i.e. preparation of seizure memo,site plan, recording statements of witnesses by complainantEhimself has caused miscarriage of justice to accused qua fairinvestigation.”

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21. A similar view has been taken in Shri Fayas Ali vs. State ofMizoram Crl. Appeal No. 26 of 2013 (J) dated 19.09.2013, relating toprosecution under the NDPS Act, by the Gauhati High Court as follows:

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“From the evidence of PWs 1 and 4, it is clearly found that themajor part of the investigation including the arrest of the accused,preparation of seizure, taking of sample, examination of the seizurewitnesses and examination of the accused person, was completedby the PW1, who was the informant/complainant in the presentcase. Therefore, it is clearly found that the investigation, in itstrue sense, was done by the complainant himself. In the case ofState by Inspector of Police, Narcotic Intelligence Bureau,Madurai(supra), the Supreme Court, relying on the decision heldin the case of Megha Singh (supra), observed that the investigationis to be done by a person other than the complainant and that the G

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investigation done by the complainant is bound to suffer and vitiatethe entire proceeding.”

22. The Punjab & Haryana High Court in Gannu and Ors. vs.State of Punjab, 2017 (3) RCR (criminal)566 (Crl. Appeal No. 1688-SB of 2004 dated 26.05.2017) relating to the NDPS Act, after referringto Noor Aga, (supra)and the views of the Calcutta High Court alsoapart from Atul Sharma (supra), concluded as follows:

“14. Another aspect of the matter is that in sheer violation of theprinciples of fair and impartial investigation, the complainant andthe investigating officer is the same person, which makes theprosecution case doubtful. In Laltu Prasad v. State of WestBengal, 2017(2) R.C.R. (Criminal) 237 (Calcutta) (DB), it washeld that the complainant himself acting as the investigating officerviolating the principles of fair and impartial investigation is apractice, to say the least, should not be resorted to and it is adisturbing feature. To the same effect, is a Division Benchjudgment of Hon’ble Himachal Pradesh High Court reported asState of Himachal Pradesh v. Atul Sharma and others, 2015 (6)R.C.R. (Criminal) 949, wherein, it has been held that where thecomplainant himself conducts investigation, it causes miscarriageof justice to accused qua fair investigation.”

23. A Single Judge of the Kerala High Court in Naushad vs.State of Kerala, 2000 (1) KLT 785, relating to the NDPS Act held asfollows:

“…In a case of this nature, when the complainants himself is aPolice Official, the investigation should have been conducted byhis top ranking officer and the final report also ought to havebeen filed by the higher official. A complainant being a policeofficer cannot be an Investigating Officer. For, in such case, theaccused and the prosecution will be deprived of their valuablerights of contradicting and corroborating, the previous informationrecorded under Ss. 154 or 155 Cr.P.C. and previous statementof the witness, being a police officer, complaint recorded, underS. 161 Cr.P.C. enjoined in S. 145 and 157 of the Indian EvidenceAct and proviso of S. 162 Cr.P.C. In the instant case, before me,PW1 is an Assistant Sub Inspector of Police, and I understandfrom the Public Prosecutor as well as from the Counsel for the A

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Apetitioner that the particular Police Station has got a Sub Inspectorof Police. Therefore, in this case, the investigation ought to havebeen conducted by the Sub Inspector of Police or any otherPolice Officer above the rank of PW1. In the instant case, thusan incurable infirmity and flaw have been committed by theprosecution, quite against the proposition of law. Therefore, onBthat score itself, the petitioner is entitled to get an order of acquittal.In view of my above conclusion on the footing of position of law,this is a fit case, which has to be allowed by acquitting thepetitioner.”

Disapproving of the same, a Division Bench in Kader vs. State ofCKerala, 2001 CriLJ 4044,held:

“6. Unlike usual cases under the Criminal Procedure Code, incases under the NDPS Act, by the time of arrest, main part ofinvestigation will be completed and duty of the investigating officeris mainly in sending the samples for chemical analysis and otherDroutine work and there is no likelihood of any prejudice in usualcircumstances. Therefore, we are of the opinion that merelybecause a detecting officer himself is investigating officer or theofficer of the same ranks as that of the detecting officer isinvestigating the case and files report before the Court will notEvitiate the proceedings under N.D.P.S. act in the absence ofproof of specific prejudice to the accused. Therefore, legalposition stated in Naushad v. State of Kerala 2000 (1) KLT 785to the contrary is overruled.”

24. The view taken by the Kerala High Court in Kader (supra)Fdoes to meet our approval. It tantamounts to holding that the F.I.R. wasa gospel truth, making investigation an empty formality if not a farce.The right of the accused to a fair investigation and fair trial guaranteedunder Article 21 of the Constitution will stand negated in that event, witharbitrary and uncanalised powers vested? with the police in mattersrelating to the NDPS Act and similar laws carrying a reverse burden ofGproof. An investigation is a systemic collection of facts for the purposeof describing what occurred and explaining why it occurred. The wordsystemic suggests that it is more than a whimsical process. An investigatorwill collect the facts relating to the incident under investigation. The factis a mere information and is not synonymous with the truth. Kader (supra)His, therefore, overruled. We approve the view taken in Naushad (supra).

25. In view of the conflicting opinions expressed by different twoJudge Benches of this Court, the importance of a fair investigation fromthe point of view of an accused as a guaranteed constitutional rightunder Article 21 of the Constitution of India, it is considered necessarythat the law in this regard be laid down with certainty. To leave thematter for being determined on the individual facts of a case, may notonly lead to a possible abuse of powers, but more importantly will leavethe police, the accused, the lawyer and the courts in a state of uncertaintyand confusion which has to be avoided. It is therefore held that a fairinvestigation, which is but the very foundation of 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 predetermined conclusion has to be excluded.This requirement is all the more imperative in laws carrying a reverseburden of proof.

26. Resultantly, the appeal succeeds and is allowed. Theprosecution is held to be vitiated because of the infraction of theconstitutional guarantee of a fair investigation. The appellant is directedto be set at liberty forthwith unless wanted in any other case.

Devika Gujral Appeal allowed.

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