BACKGROUND OF THE CASE

Having doubted the correctness of the decision of the apex court Court in the case of Mohan Lal v. the State of Punjab reported in (2018) 17 SCC 627 taking the view that in the case where the investigation is conducted by the police officer himself who is also the complainant, the trial is vitiated and the accused is entitled to an acquittal. The matter was referred to a larger Bench consisting of three judges and subsequently referred to a larger bench of five judges. Consequently, a Constitution Bench comprising of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat was constituted.

This Court in the case of Varinder Kumar v. State of Himachal Pradesh 2019 (3) SCALE 50 (2020) 3 SCC 321 and a three-Judge Bench of this Court out of which two Hon’ble Judges were also in the Bench in the case of Mohan Lal (supra) held that the decision of this Court in the case of Mohan Lal (supra) shall be applicable prospectively, meaning thereby, all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by individual facts of the case.

THEORY  OF JURISPRUDENCE UNDER CHALLENGE

The Constitutional guarantee of a fair trial to an accused under Article 21 takes within its fold “fair investigation”. The question in Mohan Kumar case was that in a criminal prosecution, will it be in consonance with the principles of justice, fair play and a fair investigation if the informant and the investigating officer were to be the same person and in such a case, is it necessary for the accused to demonstrate prejudice, especially under the laws such as the NDPS Act, carrying a reverse burden of proof?

In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity.

It is further in Mohan Lal (Supra) observed that if the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also.

 In the said decision, it is specifically observed that to leave the matter for being determined on the individual facts of a case, may not only lead to possible abuse of powers but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided.

In the aforesaid case, it was held that it necessarily postulates that the informant and the investigator must not be the same person.

A fair investigation which is but the very foundation of a fair trial. 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 reverse burden of proof;

As is now settled after the decision in the case of Menaka Gandhi v. Union of India (1978) 1 SCC 248 that the procedure established by law under Article 21 cannot be “any procedure” but has to be a just and a reasonable procedure and hence right of the accused to have a fair and independent investigation and trial, being inherent has been “read into” into the statutes not confirming to the fair procedure to make them constitutionally compatible;

THE LAW & THE ARGUMENTS

A. Reverse burden of proof

In the Mohan Lal (Supra) decision, this Court considered in detail the reverse burden of proof under Sections 35 and 54 of the NDPS Act.

Section 54 gives rise to a presumption that the accused has committed an offence under the Act and places a reverse burden of proof upon an accused “found” to be in possession.

Section 54. Presumption from the possession of illicit articles.—

In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of-—

Section 35 mandates the Court to the culpable mental state unless the contrary is proved. It is submitted that this “recovery” and “possession” becomes an important and vital aspect of investigation under the NDPS Act. If the accused is “found” to be in possession of the prohibited substance. Section 54 gives rise to a presumption of the commission of offence and Section 35 gives rise to a presumption of culpable mental state.

Now so far as the observations made by this Court in para 13 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 that the investigation was fair, judicious with no circumstance that may raise doubt about its veracity, it is to be noted that the presumption under the Act 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 operate only 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 not merely exist in special enactments like the NDPS Act and the Prevention of Corruption Act, but is also a part of the IPC – Section 304B and all such offences under the Penal Code are to be investigated in accordance with the provisions of the Cr.P.C. and consequently the informant can himself investigate the said offences under Section 157 Cr.P.C.

B. Process of Investigation under NDPS Act

A “recovery” and “possession” becomes an important and vital aspect of investigation under the NDPS Act. If the accused is “found” to be in possession of the prohibited substance, Section 54 gives rise to a presumption of the commission of offence and Section 35 gives rise to a presumption of culpable mental state. The officer or the raiding party which affects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency.

C. Recovery Officer vs. Investigation Officer

The investigation is a systemic process and not a foregone conclusion making the FIR itself lodged by the informant who himself affects recoveries to be treated as gospel truth;

In order to safeguard the interest of the accused, the legislation has provided inbuilt safeguards under the NDPS Act.

That the Act requires recovery and investigation to be made by different officers, i.e., by officers empowered under Section 42 and 53.

The role of an officer under Section 42 is limited to effect “entry”, “search”, “seizure” and “arrest”. It is submitted that an officer under Section 42 has no power of investigation;

Thus, there is no person other than the officer mentioned under the Section 42 of the NDPS Act who is the “complainant”, i.e. the one who alleges the commission of a cognizable offence based on the arrests and the recoveries effected by himself or his raiding party. He is the witness who “claims” seizures/recovery of prohibited substances from the possession of the accused. These claims are required to be verified and substantiated during an investigation by the investigating officer.

Section 52(3) of the NDPS Act requires an officer under Section 42-Recovery officer to handover every person arrested or article seized to an officer empowered under Section 53 (who has been conferred with the power of investigation under the Act) or an officer in charge of a police station who has the power of investigation under the Cr.P.C-investigation officer.

As held by this Court in a catena of decisions, the testimony of police personnel will be treated in the same manner as a testimony of any other witness and there is no principle of law that without corroboration by independent witnesses his testimony cannot be relied upon. See Karamjit Singh v. State (Delhi Administration) (2003) 5 SCC 291]. As observed and held by this Court in the case of Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds.

Even after effecting arrests or seizures, while the officer under Section 42 is required to forward the articles seized and persons arrested “without unnecessary delay” to the investigation officers, he is required to report to his immediate superior officer in 48 hours.

C. First Information Report

When the officer under Section 42 is required to handover the person arrested or the articles seized by him to the officer in charge of a police station or the officer under Section 53 of the NDPS Act, the information given by him to such officers would then be categorised as the first information report.

The investigation starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 Cr.P.C.

A cryptic message on telephone etc. which under the NDPS Act is similar to the information provided by a secret informer etc. cannot, therefore, constitute an FIR. It is only after recoveries are affected and/or arrests made, information regarding the commission of a cognizable offence crystallises.

Section 42 of the NDPS Act confers a power of entry, search, seizure and arrest without warrant or authorisation to any such officer as mentioned in Section 42 including any such officer of the revenue, drugs control, excise, police or any other department of a State Government or the Central Government, as the case may be.

After such handing over, the Role of a Section 42 officer comes to an end, except he has to make a report of his action to his superior officer within 48 hours under Section 57 of the NDPS Act.

For all practical purposes, the time when Section 42 officer hands over the person arrested or the goods seized, is the first-time information is received by the “investigating officer” and that is the time of commencement of the investigation.

If the officer under Section 41(2) or Section 42 receives some secret information, he is statutorily required to inform the same under Section 42(2) of the Act to his superior officer after 72 hours. The officer is not obliged and cannot be compelled to give the source of his information in view of the bar contained in Section 68 of the NDPS Act.  Thus, there is no mechanism to verify, except the oral testimony of Section 42 officer himself or his subordinate officers who are part of his raiding party, that he has acted on some prior secret information or that the recovery etc. was a chance recovery or that the officer was acting maliciously for extraneously.

D. Role of an IO

Once the person arrested and the articles seized come in the control of the “Investigating Officer”, he is required under Section 52(4) of the Act to take measures for their disposal. The person arrested is produced before the magistrate under Section 167 Cr.P.C. and the narcotic substance seized is then required to be dealt with by the officer under Section 53 (Power to invest officers of certain departments with powers of an officer-in-charge of a police station) of the NDPS Act or the SHO in accordance with Section 52A. In the process of investigation, the conduct of the officer 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 accused of offences under the Act, however, in case he finds that the officer under Section 42 has acted vexatiously or maliciously, he can also be punished under Section 58 and therefore he would file a police report against such officer for an offence under Section 58.

The offence under Section 58 is also a cognizable offence and hence on an allegation made the “officer in charge of a police station” is under an obligation to take cognizance of that and investigate.

An independent investigation by a separate agency lends credibility and fairness to both sides. If the officer under Section 42 is to be proceeded against, his trial would also be based upon “investigated” material. It would also exclude the possibility of abuse and source of corruption due to the wide powers under the NDPS Act;

Handing over or continuation of an investigation by the officer who has acted under Section 42 to effect search, seizure or arrest is not, therefore, be comprehended under the scheme. It would render Section 58 completely redundant and otiose as he would not investigate against himself and file a charge sheet against himself. If the accused is not found to be in possession, the Investigating Officer would have to explain his source or else “possession” of contraband in his possession would also attract Section 8.

The scheme of making two separate sections i.e. Sections 42 and 53 empowering officers for different purposes would have been unnecessary. If the legislative intent was such, an officer under Section 42 would have been given an additional power of investigation and then Section 53 was unnecessary;

NDPS Act does not contemplate “Joint Authorisations”, for if that were the case, Section 42 would have conferred the power of both “entry, search, seizure or arrest” as well as “investigation” on the same officer. The very fact that two separate sections, namely, Section 42 and Section 53 have been provided and Section 52(3) contemplates “handing over” by Section 42 officer to either Section 53 officer or to SHO, meaning thereby that there ought to be two separate officers;

TAKEAWAYS FROM THE JUDGMENT

1. FAIR INVESTIGATION:  Abuse of power cannot be presumed. Fairness of investigation would always be a question of fact. The investigation must be unbiased, honest, just and in accordance with the law, secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency.
2. LIBERTY: “Liberty” of a person would be at serious peril if the scheme of the NDPS Act is interpreted and leftover in the hands of a single person without any checks and safeguards to protect the rights of the accused. It is impermissible and beyond comprehension to allow a person to:

(i) make an accusation;

(ii) the fact that he accuses is “sufficient ingredient” to make a penal offence;

(iii) “investigate” that accusation which he himself makes; and

(iv) become a “witness” to prove the accusation and then based on his testimony a person is convicted and punished;

4. PREVIOUS JUDGMENTS: Right from Bhagwan Singh (supra) till the recent judgment in the case of Varinder Kumar (supra), the apex Court is of the firm view that the complainant/informant and the investigator must not be the same person. The same is in consonance with the age-old principles of law that “Nemo debetessejudex in causa proporiasua” (no person can be a judge in his own cause) and that “justice should not only be done but appears to have been done”

JUDGEMENT	RATIO
Bhagwan Singh vs. the State of Rajasthan (1976) 1 SCC 15	The decision of the Apex Court in the case of Bhagwan Singh can be said to be a decision on its own facts and cannot be said to be laying an absolute proposition of law that in no case the informant/complainant can be the investigator and that in all the cases where the complainant/informant and the investigating officer is the same, the entire trial is vitiated and the accused is entitled to acquittal.
Megha Singh vs. the State of Haryana (1996) 11 SCC 709	In this decision also, there is an absolute proposition of law laid down by this Court that in each and every case where the complainant himself is the investigating officer, the trial is vitiated and the accused is entitled to acquittal.
Varinder Kumar vs. State of Himachal Pradesh 2019 (3) SCALE 50	That thereafter in the case of Varinder Kumar (supra), it was held that the decision in the case of Mohan Lal (supra) shall be applied prospectively and shall not affect the cases, pending criminal prosecutions, trials and appeals and they shall be governed by the individual facts of the case.

5.ACTUAL JUSTICE: That is the case of Rafiq Ahmad v. the State of U.P (2011) 8 SCC 300, it is observed and held that prejudice to an accused or failure of justice has to be examined with reference to:

(i) right to a fair trial

(ii) presumption of innocence until the pronouncement of guilt

(iii) the standards of proof.

 According to the prosecution therefore before an order of conviction and sentence is set aside the Court must be satisfied that there is an “actual prejudice” caused to the accused. However, Section 457 Cr.P.C. does not include within its fold the term “investigation” which has been specifically defined under Section 2(h) separate from inquiry defined under Section 2(g).

It is observed in the said decision that whenever a plea of prejudice is raised by the accused, it must be examined with reference to the above rights and safeguards, as it is the violation of these rights alone that may result in the weakening of the case of the prosecution and benefit to the accused in accordance with law;

6. MOHAN LAL JUDGMENT: It is further observed that the social interest mandates that the law laid down in Mohan Lal (supra) cannot be allowed to become a springboard by an accused of being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous. Therefore, even as observed by this Court in the case of Varinder Kumar (supra), the facts in the case of Mohan Lal (supra) were glaring and on facts, it was held that the accused was entitled to acquittal;

7. IO AND RECOVERY OFFICER ARE SAME: There are also a line of judgments wherein this Court held that the investigating officer and the complainant being the same person, does not vitiate the investigation. Reliance is placed upon the decisions of this Court in the cases of Sunil Kumar Banerjee v. State of West Bengal (1980) 3 SCC 304; State v. V. Jayapaul (2004) 5 SCC 223; S. Jeevantham v. State (2004) 5 SCC 230; Bhaskar Ramappa Madar v. the State of Karnataka (2009) 11 SCC 690; Vinod Kumar v. the State of Punjab (2015) 3 SCC 220; and Surender v. State of Haryana (2016) 4 SCC 617. Therefore, it may be seen that this Court declined to lay down a hard and fast rule with regard to the said question despite taking note of the judgments, which in peculiar facts, had held that the investigating officer and the complainant cannot be the same person;

8. VARINDER KUMAR CASE & THE INTERPRETATIONS: In the case of Varinder Kumar (supra), this Court specifically held that in Mohan Lal (supra), the attention of the Court was also not invited to the “need for considering the carving out of exceptions” and that “human rights are not only of the accused but, extent apart, also of the victim, the symbolic member of society as the potential victim and the society as a whole”. The Court, therefore, held that the law in Mohan Lal (supra) “cannot be allowed to become a spring

Before the ink of Mohan, Lal judgement dried the various courts from east to west north to south followed the principal and applied it to all old pending and new cases.

Unfortunately, the law with regard to this cardinal principle of criminal investigations remains undecided. Following the Mohan Lal case, once again the Apex Court was faced with a similar question of law in Mukesh Singh vs State (Narcotic Branch Of Delhi). A two-Judge Bench comprising of Justices Uday Umesh Lalit and M.R. Shah expressed that they did not entirely agree with the view taken by the Court in the Mohan Lal case.

NDPS IS A SPECIAL ACT

Considering the NDPS Act being a special Act with the special procedure to be followed under Chapter V, and as observed hereinabove, there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, we are of the opinion that there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated and the accused is entitled to acquittal.

Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum-investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation.

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 warranted as he always can be the officer 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 bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible.

CONCLUSION

From the aforesaid scheme and provisions of the NDPS Act, it appears that the NDPS Act is a complete Code in itself.

Sub-section 2 of Section 41 authorises any such officer of gazetted rank of the Departments of Central Excise…… as is empowered in this behalf by general or special order by the Central Government, or any such officer of the Revenue…….police or any other department of a State Government as is empowered in this behalf by general or special order, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under the NDPS Act, authorising any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

Therefore the Constitution bench held that:

In a case where the informant himself is the investigator, by that, itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal.

The matter has to be decided on a case to case basis. A contrary decision 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 that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.

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

                                            

AUTHOR OF THE ARTICLE
Adv. Amit Kashyap & Team Indian Law Watch 
Amit is an advocate practicing before Patna High Court. He has long experience of practicing in Criminal Law, Family and matrimonial Law..