REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1880 OF 2011
MOHAN LAL ....APPELLANT(S)
VERSUS
THE STATE OF PUNJAB ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant assails his conviction under Section 18 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred as “the NDPS Act”), sentencing him to
rigorous imprisonment for 10 years and a fine of
Rs.1,00,000/ (Rupees one lakh only), with a default
stipulation.
1
2. An F.I.R. was lodged on 03.02.1997 by PW1, Chand
Singh, SubInspector of Balianwali Police Station, that while
on patrol duty, he was accompanied by Darshan Singh,
Sarpanch and Assistant SubInspector Balwinder Singh.
The witness entertained doubts about the appellant upon
seeing him. PW4, Shri Rajinder N. Dhoke, IPS, a gazetted
officer, was called and the appellant was searched, leading to
recovery of 4 kg of opium in a bag carried by him. The
consent memo, Exhibit PB was signed by Darshan Singh
and PW1. The seized opium was separated into a sample of
20 gm. and 3kg 980 gm. The specimen seal was prepared by
PW1 and after use, the seal was handed over to ASI,
Balwinder Singh. “Ruqa” was prepared by PW1 and
forwarded to Balianwali Police Station. PW3, Assistant
SubInspector, Darshan Singh registered the formal F.I.R.
and handed over investigation to PW1. Upon conclusion of
investigation, the appellant was chargesheeted, put on trial,
and convicted.
3. Sh. Chanchal Kumar Ganguli, learned counsel for the
appellant submitted that the NDPS Act being a stringent law
2
carrying a reverse burden of proof, there had to be strict
adherence to the law and procedures. The investigation was
not only required to be fair and judicious, but must also
appear to have been so. The investigation ought not to be in
a manner leaving a genuine apprehension in the mind of the
accused that it was not fair and bonafide. No reasons have
been furnished why Darshan Singh and ASI Balwinder Singh
have not been examined by the prosecution. No explanation
has been furnished by PW1 why he did not deposit the
seized narcotics in the malkhana. Likewise, the delay of 9
days in sending the sample for chemical analysis also
remains unexplained. The investigation was fundamentally
flawed. PW1, being the 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.
3
4. Ms. Jaspreet Gogia, learned counsel for the respondent
contended that the appellant was searched in presence of a
Gazetted Officer, PW4. The failure to examine Darshan
Singh or ASI Balwinder Singh was inconsequential as the
search and recovery were duly proved by PW1 and PW4.
Merely because they were police officers, their evidence does
not stand vitiated. There shall be a presumption that official
duties were regularly performed. The burden of proof for
innocence lay upon the accused in view of the statutory
presumption under Sections 35 and 54 of the NDPS Act,
which he failed to discharge. The investigation was not
vitiated because PW1 may have been the informant himself.
Reliance was placed on State of Punjab vs. Baldev Singh,
(1999) 6 SCC 172, Bhaskar Ramappa Madar & Ors. vs.
State of Karnataka, (2009)11 SCC 690, Surender vs.
State of Haryana, (2016) 4 SCC 617.
5. We have considered the submissions on behalf of the
parties. The primary question for our consideration in the
present appeal is, whether in a criminal prosecution, it will
4
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. In such a case, is it
necessary for the accused to demonstrate prejudice,
especially under laws such as NDPS Act, carrying a reverse
burden of proof.
6. Darshan Singh was an illiterate person. He is stated to
have been accompanying PW1 in a police vehicle while on
official duty along with ASI Balwinder Singh. This to our
mind, is certainly not in the normal course of events. The
consent memo ExhibitPB was stated to have been signed by
Darshan Singh, despite his being an illiterate, along with
PW1. The seal sample was prepared by PW1, and signed
by Darshan Singh and ASI Balwinder Singh. The seal was
then handed over to ASI Balwinder Singh. The case property
was retained by PW1 in his possession and was not
deposited in the malkhana nor entered in the roznamcha.
There is no explanation for the same. The sample was
retained by PW1 in his private custody in a rented
accommodation. No explanation is forthcoming from the
5
prosecution why Darshan Singh, and ASI Balwinder Singh
were not examined despite service of summons on the official
witness and issuance of bailable warrants against the
private witness. In their absence, neither the consent memo
nor the seal can be stated to have been proved. There was
nine days’ delay in sending the sample for chemical analysis.
No explanation has been furnished in respect of the same.
PW4 acknowledged that the recovery memo, ExhibitPC was
not signed by the accused and that copies of documents
were not supplied to the accused nor any memo in this
regard prepared in his presence. ExhibitPB, the consent
memo only mentioned that he was the ASP, Phul.
7. The presence of a private person in a police vehicle while
on patrol duty, the individual being an illiterate, but having
signed the consent memo were surely matters for
investigation. Similarly, why the signature of ASI Balwinder
Singh or PW4 was not obtained on the consent memo was
again a subject matter of investigation. The veracity of the
sample seal handed over to ASI Balwinder Singh was likewise
a matter for investigation as to whether it was the same as
6
the seal on the case property retained in his private custody
by PW1 and that sent for chemical analysis. The mere fact
that there may have been a seal cannot lead to any
presumption in absence of the examination of ASI Balwinder
Singh. Likewise, it was also a subject of investigation why
PW1 did not make any roznamcha entry of the seized
property and the reason why he retained the case property
and sample in his private custody in a rented house despite
the availability of a malkhana. The delay in sending the
sample for chemical analysis, in the facts and circumstances
of the case was again a matter for investigation. Had the
investigator been different from the complainant, the issues
for consideration may have been entirely different. The
appellant in his defence under Section 313 Cr.P.C. had
specifically taken a plea of false implication by PW1 on
account of a dispute with regard to purchase of a tractor.
8. The view taken by the High Court that under Section
55 of the NDPS Act, that PW1 was empowered to keep the
case property and sample in his individual safe custody is
7
completely erroneous on the face of it. The provision reads
as follows:
“55. Police to take charge of articles seized and
deliveredAn
officerincharge of a police station shall take
charge of and keep in safe custody, pending the
orders of the Magistrate, all articles seized under
this Act within the local area of that police station
and which may be delivered to him, and shall
allow any officer who may accompany such
articles to the police station or who may be
deputed for the purpose, to affix his seal to such
articles or to take samples of and from them and
all samples so taken shall also be sealed with a
seal of the officerincharge of the police
station.”(emphasis added)
A plain reading of the provision makes it manifest that
it is the duty of the police officer to deposit the seized
material in the police station malkhana.
9. Standing Order No. 1 of 88 issued by the Narcotics
Control Bureau 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 through special messenger duly
authorised for the purpose. Dispatch of samples
8
by registered post or ordinary mail should not
be resorted to. Samples must be dispatched to
the Laboratory within 72 hours of seizure to
avoid any legal objection.”(emphasis added)
The Drug Law EnforcementField Officer’s Hand Book
issued by the Narcotics Control Bureau also provides that:
“28. Were the seized goods and samples
deposited in the Malkhana at the earliest
opportunity after seizure, an acknowledgement
receipt obtained from the MalkhanainCharge?
(emphasis added)
29. Were the samples sent to the designated
laboratory for analysis and report within 72
hours of seizure?”
In Noor Aga vs. State of Punjab, (2008) 16 SCC 417,
under the NDPS Act, it was held :
“91. The logical corollary of these
discussions is that the guidelines such as
those present in the Standing Order cannot
be blatantly flouted and substantial
compliance therewith must be insisted
upon for so that sanctity of physical
evidence in such cases remains intact.
Clearly, there has been no substantial
compliance with these guidelines by the
investigating authority which leads to
drawing of an adverse inference against
them to the effect that had such evidence
been produced, the same would have gone
against the prosecution.”
9
10. Unlike the general principle of criminal jurisprudence
that an accused is presumed innocent unless proved guilty,
the NDPS Act carries a reverse burden of proof under
Sections 35 and 54. But that cannot be understood to mean
that the moment an allegation is made and the F.I.R. recites
compliance with statutory procedures leading to recovery,
the burden of proof from the very inception of the
prosecution shifts to the accused, without the prosecution
having to establish or prove anything more. The
presumption is rebuttable. Section 35 (2) provides that a
fact can be said to have been proved if it is established
beyond 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 for remission, do not dispense with the
requirement of the prosecution to establish a prima facie
case beyond reasonable doubt after investigation, only after
which the burden of proof shall shift to the accused. The
10
case of the prosecution cannot be allowed to rest on a
preponderance of probabilities.
11. A fair trial to an accused, a constitutional guarantee
under Article 21 of the Constitution, would be a hollow
promise if the investigation in a NDPS case were not to be
fair or raises serious questions about its fairness apparent
on the face of the investigation. 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. The obligation of proof beyond
reasonable doubt will take within its ambit a fair
investigation, in absence of which there can be no fair trial.
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. Investigation in such a case would then
become an empty formality and a farce. Such an
interpretation therefore naturally has to be avoided.
11
12. That investigation in a criminal offence must be free
from objectionable features or infirmities which may
legitimately lead to a grievance on part of the accused was
noticed in Babubhai vs. State of Gujarat, (2010) 12 SCC
254 as follows:
“32. The investigation into a criminal offence
must be free from objectionable features or
infirmities which may legitimately lead to a
grievance on the part of the accused that
investigation was unfair and carried out with an
ulterior motive. It is also the duty of the
investigating officer to conduct the investigation
avoiding any kind of mischief and harassment to
any of the accused. The investigating officer
should be fair and conscious so as to rule out
any possibility of fabrication of evidence and his
impartial conduct must dispel any suspicion as
to its genuineness. The investigating officer “is
not merely to bolster up a prosecution case with
such evidence as may enable the court to record
a conviction but to bring out the real
unvarnished truth”.
33. In State of Bihar v. P.P. Sharma this Court
has held as under:
“57. … Investigation is a delicate
painstaking and dextrous process. Ethical
conduct is absolutely essential for
investigative professionalism. … Therefore,
before countenancing such allegations of
mala fides or bias it is salutary and an
onerous duty and responsibility of the
court, not only to insist upon making
specific and definite allegations of personal
12
animosity against the investigating officer at
the start of the investigation but also must
insist to establish and prove them from the
facts and circumstances to the satisfaction
of the court.
* * *
59. Malice in law could be inferred from
doing of wrongful act intentionally without
any just cause or excuse or without there
being reasonable relation to the purpose of
the exercise of statutory power. …
61. An investigating officer who is not
sensitive to the constitutional mandates,
may be prone to trample upon the personal
liberty of a person when he is actuated by
mala fides.”
13. The duty of the prosecution under the NDPS Act,
considering the reverse burden of proof, was noticed in Noor
Aga (supra) observing:
“58……An initial burden exists upon the
prosecution and only when it stands
satisfied, would the legal burden shift. Even
then, the standard of proof required for the
accused to prove his innocence is not as
high as that of the prosecution. Whereas
the standard of proof required to prove the
guilt of the accused on the prosecution is
“beyond all reasonable doubt” but it is
“preponderance of probability” on the
accused. If the prosecution fails to prove the
foundational facts so as to attract the
rigours of Section 35 of the Act, the actus
reus which is possession of contraband by
13
the accused cannot be said to have been
established.
59. With a view to bring within its purview
the requirements of Section 54 of the Act,
element of possession of the contraband was
essential so as to shift the burden on the
accused. The provisions being exceptions to
the general rule, the generality thereof
would continue to be operative, namely, the
element of possession will have to be proved
beyond reasonable doubt.”
Furthermore, the sample not having been deposited in
the malkhana, coupled with nonexamination of the private
witnesses, an adverse inference was drawn therein against
the prosecution. This principle 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
the investigator not only to be fair, judicious and just during
investigation, but also 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 and genuine
apprehension in the mind of an accused and not mere
fanciful, that the investigation was not fair. In the
14
circumstances, if an informant police official in a criminal
prosecution, especially when carrying a reverse burden of
proof, makes the allegations, is himself asked to investigate,
serious doubts will naturally arise with regard to his fairness
and impartiality. It is not necessary that bias must actually
be proved. It would be illogical to presume and contrary to
normal human conduct, that he would himself at the end of
the investigation submit a closure report to conclude false
implication with all its attendant consequences for the
complainant himself. The result of the investigation would
therefore be a foregone conclusion.
15. The discussion in the present case may not be
understood as confined to the requirements of a fair
investigation under the NDPS Act only carrying a reverse
burden of proof. Baldev Singh (supra) related to a
prosecution under Section 165A of the IPC. Nonetheless, it
observed that if the informant were to be made the
investigating officer, it was bound to reflect on the credibility
of the prosecution case. Megha Singh (supra) concerned a
15
prosecution under the Terrorist and Disruptive Activities
(Prevention) Act, 1985. It was held that the Head Constable
being the complainant himself could not have proceeded
with the investigation and it was a practice, to say the least,
which should not be resorted to so that there may not be
any occasion to suspect fair and impartial investigation.
Rajangam (supra) was a prosecution under the NDPS Act,
an objection was taken that PW6 who apprehended the
accused could not have investigated the case. Upholding the
objection, relying on Megha Singh (supra) the accused was
acquitted. The view taken by the Madras High Court in
Balasundaran vs. State, 1999 (113) ELT 785 (Mad.), was
also noticed as follows :
“16. Learned Counsel for the appellants
also stated that P.W. 5 being the Inspector
of Police who was present at the time of
search and he was the investigating officer
and as such it is fatal to the case of the
prosecution. P.W. 5, according to the
prosecution, was present with PWs 3 and
4 at the time of search. In fact, P.W. 5
alone took up investigation in the case and
he had examined the witnesses. No doubt
the successor to P.W. 5 alone had filed the
charge sheet. But there is no material to
show that he had examined any other
witness. It therefore follows that P.W. 5
16
was the person who really investigated the
case. P.W. 5 was the person who had
searched the appellants in question and he
being the investigation officer, certainly it
is not proper and correct. The investigation
ought to have been done by any other
investigating agency. On this score also,
the investigation is bound to suffer and as
such the entire proceedings will be
vitiated.”
16. Bhaskar Ramappa Madar (supra) concerned a
prosecution under Section 304B, I.P.C. which also carries a
reverse burden of proof. The Trial Court held that the
investigating officer who was also the complainant could not
have investigated, and on that ground, held the prosecution
to be tainted. The acquittal was reversed by the High Court.
In appeal, this Court declined to interfere with the
conviction. After referring to Bhagwan Singh (supra) and
Megha Singh (supra), it was observed that the principles
laid down therein had to be confined to the facts of the said
cases and that the matter would have to be decided on the
facts of each case without any universal generalisation.
17
17. Hardip Singh vs. State of Punjab, 2008 (8) SCC 557
concerned a prosecution under the NDPS Act. The
contention was that the Inspector, PW5 being the
complainant himself would be an interested person and
should not have been made the investigating officer. The
argument was repelled relying on State rep. by Inspector
of Police, Vigilance and AntiCorruption, Tiruchirapalli,
Tamil Nadu vs. V. Jayapaul, 2004 (5) SCC 223 observing
as follows:
“6…. We find no principle or binding authority to
hold that the moment the competent police
officer, on the basis of information received,
makes out an FIR incorporating his name as the
informant, he forfeits his right to investigate. If at
all, such investigation could only be assailed on
the ground of bias or real likelihood of bias on
the part of the investigating officer. The question
of bias would depend on the facts and
circumstances of each case and it is not proper
to lay down a broad and unqualified proposition,
in the manner in which it has been done by the
High Court, that whenever a police officer
proceeds to investigate after registering the FIR
on his own, the investigation would necessarily
be unfair or biased.”
18
Significantly, V. Jayapaul, (supra) related to a
prosecution under the Prevention of Corruption Act which
sought to distinguish Megha Singh, (supra) on its facts.
18. Baldev Singh, (supra) relied upon by the State is
distinguishable on its own facts concerning an irregularity in
an investigation by an officer not especially empowered
under the NDPS Act to do so.
19. In Surender (supra), the prosecution was under the
NDPS Act. There was no independent witness. The objection
that PW6, Subinspector Satbir Singh being the
complainant could not have investigated relying on
Rajangam, (supra) and Megha Singh, (supra) was rejected
on the ground that he was not the sole person investigating
the case, and that the ground had not been raised before the
High Court in appeal.
19
20. In the nature of the controversy, it would be useful to
also notice the view taken by different High Courts on the
issue. In State of Himachal Pradesh vs. Atul Sharma
2015 (2) shimLC 693 (Crl. Appeal No. 246 of 2008, decided
on 28.02.2015), under the NDPS Act, it was observed as
follows:
“10.8 In present case it is proved on record that
complainant is SI Bahadur Singh as per FIR
Ext.PW12/A and it is proved on record that
entire investigation has been conducted by
complainant himself and there is no evidence on
record in order to prove that investigation was
handed over to some other independent
Investigating Officer. It is not the case of
prosecution that no other independent
Investigating Officer was available to conduct
impartial investigation. We are of the opinion
that conducting entire investigation i.e.
preparation of seizure memo, site plan, recording
statements of witnesses by complainant himself
has caused miscarriage of justice to accused qua
fair investigation.”
21. A similar view has been taken in Shri Fayas Ali vs.
State of Mizoram Crl. Appeal No. 26 of 2013 (J) dated
19.09.2013, relating to prosecution under the NDPS Act, by
the Gauhati High Court as follows:
20
“From the evidence of PWs 1 and 4, it is clearly
found that the major part of the investigation
including the arrest of the accused, preparation
of seizure, taking of sample, examination of the
seizure witnesses and examination of the
accused person, was completed by the PW1, who
was the informant/complainant in the present
case. Therefore, it is clearly found that the
investigation, in its true sense, was done by the
complainant himself. In the case of State by
Inspector of Police, Narcotic Intelligence Bureau,
Madurai(supra), the Supreme Court, relying on
the decision held in the case of Megha Singh
(supra), observed that the investigation is to be
done by a person other than the complainant
and that the investigation done by the
complainant is bound to suffer and vitiate the
entire proceeding.”
22. The Punjab & Haryana High Court in Gannu and Ors.
vs. State of Punjab, 2017 (3) RCR (criminal) 566 (Crl.
Appeal No. 1688SB of 2004 dated 26.05.2017) relating to
the NDPS Act, after referring to Noor Aga, (supra) and the
views of the Calcutta High Court also apart from Atul
Sharma (supra), concluded as follows:
“14. Another aspect of the matter is that in sheer
violation of the principles of fair and impartial
investigation, the complainant and the
investigating officer is the same person, which
makes the prosecution case doubtful. In Laltu
Prasad v. State of West Bengal, 2017(2) R.C.R.
21
(Criminal) 237 (Calcutta) (DB), it was held that
the complainant himself acting as the
investigating officer violating the principles of fair
and impartial investigation is a practice, to say
the least, should not be resorted to and it is a
disturbing feature. To the same effect, is a
Division Bench judgment of Hon'ble Himachal
Pradesh High Court reported as State of
Himachal Pradesh v. Atul Sharma and others,
2015 (6) R.C.R. (Criminal) 949, wherein, it has
been held that where the complainant himself
conducts investigation, it causes miscarriage of
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 as follows:
“…In a case of this nature, when the
complainants himself is a Police Official, the
investigation should have been conducted
by his top ranking officer and the final
report also ought to have been filed by the
higher official. A complainant being a police
officer cannot be an Investigating Officer.
For, in such case, the accused and the
prosecution will be deprived of their
valuable rights of contradicting and
corroborating, the previous information
recorded under Ss. 154 or 155 Cr.P.C. and
previous statement of the witness, being a
police officer, complaint recorded, under S.
161 Cr.P.C. enjoined in S. 145 and 157 of
the Indian Evidence Act and proviso of S.
162 Cr.P.C. In the instant case, before me,
PW1 is an Assistant Sub Inspector of Police,
22
and I understand from the Public
Prosecutor as well as from the Counsel for
the petitioner that the particular Police
Station has got a Sub Inspector of Police.
Therefore, in this case, the investigation
ought to have been conducted by the Sub
Inspector of Police or any other Police
Officer above the rank of PW1. In the
instant case, thus an incurable infirmity
and flaw have been committed by the
prosecution, quite against the proposition of
law. Therefore, on that 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
the petitioner."
Disapproving of the same, a Division Bench in Kader vs.
State of Kerala, 2001 CriLJ 4044, held:
“6. Unlike usual cases under the Criminal
Procedure Code, in cases under the NDPS
Act, by the time of arrest, main part of
investigation will be completed and duty of
the investigating officer is mainly in sending
the samples for chemical analysis and other
routine work and there is no likelihood of
any prejudice in usual circumstances.
Therefore, we are of the opinion that merely
because a detecting officer himself is
investigating officer or the officer of the
same ranks as that of the detecting officer is
investigating the case and files report before
the Court will not vitiate the proceedings
under N.D.P.S. act in the absence of proof
of specific prejudice to the accused.
Therefore, legal position stated in Naushad
23
v. State of Kerala 2000 (1) KLT 785 to the
contrary is overruled.”
24. The view taken by the Kerala High Court in Kader
(supra) does to meet our approval. It tantamounts to
holding that the F.I.R. was a gospel truth, making
investigation an empty formality if not a farce. The right of
the accused to a fair investigation and fair trial guaranteed
under Article 21 of the Constitution will stand negated in
that event, with arbitrary and uncanalised powers vested?
with the police in matters relating to the NDPS Act and
similar laws carrying a reverse burden of proof. An
investigation is a systemic collection of facts for the purpose
of describing what occurred and explaining why it occurred.
The word systemic suggests that it is more than a whimsical
process. An investigator will collect the facts relating to the
incident under investigation. The fact is a mere information
and is not synonymous with the truth. Kader (supra) is,
therefore, overruled. We approve the view taken in
Naushad (supra).
24
25. In view of the conflicting opinions expressed by
different two Judge Benches of this Court, the importance of
a fair investigation from the point of view of an accused as a
guaranteed constitutional right under Article 21 of the
Constitution of India, it is considered necessary that the law
in this regard be laid down with certainty. To leave the
matter for being determined on the individual facts of a case,
may not only lead to a 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. It is therefore held that a fair investigation,
which is but the very foundation of fair trial, necessarily
postulates that the informant and the investigator must not
be the same person. 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
reverse burden of proof.
25
26. Resultantly, the appeal succeeds and is allowed. The
prosecution is held to be vitiated because of the infraction of
the constitutional guarantee of a fair investigation. The
appellant is directed to be set at liberty forthwith unless
wanted in any other case.
…………...................J.
[RANJAN GOGOI]
…………...................J.
[R. BANUMATHI]
…………...................J.
[NAVIN SINHA]
NEW DELHI
AUGUST 16, 2018
26
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1880 OF 2011
MOHAN LAL ....APPELLANT(S)
VERSUS
THE STATE OF PUNJAB ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant assails his conviction under Section 18 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred as “the NDPS Act”), sentencing him to
rigorous imprisonment for 10 years and a fine of
Rs.1,00,000/ (Rupees one lakh only), with a default
stipulation.
1
2. An F.I.R. was lodged on 03.02.1997 by PW1, Chand
Singh, SubInspector of Balianwali Police Station, that while
on patrol duty, he was accompanied by Darshan Singh,
Sarpanch and Assistant SubInspector Balwinder Singh.
The witness entertained doubts about the appellant upon
seeing him. PW4, Shri Rajinder N. Dhoke, IPS, a gazetted
officer, was called and the appellant was searched, leading to
recovery of 4 kg of opium in a bag carried by him. The
consent memo, Exhibit PB was signed by Darshan Singh
and PW1. The seized opium was separated into a sample of
20 gm. and 3kg 980 gm. The specimen seal was prepared by
PW1 and after use, the seal was handed over to ASI,
Balwinder Singh. “Ruqa” was prepared by PW1 and
forwarded to Balianwali Police Station. PW3, Assistant
SubInspector, Darshan Singh registered the formal F.I.R.
and handed over investigation to PW1. Upon conclusion of
investigation, the appellant was chargesheeted, put on trial,
and convicted.
3. Sh. Chanchal Kumar Ganguli, learned counsel for the
appellant submitted that the NDPS Act being a stringent law
2
carrying a reverse burden of proof, there had to be strict
adherence to the law and procedures. The investigation was
not only required to be fair and judicious, but must also
appear to have been so. The investigation ought not to be in
a manner leaving a genuine apprehension in the mind of the
accused that it was not fair and bonafide. No reasons have
been furnished why Darshan Singh and ASI Balwinder Singh
have not been examined by the prosecution. No explanation
has been furnished by PW1 why he did not deposit the
seized narcotics in the malkhana. Likewise, the delay of 9
days in sending the sample for chemical analysis also
remains unexplained. The investigation was fundamentally
flawed. PW1, being the 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.
3
4. Ms. Jaspreet Gogia, learned counsel for the respondent
contended that the appellant was searched in presence of a
Gazetted Officer, PW4. The failure to examine Darshan
Singh or ASI Balwinder Singh was inconsequential as the
search and recovery were duly proved by PW1 and PW4.
Merely because they were police officers, their evidence does
not stand vitiated. There shall be a presumption that official
duties were regularly performed. The burden of proof for
innocence lay upon the accused in view of the statutory
presumption under Sections 35 and 54 of the NDPS Act,
which he failed to discharge. The investigation was not
vitiated because PW1 may have been the informant himself.
Reliance was placed on State of Punjab vs. Baldev Singh,
(1999) 6 SCC 172, Bhaskar Ramappa Madar & Ors. vs.
State of Karnataka, (2009)11 SCC 690, Surender vs.
State of Haryana, (2016) 4 SCC 617.
5. We have considered the submissions on behalf of the
parties. The primary question for our consideration in the
present appeal is, whether in a criminal prosecution, it will
4
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. In such a case, is it
necessary for the accused to demonstrate prejudice,
especially under laws such as NDPS Act, carrying a reverse
burden of proof.
6. Darshan Singh was an illiterate person. He is stated to
have been accompanying PW1 in a police vehicle while on
official duty along with ASI Balwinder Singh. This to our
mind, is certainly not in the normal course of events. The
consent memo ExhibitPB was stated to have been signed by
Darshan Singh, despite his being an illiterate, along with
PW1. The seal sample was prepared by PW1, and signed
by Darshan Singh and ASI Balwinder Singh. The seal was
then handed over to ASI Balwinder Singh. The case property
was retained by PW1 in his possession and was not
deposited in the malkhana nor entered in the roznamcha.
There is no explanation for the same. The sample was
retained by PW1 in his private custody in a rented
accommodation. No explanation is forthcoming from the
5
prosecution why Darshan Singh, and ASI Balwinder Singh
were not examined despite service of summons on the official
witness and issuance of bailable warrants against the
private witness. In their absence, neither the consent memo
nor the seal can be stated to have been proved. There was
nine days’ delay in sending the sample for chemical analysis.
No explanation has been furnished in respect of the same.
PW4 acknowledged that the recovery memo, ExhibitPC was
not signed by the accused and that copies of documents
were not supplied to the accused nor any memo in this
regard prepared in his presence. ExhibitPB, the consent
memo only mentioned that he was the ASP, Phul.
7. The presence of a private person in a police vehicle while
on patrol duty, the individual being an illiterate, but having
signed the consent memo were surely matters for
investigation. Similarly, why the signature of ASI Balwinder
Singh or PW4 was not obtained on the consent memo was
again a subject matter of investigation. The veracity of the
sample seal handed over to ASI Balwinder Singh was likewise
a matter for investigation as to whether it was the same as
6
the seal on the case property retained in his private custody
by PW1 and that sent for chemical analysis. The mere fact
that there may have been a seal cannot lead to any
presumption in absence of the examination of ASI Balwinder
Singh. Likewise, it was also a subject of investigation why
PW1 did not make any roznamcha entry of the seized
property and the reason why he retained the case property
and sample in his private custody in a rented house despite
the availability of a malkhana. The delay in sending the
sample for chemical analysis, in the facts and circumstances
of the case was again a matter for investigation. Had the
investigator been different from the complainant, the issues
for consideration may have been entirely different. The
appellant in his defence under Section 313 Cr.P.C. had
specifically taken a plea of false implication by PW1 on
account of a dispute with regard to purchase of a tractor.
8. The view taken by the High Court that under Section
55 of the NDPS Act, that PW1 was empowered to keep the
case property and sample in his individual safe custody is
7
completely erroneous on the face of it. The provision reads
as follows:
“55. Police to take charge of articles seized and
deliveredAn
officerincharge of a police station shall take
charge of and keep in safe custody, pending the
orders of the Magistrate, all articles seized under
this Act within the local area of that police station
and which may be delivered to him, and shall
allow any officer who may accompany such
articles to the police station or who may be
deputed for the purpose, to affix his seal to such
articles or to take samples of and from them and
all samples so taken shall also be sealed with a
seal of the officerincharge of the police
station.”(emphasis added)
A plain reading of the provision makes it manifest that
it is the duty of the police officer to deposit the seized
material in the police station malkhana.
9. Standing Order No. 1 of 88 issued by the Narcotics
Control Bureau 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 through special messenger duly
authorised for the purpose. Dispatch of samples
8
by registered post or ordinary mail should not
be resorted to. Samples must be dispatched to
the Laboratory within 72 hours of seizure to
avoid any legal objection.”(emphasis added)
The Drug Law EnforcementField Officer’s Hand Book
issued by the Narcotics Control Bureau also provides that:
“28. Were the seized goods and samples
deposited in the Malkhana at the earliest
opportunity after seizure, an acknowledgement
receipt obtained from the MalkhanainCharge?
(emphasis added)
29. Were the samples sent to the designated
laboratory for analysis and report within 72
hours of seizure?”
In Noor Aga vs. State of Punjab, (2008) 16 SCC 417,
under the NDPS Act, it was held :
“91. The logical corollary of these
discussions is that the guidelines such as
those present in the Standing Order cannot
be blatantly flouted and substantial
compliance therewith must be insisted
upon for so that sanctity of physical
evidence in such cases remains intact.
Clearly, there has been no substantial
compliance with these guidelines by the
investigating authority which leads to
drawing of an adverse inference against
them to the effect that had such evidence
been produced, the same would have gone
against the prosecution.”
9
10. Unlike the general principle of criminal jurisprudence
that an accused is presumed innocent unless proved guilty,
the NDPS Act carries a reverse burden of proof under
Sections 35 and 54. But that cannot be understood to mean
that the moment an allegation is made and the F.I.R. recites
compliance with statutory procedures leading to recovery,
the burden of proof from the very inception of the
prosecution shifts to the accused, without the prosecution
having to establish or prove anything more. The
presumption is rebuttable. Section 35 (2) provides that a
fact can be said to have been proved if it is established
beyond 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 for remission, do not dispense with the
requirement of the prosecution to establish a prima facie
case beyond reasonable doubt after investigation, only after
which the burden of proof shall shift to the accused. The
10
case of the prosecution cannot be allowed to rest on a
preponderance of probabilities.
11. A fair trial to an accused, a constitutional guarantee
under Article 21 of the Constitution, would be a hollow
promise if the investigation in a NDPS case were not to be
fair or raises serious questions about its fairness apparent
on the face of the investigation. 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. The obligation of proof beyond
reasonable doubt will take within its ambit a fair
investigation, in absence of which there can be no fair trial.
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. Investigation in such a case would then
become an empty formality and a farce. Such an
interpretation therefore naturally has to be avoided.
11
12. That investigation in a criminal offence must be free
from objectionable features or infirmities which may
legitimately lead to a grievance on part of the accused was
noticed in Babubhai vs. State of Gujarat, (2010) 12 SCC
254 as follows:
“32. The investigation into a criminal offence
must be free from objectionable features or
infirmities which may legitimately lead to a
grievance on the part of the accused that
investigation was unfair and carried out with an
ulterior motive. It is also the duty of the
investigating officer to conduct the investigation
avoiding any kind of mischief and harassment to
any of the accused. The investigating officer
should be fair and conscious so as to rule out
any possibility of fabrication of evidence and his
impartial conduct must dispel any suspicion as
to its genuineness. The investigating officer “is
not merely to bolster up a prosecution case with
such evidence as may enable the court to record
a conviction but to bring out the real
unvarnished truth”.
33. In State of Bihar v. P.P. Sharma this Court
has held as under:
“57. … Investigation is a delicate
painstaking and dextrous process. Ethical
conduct is absolutely essential for
investigative professionalism. … Therefore,
before countenancing such allegations of
mala fides or bias it is salutary and an
onerous duty and responsibility of the
court, not only to insist upon making
specific and definite allegations of personal
12
animosity against the investigating officer at
the start of the investigation but also must
insist to establish and prove them from the
facts and circumstances to the satisfaction
of the court.
* * *
59. Malice in law could be inferred from
doing of wrongful act intentionally without
any just cause or excuse or without there
being reasonable relation to the purpose of
the exercise of statutory power. …
61. An investigating officer who is not
sensitive to the constitutional mandates,
may be prone to trample upon the personal
liberty of a person when he is actuated by
mala fides.”
13. The duty of the prosecution under the NDPS Act,
considering the reverse burden of proof, was noticed in Noor
Aga (supra) observing:
“58……An initial burden exists upon the
prosecution and only when it stands
satisfied, would the legal burden shift. Even
then, the standard of proof required for the
accused to prove his innocence is not as
high as that of the prosecution. Whereas
the standard of proof required to prove the
guilt of the accused on the prosecution is
“beyond all reasonable doubt” but it is
“preponderance of probability” on the
accused. If the prosecution fails to prove the
foundational facts so as to attract the
rigours of Section 35 of the Act, the actus
reus which is possession of contraband by
13
the accused cannot be said to have been
established.
59. With a view to bring within its purview
the requirements of Section 54 of the Act,
element of possession of the contraband was
essential so as to shift the burden on the
accused. The provisions being exceptions to
the general rule, the generality thereof
would continue to be operative, namely, the
element of possession will have to be proved
beyond reasonable doubt.”
Furthermore, the sample not having been deposited in
the malkhana, coupled with nonexamination of the private
witnesses, an adverse inference was drawn therein against
the prosecution. This principle 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
the investigator not only to be fair, judicious and just during
investigation, but also 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 and genuine
apprehension in the mind of an accused and not mere
fanciful, that the investigation was not fair. In the
14
circumstances, if an informant police official in a criminal
prosecution, especially when carrying a reverse burden of
proof, makes the allegations, is himself asked to investigate,
serious doubts will naturally arise with regard to his fairness
and impartiality. It is not necessary that bias must actually
be proved. It would be illogical to presume and contrary to
normal human conduct, that he would himself at the end of
the investigation submit a closure report to conclude false
implication with all its attendant consequences for the
complainant himself. The result of the investigation would
therefore be a foregone conclusion.
15. The discussion in the present case may not be
understood as confined to the requirements of a fair
investigation under the NDPS Act only carrying a reverse
burden of proof. Baldev Singh (supra) related to a
prosecution under Section 165A of the IPC. Nonetheless, it
observed that if the informant were to be made the
investigating officer, it was bound to reflect on the credibility
of the prosecution case. Megha Singh (supra) concerned a
15
prosecution under the Terrorist and Disruptive Activities
(Prevention) Act, 1985. It was held that the Head Constable
being the complainant himself could not have proceeded
with the investigation and it was a practice, to say the least,
which should not be resorted to so that there may not be
any occasion to suspect fair and impartial investigation.
Rajangam (supra) was a prosecution under the NDPS Act,
an objection was taken that PW6 who apprehended the
accused could not have investigated the case. Upholding the
objection, relying on Megha Singh (supra) the accused was
acquitted. The view taken by the Madras High Court in
Balasundaran vs. State, 1999 (113) ELT 785 (Mad.), was
also noticed as follows :
“16. Learned Counsel for the appellants
also stated that P.W. 5 being the Inspector
of Police who was present at the time of
search and he was the investigating officer
and as such it is fatal to the case of the
prosecution. P.W. 5, according to the
prosecution, was present with PWs 3 and
4 at the time of search. In fact, P.W. 5
alone took up investigation in the case and
he had examined the witnesses. No doubt
the successor to P.W. 5 alone had filed the
charge sheet. But there is no material to
show that he had examined any other
witness. It therefore follows that P.W. 5
16
was the person who really investigated the
case. P.W. 5 was the person who had
searched the appellants in question and he
being the investigation officer, certainly it
is not proper and correct. The investigation
ought to have been done by any other
investigating agency. On this score also,
the investigation is bound to suffer and as
such the entire proceedings will be
vitiated.”
16. Bhaskar Ramappa Madar (supra) concerned a
prosecution under Section 304B, I.P.C. which also carries a
reverse burden of proof. The Trial Court held that the
investigating officer who was also the complainant could not
have investigated, and on that ground, held the prosecution
to be tainted. The acquittal was reversed by the High Court.
In appeal, this Court declined to interfere with the
conviction. After referring to Bhagwan Singh (supra) and
Megha Singh (supra), it was observed that the principles
laid down therein had to be confined to the facts of the said
cases and that the matter would have to be decided on the
facts of each case without any universal generalisation.
17
17. Hardip Singh vs. State of Punjab, 2008 (8) SCC 557
concerned a prosecution under the NDPS Act. The
contention was that the Inspector, PW5 being the
complainant himself would be an interested person and
should not have been made the investigating officer. The
argument was repelled relying on State rep. by Inspector
of Police, Vigilance and AntiCorruption, Tiruchirapalli,
Tamil Nadu vs. V. Jayapaul, 2004 (5) SCC 223 observing
as follows:
“6…. We find no principle or binding authority to
hold that the moment the competent police
officer, on the basis of information received,
makes out an FIR incorporating his name as the
informant, he forfeits his right to investigate. If at
all, such investigation could only be assailed on
the ground of bias or real likelihood of bias on
the part of the investigating officer. The question
of bias would depend on the facts and
circumstances of each case and it is not proper
to lay down a broad and unqualified proposition,
in the manner in which it has been done by the
High Court, that whenever a police officer
proceeds to investigate after registering the FIR
on his own, the investigation would necessarily
be unfair or biased.”
18
Significantly, V. Jayapaul, (supra) related to a
prosecution under the Prevention of Corruption Act which
sought to distinguish Megha Singh, (supra) on its facts.
18. Baldev Singh, (supra) relied upon by the State is
distinguishable on its own facts concerning an irregularity in
an investigation by an officer not especially empowered
under the NDPS Act to do so.
19. In Surender (supra), the prosecution was under the
NDPS Act. There was no independent witness. The objection
that PW6, Subinspector Satbir Singh being the
complainant could not have investigated relying on
Rajangam, (supra) and Megha Singh, (supra) was rejected
on the ground that he was not the sole person investigating
the case, and that the ground had not been raised before the
High Court in appeal.
19
20. In the nature of the controversy, it would be useful to
also notice the view taken by different High Courts on the
issue. In State of Himachal Pradesh vs. Atul Sharma
2015 (2) shimLC 693 (Crl. Appeal No. 246 of 2008, decided
on 28.02.2015), under the NDPS Act, it was observed as
follows:
“10.8 In present case it is proved on record that
complainant is SI Bahadur Singh as per FIR
Ext.PW12/A and it is proved on record that
entire investigation has been conducted by
complainant himself and there is no evidence on
record in order to prove that investigation was
handed over to some other independent
Investigating Officer. It is not the case of
prosecution that no other independent
Investigating Officer was available to conduct
impartial investigation. We are of the opinion
that conducting entire investigation i.e.
preparation of seizure memo, site plan, recording
statements of witnesses by complainant himself
has caused miscarriage of justice to accused qua
fair investigation.”
21. A similar view has been taken in Shri Fayas Ali vs.
State of Mizoram Crl. Appeal No. 26 of 2013 (J) dated
19.09.2013, relating to prosecution under the NDPS Act, by
the Gauhati High Court as follows:
20
“From the evidence of PWs 1 and 4, it is clearly
found that the major part of the investigation
including the arrest of the accused, preparation
of seizure, taking of sample, examination of the
seizure witnesses and examination of the
accused person, was completed by the PW1, who
was the informant/complainant in the present
case. Therefore, it is clearly found that the
investigation, in its true sense, was done by the
complainant himself. In the case of State by
Inspector of Police, Narcotic Intelligence Bureau,
Madurai(supra), the Supreme Court, relying on
the decision held in the case of Megha Singh
(supra), observed that the investigation is to be
done by a person other than the complainant
and that the investigation done by the
complainant is bound to suffer and vitiate the
entire proceeding.”
22. The Punjab & Haryana High Court in Gannu and Ors.
vs. State of Punjab, 2017 (3) RCR (criminal) 566 (Crl.
Appeal No. 1688SB of 2004 dated 26.05.2017) relating to
the NDPS Act, after referring to Noor Aga, (supra) and the
views of the Calcutta High Court also apart from Atul
Sharma (supra), concluded as follows:
“14. Another aspect of the matter is that in sheer
violation of the principles of fair and impartial
investigation, the complainant and the
investigating officer is the same person, which
makes the prosecution case doubtful. In Laltu
Prasad v. State of West Bengal, 2017(2) R.C.R.
21
(Criminal) 237 (Calcutta) (DB), it was held that
the complainant himself acting as the
investigating officer violating the principles of fair
and impartial investigation is a practice, to say
the least, should not be resorted to and it is a
disturbing feature. To the same effect, is a
Division Bench judgment of Hon'ble Himachal
Pradesh High Court reported as State of
Himachal Pradesh v. Atul Sharma and others,
2015 (6) R.C.R. (Criminal) 949, wherein, it has
been held that where the complainant himself
conducts investigation, it causes miscarriage of
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 as follows:
“…In a case of this nature, when the
complainants himself is a Police Official, the
investigation should have been conducted
by his top ranking officer and the final
report also ought to have been filed by the
higher official. A complainant being a police
officer cannot be an Investigating Officer.
For, in such case, the accused and the
prosecution will be deprived of their
valuable rights of contradicting and
corroborating, the previous information
recorded under Ss. 154 or 155 Cr.P.C. and
previous statement of the witness, being a
police officer, complaint recorded, under S.
161 Cr.P.C. enjoined in S. 145 and 157 of
the Indian Evidence Act and proviso of S.
162 Cr.P.C. In the instant case, before me,
PW1 is an Assistant Sub Inspector of Police,
22
and I understand from the Public
Prosecutor as well as from the Counsel for
the petitioner that the particular Police
Station has got a Sub Inspector of Police.
Therefore, in this case, the investigation
ought to have been conducted by the Sub
Inspector of Police or any other Police
Officer above the rank of PW1. In the
instant case, thus an incurable infirmity
and flaw have been committed by the
prosecution, quite against the proposition of
law. Therefore, on that 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
the petitioner."
Disapproving of the same, a Division Bench in Kader vs.
State of Kerala, 2001 CriLJ 4044, held:
“6. Unlike usual cases under the Criminal
Procedure Code, in cases under the NDPS
Act, by the time of arrest, main part of
investigation will be completed and duty of
the investigating officer is mainly in sending
the samples for chemical analysis and other
routine work and there is no likelihood of
any prejudice in usual circumstances.
Therefore, we are of the opinion that merely
because a detecting officer himself is
investigating officer or the officer of the
same ranks as that of the detecting officer is
investigating the case and files report before
the Court will not vitiate the proceedings
under N.D.P.S. act in the absence of proof
of specific prejudice to the accused.
Therefore, legal position stated in Naushad
23
v. State of Kerala 2000 (1) KLT 785 to the
contrary is overruled.”
24. The view taken by the Kerala High Court in Kader
(supra) does to meet our approval. It tantamounts to
holding that the F.I.R. was a gospel truth, making
investigation an empty formality if not a farce. The right of
the accused to a fair investigation and fair trial guaranteed
under Article 21 of the Constitution will stand negated in
that event, with arbitrary and uncanalised powers vested?
with the police in matters relating to the NDPS Act and
similar laws carrying a reverse burden of proof. An
investigation is a systemic collection of facts for the purpose
of describing what occurred and explaining why it occurred.
The word systemic suggests that it is more than a whimsical
process. An investigator will collect the facts relating to the
incident under investigation. The fact is a mere information
and is not synonymous with the truth. Kader (supra) is,
therefore, overruled. We approve the view taken in
Naushad (supra).
24
25. In view of the conflicting opinions expressed by
different two Judge Benches of this Court, the importance of
a fair investigation from the point of view of an accused as a
guaranteed constitutional right under Article 21 of the
Constitution of India, it is considered necessary that the law
in this regard be laid down with certainty. To leave the
matter for being determined on the individual facts of a case,
may not only lead to a 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. It is therefore held that a fair investigation,
which is but the very foundation of fair trial, necessarily
postulates that the informant and the investigator must not
be the same person. 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
reverse burden of proof.
25
26. Resultantly, the appeal succeeds and is allowed. The
prosecution is held to be vitiated because of the infraction of
the constitutional guarantee of a fair investigation. The
appellant is directed to be set at liberty forthwith unless
wanted in any other case.
…………...................J.
[RANJAN GOGOI]
…………...................J.
[R. BANUMATHI]
…………...................J.
[NAVIN SINHA]
NEW DELHI
AUGUST 16, 2018
26
