MUKESH SINGH Vs. STATE (NARCOTIC BRANCH OF DELHI)
LAWS(SC)-2020-8-40
SUPREME COURT OF INDIA
Decided on August 31,2020

MUKESH SINGH Appellant
VERSUS
State (Narcotic Branch Of Delhi) Respondents


Referred Judgements :-

WILLIE (WILLIAM) STANEY VS. THE STATE OF MADHYA PRADESH [REFERRED TO]
NIRANJAN SINGH VS. STATE OF U.P. [REFERRED TO]
KASHMERI DEVI VS. DELHI ADMN. [REFERRED TO]
MOHAN LAL VS. STATE OF PUNJAB [REFERRED TO]
REKHA VS. STATE OF MAHARASHTRA [REFERRED TO]
H N RISHBUD VS. STATE OF DELHI [REFERRED TO]
H N RISHBUD VS. STATE OF DELHI [REFERRED TO]
STATE OF UTTAR PRADESH VS. BHAGWANT KISHORE JOSHI [REFERRED TO]
JAMUNA CHAUDHARY VS. STATE OF BIHAR [REFERRED TO]
BHAGWAN SINGH VS. STATE OF RAJASTHAN [REFERRED TO]
MANEKA GANDHI VS. UNION OF INDIA [REFERRED TO]
SUNIL KUMAR BANERJEE VS. STATE OF WEST BENGAL [REFERRED TO]
MEGHA SINGH VS. STATE OF HARYANA [REFERRED TO]
STATE OF PUNJAB VS. BALDEV SINGH [REFERRED TO]
DEVENDER PAL SINGH VS. STATE NCT OF DELHI [REFERRED TO]
UNION OF INDIA VS. VIPAN KUMAR JAIN [REFERRED TO]
KARAMJIT SINGH VS. STATE DELHI ADMINISTRATION [REFERRED TO]
STATE REP VS. V JAYAPAUL [REFERRED TO]
S JEEVANANTHAM VS. STATE [REFERRED TO]
STATE OF RAJASTHAN VS. RAM CHANDRA [REFERRED TO]
PARAMJIT SINGH ALIAS MITHU SINGH VS. STATE OF PUNJAB [REFERRED TO]
NOOR AGA VS. STATE OF PUNJAB [REFERRED TO]
HARDIP SINGH VS. STATE OF PUNJAB [REFERRED TO]
BHASKAR RAMAPPA MADAR VS. STATE OF KARNATAKA [REFERRED TO]
SIDHARTHA VASHISHT ALIAS MANU SHARMA VS. STATE NCT OF DELHI [REFERRED TO]
BABUBHAI VS. STATE OF GUJARAT [REFERRED TO]
RAFIQ AHMED ALIAS RAFI VS. STATE OF U P [REFERRED TO]
EMPEROR VS. KHWAJA NAZIR AHMAD [REFERRED TO]
VINAY TYAGI VS. IRSHAD ALI @ DEEPAK [REFERRED TO]
HEMA VS. STATE, THR. INSPECTOR OF POLICE [REFERRED TO]
STATE VS. RAJANGAM [REFERRED TO]
LALITA KUMARI VS. GOVT. OF U.P. [REFERRED TO]
UNION OF INDIA (UOI) VS. T. NATHAMUNI [REFERRED TO]
VINOD KUMAR VS. STATE OF PUNJAB [REFERRED TO]
SURENDER VS. STATE OF HARYANA [REFERRED TO]
ROMILA THAPAR AND ORS VS. UNION OF INDIA AND ORS [REFERRED TO]
VARINDER KUMAR VS. STATE OF HIMACHAL PRADESH [REFERRED TO]



Cited Judgements :-

STATE OF MAHARASHTRA VS. CENTRAL BUREAU OF INVESTIGATION [LAWS(BOM)-2021-12-141] [REFERRED TO]
SAMUEL VS. STATE OF KERALA [LAWS(KER)-2021-9-132] [REFERRED TO]
RAJ KUMAR SAVITA VS. UNION OF INDIA [LAWS(ALL)-2021-3-33] [REFERRED TO]
T. THIANLALA VS. STATE OF MIZORAM [LAWS(GAU)-2021-4-33] [REFERRED TO]
SIBARAM SWAIN VS. STATE OF ORISSA [LAWS(ORI)-2021-3-17] [REFERRED TO]
YESUDAS VS. STATE OF KERALA [LAWS(KER)-2020-12-299] [REFERRED TO]
MOHAMMAD MAQBOOL LONE VS. INTELLIGENCE OFFICER NARCOTICS [LAWS(J&K)-2021-6-33] [REFERRED TO]
SANJEET KUMAR SINGH @ MUNNA KUMAR SINGH VS. STATE OF CHHATTISGARH [LAWS(SC)-2022-8-108] [REFERRED TO]
HOMAR ROY VS. STATE OF WEST BENGAL [LAWS(CAL)-2021-11-8] [REFERRED TO]
CHIDI BERR NWAYOGA VS. STATE [LAWS(DLH)-2022-8-71] [REFERRED TO]
PREMALATHA DIVAKAR VS. STATE OF KARNATAKA REP. BY INVESTIGATING OFFICER [LAWS(KAR)-2021-12-99] [REFERRED TO]
SRI. MANJUNATH HEBBAR VS. STATE OF KARNATAKA [LAWS(KAR)-2021-12-3] [REFERRED TO]
RAMCHANDRA VS. STATE OF RAJASTHAN [LAWS(RAJ)-2021-9-37] [REFERRED TO]
VARGHESE VS. STATE OF KERALA [LAWS(KER)-2020-11-628] [REFERRED TO]
M.S.RAJA VS. INSPECTOR OF POLICE [LAWS(MAD)-2021-12-43] [REFERRED TO]
MOFIDUL HAQUE (MD) VS. STATE OF ASSAM [LAWS(GAU)-2021-9-40] [REFERRED TO]
SH. MALSAWMDAWNGKIMA VS. STATE OF MIZORAM [LAWS(GAU)-2022-1-10] [REFERRED TO]


JUDGEMENT

M.R.SHAH, J. - (1.)Having doubted the correctness of the decision of this Court in the case of Mohan Lal vs. State of Punjab reported in (2018) 17 SCC 627 taking the view that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal, initially by order dated 17.01.2019 the matter was referred to a larger Bench consisting of three Judges. A three Judge Bench vide order dated 12.09.2019has referred to a larger Bench of five Judges to consider the matter. That is why, the present matter is placed before the Bench consisting of five Judges.
(2.)At the outset, it is required to be noted that the decision of this Court in the case of Mohan Lal (supra) taking the view that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal, came up for consideration subsequently before this Court in the case of Varinder Kumar vs. 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. The relevant observations in the case of Varinder Kumar (supra) to be referred and considered hereinbelow.
(3.)Shri Sushil Kumar Jain, learned Senior Advocate appearing on behalf of the accused - Devendra Singh has made the following submissions in support of his submission that as rightly held by this Court in the case of Mohan Lal (supra) in a given case where the complainant himself has conducted the investigation the entire trial would be vitiated and the accused would be entitled to acquittal:
3.1 The decision in Mohan Lal (supra) rests and is based upon substantive constitutional foundation and principles of criminal jurisprudence. In the said decision in para 5, this Court specifically dealt with and considered the question whether in a criminal prosecution, it will 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 laws such as the NDPS Act, carrying a reverse burden of proof. In the said decision, this Court considered in detail the reverse burden of proof under Sections 35 and 54 of the NDPS Act. That thereafter, this Court had considered in detail the constitutional guarantee of fair trial to an accused under Article 21 which takes within its fold "Fair Investigation". Thereafter it is observed by this Court that 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 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. Thereafter this Court considered in paragraphs 17 and 29 the role and obligations of the investigator and the investigation itself. Thereafter after having placed reliance on the decisions of this Court in the cases of Bhagwan Singh vs. State of Rajasthan (1976) 1 SCC 15; Megha Singh vs. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB,Tamil Nadu vs. Rajangam (2010) 15 SCC 369, this Court specifically observed and held that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal. 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 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. Thereafter it is held that a fair investigation which is but the very foundation of a 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 pre-determined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof;

3.2 The reasons which found favour in Mohan Lal (supra) are inherent and inbuilt by the legislature in Chapter V - "Procedure", which would be the "... procedure established by law" for the purpose of Article 21;

3.3 As is now settled after the decision in the case of Menaka Gandhi vs. 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 fair procedure to make them constitutionally compatible;

3.4 Learned Senior Advocate appearing on behalf of the accused has thereafter taken us to the "Scheme" of the NDPS Act, more particularly Section 8(c) and Sections 15 to 22. He submitted that 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 and which he fails to account for satisfactorily. Section 35 mandates the Court to culpable mental state unless contrary is proved. It is submitted that thus "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 commission of offence and Section 35 gives rise to a presumption of culpable mental state. The officer or the raiding party which effects 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. Investigation being a systemic process and not a forgone conclusion making the FIR itself lodged by the informant who himself effects recoveries to be treated as a gospel truth;

3.5 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 being limited to effect "entry", "search", "seizure" and "arrest". It is submitted that an officer under Section 42 has no power of investigation;

3.6 That Section 52(3) requires an officer under Section 42 to handover every person arrested or article seized to an officer empowered under Section 53 (who has been conferred with power of investigation under the Act) or an officer in charge of a police station who has power of investigation under the Cr.P.C. At the stage 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. As the investigation starts on information relating to commission of an offence given to an officer in charge of a police station and recorded under Section 154 Cr.P.C.

3.7 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 effected and/or arrests made, information regarding commission of a cognizable offence crystallises. 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 investigation. Heavy reliance is placed upon the decisions of this Court in the cases of H.N. Rishbud vs. State of Delhi AIR 1955 SC 196; and Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1;

3.8 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 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. 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. Thus, there is no person other than the officer under Section 42 who is the "complainant", i.e., the one who alleges commission of a 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 possession of the accused. These claims are required to be verified and substantiated during investigation by the investigating officer. 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 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 for 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 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 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 the 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 possibility of abuse and source of corruption due to the wide powers under the NDPS Act;

3.9 Handing over or continuation of 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 chargesheet 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 a 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, officer under Section 42 would have been given an additional power of investigation and then Section 53 was unnecessary;

3.10 There was no need for a provision like Section 52(3) which mandates handover of articles seized and persons arrested to a SHO or an officer under Section 53;

3.11 NDPS Act does not contemplate "Joint Authorisations", for if that were the case, Section 42 would have conferred 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;

3.12 The object of "fair and independent investigation" is to unearth the truth. The "fair and independent investigation" is a right of an accused flowing from Article 21 of the Constitution. Reliance is placed upon the decisions of this Court in the case of Romila Thapar vs. Union of India (2018) 10 SCC 753 (para 67); Manu Sharma (supra)(paras 200 to 202); Hema vs. State (2013) 10 SCC 192 (para 10); and Babubhai vs. State of Gujarat (2010) 12 SCC 254 (para 32);

3.13 "Liberty" of a person would be at serious peril if the scheme of the NDPS Act is interpreted and left over 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;

3.14 In order to bring home a conviction under the provisions of the NDPS Act, prosecution is required to establish ingredients of an offence "beyond reasonable doubt";

3.15 If the defence of the accused is not properly investigated to rule out all other possibilities, it cannot ever be said that the prosecution has established the guilt "beyond reasonable doubt". A tainted investigation by a complaint who is a "witness" himself to a substantial ingredient of an offence, would in fact give rise to a "doubt" and it is impossible that the case can be established on the parameter of "beyond reasonable doubt";

3.16 A person accused of criminal offence punishable with a peril to his life or liberty, enjoys certain rights under the Constitution or through long standing development of criminal jurisprudence. Any action which impinges or affects those rights would be said to cause "prejudice to an accused". That in the case of Rafiq Ahmad vs. 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 fair trial (ii) presumption of innocence until pronouncement of guilt and (iii) the standards of proof. 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;

3.17 Section 457 Cr.P.C. in effect saves an order of conviction and sentence despite there being an error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under Cr.P.C, or in any sanction for the prosecution unless in the opinion of the Court "failure of justice" has been occasioned thereby. According to the prosecution therefore before an order of conviction and sentence is set aside the Court must be satisfied that there is a "actual prejudice" caused to the accused. However, Section 457 Cr.P.C. does not include within its fold the term "investigation" which has been specifically defined under Section 2(h) separate from inquiry defined under Section 2(g). Section 457 contemplates errors committed in judicial proceedings before or during the commencement of trial and not "investigation" by the officers of the police etc. Heavy reliance is placed upon the decision of this Court in the case of Willie (William) Staney vs. The State of Madhya Pradesh 1955 SCR 1140 on the test for "failure of justice". Therefore allowing the informant/complainant to be the investigator in which he could himself faced prosecution if independently investigated would not only violate the fundamental principles of fair trial which includes fair investigation, but would be a denial of an opportunity of getting the defence investigated and hence would also be abhorrent to the well-established notion of natural justice rendering the trial a mockery.

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

;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.