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Accused not Entitled to Acquittal in Cases of NDPS Act, Merely Because I.O. & Informant are the Same Person : S.C. Constitutional Bench
On 31-08-2020, the Supreme Court Constitutional bench comprising of five judges; Hon'ble Justice Mr Arun Mishra, Justice Indira Banerjee, Justice Mr Vineet Saran, Justice Mr MR Shah & Justice S. Ravinder Bhat, overuled the judgement in Mohan Lal v State of Punjab (2018) 17 SCC 627.
In this case, the S.C. took the view that when the Investigating Officer & the informant are the same person, the trial is vitiated & the accused is acquitted. This decision was made applicable prospectively to all pending criminal prosecutions, trials & appeals prior to the law laid down in the case. However, S.C. in Varinder Kumar v State of HP, held that the matter shall be governed by individual facts of the case.
Petitioner's Submission :
The learned counsels on behalf of the accused - Devendra Singh made the following submissions :
- That S.C. has rightly held in Mohan Lal case, that the complainant cannot be the I.O., otherwise the trial is vitiated & the accused would be entitled to acquittal.
- That in case both I.O. & complainant are the same person, a reverse burden of proof lies on the accused.
- That the onus must lie on the prosecution to prove that the Investigation was fair, judicious beyond reasonable doubt.
- That the court must consider Constitutional guarantee of fair trial which also includes fair investigation to the accused under Article 21 of the Constitution.
- That it will violate the Rule against Bias which is a part of Natural Justice & included in Article 14 & 21 of COI.
- That u/s 42 & 53 of the Narcotic, Drugs & Psychotropic Substances (NDPS) Act, recovery & investigation must be made by different officers.
- That an officer u/s 42 of NDPS Act has no power of investigation & such officer must handover arrested person or seized articles to the officer-in-charge of the P.S. or to an officer empowered u/s 53 of the Act.
- That only after such handing, the F.I.R is lodged by the I.O. & the investigation commences.
Respondent's Submission :
The learned counsel appearing for the State submiited :
- That u/s 156 of CrPC, the competence of I.O. cannot be called in question in any proceedings.
- That u/s 157 of CrPC, the police officer on receiving information about cognizable offence, record & investigate it.
- That u/s 465 of CrPC, irregularity of investigation does not leads to acquittal of the accused.
- That the acquittal of accused in the cases, Bhagwan Singh, Megha Singh, Rajangam; the decision was taken based on the facts & circumstances of the case & not merely because I.O. & the informant were the same person.
- That the law laid down in Mohan Lal case cannot be allowed to become a spring board for being entitled to acquittal by the accused & also the court did not considered the Sec 157, 159 of CrPC.
- That defect in the investigation & failure of justice does not vitiates the trial unless prejudice caused to the accused is proved.
Observation of Court :
The court stated that in Bhagwan Singh case, the accused was acquitted because the I.O. was a head constable who himself was offered bribe & also no effort was made to get independent witness. There was improbability in the story which was hard to believe, and was not proved beyond reasonable doubt & hence the accused was acquitted. Therefore, the decision was purely based on its own facts & cannot be said to be an absolute proposition of law that the I.O. & the informant cannot be the same person.
The same situation was in the case of Megha Singh case, the independent witness weren't examined which led to the vitiation of the trial & acquittal of accused. And the same circumstances arised in Ranjangam case. However, this court in none of the cases, considered relevant provisions of CrPC.
The court also stated the case of Mohan Lal, were telling defaults on the part of the prosecution & the case could not left on to be decided on the facts because of the right of fair trial guaranteed to the accused under Article 21 of Constitution of India.
The court did not consider relevant provisions of CrPC, or aspect of prejudice caused to the accused due to the investigation carried out by the complainant & also did not consider the scheme of NDPS Act in detail & principle of reverse burden.
In the case of V. Jayapaul, the court observed that investigation could only be assailed on the ground of biasness on the part of I.O. which would depend upon the facts & circumstances of the case.
The court pointed out that sec 154, 156, 157 of CrPC do not bar the police officer receiving information of cognizable offence to record & investigate it. The court considered the relevant provisions of NDPS Act.
The court held that u/s 53 of NDPS Act, Central/State Government can authorise any other person to be the officer in charge of the police station for the investigation of offences. However, it does not speak such officers shall not be other than those officers authorised u/s 41, 42, 43, 44 of the Act. Therefore, the Act does not bar the informant to be an investigator or police in charge of the P.S.
It was also stated by the Court that the reverse burden of proof, the presumption under the NDPS Act against the accused exists only after the initial burden in the prosecution is satisfied. The fairness of the investigation is always decided at the trial & the informant/investigating officer is also subject to cross examination.
The reverse burden of proof lies on them as well u/s 35, 54 of NDPS Act and can also be punished u/s 58 for acting maliciously and such officer is required to be investigated by the officer-in-charge of the P.S.
Judgement :
The court did not find any reason to doubt the investigation merely on the ground that the informant has investigated the case and thereafter the accused cannot be acquitted. The question of prejudice must be satisfied alongwith the question of bias will be decided based on the facts of each case.
The matter has to be decided on a case to case basis without any universal generalisation. Hence stated that the decisions in cases like Mohan Lal v State of Punjab are not good law and overuled the decision.
Case Courtesy : Mukesh Singh v State (Narcotic Branch of Delhi)
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