2018 (8) TMI 963 - SC - Indian Laws

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? Held that - 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 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. 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. Appeal allowed - The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation - decided in favor of appellant.

Summary

Issues Involved:
1. The fairness of the investigation when the informant and the investigating officer are the same person.
2. Non-examination of key witnesses.
3. Delay in sending samples for chemical analysis.
4. Non-compliance with statutory procedures and guidelines under the NDPS Act.
5. The reverse burden of proof under the NDPS Act and its implications on fair trial principles.

Issue-wise Detailed Analysis:

1. The Fairness of the Investigation:
The primary question was whether it is consistent with justice and fair play for the informant and the investigating officer to be the same person, especially under laws like the NDPS Act which carry a reverse burden of proof. The Court emphasized that a fair investigation is a constitutional guarantee under Article 21 of the Constitution. It was highlighted that the investigation must appear fair and impartial to avoid any genuine apprehension of bias. The Court concluded that having the same person as the informant and investigator raises serious doubts about the investigation's fairness, leading to a predetermined conclusion.

2. Non-examination of Key Witnesses:
The Court noted that Darshan Singh and ASI Balwinder Singh, who were present during the search and recovery, were not examined by the prosecution. This omission was significant because their testimonies were crucial to proving the consent memo and the sample seal's authenticity. The absence of these witnesses left a gap in the prosecution's case, raising doubts about the investigation's integrity.

3. Delay in Sending Samples for Chemical Analysis:
There was a nine-day delay in sending the sample for chemical analysis, which was unexplained by the prosecution. The Court found this delay problematic as it violated the guidelines which mandate that samples should be sent to the laboratory within 72 hours of seizure to avoid legal objections. This delay further compromised the investigation's credibility.

4. Non-compliance with Statutory Procedures and Guidelines:
The Court observed multiple procedural lapses:
- The seized narcotics were not deposited in the malkhana (police station storage).
- The sample was retained in the private custody of PW-1, the informant, which was against the guidelines.
- The recovery memo was not signed by the accused, and copies of documents were not provided to him.
These lapses indicated a lack of adherence to the statutory procedures under the NDPS Act, leading to an adverse inference against the prosecution.

5. The Reverse Burden of Proof Under the NDPS Act:
The NDPS Act carries a reverse burden of proof, meaning the accused must prove their innocence once the prosecution establishes a prima facie case. However, the Court clarified that this does not absolve the prosecution from proving the foundational facts beyond a reasonable doubt. The stringent provisions of the NDPS Act do not dispense with the requirement of a fair and thorough investigation. The Court held that the prosecution must establish a prima facie case beyond reasonable doubt before the burden shifts to the accused.

Conclusion:
The Court concluded that the investigation was fundamentally flawed due to the informant and investigator being the same person, non-examination of key witnesses, unexplained delay in sending samples for analysis, and non-compliance with statutory procedures. These factors collectively vitiated the prosecution's case. The appeal was allowed, and the appellant was directed to be set at liberty unless wanted in any other case. The judgment underscores the importance of a fair investigation as the foundation of a fair trial, especially under laws with a reverse burden of proof.