2018 (12) TMI 801 - HC - Customs

Smuggling - contraband item - Heron - acquittal of offence - NDPS Act - Held that - The appellant is entitled to acquittal on both the accounts urged by Ms.Sidhu i.e. because PW-1 was complainant as well as I/O and because the public witnesses who had supposedly been co-opted during investigation had been dropped by the prosecution after citing them as witnesses in their support. I do not intend therefore to enter into any other intricacies of the submissions advanced by learned counsel. The present case stand completely vitiated even by the sole reason of the fact that PW-1 Anju Singh was IO as well as complainant. The appellant in the present case by authoritative pronouncements of the Supreme Court as well as this Court the appellant is entitled on the basis thereof to acquittal of the charges against her. The appellant is acquitted of the charges against her - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Whether the proceedings were vitiated because the Investigating Officer (IO) was also the complainant.
2. Whether the non-co-opting of public witnesses as witnesses for the prosecution was fatal to the case.

Detailed Analysis:

1. Investigating Officer and Complainant Being the Same Person:
The appellant was convicted under Section 21(c) of the NDPS Act and sentenced to 10 years of rigorous imprisonment and a fine of ?1 lakh. The appellant argued that the proceedings were vitiated because the IO, Anju Singh, was also the complainant. The court referred to the Supreme Court judgment in Mohan Lal v. State of Punjab, 2018 SCC Online SC 974, which held that the investigation must be fair and appear to be so, and that the informant, complainant, or searching officer should not be the IO. The court noted that this principle is essential to ensure that the investigation is free from bias and appears impartial. The court cited its previous decision in Anabelle Analista Malibago v. DRI, 2018 SCC Online Del 12114, which reaffirmed that having the same person as the complainant and IO vitiates the proceedings under the NDPS Act. Consequently, the court held that the proceedings were vitiated because Anju Singh was both the complainant and the IO.

2. Non-Co-opting of Public Witnesses:
The appellant also argued that the non-co-opting of public witnesses Harendra and Vishal, who were supposedly involved in the search and seizure, was fatal to the prosecution's case. The court referred to its previous judgments in N.C.B. v. Anju Tiwari, 2014 SCC OnLine Del 2285 and Nnadi K. Iheanyi v. N.C.B., 2014 SCC OnLine Del 4537, which held that the failure to produce public witnesses who were supposedly involved in the investigation casts serious doubts on the prosecution's version. The court noted that the prosecution's explanation that the addresses of the public witnesses were incorrect was not satisfactory and raised doubts about the existence of these witnesses. The court emphasized that while the co-opting of public witnesses is not mandatory, if the prosecution claims that such witnesses were involved, their non-production as witnesses for the prosecution is detrimental to its case.

Conclusion:
The court concluded that the appellant was entitled to acquittal on both grounds: the IO being the complainant and the non-co-opting of public witnesses. The court allowed the appeal, acquitted the appellant of the charges, and quashed the impugned judgment and order on sentence. The appellant was directed to be released forthwith unless required in connection with any other case. The trial court record was ordered to be returned.