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TMI Blog2018 (8) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude 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. - Criminal Appeal No.1880 of 2011 - - - Dated:- 16-8-2018 - Ranjan Gogoi, R. Banumathi And Navin Sinha For the Appellant(s) : Mr. Chanchal Kumar Ganguli, AOR F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Haryana , 1996 (11) SCC 709, State by Inspector of Police, Narcotics Intelligence Bureau, Madurai, Tamilnadu vs. Rajangam , 2010 (15) SCC 369. 4. Ms. Jaspreet Gogia, learned counsel for the respondent contended that the appellant was searched in presence of a Gazetted Officer, PW-4. The failure to examine Darshan Singh or ASI Balwinder Singh was inconsequential as the search and recovery were duly proved by PW-1 and PW-4. 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 PW-1 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, whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 PW-1 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 PW-1 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 PW-1 was empowered to keep the case property and sample in his individual safe custody is completely erroneous on the face of it. The provision reads as follows: 55. Police to take charge of articles seized and delivered- An officer-in-charge of a police station shall take charge of and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 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 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 investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the accused cannot be said to have been established. 59. With a view to bring wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 PW-6 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 PW-6, Sub-inspector 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. 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.PW-12/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 prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (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, PW-1 is an Assistant Sub Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. We approve the view taken in Naushad (supra). 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. 26. Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infrac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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