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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 ..... ingh and PW-1. The seized opium was separated into a sample of 20 gm. and 3kg 980 gm. The specimen seal was prepared by PW-1 and after use, the seal was handed over to ASI, Balwinder Singh. "Ruqa" was prepared by PW-1 and forwarded to Balianwali Police Station. PW-3, Assistant Sub-Inspector, Darshan Singh registered the formal F.I.R. and handed over investigation to PW-1. Upon conclusion of investigation, the appellant was chargesheeted, put on trial, and convicted. 3. Sh. Chanchal Kumar Ganguli, learned counsel for the appellant submitted that the NDPS Act being a stringent law carrying a reverse burden of proof, there had to be strict adherence to the law and procedures. The investigation was not only required to be fair and judicious, but must also appear to have been so. The investigation ought not to be in a manner leaving a genuine apprehension in the mind of the accused that it was not fair and bonafide. No reasons have been furnished why Darshan Singh and ASI Balwinder Singh have not been examined by the prosecution. No explanation has been furnished by PW-1 why he did not deposit the seized narcotics in the malkhana. Likewise, the delay of 9 days in sending the sample fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the roznamcha. There is no explanation for the same. The sample was retained by PW-1 in his private custody in a rented accommodation. No explanation is forthcoming from the prosecution why Darshan Singh, and ASI Balwinder Singh were not examined despite service of summons on the official witness and issuance of bailable warrants against the private witness. In their absence, neither the consent memo nor the seal can be stated to have been proved. There was nine days' delay in sending the sample for chemical analysis. No explanation has been furnished in respect of the same. PW-4 acknowledged that the recovery memo, ExhibitPC was not signed by the accused and that copies of documents were not supplied to the accused nor any memo in this regard prepared in his presence. ExhibitPB, the consent memo only mentioned that he was the ASP, Phul. 7. The presence of a private person in a police vehicle while on patrol duty, the individual being an illiterate, but having signed the consent memo were surely matters for investigation. Similarly, why the signature of ASI Balwinder Singh or PW-4 was not obtained on the consent memo was again a subject matter of investigation. The veracit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry mail should not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection." (emphasis added) The Drug Law EnforcementField Officer's Hand Book issued by the Narcotics Control Bureau also provides that: "28. Were the seized goods and samples deposited in the Malkhana at the earliest opportunity after seizure, an acknowledgement receipt obtained from the Malkhana-in-Charge? (emphasis added) 29. Were the samples sent to the designated laboratory for analysis and report within 72 hours of seizure?" In Noor Aga vs. State of Punjab, (2008) 16 SCC 417, under the NDPS Act, it was held : "91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". 33. In State of Bihar v. P.P. Sharma this Court has held as under: "57. ... Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ... Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mant 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. 15. The discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof. Baldev Singh (supra) related to a prosecution under Section 165A of the IPC. Nonetheless, it observed that if the informant were to be made the investigating officer, it was bound to reflect on the credibility of the prosecution case. Megha Singh (supra) concerned a prosecution under the Terrorist and Disruptive Activities (Prevention) Act, 1985. It was held that the Head Constable being the complainant hims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be an interested person and should not have been made the investigating officer. The argument was repelled relying on State rep. by Inspector of Police, Vigilance and AntiCorruption, Tiruchirapalli, Tamil Nadu vs. V. Jayapaul, 2004 (5) SCC 223 observing as follows: "6.... We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased." Significantly, V. Jayapaul, (supra) related to a prosecution under the Prevention of Corruption Act which sought to distinguish Megha Singh, (supra) on its facts. 18. Baldev Singh, (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), observed that the investigation is to be done by a person other than the complainant and that the investigation done by the complainant is bound to suffer and vitiate the entire proceeding." 22. The Punjab & Haryana High Court in Gannu and Ors. vs. State of Punjab, 2017 (3) RCR (criminal) 566 (Crl. Appeal No. 1688SB of 2004 dated 26.05.2017) relating to the NDPS Act, after referring to Noor Aga, (supra) and the views of the Calcutta High Court also apart from Atul Sharma (supra), concluded as follows: "14. Another aspect of the matter is that in sheer violation of the principles of fair and impartial investigation, the complainant and the investigating officer is the same person, which makes the prosecution case doubtful. In Laltu Prasad v. State of West Bengal, 2017(2) R.C.R. (Criminal) 237 (Calcutta) (DB), it was held that the complainant himself acting as the investigating officer violating the principles of fair and impartial investigation is a practice, to say the least, should not be resorted to and it is a disturbing feature. To the same effect, is a Division Bench judgment of Hon'ble Himachal Pradesh High Court reported as State of Himachal Pradesh v. Atul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is investigating the case and files report before the Court will not vitiate the proceedings under N.D.P.S. act in the absence of proof of specific prejudice to the accused. Therefore, legal position stated in Naushad v. State of Kerala 2000 (1) KLT 785 to the contrary is overruled." 24. The view taken by the Kerala High Court in Kader (supra) does to meet our approval. It tantamounts to holding that the F.I.R. was a gospel truth, making investigation an empty formality if not a farce. The right of the accused to a fair investigation and fair trial guaranteed under Article 21 of the Constitution will stand negated in that event, with arbitrary and uncanalised powers vested? with the police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof. An investigation is a systemic collection of facts for the purpose of describing what occurred and explaining why it occurred. The word systemic suggests that it is more than a whimsical process. An investigator will collect the facts relating to the incident under investigation. The fact is a mere information and is not synonymous with the truth. Kader (supra) is, therefore, overruled. We approve the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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