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TMI Blog2018 (12) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... ese proceedings emanated. She relies on a recent judgment of the Supreme Court, rendered by a Bench of three Hon'ble Judges, in Mohan Lal v. State of Punjab, 2018 SCC OnLine SC 974. 3. Arguing per contra, on behalf of the Directorate of Revenue Intelligence (hereinafter referred to as "DRI"), Mr. Satish Aggarwala, learned counsel, would seek to distinguish the judgment in Mohan Lal (supra) on the ground that the said judgment held the proceedings to be vitiated where the informant was the IO, and not where the complainant was the IO. He submits that there is a distinction between an "informant" and a "complainant", and that the cases investigated by the DRI are based, not on information, but on intelligence sourced by the DRI and the documents recovered pursuant thereto. He submits that, where the seizing officer was the complainant, as in the present case, the proceedings were not vitiated and Mohan Lal (supra) would not apply. He draws my attention to the contents of the complaint, and to the contentions advanced by him in his written submissions before the learned ASJ. 4. Ms. Sidhu, in rejoinder, submits that the distinction, sought to be drawn by Mr. Aggarwala, between an inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contend otherwise, with which I shall deal presently. 9. Mr. Aggarwala has led great emphasis on the facts of the case, including the purportedly admitted recovery of heroin from the baggage of the appellant, depositions of the various witnesses, the insubstantial - as he would aver - nature of the statement, of the appellant, under Section 313 of the CrPC, the fact that the case was proved by credible and disinterested public witnesses, whose evidence was corroborated by official witnesses, and that the statement of the appellant, recorded under Section 67 of the NDPS Act, was also retracted only by a single belated retraction. All these circumstances, Mr. Aggarwala would exhort me to appreciate, proved the offence, against the appellant, beyond all reasonable doubt, and it would be a travesty of justice to enlarge the appellant at liberty, given these facts. 10. Insofar as the applicability of Mohan Lal (supra) is concerned, Mr. Aggarwala, as already noted hereinabove, seeks to distinguish the said case by drawing my attention to the distinction between an "informant" and a "complainant", and that in cases investigated by the DRI, there was no "informant", as the cases proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying a reverse burden of proof". 13.3 On the "reverse burden of proof" cast by the NDPS Act, the Supreme Court ruled, in para 13 of its judgment thus: "13. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 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 pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court. * * * 59. Malice 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." 16. The duty of the prosecution under the NDPS Act, considering the reverse burden of proof, was noticed in Noor Aga v. State of Punjab, (2008) 16 SCC 417 observing: "58......An initial burden exists upon the prosecution and only when it stands satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 himself could not have proceeded with the investigation and it was a practice, to say the least, which should not be resorted to so that 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 PW6 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 v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 22. Significantly, V. Jayapaul, (supra) related to a prosecution under the Prevention of Corruption Act which sought to distinguish Megha Singh, (supra) on its facts. 23. Baldev Singh, (supra) relied upon by the State is distinguishable on its own facts concerning an irregularity in an investigation by an officer not especially empowered under the NDPS Act to do so. 24. In Surender (supra), the prosecution was under the NDPS Act. There was no independent witness. The objection that PW6, Subinspector 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. 25. 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 v. Atul Sharma 2015 (2) shimLC 693 (Crl. Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.R. 21 (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 Sharma and others, 2015 (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." 28. A Single Judge of the Kerala High Court in Naushad v. State of Kerala, 2000 (1) KLT 785, relating to the NDPS Act held as follows: "... In a case of this nature, when the complainant 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 infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of. 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 view taken in Naushad (supra). 31. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise with regard to his fairness and impartiality. (iii) Actual proof of bias was not required in such a case. It would be illogical to presume and contrary to normal human conduct, that the IO would, in such a case, conclude the investigation with a closure report, which would mean that he had falsely implicated the petitioner and would result in attendant consequences on the complainant himself. (iv) In Megha Singh v. State of Haryana, (1996) 11 SCC 709, it had been held that the Head Constable, being the complainant himself, could not have proceeded with the investigation, and such a practice was one which should not be resorted to, so that there can be no occasion to suspect the fairness and impartiality of the investigation. (v) Following the law laid down in Megha Singh (supra), the Supreme Court had, in State v. Rajangam, (2010) 15 SCC 369, acquitted the accused, in a case under the NDPS Act, on the ground that the officer who apprehended the accused could not have investigated the case. The Supreme Court also affirmed the view taken by the Madras High Court in Balasundaran v. State, 1999 (113) ELT 785 (Mad.), which held that the person who had searched the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant consequences, "for the complainant himself". While limiting the earlier judgement in Megha Singh (supra) to its own facts, the Supreme Court also held that the complainant could not be the IO, and that such a practice was inherently pernicious in nature. Rajangam (supra) which arose under the NDPS Act, also stated that the officer who apprehended the accused could not have investigated the case. The judgment of the learned Single Judge of the Kerala High Court in Naushad (supra), which stands affirmed by the Supreme Court in Mohan Lal (supra), too, affirms the same view. 15. In view of the above, the submission, of Ms. Sidhu, to the effect that, if the complainant, who has filed the complaint in a case relating to prosecution under the NDPS Act, was herself/himself the IO, the entire investigation and subsequent prosecution and trial stand vitiated, and that the accused is entitled, ipso facto, to acquittal, merits acceptance. 16. Adverting, lastly, to the asseveration, in the written submissions of Mr. Aggarwala, to the effect that the IO was not PW-1 Anju Singh but actually PW-4 Ramesh Kumar, I am of the view that the said submission is merely an argument of desperation, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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