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TMI Blog2020 (9) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... Head Constable who himself was the person to whom the bribe was alleged to have been offered and who lodged the first information report as informant or the complainant. It was noted that the entire case of the prosecution rests solely on the testimony of the Head Constable Ram Singh and four other police constables. It was found that there was not a single independent witness to depose to the offer of bribe by the accused. It was noticed that the Head Constable Ram Singh did not make any effort to get independent respectable witnesses in whose presence the seizure could be made - on facts and considering the entire evidence on record having doubted the prosecution case against the accused and more particularly in the absence of any independent witnesses, though the independent witnesses were available, this Court acquitted the accused by giving him benefit of doubt. Therefore, as such, the decision of this Court in the case of Bhagwan Singh can be said to be a decision on its own facts and cannot be said to be laying an absolute proposition of law that in no case the informant/complainant can be the investigator and that in all the cases where the complainant/informant and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice - As rightly observed, if at all, the 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 therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal. Reference is answered. - SPECIAL LEAVE PETITION(CRIMINAL) DIARY NO.39528/2018 SPECIAL LEAVE PETITION(CRIMINAL) NO. 5648/2019 SPECIAL LEAVE PETITION(CRIMINAL) NO. 5894/2019 SPECIAL LEAVE PETITION(CRIMINAL) NO. 8499/2019 - - - Dated:- 31-8-2020 - JUSTICE ARUN MISHRA, JUSTICE INDIRA BANERJEE, JUSTICE VINEET SARAN, JUSTICE M.R. SHAH And JUSTICE S. RAVINDRA BHAT FOR THE PETITIONER : RAJIV SHANKAR DVIVEDI JUDGMENT M.R. SHAH, J. Having doubted the correctness of the decision of this Court in the case of Mohan Lal v. State of Punjab reported in (2018) 17 SCC 627 taking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, carrying a reverse burden of proof. In the said decision, this Court considered in detail the reverse burden of proof under Sections 35 and 54 of the NDPS Act. That thereafter, this Court had considered in detail the constitutional guarantee of fair trial to an accused under Article 21 which takes within its fold Fair Investigation . Thereafter it is observed by this Court that in the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. It is further observed that if the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Thereafter this Court considered in paragraphs 17 and 29 the role and obligations of the investigator and the investigation itself. Thereafter after having placed reliance on the decisions of this Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of commission of offence and Section 35 gives rise to a presumption of culpable mental state. The officer or the raiding party which effects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency. Investigation being a systemic process and not a forgone conclusion making the FIR itself lodged by the informant who himself effects recoveries to be treated as a gospel truth; 3.5 In order to safeguard the interest of the accused, the legislation has provided inbuilt safeguards under the NDPS Act. That the Act requires recovery and investigation to be made by different officers, i.e., by officers empowered under Section 42 and 53. The role of an officer under Section 42 being limited to effect entry , search , seizure and arrest . It is submitted that an officer under Section 42 has no power of investigation; 3.6 That Section 52(3) requires an officer under Section 42 to handover every person arrested or article seized to an officer empowered under Section 53 (who has been conferred with power of investigation under the Act) or an officer in charge of a police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Thus, there is no person other than the officer under Section 42 who is the complainant , i.e., the one who alleges commission of a cognizable offence based on the arrests and the recoveries effected by himself or his raiding party. He is the witness who claims seizures/recovery of prohibited substances from possession of the accused. These claims are required to be verified and substantiated during investigation by the investigating officer. Once the person arrested and the articles seized come in the control of the Investigating Officer , he is required under Section 52(4) of the Act to take measures for their disposal. The person arrested is produced before the magistrate under Section 167 Cr.P.C. and the narcotic substance seized is then required to be dealt with by the officer under Section 53 of the NDPS Act or the SHO in accordance with Section 52A. In the process of investigation, the conduct of the officer under Sections 42, 43 and 44 is also required to be investigated. If after investigation it is found that the claim made by the complainant/informant is justified, he would file a police report against the accused for offences under the Act, however, in case he fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Reliance is placed upon the decisions of this Court in the case of Romila Thapar v. Union of India (2018) 10 SCC 753 (para 67); Manu Sharma (supra)(paras 200 to 202); Hema v. State (2013) 10 SCC 192 (para 10); and Babubhai v. State of Gujarat (2010) 12 SCC 254 (para 32); 3.13 Liberty of a person would be at serious peril if the scheme of the NDPS Act is interpreted and left over in the hands of a single person without any checks and safeguards to protect the rights of the accused. It is impermissible and beyond comprehension to allow a person to (i) make an accusation; (ii) the fact that he accuses is sufficient ingredient to make a penal offence; (iii) investigate that accusation which he himself makes; and (iv) become a witness to prove the accusation and then based on his testimony a person is convicted and punished; 3.14 In order to bring home a conviction under the provisions of the NDPS Act, prosecution is required to establish ingredients of an offence beyond reasonable doubt ; 3.15 If the defence of the accused is not properly investigated to rule out all other possibilities, it cannot ever be said that the prosecution has established the guilt beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in which he could himself faced prosecution if independently investigated would not only violate the fundamental principles of fair trial which includes fair investigation, but would be a denial of an opportunity of getting the defence investigated and hence would also be abhorrent to the well-established notion of natural justice rendering the trial a mockery. 3.18 Making the above submissions and relying upon the aforesaid decisions, it is submitted that the law laid down by this Court in the case of Mohan Lal (supra) taking the view that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal is a correct law. 4. Shri Ajay Garg, learned Advocate appearing on behalf of Mukesh Singh has made the following additional submissions other than the submissions made by Shri Sushil Kumar Jain, learned counsel appearing on behalf of the accused; 4.1 Right from Bhagwan Singh (supra) till the recent judgment in the case of Varinder Kumar (supra), this Court is of the firm view that the complainant/informant and the investigator must not be the same person. The same is in consonance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormer and the Investigation officer separately if both are same. Further, the accused will also be deprived of his valuable right of contradicting the previous information recorded under section 154 or 155 Cr.P.C. and previous statements of the witnesses, being a police officer, complaint recorded under section 151 Cr.P.C. enjoined in section 145 and 157 of Indian Evidence Act and proviso to section 152 Cr.P.C. g) The meaningful reading of the scheme of NDPS Act as discussed above also indicate that the Informer/complainant/raiding officer cannot Investigate the said case. h) There is no compulsion for the Police/any other agency to get the Investigation conducted by the complainant/informer and on the other hand it can be an easy tool of false implication. i) Investigating Officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. The whole bedrock of the investigation on the basis of which the appellant has been prosecuted is found be unfair and against the basic tenets of criminal jurisprudence, the conviction and sentence based on such a highly infirm investigation as aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 156 Cr.P.C. provides that any officer in charge of a police station may investigate a cognizable offence without an order of the magistrate. Thus, even where the FIR under Section 154 Cr.P.C. is registered at the instance of a police officer, there is no bar under Section 156 Cr.P.C. to an officer in charge of a police station to investigate the same. Further, the competence of such investigating officer cannot be called in question in any proceedings; 5.4 Section 157 Cr.P.C. provides that if some information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, he shall proceed in person to the spot to investigate and if necessary to take measures for the discovery and arrest of the offender. Thus, an officer in charge of a police station who himself receives information of commission of cognizable offence is empowered to investigate the case. It is submitted that thus, under the scheme of Cr.P.C., there is no bar on a police officer receiving information of commission of a cognizable offence, recording the same and then investigate it; 5.5 Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts; 5.8.1 In the case of Bhagwan Singh (supra), the head constable who caught the accused for smuggling of grains lodged an FIR under Section 161 IPC for offering ₹ 510/- as bribe to the head constable. The head constable himself was the complainant and the IO. There were no independent witnesses in the case. Even, this Court also commented that no effort was made by the IO to have independent witnesses. That thereafter, it was held by this Court that the complainant himself cannot be an investigator. Therefore, the said decision can be said to be on the facts and circumstances of that case and cannot be said to be an absolute general proposition of law that in any case the complainant cannot be the investigator and in such a case the accused is entitled to acquittal. 5.8.2 In the case of Megha Singh (supra) also, no independent witnesses were examined. Head constable who arrested the accused with a country made pistol and cartridges lodged the complaint and he only proceeded with the investigation. In the said case, it was found that there were discrepancies in depositions of public witnesses. Therefore, this Court held that PW3 Head Constable himself being a compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 690;Vinod Kumar v. State of Punjab (2015) 3 SCC 220; and Surender v. State of Haryana (2016) 4 SCC 617. Therefore, it may be seen that this Court declined to lay down a hard and fast rule with regard to the said question despite taking note of the judgments, which in peculiar facts, had held that the investigating officer and the complainant cannot be the same person; 5.10 Relying upon the decisions of this Court in the cases of Jamuna Chaudhary v. State of Bihar (1974) 3 SCC 774; Kashmeri Devi v. Delhi Admn., 1988 Supp. SCC 482; and Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762, it is submitted that the duty of the investigating officers 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; 5.10.1 As held by this Court in the case of Vinay Tyagi (supra), what ultimately is the aim or significance of the expression fair and proper investigation in criminal jurisprudence? It has a twin purpose, firstly, the investigation must be unbiased, honest, just and in accordance with law, secondly, the entire emphasis on a fair investigation has to be to bring out the truth of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the foundation for the Court to take cognizance; did not deal with Section 465 of the Cr.P.C. under which any illegality, whether before or during trial or in any other proceeding, will not justify reversal of any finding, sentence or order unless a failure of justice is occasioned thereby; overlooked the rule that an objection to an illegality if not raised at the right stage will be deemed to have been waived; did not consider the principle that mala fides have to be established and not inferred and that mala fides are of secondary importance if the trial otherwise discloses impeccable evidence; and misconstrued both the scheme of the NDPS Act and the principle of reverse burden; and failed to take notice of the principle that investigation is exclusively reserved for the investigating agency under the Act, functions of the investigating agency and the judiciary are complementary and not overlapping and interference is warranted only is a clear case of abuse of power which will be decided in the facts of each case; 6.2 In the case of Varinder Kumar (supra), this Court specifically held that in Mohan Lal (supra), the attention of the Court was also not invited to the need for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the same police officer who registered the case. In the case of V. Jayapaul (supra), this Court distinguished the cases of Bhagwan Singh (supra) and Megha Singh (supra), wherein the Court had held that the complainant cannot be the investigating officer; 6.6.1 In the case of Bhaskar Ramappa Madar (supra), this Court also held that the judgments of Bhagwan Singh (supra) and Megha Singh (supra) were to be confined to their own facts; 6.6.2 the decision of this Court in the case of V. Jayapaul (supra) was approved in the case of Hardip Singh v. State of Punjab (2008) 8 SCC 557 wherein the investigating officer was the one who had seized the opium for the possession of which the appellant had been convicted; 6.6.3 It is held by this Court in the case of State of Rajasthan v. Ram Chandra (2005) 5 SCC 151, the question of prejudice or bias has to be established and not inferred. Reliance is also placed on the decision of this Court in the case of Union of India v. Vipan Kumar Jain (2005) 9 SCC 579; 6.7 Even in cases of reverse burden, the presumption can operate only after the initial burden which exists on the prosecution is satisfied and even thereafter, the standard of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in paragraph 25 of Mohan Lal (supra) is wrong; 7. In rejoinder, Shri Sushil Kumar Jain, learned Senior Advocate appearing on behalf of the accused has submitted that reliance placed upon Section 157 Cr.P.C. for the offence under the NDPS Act is misplaced. NDPS Act is a special statute and all provisions of Cr.P.C. have not been made applicable to the proceedings under the NDPS Act. That the scheme of NDPS Act, being a special Act, overrides Section 157 Cr.P.C. to the extent of enabling taking of cognizance on personal information and proceeding on that basis, more particularly the provisions of Section 42 of the NDPS Act. 8. The question which is referred to the larger Bench is, whether in case the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation, the accused is entitled to acquittal? 8.1 While deciding the question referred, few earlier decisions of this Court on one side taking the view that in case the investigating officer in the complaint being the same person, trial is vitiated and the accused is entitled to acquittal, and on the other side taking contrary view are required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cannot be said to be free from reasonable doubt, the accused is entitled to acquittal. Therefore, on facts and considering the entire evidence on record having doubted the prosecution case against the accused and more particularly in the absence of any independent witnesses, though the independent witnesses were available, this Court acquitted the accused by giving him benefit of doubt. Therefore, as such, the decision of this Court in the case of Bhagwan Singh (supra) can be said to be a decision on its own facts and cannot be said to be laying an absolute proposition of law that in no case the informant/complainant can be the investigator and that in all the cases where the complainant/informant and the investigating officer is the same, the entire trial is vitiated and the accused is entitled to acquittal. 8.1.2 The next decision which is relied upon on behalf of the accused is the decision in the case of Megha Singh (supra). On facts and on appreciation of evidence on record, this Court held that the investigation by the very police officer who lodged the complaint was not conducive to fair and impartial investigation. In this case, the accused was apprehended by Constable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the decision in the case of rajangam (supra). In this case, this Court acquitted the accused solely following the decision in the case of Megha Singh (supra). There is no further discussion on the point in the said decision by this Court. 8.1.4 In the case of Mohan Lal (supra), after having noted the conflicting opinions expressed by different two Judge Benches of this Court, one in the cases of Bhagwan Singh (supra) and Megha Singh (supra) and other in the cases of State of Punjab v. Baldev Singh (1999) 6 SCC 172; Bhaskar Ramappa Madar (supra); and Surender (supra), thereafter this Court observed and held that in a case where the informant/complainant and the investigator is the same, the trial is vitiated and the accused is entitled to acquittal. However, it is required to be noted that thereafter the very decision of this Court in the case of Mohan Lal (supra) fell for consideration before another three Judges Bench of this Court in the case of Varinder Kumar (supra), to which two Hon ble Judges were also there in the case of Mohan Lal (supra) and it is observed that the facts in Mohan Lal (supra) were indeed extremely telling insofar as the defaults on part of the prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lodged the FIR is not barred by law. It is further observed that such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer and the question of bias would depend on the facts and circumstances of each case. It is further observed that it is not proper to law down a broad and unqualified proposition that such investigation would necessarily be unfair or biased. In this decision, the decisions of this Court in the cases of Bhagwan Singh (supra) and Megha Singh (supra) were pressed into service on behalf of the accused, however this Court observed that both the decisions are on their own facts and circumstances and do not lay down a proposition that a police officer in the course of discharge of his duties finds certain incriminating material to connect a person to the crime, shall not undertake further investigation if the FIR was recorded on the basis of the information furnished by him. In this decision, this Court also considered the scheme of Sections 154, 156 and 157 Cr.P.C. and another decision of this Court in the case of State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221(para 8). That thereafter th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uashed the proceedings was that the investigation by the same officer who lodged the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. 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. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o hold on the basis of the facts noted above, that the so-called investigation by the Head Constable himself would be a mere ritual. The crime itself was directed towards the Head Constable which made him lodge the FIR. It is well-nigh impossible to expect an objective and undetached investigation from the Head Constable who is called upon to check his own version on which the prosecution case solely rests. It was under those circumstances the Court observed that the said infirmity is bound to reflect on the credibility of the prosecution case . There can be no doubt that the facts of the present case are entirely different and the dicta laid down therein does not fit into the facts of this case. 10. In Megha Singh case PW 3, the Head Constable, found a country-made pistol and live cartridges on search of the person of the accused. Then, he seized the articles, prepared a recovery memo and a rukka on the basis of which an FIR was recorded by the SI of Police. However, PW 3, the Head Constable himself, for reasons unexplained, proceeded to investigate and record the statements of witnesses under Section 161 CrPC. The substratum of the prosecution case was sought to be proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, as was done in Megha Singh case does not arise in the instant case as the trial is yet to take place. The High Court has quashed the proceedings even before the trial commenced. 13. Viewed from any angle, we see no illegality in the process of investigation set in motion by the Inspector of Police (appellant) and his action in submitting the final report to the Court of Special Judge. (emphasis supplied) 8.2.2 In the case of S. Jeevanantham (supra), though the investigation was carried out by the complainant police officer himself and it was submitted relying upon the decision of this Court in the case of Megha Singh (supra), that in case the informant/complainant and the investigator is the same, the trial is vitiated, this Court refused to set aside the conviction and acquit the accused on the aforesaid ground by observing that the accused failed to show that the investigation by the complainant police officer himself has caused prejudice or was biased against the accused. It is required to be noted that it was also a case under the NDPS Act. The relevant observations are as under: 2. We heard the learned counsel for the appellants. The counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions and after considering the entire scheme for investigation under the Cr.P.C., more particularly Sections 154, 156 of the Cr.P.C. and after considering the decisions in the cases of Bhagwan Singh (supra), Megha Singh (supra) and other decisions, it is observed and held that there is no legal bar against conducting/undertaking the investigation by the complainant. It is observed and held that the decisions of this Court in the cases of Bhagwan Singh (supra) and Megha Singh(supra) are to be confined to the facts of those cases. It is further observed and held that merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. The matter has to be decided on a case to case basis without any universal generalisation. 9. Now we consider the relevant provisions of the Cr. P. C. with respect to the investigation. Section 154 Cr.P.C. provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a police officer is required to reduce the same in writing which subsequently may be converted into an FIR/complaint and thereafter he will rush to the spot and further investigate the matter. There may be so many circumstances like such. That is why, Sections 154, 156 and 157 Cr.P.C. come into play. 9.1 Under Section 173 Cr.P.C., the officer in charge of a police station after completing the investigation is required to file the final report/chargesheet before the Magistrate. Thus, under the scheme of Cr.P.C., it cannot be said that there is a bar to a police officer receiving information for commission of a cognizable offence, recording he same and then investigating it. On the contrary, Sections 154, 156 and 157 permit the officer in charge of a police station to reduce the information of commission of a cognizable offence in writing and thereafter to investigate the same. Officer in charge of a police station has been defined under Section 2(o) of the Cr. P.C. and it includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: 1 [Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in section 42 may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until the contrary is proved, that the accused has committed an offence under this Act in respect of- (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily]. 55. Police to take charge of articles seized and delivered.-An officer-in- charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieve from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under the NDPS Act, authorising any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. 9.3.3 As per Section 42, any officer of the Department of Central Excise . as is empowered in this behalf by general or special order by the Central Government or any such officer ..of the revenue, drugs control police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the NDPS Act has been committed, enter into and search any such building, conveyance or place; in case of resistance, break open any door and remove any obstacle to such entry; seize such dru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the person arrested of the grounds for such arrest. Sub-section 2 of Section 52 further provides that every person arrested and article seized under warrant issued under sub-section 1 of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. As per sub-section 3 of Section 52, every person arrested and article seized under sub-section 2 of Section 41, 42, 43, or 44 shall be forwarded without unnecessary delay to the officer in charge of the nearest police station, or the officer empowered under section 53. That thereafter the investigation is to be conducted by the officer in charge of a police station. 9.3.7 As per Section 51 of the NDPS Act, the provisions of the Cr.P.C. shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Therefore, up to Section 52, the powers are vested with the officers duly authorised under Sections 41, 42, or 43 and thereafter so far as the investigation is concerned, it is to be conducted by an officer in charge of a police station. 9.3.8 Section 53 of the NDPS Act provides that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinabove, Section 53 authorises the Central Government to invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government .or any class of such officers with the powers of an officer in charge of a police station for the investigation. Similar powers are with the State Government. The only change in Sections 42 and 53 is that in Section 42 the word police is there, however in Section 53 the word police is not there. There is an obvious reason as for police such requirement is not warranted as he always can be the officer in charge of a police station as per the definition of an officer in charge of a police station as defined under the Cr. P.C. 9.5 Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible. 10. Now so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be left to be decided on a case to case basis without any universal generalisation. 10.2 At this stage, it is required to be noted that in cases where any person empowered under Sections 42, 43 or 44 of the NDPS Act acts vexatiously or maliciously, the statute itself has provided the punishment as per section 58 and it is an offence under section 58 which is a cognizable offence and such an offence is required to be investigated by the officer in charge of a police station other than the officer who exercised the power of entry, search, seizure or arrest under Sections 42, 43, or 44 as naturally in such a case he would be a proposed accused and therefore he cannot be permitted to investigate and to be a judge in his own cause. However, so far as the investigation against the accused for the offence under the NDPS Act is concerned, the same analogy may not apply for the reasons stated hereinabove. 10.3 Now so far as the observations made by this Court in para 13 in Mohan Lal (supra) that in the nature of reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstance that ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum- investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation. As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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