Mohan Lal v. State of Punjab (2018)
(Accused is entitled for acquittal when complainant and Investigating Officer are same)
(Article 21 of the Indian Constitution and Sections 35(2) and 54 of the NDPS Act)
JUDGMENT SUMMARY: Mohan Lal v. State of Punjab
DATE OF JUDGEMENT: 16th August 2018
JUDGES: Justice Ranjan Gogoi, Justice Navin Sinha, Justice R. Banumati
REFERENCE : AIR 2018 SC 3853
PARTIES : Mohan Lal (Appellant)
The State Of Punjab (Respondent)
SUBJECT
n the said judgement the 3 judge bench of J. Ranjan Gogoi, J. R. Banumati, J. Navin Sinha dealing with the question was as to whether in a criminal prosecution it will be in consonance with the principles of justice, fair play and fair investigation if the informant and investigating officer were to be same persons. This case deals with the Narcotic Drugs and Psychotropic Substances Act hereinafter referred to as “NDPS Act”.
AN OVERVIEW
1. F.I.R. was lodged by Prosecution witness (Hereinafter referred to as “PW”) PW-1 by Chand Singh, Balianwali Police Station while on patrol duty. Upon suspicion PW-4, Shri. Rajinder N. Dhoke, IPS Officer was called and Appellant was searched leading to recovery of 4 kg of opium in a bag carried by him.
2. Assistant Sub Inspector, Balwinder Singh and Sarpanch, Darshan Singh registered a formal F.I.R and handed over the Investigation to PW-1.
3. The case property was retained by PW-1 in his possession and was not deposited in the malkhana neither entered in roznamcha. And the samples were retained by him in his private custody in a rented accommodation.
4. Upon conclusion of investigation, the accused was charge sheeted, put on trial and convicted. The appellant thereby strongly criticizing his conviction challenged it under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 sentencing him to rigorous imprisonment for 10 years and a fine of ₹1,00,000 (Rupees One lakh only) with a default stipulation.
IMPORTANT PROVISIONS
Constitution of India
1. Article 21 – Protection of life and personal liberty
• A fair trial to an accused, a constitutional guarantee under Article 21 of the constitution.
NDPS Act
1. Section 35 (2) provides that fact can be said to have been proved if it is established be beyond reasonable ground and not on preponderance of probability
2. Section 54 - Presumption from possession of illicit articles.
In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence.
ISSUES
1. Whether in a criminal prosecution it will be in consonance with the principles of justice, fair play and fair investigation if the informant and investigating officer were to be same person?
ANALYSIS OF THE JUDGEMENT
1. The 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 required not only 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. The investigation was fundamentally flawed. Also the learned counsel for the appellant pointed out the following 3 things regarding :
• No explanation being given by PW-1 that why he didn’t deposit the seized narcotics in malkhana.
• No explanation regarding the 9 days delay in sending the samples for chemical analysis.
• No explanation furnished why Darshan Singh and ASI Balwinder Singh not been examined by the prosecution.
2. Whereas the learned counsel for Respondent contended that the appellant was searched in the presence of a gazette officer and regarding the examination of Darshan Singh or Balwinder Singh was inconsequential.
3. The Court was of the view that in such a case it is necessary for the accused to demonstrate prejudice especially under laws such as NDPS Act carrying a reverse burden of proof. Also it was a subject of investigation that the seized property by PW-1 was kept by him in private accommodation despite the availability of malkhana. Similarly signatures of ASI Balwinder Singh or PW-4 not obtained on consent memo was a subject matter of investigation.
4. The court also pointed out that the view taken by High Court that under section 55 of the NDPS Act PW-1 was empowered to keep the case property and sample in his individual safe custody is highly erroneous on the face of it. A plain reading of the provision manifests that it is the duty of the police officer in charge to deposit the seized material in the malkhana. The court quoted to the Standing order 1 of 88 issued by the Narcotics Control Bureau in Clause 1.13 and the Drug Law Enforcement Field Officer's Hand Book. The court also referred to Noor Aga v. State of Punjab (2008) 16 SCC 417 case wherein the duty of the prosecution under the NDPS Act considering the reverse burden of proof was noticed.
5. The court was of the view that a fair trial to an accused is a constitutional right guaranteed under Article 21 of the constitution of India which would be a hollow promise if the investigation in the NDPS case were not be fair or raises serious questions about its fairness apparent on the face of the investigation. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation the absence of which there can be no fair trial. The court further remarked that if the investigation is itself unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers with the police which may well lead to false implication also. Investigations in such cases would then become an empty formality and a farce. Such an interpretation should be thus avoided.
6. The court while mentioning Babubhai v. State of Gujarat (2010) 12 SCC 254 case quoted that the investigation in a criminal case must be free from objectionable features or infirmities which may legitimately lead to any grievance on part of the accused 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 the accused as a guaranteed constitutional right under Article 21 of the constitution of India. To leave the matter for being determined on individual facts of the case may not only lead to possible abuse of powers but more importantly 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 it must appear to be done also. This requirement is all the more imperative in laws carrying reverse burden of proof. The appellant was directed to be set at liberty unless wanted in any other case .
CONCLUSION
As it is rightly said, in a criminal prosecution there is an obligation cast on the investigator not only to be fair, judicious and just during investigation but also that the investigation on the very face of it must appear to be so. In the above case the paramount consideration was to interpret the law in a way which operates fairly. As in this case it is held that if the investigation is conducted by a police officer who himself is the complainant then the trial is vitiated and the accused is entitled to acquittal as a matter of law.
However, the apex court in a recent case overruled the above 2018 judgement and has cleared that this cannot be laid down as a general preposition and held that the question of bias essentially would depend upon facts and circumstances of each case.
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