# MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI)

- **Citation:** [2020] 9 S.C.R. 245
- **Court:** Supreme Court of India
- **Decided:** 2020-08-31
- **Case number:** Criminal Appeal No. 1598 of 2013
- **Bench:** Arun Mishra, Indira Banerjee, Vineet Saran, M. R. Shah, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mukesh-singh-v-state-narcotic-branch-of-delhi-34866
- **Pages:** 58

## Headnote

Narcotic Drugs and Psychotropic Substances Act, 1985 -
Informant-police officer who is the complainant himself conducts
investigation - Trial, if vitiated; and the accused if entitled to
acquittal - Conflicting opinions - Matter initially referred to three
Judge Bench - Further referred to five Judge Bench - Held: Under
the scheme of CrPC, there is no bar to a police officer receiving
information for commission of a cognizable offence, recording the
same and then investigating it - On the contrary, ss.154, 156 and
157, CrPC permits the officer in charge of a police station to reduce
such information in writing and thereafter to investigate the same -
As per s.51, NDPS Act, the provisions of CrPC shall apply, insofar
as they are not inconsistent with its provisions, to all warrants issued
and arrests, searches and seizures made under the Act - NDPS Act
being a special Act with special procedure to be followed under
Chapter V, does not specifically bar the informant/complainant to
be an investigator and officer in charge of a police station for
investigation of offences under the NDPS Act - On the contrary, it
permits - In view of the safeguard provided under the Act itself in
s.58, there cannot be any general proposition of law that in every
case where the informant is the investigator, the trial is vitiated and
the accused is entitled to acquittal - Further, whether the
investigation by the concerned informant was fair or not is always
to be decided at the time of trial - Merely because the informant is
the investigator, by that itself the investigation would not suffer the
vice of unfairness/bias - Matter has to be decided on a case to
case basis - Contrary decision in Mohan Lal v. State of Punjab
(2018) 17 SCC 627 and any other decision taking a contrary view
are not good law and are overruled - Code of Criminal
Procedure,1973 - ss.2(o), 100, 154, 156, 157, 173, 465 -
[2020] 9 S.C.R. 245
245
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Constitution of India - Art.21- Evidence Act,1872 - Illustration(e)
to s.114.
Code of Criminal Procedure, 1973 - ss.2(o), 154, 156, 157 -
Held: Officer in charge of a police station defined u/s.2(o) has to
reduce an information alleging commission of a cognizable offence
in writing which may be termed as FIR and he is required to further
investigate the information, which is reduced in writing.
Words & Expressions -"information" in s.154, CrPC - Held:
Use of expression "information" without any qualification denotes
that police has to record information despite it being unsatisfied by
its reasonableness or credibility - Code of Criminal Procedure, 1973
- s.154.
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57, 57A, 67, 68 - Procedure
to issue warrant; seizure and arrest in public place; entry; stop and
search conveyance, persons - Scheme of the Act - Discussed.
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.41, 42, 43, 44, 53 - Held: s.53 authorises the Central Government
or the State Government, as the case may be, to invest any officer
of the department of drugs control, revenue or excise or any other
department or any class of such officers with the powers of an
officer in charge of a police station for investigation of offences
under the NDPS Act - It does not speak that all such officers shall
be other than those officers authorised u/ss.41, 42, 43, and 44 -
Code of Criminal Procedure, 1973.
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.50, 52, 58 - Inbuilt safeguards under the Act - Discussed.
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.35, 54 - Reverse burden of proof - Held: Presumption under the
Act is against the accused as per ss.35 and 54 - In the cases of
reverse burden of proof, the presumption can operate only after the
initial burden existing on the prosecution is satisfied - Prevention
of Corruption Act, 1988 - Penal Code, 1860 - s.304B - Code of
Criminal Procedure, 1973 - s.

## Text

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MUKESH SINGH
v.
STATE (NARCOTIC BRANCH OF DELHI)
(Special Leave Petition (Criminal) Diary No. 39528 of 2018)
AUGUST 31, 2020
[ARUN MISHRA, INDIRA BANERJEE,VINEET SARAN,
M. R. SHAH AND S. RAVINDRA BHAT, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 -
Informant-police officer who is the complainant himself conducts
investigation - Trial, if vitiated; and the accused if entitled to
acquittal - Conflicting opinions - Matter initially referred to three
Judge Bench - Further referred to five Judge Bench - Held: Under
the scheme of CrPC, there is no bar to a police officer receiving
information for commission of a cognizable offence, recording the
same and then investigating it - On the contrary, ss.154, 156 and
157, CrPC permits the officer in charge of a police station to reduce
such information in writing and thereafter to investigate the same -
As per s.51, NDPS Act, the provisions of CrPC shall apply, insofar
as they are not inconsistent with its provisions, to all warrants issued
and arrests, searches and seizures made under the Act - NDPS Act
being a special Act with special procedure to be followed under
Chapter V, does not specifically bar the informant/complainant to
be an investigator and officer in charge of a police station for
investigation of offences under the NDPS Act - On the contrary, it
permits - In view of the safeguard provided under the Act itself in
s.58, there cannot be any general proposition of law that in every
case where the informant is the investigator, the trial is vitiated and
the accused is entitled to acquittal - Further, whether the
investigation by the concerned informant was fair or not is always
to be decided at the time of trial - Merely because the informant is
the investigator, by that itself the investigation would not suffer the
vice of unfairness/bias - Matter has to be decided on a case to
case basis - Contrary decision in Mohan Lal v. State of Punjab
(2018) 17 SCC 627 and any other decision taking a contrary view
are not good law and are overruled - Code of Criminal
Procedure,1973 - ss.2(o), 100, 154, 156, 157, 173, 465 -
[2020] 9 S.C.R. 245
245
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Constitution of India - Art.21- Evidence Act,1872 - Illustration(e)
to s.114.
Code of Criminal Procedure, 1973 - ss.2(o), 154, 156, 157 -
Held: Officer in charge of a police station defined u/s.2(o) has to
reduce an information alleging commission of a cognizable offence
in writing which may be termed as FIR and he is required to further
investigate the information, which is reduced in writing.
Words & Expressions -"information" in s.154, CrPC - Held:
Use of expression "information" without any qualification denotes
that police has to record information despite it being unsatisfied by
its reasonableness or credibility - Code of Criminal Procedure, 1973
- s.154.
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57, 57A, 67, 68 - Procedure
to issue warrant; seizure and arrest in public place; entry; stop and
search conveyance, persons - Scheme of the Act - Discussed.
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.41, 42, 43, 44, 53 - Held: s.53 authorises the Central Government
or the State Government, as the case may be, to invest any officer
of the department of drugs control, revenue or excise or any other
department or any class of such officers with the powers of an
officer in charge of a police station for investigation of offences
under the NDPS Act - It does not speak that all such officers shall
be other than those officers authorised u/ss.41, 42, 43, and 44 -
Code of Criminal Procedure, 1973.
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.50, 52, 58 - Inbuilt safeguards under the Act - Discussed.
Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss.35, 54 - Reverse burden of proof - Held: Presumption under the
Act is against the accused as per ss.35 and 54 - In the cases of
reverse burden of proof, the presumption can operate only after the
initial burden existing on the prosecution is satisfied - Prevention
of Corruption Act, 1988 - Penal Code, 1860 - s.304B - Code of
Criminal Procedure, 1973 - s.157- Constitution of India - Art.21.
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Answering the reference, the Court
HELD: 1.1 In the case of Mohan Lal, after having noted
the conflicting opinions expressed by different two Judge
Benches of this Court, one in the cases of Bhagwan Singh and
Megha Singh and other in the cases of State of Punjab v. Baldev
Singh (1999) 6 SCC 172; Bhaskar Ramappa Madar; and Surender,
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, thereafter the
very decision of this Court in the case of Mohan Lal fell for
consideration before another three Judges Bench of this Court
in the case of Varinder Kumar, to which two Hon'ble Judges were
also there in the case of Mohan Lal and it is observed that the
facts in Mohan Lal were indeed extremely telling insofar as the
defaults on part of the prosecution was concerned and in that
background it was held that the issue could not be left to be
decided on the facts of a case, impinging on the right of a fair trial
to an accused under Article 21 of the Constitution of India. In
light of the observations made by this Court in the case of Varinder
Kumar that the law laid down by this Court in the case of Mohan
Lal shall be applicable prospectively and shall not affect the
pending criminal prosecutions, trials and the appeals, prior to
the law laid down in Mohan Lal, meaning thereby that the same
shall be applicable prospectively, still this Court has to consider
the issue referred to this Court on its own merits. It appears that
in Mohan Lal also the Court did not consider in detail the relevant
provisions of the Cr.P.C. under which the investigation can be
undertaken by the investigating officer, more particularly Sections
154, 156 and 157 and the other provisions, namely, Section 465
Cr.P.C. and Section 114 of the Indian Evidence Act. Even in the
said decision, this Court did not consider the aspect of prejudice
to be established and proved by the accused in case the
investigation has been carried out by the informant/complainant,
who will be one of the witnesses to be examined on behalf of the
prosecution to prove the case against the accused. This Court
also did not consider in detail and/or misconstrued both the
scheme of the NDPS Act and the principle of reverse burden.
[Para 8.1.4][279-E-H; 280-A-E]
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI)
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1.2 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 156 Cr.P.C. provides
that any officer in charge of a police station may investigate any
cognizable offence without the order of a Magistrate. It further
provides that no proceeding of a police officer in any such case
shall at any stage be called in question on the ground that the
case was one which such officer was not empowered under this
section to investigate. Therefore, as such, a duty is cast on an
officer in charge of a police station to reduce the information in
writing relating to commission of a cognizable offence and
thereafter to investigate the same. Section 157 Cr.P.C. specifically
provides that if, from 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 to
investigate, he shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of such offence upon
a police report and shall proceed in person to the spot to
investigate the facts and circumstances of the case and, if
necessary, to take measures for the discovery and arrest of the
offender. Therefore, considering Section 157 Cr.P.C., either on
receiving the information or otherwise (may be from other sources
like secret information, from the hospital, or telephonic message),
it is an obligation cast upon such police officer, in charge of a
police station, to take cognizance of the information and to reduce
into writing by himself and thereafter to investigate the facts and
circumstances of the case, and, if necessary, to take measures
for the discovery and arrest of the offender. Take an example, if
an officer in charge of a police station passes on a road and he
finds a dead body and/or a person being beaten who ultimately
died and there is no body to give a formal complaint in writing, in
such a situation, and when the said officer in charge of a police
station has reason to suspect the commission of an offence, he
has to reduce the same in writing in the form of an information/
complaint. In such a situation, he is not precluded from further
investigating the case. He is not debarred to conduct the
investigation in such a situation. It may also happen that an officer
in charge of a police station is in the police station and he receives
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a telephonic message, may be from a hospital, and there is no
body to give a formal complaint in writing, such 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. 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 the 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 is next in rank to such officer and is above the rank of
constable or, when the State Government so directs, any other
police officer so present. As observed and held by this Court in
the case of Lalita Kumari v. Government of Uttar Pradesh, the
word "shall" used in Section 154 leaves no discretion in police
officer to hold preliminary enquiry before recording FIR. Use of
expression "information" without any qualification also denotes
that police has to record information despite it being unsatisfied
by its reasonableness or credibility. Therefore, the officer in
charge of a police station has to reduce such information alleging
commission of a cognizable offence in writing which may be termed
as FIR and thereafter he is required to further investigate the
information, which is reduced in writing. [Paras 9-9.2][287-B-H;
288-A-H]
Lalita Kumari v. Government of Uttar Pradesh (2014)
2 SCC 1 : [2013] 14 SCR 713 - relied on.
1.3 Section 67 of the NDPS Act authorises/permits any
officer referred to in section 42 to call for information from any
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person for the purpose of satisfying himself whether there has
been any contravention of the provisions of the NDPS Act or any
rule or order made thereunder, during the course of any enquiry.
Section 68 of the NDPS Act provides that no officer acting in
exercise of powers vested in him under any provision of the NDPS
Act or any rule or order made thereunder shall be compelled to
say from where he got any information as to the commission of
any offence. From the aforesaid scheme and provisions of the
NDPS Act, it appears that the NDPS Act is a complete Code in
itself. Section 41(1) authorises a Metropolitan Magistrate or a
Magistrate of the first class or any Magistrate of the second class
specially empowered by the State Government in this behalf, may
issue a warrant for the arrest of any person whom he has reason
to believe to have committed any offence punishable under the
NDPS Act, or for the search, whether by day or by night......Subsection 2 of Section 41 authorises any such officer of gazetted
rank of the Departments 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.......police or
any other department of a State Government as is empowered in
this behalf by general or special order, 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 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. 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,
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break open any door and remove any obstacle to such entry;
seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of this Act;
and 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. As per sub-section 2 of Section 42,
such an officer has to send a copy of the information taken down
in writing under sub-section 1 or his grounds for belief, to his
immediate official superior within 72 hours. [Paras 9.3.19.3.4][295-E-H; 296-A-G]
1.4 There are inbuilt safeguards provided under the NDPS
Act itself, such as, Sections 50 and 52. Section 50 of the NDPS
Act provides that when any officer duly authorised under section
42 is about to search any person under the provisions of section
41, 42 or 43, he shall inform the person to be searched in the
presence of a Gazetted Officer of any of the departments
mentioned in Section 42 or to the nearest Magistrate and if such
person so desires, he shall take such person without unnecessary
delay to the nearest Gazetted Officer as mentioned in sub-section
1 of Section 50. As per sub-section 5 of Section 50, 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. Sub-section 6 of Section 50 provides that 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 send a copy thereof to his immediate official
superior. Section 52 of the NDPS Act mandates that any officer
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arresting a person under Sections 41, 42, 43 or 44 to inform 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. 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. [Paras 9.3.5-9.3.7][296-H; 297-AG]
1.5 Section 53 of the NDPS Act does not speak that all those
officers to be authorised to exercise the powers of an officer in
charge of a police station for the investigation of the offences
under the NDPS Act shall be other than those officers authorised
under Sections 41, 42, 43, and 44 of the NDPS Act. It appears
that the legislature in its wisdom has never thought that the
officers authorised to exercise the powers under Sections 41,
42, 43 and 44 cannot be the officer in charge of a police station
for the investigation of the offences under the NDPS Act.
Investigation includes even search and seizure. As the
investigation is to be carried out by the officer in charge of a
police station and none other and therefore purposely Section 53
authorises the Central Government or the State Government, as
the case may be, invest any officer of the department of drugs
control, revenue or excise or any other department or any class
of such officers with the powers of an officer in charge of a police
station for the investigation of offences under the NDPS Act.
Section 42 confers power of entry, search, seizure and arrest
without warrant or authorisation to any such officer as mentioned
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in Section 42 including any such officer of the revenue, drugs
control, excise, police or any other department of a State
Government or the Central Government, as the case may be,
and as observed hereinabove, 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. 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. [Paras
9.3.8-9.5][298-D-H; 299-A-C]
1.6 Now so far as the submission on behalf of the accused
that NDPS Act carries a reverse burden of proof under Sections
35 and 54 and therefore if the informant who himself has seized
the offending material from the accused and he himself thereafter
investigates the case, there shall be all possibilities of
apprehension in the mind of the accused that there shall not be
fair investigation and that the concerned officer shall try to prove
his own version/seizure and therefore there shall be denial of the
"fair investigation" enshrined under Article 21 of the Constitution
of India is concerned, it is required to be noted that whether the
investigation conducted by the concerned informant was fair
investigation or not is always to be decided at the time of trial.
The concerned informant/investigator will be cited as a witness
and he is always subject to cross-examination. There may be cases
in which even the case of the prosecution is not solely based
upon the deposition of the informant/informant-cum-investigator
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but there may be some independent witnesses and/or even the
other police witnesses. The testimony of police personnel will
be treated in the same manner as testimony of any other witness
and there is no principal of law that without corroboration by
independent witnesses his testimony cannot be relied upon. As
per illustration (e) to Section 114 of the Indian Evidence Act, in
law if an official act has been proved to have been done, it shall
be presumed to be regularly done. Credit has to be given to public
officers in the absence of any proof to the contrary of their not
acting with honesty or within limits of their authority. 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. Now so far as the observations made by
this Court in para 13 in Mohan Lal 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 may raise doubt about its
veracity, it is to be noted that the presumption under the Act is
against the accused as per Sections 35 and 54 of the NDPS Act.
Thus, in the cases of reverse burden of proof, the presumption
can operate only after the initial burden which exists on the
prosecution is satisfied. The reverse burden does not merely
exist in special enactments like the NDPS Act and the Prevention
of Corruption Act, but is also a part of the IPC - Section 304B
and all such offences under the Penal Code are to be investigated
in accordance with the provisions of the Cr.P.C. and consequently
the informant can himself investigate the said offences under
Section 157 Cr.P.C. [Paras 10-10.3][299-D-H; 300-A-G]
Karamjit Singh v. State (Delhi Administration) (2003) 5
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SCC 291 : [2003] 3 SCR 25; Devender Pal Singh v.
State (NCT of Delhi) (2002) 5 SCC 234 : [2002] 2 SCR
767 - relied on.
1.7 Therefore, as such, there is no reason to doubt the
credibility of the informant and doubt the entire case of the
prosecution solely on the ground that the informant has
investigated the case. Solely on the basis of some apprehension
or the doubts, the entire prosecution version cannot be discarded
and the accused is not to be straightway acquitted unless and
until the accused is able to establish and prove the bias and the
prejudice. The question of prejudice or bias has to be established
and not inferred. The question of bias will have to be decided on
the facts of each case. NDPS Act is a Special Act with the special
purpose and with special provisions including Section 68 which
provides that no officer acting in exercise of powers vested in
him under any provision of the NDPS Act or any rule or order
made thereunder shall be compelled to say from where he got
any information as to the commission of any offence. Therefore,
considering the NDPS Act being a special Act with special
procedure to be followed under Chapter V, there is no specific
bar against conducting the investigation by the informant himself
and in view of the safeguard provided under the Act itself, namely,
Section 58, there cannot be any general proposition of law to be
laid down that in every case where the informant is the investigator,
the trial is vitiated and the accused is entitled to acquittal.
Similarly, even with respect to offences under the IPC, 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-cuminvestigator, 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. [Para
11][300-H; 301-A-F]
State of Rajasthan v. Ram Chandra (2005) 5 SCC 151
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: [2005] 3 SCR 496; Union of India v. Vipan Kumar
Jain (2005) 9 SCC 579; State v. V. Jayapaul (2004) 5
SCC 223 : [2004] SCR 330; Bhaskar Ramappa Madar
v. State of Karnataka (2009) 11 SCC 690 : [2009] 5
SCR 256 - relied on.
1.8 The reference is answered as under:
I. The observations of this Court in the cases of Bhagwan
Singh v. State of Rajasthan; Megha Singh v. State of Haryana; and
State by Inspector of Police, NIB, Tamil Nadu v. Rajangam and the
acquittal of the accused by this Court on the ground that as the
informant and the investigator was the same, it has vitiated the
trial and the accused is entitled to acquittal are to be treated to
be confined to their own facts. It cannot be said that in the
aforesaid decisions, this Court laid down any general proposition
of law that in each and every case where the informant is the
investigator there is a bias caused to the accused and the entire
prosecution case is to be disbelieved and the accused is entitled
to acquittal;
II. In a case where the informant himself is the investigator,
by that itself cannot be said that the investigation is vitiated on
the ground of bias or the like factor. The question of bias or
prejudice would depend upon the facts and circumstances of each
case. Therefore, merely because the informant is the investigator,
by that itself the investigation would not suffer the vice of
unfairness or bias and therefore on the sole ground that informant
is the investigator, the accused is not entitled to acquittal. The
matter has to be decided on a case to case basis. A contrary
decision of this Court in the case of Mohan Lal v. State of Punjab
(2018) 17 SCC 627 and any other decision taking a contrary view
that the informant cannot be the investigator and in such a case
the accused is entitled to acquittal are not good law and they are
specifically overruled. [Para 12][302-B-G]
Mohan Lal v. State of Punjab (2018) 17 SCC 627 :
[2018] 9 SCR 1006 - overruled.
Bhagwan Singh v. State of Rajasthan (1976) 1 SCC
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15; Megha Singh v. State of Haryana (1996) 11 SCC
709; State by Inspector of Police, NIB, Tamil Nadu v.
Rajangam (2010) 15 SCC 369; Varinder Kumar v. State
of Himachal Pradesh (2020) 3 SCC 321 : [2019] 2 SCR
707; Menaka Gandhi v. Union of India (1978) 1 SCC
248 : [1978] 2 SCR 621; H.N. Rishbud v. State of Delhi
AIR 1955 SC 196 : [1955] 1 SCR 1150; Manu Sharma
v. State (NCT of Delhi) (2010) 6 SCC 1 : [2010] 4 SCR
103; Romila Thapar v. Union of India (2018) 10 SCC
753 : [2018] 11 SCR 951; Hema v. State (2013) 10
SCC 192 : [2013] 3 SCR 1; Babubhai v. State of Gujarat
(2010) 12 SCC 254 : [2010] 10 SCR 651; Rafiq Ahmad
v. State of U.P (2011) 8 SCC 300 : [2011] 11 SCR 907;
Willie (William) Staney v. The State of Madhya Pradesh
[1955] SCR 1140; Sunil Kumar Banerjee v. State of
West Bengal (1980) 3 SCC 304 : [1980] 3 SCR 179; S.
Jeevantham v. State (2004) 5 SCC 230 : [2004] 1 Suppl.
SCR 607; Vinod Kumar v. State of Punjab (2015) 3
SCC 220 : [2015] 1 SCR 504; Surender v. State of
Haryana (2016) 4 SCC 617 : [2016] 1 SCR 174;
Jamuna Chaudhary v. State of Bihar (1974) 3 SCC 774
: [1974] 2 SCR 609; Kashmeri Devi v. Delhi Admn.,
(1988) Suppl. SCC 482 : [1988] SCR 700; Vinay Tyagi
v. Irshad Ali (2013) 5 SCC 762 : [2012] 13 SCR 1005;
Niranjan Singh v. State of U.P. [1956] SCR 734;
Paramjit Singh v. State of Punjab (2007) 13 SCC 530 :
[2007] 11 SCR 776; Rekha v. State of Maharashtra
(2010) 15 SCC 725; Union of India v. T. Nathamuni
(2014) 16 SCC 285 : [2014] 12 SCR 297; Hardip Singh
v. State of Punjab (2008) 8 SCC 557 : [2008] 12 SCR
311; State of Punjab v. Noor Aga (2008) 16 SCC 417 :
[2008] 10 SCR 379; State of Punjab v. Baldev Singh
(1999) 6 SCC 172 : [1999] 3 SCR 977; State of U.P. v.
Bhagwant Kishore Joshi, AIR 1964 SC 221 : [1964] 3
SCR 71 - referred to.
Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 -
referred to.
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Case Law Reference
[2018] 9 SCR 1006
overruled
Para 1
[2019] 2 SCR 707
referred to
Para 2
(1976) 1 SCC 15
referred to
Para 3.1
(1996) 11 SCC 709
referred to
Para 3.1
(2010) 15 SCC 369
referred to
Para 3.1
[1978] 2 SCR 621
referred to
Para 3.3
[1955] 1 SCR 1150
referred to
Para 3.7
[2010] 4 SCR 103
referred to
Para 3.7
[2018] 11 SCR 951
referred to
Para 3.12
[2013] 3 SCR 1
referred to
Para 3.12
[2010] 10 SCR 651
referred to
Para 3.12
[2011] 11 SCR 907
referred to
Para 3.16
[1955] SCR 1140
referred to
Para 3.17
[1980] 3 SCR 179
referred to
Para 5.9
[2004] SCR 330
relied on
Para 5.9
[2004] 1 Suppl. SCR 607
referred to
Para 5.9
[2009] 5 SCR 256
relied on
Para 5.9
[2015] 1 SCR 504
referred to
Para 5.9
[2016] 1 SCR 174
referred to
Para 5.9
[1974] 2 SCR 609
referred to
Para 5.10
[1988] SCR 700
referred to
Para 5.10
[2012] 13 SCR 1005
referred to
Para 5.10
[1956] SCR 734
referred to
Para 5.10.2
[2007] 11 SCR 776
referred to
Para 5.10.2
(2010) 15 SCC 725
referred to
Para 5.10.2
[2014] 12 SCR 297
referred to
Para 5.10.2
[2008] 12 SCR 311
referred to
Para 6.6.2
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[2005] 3 SCR 496
relied on
Para 6.6.3
(2005) 9 SCC 579
relied on
Para 6.6.3
[2008] 10 SCR 379
referred to
Para 6.7
[1999] 3 SCR 977
referred to
Para 8.1.4
[1964] 3 SCR 71
referred to
Para 8.2.1
[2013] 14 SCR 713
relied on
Para 9.2
[2003] 3 SCR 25
relied on
Para 10
[2002] 2 SCR 767
relied on
Para 10
CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Criminal) Diary No. 39528 of 2018.
From the Judgment and Order dated 08.04.2016 of the High Court
of Delhi at New Delhi in Criminal Appeal No. 1598 of 2013.
With
Special Leave Petition (Criminal) Nos. 5648, 5894 and 8499 of
2019.
Tushar Mehta, S.G., Aman Lekhi, ASG, A.K. Srivastava, Sr. Adv.,
Kanu Agrawal, A.K. Shrivastav, Ms. Shradha Deshmukh, Shivani Misra,
Ritwiz Rishabh, Shantanu Sharma, Manan Popli, Saurabh Mishra, Rajat
Nair, B.V. Balram Das, Udit Atul Kumar, Ujjwal Sinha, Mehak Huria,
Adnan Siddiqui, Ms. Lakshika Sachdeva, B.Krishna Prasad, Puneet Jain,
Ms. Christi Jain, Harsh Jain, Harshit Khanduja, Abhinav Deshwal,
Ms. Sugam Gupta, Pankaj Sharma (for Ms. Pratibha Jain) Ajay Garg,
Manish Shankar, Ashwani K Sood, Ms. Vanika Bajaj, Ms. Tirpti Gola,
Syed Imtiyaz Ali, Rajiv Shankar Dvivedi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. 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 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, initially by order dated 17.01.2019 the
matter was referred to a larger Bench consisting of three Judges.A
three Judge Bench vide order dated 12.09.2019 has referred to a larger
Bench of five Judges to consider the matter. That is why, the present
matter is placed before the Bench consisting of five Judges.
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2. At the outset, it is required to be noted that the decision of 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,
came up for consideration subsequently before this Court in the case of
Varinder Kumar v. State of Himachal Pradesh 2019 (3) SCALE 50
= (2020) 3 SCC 321 and a three Judge Bench of this Court [out of
which two Hon'ble Judges were also in the Bench in the case of Mohan
Lal (supra)] held that the decision of this Court in the case of Mohan
Lal (supra) shall be applicable prospectively, meaning thereby, all pending
criminal prosecutions, trials and appeals prior to the law laid down in
Mohan Lal (supra) shall continue to be governed by individual facts of
the case. The relevant observations in the case of Varinder Kumar
(supra)to be referred and considered hereinbelow.
3. Shri Sushil Kumar Jain, learned Senior Advocate appearing on
behalf of the accused - Devendra Singh has made the following
submissions in support of his submission that as rightly held by this Court
in the case of Mohan Lal (supra) in a given case where the complainant
himself has conducted the investigation the entire trial would be vitiated
and the accused would be entitled to acquittal:
3.1 The decision in Mohan Lal (supra) rests and is based upon
substantive constitutional foundation and principles of criminal
jurisprudence. In the said decision in para 5, this Court specifically dealt
with and considered the question whether in a criminal prosecution, it
will be in consonance with the principles of justice, fair play and a fair
investigation, if the informant and the investigating officer were to be
the same person and in such a case, is it necessary for the accused to
demonstrate prejudice, especially under laws such as the NDPS 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
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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, Tamil Nadu v. Rajangam
(2010) 15 SCC 369, this Court specifically observed and held 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.
In the said decision, it is specifically observed that 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. Thereafter it is held that a fair
investigation which is but the very foundation of a 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 pre-determined conclusion has to be excluded.
This requirement is all the more imperative in laws carrying a reverse
burden of proof;
3.2 The reasons which found favour in Mohan Lal (supra) are
inherent and inbuilt by the legislature in Chapter V - "Procedure", which
would be the "...procedure established by law" for the purpose of Article
21;
3.3 As is now settled after the decision in the case of Menaka
Gandhi v. Union of India (1978) 1 SCC 248 that the procedure
established by law under Article 21 cannot be "any procedure" but has
to be a just and a reasonable procedure and hence right of the accused
to have a fair and independent investigation and trial, being inherent has
been "read into" into the statutes not confirming to fair procedure to
make them constitutionally compatible;
3.4 Learned Senior Advocate appearing on behalf of the accused
has thereafter taken us to the "Scheme" of the NDPS Act, more
particularly Section 8(c) and Sections 15 to 22. He submitted that Section
54 gives rise to a presumption that the accused has committed an offence
under the Act and places a reverse burden of proof upon an accused
"found" to be in possession and which he fails to account for satisfactorily.
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Section 35 mandates the Court to culpable mental state unless contrary
is proved. It is submitted that thus "recovery" and "possession" becomes
an important and vital aspect of investigation under the NDPS Act. If
the accused is "found" to be in possession of the prohibited substance,
Section 54 gives rise to a presumption 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.