IN A CRIMINAL PROCEEDING THE INFORMANT AND THE INVESTIGATING OFFICER SHALL NOT BE THE SAME PERSON

[Mr. M. GOVINDARAJAN]

Introduction

Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act” for short), 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.  In such a case the informant shall not be the investigator of the case.  It will not be in consistent with the principles of justice.  It has been reiterated in the case laws provided in this article.

Case laws

 In ‘Megha Singh v. State of Haryana’ -  1995 (2) TMI 445 - SUPREME COURT this Court has taken a categorical view that the officer who arrested the accused should not have proceeded with the investigation of the case. The relevant paragraph reads as under:

“We have also noted another disturbing feature in this case. P.W.3, Sri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."

In ‘Balasundaran v. State 1999’ -  1999 (7) TMI 672 - MADRAS HIGH COURT , in para 16, the Madras High Court held that the  appellants contended  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, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, P.W. 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W. 5 alone had filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. P.W. 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated.

In ‘State by Inspector of Police, Narcotics Intelligence Bureau, Madurai, Tamilnadu vs. Rajangam,’ 2009 (4) TMI 947 - SUPREME COURT the appellant was convicted by the Special District and Sessions Judge, Madurai and was directed to undergo 10 years rigorous imprisonment with a fine of ₹ 1,00,000/- and, in default, to further undergo 3 years simple imprisonment.  The accused preferred an appeal before the High Court. It was submitted on behalf of the accused before the High Court that the officer who had registered the crime in the case, also investigated the said crime. It was also submitted that the crime was registered by P.W.6 and that the case was also investigated by him. According to the submission advanced on behalf of the accused, the crime ought to have been investigated by another independent officer and not by P.W.6. The High Court found substance in this submission made on behalf of the accused and acquitted the accused.   Aggrieved by the said judgment of the High Court, the State, through Inspector of Police, NIB, Madurai, Tamil Nadu, preferred a special leave petition under Article 136 of the Constitution before this Court. This Court granted leave on 29.8.2002.  The Supreme Court upheld the judgment of the High Court and dismissed the appeal filed by the State.

In ‘Mohan Lal V. State of Punjab’ [ 2018 (8) TMI 963 - SUPREME COURT OF INDIA ] – Criminal appeal No.1880/2011 – Supreme Court, decided on 16.08.2018, the appellants assailed his conviction under Section 18 of the NDPS Act, sentencing him to rigorous imprisonment for 10 years and a fine of ₹ 1,00,000-(Rupees one lakh only), with a default stipulation.

Chand Singh, Sub Inspector of Balianwali Police Station, that while on patrol duty, he was accompanied by Darshan Singh, Sarpanch and Assistant Sub Inspector Balwinder Singh.  The appellant was searched, leading to recovery of 4 kg of opium in a bag carried by him. The consent memo was signed by Darshan Singh.  The seized opium was separated into a sample of 20 gm. and 3kg 980 gm. The specimen seal was prepared by Chand Singh and after use, the seal was handed over to ASI, Balwinder Singh.   “Ruqa” was prepared by Chand Singh and forwarded to Balianwali Police Station.  The Assistant Sub Inspector, Darshan Singh registered the formal F.I.R. and handed over investigation to Chand Singh.  Upon conclusion of investigation, the appellant was charge sheeted, put on trial, and convicted.

The appellant submitted the following before the Supreme Court-

• The NDPS Act being a stringent law carrying a reverse burden of proof, there had to be strict adherence to the law and procedures.
• The investigation was not only required to be fair and judicious, but must also appear to have been so.
• The investigation ought not to be in a manner leaving a genuine apprehension in the mind of the accused that it was not fair and bona fide.
• No reasons have been furnished why Darshan Singh and ASI Balwinder Singh have not been examined by the prosecution.
• No explanation has been furnished by PW1 why he did not deposit the seized narcotics in the malkhana.
• The delay of 9 days in sending the sample for chemical analysis also

remains unexplained.

• The investigation was fundamentally flawed. PW1, being the informant, he could not have been the investigating officer himself.

The State put forth the following submissions before the Supreme Court-

• The appellant was searched in presence of a Gazetted Officer, PW4.
• The failure to examine Darshan Singh or ASI Balwinder Singh was inconsequential as the search and recovery were duly proved by PW1 and PW4
• Merely because they were police officers, their evidence does not stand vitiated.
• There shall be a presumption that official duties were regularly performed.
• The burden of proof for innocence lay upon the accused in view of the statutory presumption under Sections 35 and 54 of the NDPS Act, which he failed to discharge.
• The investigation was not vitiated because PW1 may have been the informant himself.

The Supreme Court considered the submissions of both sides.  The main point to be considered by the Supreme Court is that 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. 

The Supreme Court observed that-

• Dharshan Singh was an illiterate person who was accompanied by the Inspector which is not correct according to the law.
• The consent memo was stated to have been signed by Darshan Singh, despite his being an illiterate, along with PW1, Chand Singh, the Inspector.
• The seal sample was prepared by PW1, and signed by Darshan Singh and ASI Balwinder Singh.
• The seal was then handed over to ASI Balwinder Singh.
• The case property was retained by PW1 in his possession and was not deposited in the malkhana nor entered in the roznamcha. There is no explanation for the same.
• The sample was retained by PW1 in his private custody in a rented accommodation. No explanation is forthcoming from the prosecution why Darshan Singh, and ASI Balwinder Singh were not examined despite service of summons on the official witness and issuance of bailable warrants against the private witness.
• There was nine days’ delay in sending the sample for chemical analysis. No explanation has been furnished in respect of the same.
• The recovery memo was not signed by the accused and that copies of documents were not supplied to the accused nor any memo in this regard prepared in his presence.

The Supreme Court further observed that the High Court in this case held that under Section 55 of NPDS Act the officer was empowered to keep the case property and sample in his individual safe custody.  The Supreme Court did not accept the same.

The Supreme Court held that if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.

The Supreme Court further 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 must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.  The Supreme Court allowed the appeal.