TMI Blog2018 (12) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... re the competent court, or even conducted the apprehension or search of the accused, to, at the conclusion of the investigation, submits a closure report, which could invite an inference that he had obviously implicated the accused, with all its attendant consequences, “for the complainant himself”. The submission of appellant to the effect that, if the complainant, who has filed the complaint in a case relating to prosecution under the NDPS Act, was herself/himself the IO, the entire investigation and subsequent prosecution and trial stand vitiated, and that the accused is entitled, ipso facto, to acquittal, merits acceptance. Also, there can be no manner of doubt that PW-1 Anju Singh was herself the IO as well as the complainant. The appellant is entitled to be acquitted of the offence for which she stands convicted - appeal allowed. - CRL.A.177/2016 - - - Dated:- 25-10-2018 - Mr. Justice C. Hari Shankar For the Appellant : Ms. Inderjeet Sidhu, Adv. For the Respondent : Mr. Satish Aggarwala, Adv. JUDGMENT 1. The appellant Annabelle Analista Malibago assails, in this appeal, judgment dated 19th March, 2014, passed by the learned Additional Sessions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... around which the rival submissions, before this court, circumambulated, one may make a brief reference to the facts of the present case, insofar as they are relevant to decide the controversy in dispute. 6. The case of the respondent-DRI, as set out before the learned ASJ, was that, pursuant to receipt of a secret intelligence, a team of the DRI, accompanied by two public witnesses, intercepted the appellant, at the check-in counter of SpiceJet Flight No. SG-237, at about 3 p.m. on 15th October, 2008, and that 1.240 kgs of heroin was found concealed in a trolley bag carried by her. Three representative samples, of 5 gms each, were stated to have been recovered therefrom, sealed with the seal of the DRI and got tested by the Central Revenues Control Laboratory (CRCL), which revealed that the powder was heroin of 35.6% purity. Summons were issued to the appellant under Section 67 of the NDPS Act, and her statement was recorded on 15th/16th October, 2008, in which she admitted being in possession of the abovementioned heroin. 7. The DRI cited sixteen prosecution witnesses (PWs) including the two public witnesses referred to hereinabove. After recording of their statements, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o filed written submissions, in which, besides advancing the legal arguments already noted hereinabove, it has been sought to be contended that Ms. Anju Singh was neither the informant nor the investigating officer, as almost the entire investigation had been conducted by PW-4 Ramesh Kumar, Senior Intelligence Officer (SIO). My attention has been invited, in this context, to the testimonies of Anju Singh and Ramesh Kumar, testified as PW-1 and PW-4 respectively. The filing of complaint by Anju Singh, it is sought to be contended in the written submissions, was only by way of discharge of her official duties. 12. Before examining the rival contentions, it would be appropriate to peruse the judgment of the Supreme Court in Mohan Lal (supra), which constitutes the sheet-anchor, and the summum bonum, of the appellant s case. 13. Mohan Lal v. State of Punjab, 2018 SCC OnLine SC 974 13.1 The proceedings, in Mohan Lal (supra) commenced from an FIR, lodged on 3rd February, 1997 by PW-1 Chand Singh, Sub- Inspector, who alleged that, while on patrol duty in the company of other officers of the police station, they saw Mohan Lal and, on entertaining doubts, called Mr. Rajin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. 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. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. 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. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. 15. That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on part of the accused was noticed in Babubhai v. State of Gujarat, (2010) 12 SCC 254 as follows: 32. The investigation into a criminal offence must be free from objectionable fea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. 13.5 The Supreme Court, thereafter, went on to examine the implication of the IO, carrying out investigation under the NDPS Act, being the informant, as well as being the complainant, in paras 18 to 31 of the decision, thus : 18. 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, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. Bhaskar Ramappa Madar (supra) concerned a prosecution under Section 304B, I.P.C. which also carries a reverse burden of proof. The Trial Court held that the investigating officer who was also the complainant could not have investigated, and on that ground, held the prosecution to be tainted. The acquittal was reversed by the High Court. In appeal, this Court declined to interfere with the conviction. After referring to Bhagwan Singh (supra) and Megha Singh (supra), it was observed that the principles laid down therein had to be confined to the facts of the said cases and that the matter would have to be decided on the facts of each case without any universal generalisation. 21. Hardip Singh v. State of Punjab, 2008 (8) SCC 557 concerned a prosecution under the NDPS Act. The contention was that the Inspector, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation was handed over to some other independent Investigating Officer. It is not the case of prosecution that no other independent Investigating Officer was available to conduct impartial investigation. We are of the opinion that conducting entire investigation i.e. preparation of seizure memo, site plan, recording statements of witnesses by complainant himself has caused miscarriage of justice to accused qua fair investigation. 26. A similar view has been taken in Shri Fayas Ali vs. State of Mizoram Crl. Appeal No. 26 of 2013 (J) dated 19.09.2013, relating to prosecution under the NDPS Act, by the Gauhati High Court as follows: From the evidence of PWs 1 and 4, it is clearly found that the major part of the investigation including the arrest of the accused, preparation of seizure, taking of sample, examination of the seizure witnesses and examination of the accused person, was completed by the PW1, who was the informant/complainant in the present case. Therefore, it is clearly found that the investigation, in its true sense, was done by the complainant himself. In the case of State by Inspector of Police, Narcotic Intelligence Bureau, Madurai(supra), the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got a Sub Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub Inspector of Police or any other Police Officer above the rank of PW1. In the instant case, thus an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner. 29. Disapproving of the same, a Division Bench in Kader v. State of Kerala, 2001 CriLJ 4044, held: 6. Unlike usual cases under the Criminal Procedure Code, in cases under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. Therefore, we are of the opinion that merely because a detecting officer himsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The opening words of para 31 of the judgment make it apparent that, prior thereto, there was considerable divergence of judicial opinion, amongst decisions of various benches, in each case of two Hon ble judges of the Supreme Court, regarding the issue of whether the fact that the informant/complainant/searching officer, was the IO, was fatal to the prosecution, especially in cases where the statute casts a reverse burden of proof. Needless to say, this Court is loath to revisit the issue and, thereby, undo the efforts of the Supreme Court, as manifested by the judgment in Mohan Lal (supra), which sets the legal position at rest. For the nonce, at least, this Court is sanguine about the position, in law, that all prosecutions, under the NDPS Act or, for that matter, under any criminal statute which casts a reverse burden of proof must abide by the enunciation of the law in Mohan Lal (supra). 13.7 Another feature which becomes apparent, from the underscored words in the above extracted passages from Mohan Lal (supra), is that they apply, not only to a situation in which the IO is the informant, but also to a situation in which the IO is the complainant or even, for that ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under Sections 154 or 155 of CrPC and previous statement of the witness, being a police officer, complaint recorded, under Section 161 CrPC enjoined in Section 145 and 157 of the Indian Evidence Act and proviso of Section 162 CrPC . The fact that the complainant was the investigating officer was held, by the learned Single Judge of the High Court of Kerala, to constitute an incurable infirmity , entitling the petitioner to an order of acquittal. The said judgment of the learned Single Judge in Naushad (supra) stands specifically approved in Mohan Lal (supra), which overrules the contrary view, expressed by a Division Bench of the High Court of Kerala, in Kader (supra). The view of the learned Single Judge of the High Court of Kerala in Naushad (supra) stands, thereby, elevated to the status of the opinion of a bench of three Hon ble judges of the Supreme Court. 14. A holistic reading of Mohan Lal (supra), in my view, leaves no manner of doubt that the Supreme Court has disapproved, in cases relating to prosecution under the NDP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence clearly indicates that the IO was, in fact, PW-1 Anju Singh. In fact in the evidence of PW-4 Ramesh Kumar, as distilled in para 16 of the impugned judgment to which specific reference has been invited in the written submissions of Mr. Aggarwala it is specifically noted that PW-4 Ramesh Kumar was the person to whom the report, under Section 157 of the NDPS Act, was submitted by the IO/PW-1 . 17. In view thereof, there can be no manner of doubt that PW-1 Anju Singh was herself the IO as well as the complainant. 18. Given the law now enunciated by the Supreme Court in Mohan Lal (supra), which, in view of the mandate of Article 141 of the Constitution of India, has to be regarded as the law that existed for all times, it is clear that the entire investigation and consequent trial and conviction of the appellant, in the present case, stands vitiated by the sole fact of PW-1 Anju Singh being herself the complainant as well as the IO. 19. For the above reasons, the appellant is entitled to be acquitted of the offence for which she stands convicted by the learned ASJ. 20. The appeal is accordingly allowed. 21. The appellant would be entitled to be released ..... X X X X Extracts X X X X X X X X Extracts X X X X
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