TMI Blog2018 (12) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Respondent : Mr. Satish Aggarwala, Adv. JUDGMENT 1. The impugned judgment, dated 12th February, 2014, of the learned Special Judge (NDPS), convicts the appellant of having committed an offence punishable under Section 21(c) of the Narcotics, Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ). The subsequent order on sentence, dated 17thFebruary, 2014, sentences her, for the said offence, to rigorous imprisonment of 10 years and a fine of ₹ 1 lakh. 2. The law, as it has developed over time, entitles the appellant to acquittal. I do not intend, therefore, to burden this judgment with more facts than are necessary to understand the controversy in issue. 3. The case of the prosecution may be set out thus: (i) PW-1 Anju Singh received intelligence that the appellant, a lady of African origin, would be coming to ISBT, Delhi, by a Punjab Roadways bus at about 8:15 PM on 5th January, 2009, carrying narcotic drugs. Following thereon, a team of officers of the Directorate of Revenue Intelligence (DRI), accompanied by two public witnesses, Harendra and Vishal, intercepted the appellant, when she was disembarking from a Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. (iii) PW-1 prepared triplicate test memos, Ex. PW-1/N-1, PW-1/N-2 and PW-1/N-3. The entire proceedings were recorded in a detailed panchnama Ex. PW-1/C, signed by all above persons. The facsimiles of the DRI seal, used in the proceedings, were affixed on the panchnama and test memos. The samples were, subsequently, deposited in the Central Revenues Control Laboratory (CRCL). It may be noted, here, that the test reports of the CRCL indicated that the samples tested positive for heroin, of 67% and 71.2% purity. (iv) In response to the summons served on her, the appellant tendered her voluntary statement, dated 5th January, 2009 (Ex. PW-1/K), under Section 67 of the NDPS Act, before PW-1. During the course of the said statement, which continued over the next day, i.e. 6th January, 2009, the appellant stated that her friend Ms. Lucy had introduced her to the business of narcotics, in which she agreed to be involved as she was in need of money. She further deposed that, on 3rd January, 2009, she, and Ms. Lucy, flew to Amritsar, where they collected some packets of narcotics from an unknown person, which she concealed in her bag. Payment, in US Dollars, was made, by Ms. Lucy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Head Havaldar Kiran Pal Singh and PW-11 Rajesh Kumar Ohlan, also an I/O with the DRI. PW-7 Dr. Raj Kumar, Assistant Chemical Examiner, CRCL, testified that the samples were found to contain heroin. 9. Reference to the testimonies of other witnesses is not necessary. 10. In her statement under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Cr PC ), the appellant, while denying the allegations against her, admitted her apprehension by the DRI officers, while she was carrying the bag, but denied the existence of any contraband in the bag. She, however, admitted to her having become friendly with Ms. Lucy while staying in the Uttam Nagar house with Ms. Magda and Mr. Ben, travelling with Ms. Lucy to Amritsar on 3rd January, 2009 and staying, with her, in a hotel on 3rd and 4th January, 2009. She admitted returning, by bus, carrying the bag given by Ms. Lucy, but denied any knowledge that the bag contained heroin. She alleged that her statements had been dictated by the DRI officers. She did not choose to lead any evidence in her defence. The impugned judgment and order 11. The learned Special Judge has convicted the appellant, reasoning th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to join investigations, the furnishing, by them, of false addresses to PW-1, could not be ruled out. (vi) In any case, non-joining of public witnesses was not fatal to the case of the prosecution, if the testimony of the official witnesses were credible and cooperative. Reliance was placed, for the purpose, on M. Prabhulal v. A.D,. DRI, (2003) 8 SCC 449 and Ajmer Singh v. State of Haryana, (2010) 3 SCC 746. (vii) Besides the above evidence, the statements (Ex. PW-1/K and Ex. PW-1/R), tendered by the appellant under Section 67 of the NDPS Act, in response to the summons (Ex. PW-1/J), issued to her by PW-1, also fastened the guilt on her. The statements had been tendered by her prior to her arrest, and the statement tendered on 6th January, 2009 (Ex. PW-1/R), was in continuity to the statement (Ex. PW-1/K) tendered on 5th January, 2009. Both were written in English, which was a language well known to the appellant, and were recorded in her own handwriting. The statement dated 5th July, 2009 (Ex. PW-1/K) contained personal and family details, known only to the appellant. She had admitted, in her statement dated 6th July, 2009 (Ex. PW-1/R), having come into contact with Ms. Lu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raiding team had co-opted two public witnesses, namely Harendra and Vishal, they were never cited as witnesses by the prosecution. This was fatal. While the decisions, on which the learned Special Judge relied, did hold that public witnesses need not necessarily be involved in the raid, search and recovery proceedings, where public witnesses did exist, the non-co-opting, of such witnesses, by the prosecution, cast a cloud on the case sought to be built up against the accused. Ms.Sidhu relied, in this context, on para 23 of the judgment in N.C.B. v. Anju Tiwari, 2014 SCC OnLine Del 2285 and paras 30 to 31 of the judgment in Nnadi K. Iheanyi v. N.C.B., 2014 SCC OnLine Del 4537. In the absence of examination of the public witnesses, the fact of recovery could not be said to have been proved beyond reasonable doubt. Ms. Sidhu highlighted the fact that the independent witnesses were, in fact, reflected in the list of witnesses cited by the prosecution, but were dropped as their addresses were incomplete and were not traceable. This, Ms.Sidhu submits, was not believable. It gave rise to a reasonable presumption that the witnesses were fake, and that their names had been included to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses was not a sine qua non, in law, for a valid search, seizure or recovery. Consequently, non-inclusion of such witnesses, as witnesses for the prosecution, too, did not vitiate the proceedings. In any case, the reason for dropping Harendra and Vishal as witnesses of the prosecution was genuine, i.e., the addresses given by them were found to be incorrect. (vi) The statement of the appellant, under Section 67 of the NDPS Act, had been recorded without subjecting her to any kind of coercion. The said statement, therefor, inculpated the appellant conclusively. 16. Needless to say, on the basis of the above noted submissions, advanced by them orally as well as in writing, Ms. Sidhu and Mr.Aggarwala prayed, respectively, for acquittal of the appellant, and for dismissal of her appeal. Analysis 17. I am of the opinion that the appellant is entitled to acquittal on both the accounts urged by Ms.Sidhu, i.e., because PW-1 was complainant as well as I/O, and because the public witnesses, who had supposedly been co-opted during investigation, had been dropped by the prosecution, after citing them as witnesses in their support. I do not intend, therefore, to enter into any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is written submissions before the learned ASJ. 4. Ms. Sidhu, in rejoinder, submits that the distinction, sought to be drawn by Mr. Aggarwala, between an informant and a complainant, is a distinction without a difference, in cases relating to prosecution under the NDPS Act, as the source of intelligence was not known in such cases. Besides, she submits that a holistic reading of Mohan Lal (supra) reveals that it covers cases where the informant was the IO, as well as cases where the complainant was the IO. She, therefore, reiterates her reliance on Mohan Lal (supra). ********* 10. Insofar as the applicability of Mohan Lal (supra) is concerned, Mr. Aggarwala, as already noted hereinabove, seeks to distinguish the said case by drawing my attention to the distinction between an informant and a complainant , and that in cases investigated by the DRI, there was no informant , as the cases proceeded on prior intelligence, and that the seizing officer was the complainant. He submits that there is no prohibition to the seizing officer being the complainant and that if, therefore, the seizing officer, who also investigated the case, happened to file the complaint, against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the NDPS Act 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. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities. 17. Thereafter, the prime necessity of the investigation, in cases under the NDPS Act being scrupulously fair and free from any objectionable features or infirmities, was highlighted in paras 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court. *** 59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. 61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides. 16. The duty of the prosecution under the NDPS Act, considering the reverse burden of proof, was noticed in Noor Aga v. State of Punjab, (2008) 16 SCC 417 observing: 58 An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) concerned a prosecution under the Terrorist and Disruptive Activities (Prevention) Act, 1985. It was held that the Head Constable being the complainant himself could not have proceeded with the investigation and it was a practice, to say the least, which should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. Rajangam (supra) was a prosecution under the NDPS Act. An objection was taken that PW6 who apprehended the accused could not have investigated the case. Upholding the objection, relying on Megha Singh (supra) the accused was acquitted. The view taken by the Madras High Court in Balasundaran v. State, 1999 (113) ELT 785 (Mad.), was also noticed as follows: 16. Learned Counsel for the appellants also stated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) related to a prosecution under the Prevention of Corruption Act which sought to distinguish Megha Singh, (supra) on its facts. 23. Baldev Singh, (supra) relied upon by the State is distinguishable on its own facts concerning an irregularity in an investigation by an officer not especially empowered under the NDPS Act to do so. 24. In Surender (supra), the prosecution was under the NDPS Act. There was no independent witness. The objection that PW6, Sub Inspector Satbir Singh being the complainant could not have investigated relying on Rajangam, (supra) and Megha Singh, (supra) was rejected on the ground that he was not the sole person investigating the case, and that the ground had not been raised before the High Court in appeal. 25. In the nature of the controversy, it would be useful to also notice the view taken by different High Courts on the issue. In State of Himachal Pradesh v. Atul Sharma, 2015 (2) shim LC 693 (Crl. Appeal No. 246 of 2008, decided on 28.02.2015), under the NDPS Act, it was observed as follows: 10.8 In present case it is proved on record that complainant is SI Bahadur Singh as per FIR Ext.PW12.A and it is proved on record that entire investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a disturbing feature. To the same effect, is a Division Bench judgment of Hon'ble Himachal Pradesh High Court reported as State of Himachal Pradesh v. Atul Sharma, 2015 (6) R.C.R (Criminal) 949, wherein, it has been held that where the complainant himself conducts investigation, it causes miscarriage of justice to accused qua fair investigation. 28. A Single Judge of the Kerala High Court in Naushad v. State of Kerala, 2000 (1) KLT 785, relating to the NDPS Act held as follows: In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under Ss. 154 or 155 Cr.P.C and previous statement of the witness, being a police officer, complaint recorded, under S. 161 Cr.P.C enjoined in S. 145 and 157 of the Indian Evidence Act and proviso of S. 162 Cr.P.C In the instant case, befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incident under investigation. The fact is a mere information and is not synonymous with the truth. Kader (supra) is, therefore, overruled. We approve the view taken in Naushad (supra). 31. 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 an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. 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. 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 donebut 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 revers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation with a closure report, which would mean that he had falsely implicated the petitioner and would result in attendant consequences on the complainant himself. (iv) In Megha Singh v. State of Haryana, (1996) 11 SCC 709, it had been held that the Head Constable, being the complainant himself, could not have proceeded with the investigation, and such a practice was one which should not be resorted to, so that there can be no occasion to suspect the fairness and impartiality of the investigation. (v) Following the law laid down in Megha Singh (supra), the Supreme Court had, in State v. Rajangam, (2010) 15 SCC 369, acquitted the accused, in a case under the NDPS Act, on the ground that the officer who apprehended the accused could not have investigated the case. The Supreme Court also affirmed the view taken by the Madras High Court in Balasundaran v. State, 1999 (113) ELT 785 (Mad.), which held that the person who had searched the appellants could not be the investigating officer. (vi) In Naushad v. State of Kerala, 2000 (1) KLT 785, it was categorically held by a learned Single Judge of the Kerala High Court, in a case relating to the NDPS Act that the complainant be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently pernicious in nature. Rajangam (supra) which arose under the NDPSAct, also stated that the officer who apprehended the accused could not have investigated the case. The judgment of the learned Single Judge of the Kerala High Court in Naushad (supra), which stands affirmed by the Supreme Court in Mohan Lal (supra), too, affirms the same view. 23. In view of the above, the submission, of Ms. Sidhu, 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. 19. As one may say, quod erat demonstrandum. As in the case of Anabelle Analista Malibago (supra), the proceedings, in the present case, too, stand completely vitiated even by the sole reason of the fact that PW-1 Anju Singh was IO, as well as complainant. 20. There is substance in the second contention of Ms Sidhu, as well, i.e. that the non-co-opting, of Harendra and Vishal, supposedly the two public witnesses to the search, recovery and seizure of the contraband heroin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic witness as being associated in the arrest and seizure, its failure to produce such person for cross-examination must be specifically explained by it. 31. In the present case the failure to produce the public witness was attributable to a false address given for the witness. This raises serious doubts as to whether such a witness existed at all. It will amount to falsification of the trial Court record if the thumb impression on the arrest and seizure memo is attributed to a witness who is not able to be produced and it is shown that the address given for him, even in thefirst instance in the summons issued by NCB, was false. This casts serious doubts on the trustworthiness of the prosecution version and in that circumstance the benefit of doubt should certainly go to the accused. (Emphasis supplied) 23. The submissions of Mr. Satish Aggarwala fail, entirely, to address this aspect of the matter. The only fallback argument, if one may so term it, of Mr. Aggarwala, is that co-opting of public witnesses is not necessary, under the NDPS Act. To that proposition, there can be no dispute. Indeed, the decision in Nnadi K. Iheanyi (supra) itself notices this legal proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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