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SUPREME COURT OF INDIA
RANJAN GOGOI, R. BANUMATHI, NAVIN SINHA, JJ.
MOHAN LAL – APPELLANT(S)
VERSUS
THE STATE OF PUNJAB – RESPONDENT(S)
CRIMINAL APPEAL NO.1880 OF 2011
Decided On : 16-08-2018
(b) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 35 and 54 – reverse burden of proof – Does not mean that after registration of FIR reciting compliance with statutory procedures leading to recovery burden of proof from the very inception of prosecution shifts to accused – Prosecution has to first establish its prima facie case beyond reasonable doubt after investigation – Burden will shift to accused only thereafter to rebut the same – Prosecution cannot rely on preponderance of probabilities – Investigation must be free from objectionable features or infirmities. (Para 10, 11, 12)
(2008) 16 SCC 417; (2010) 12 SCC 254 – Relied upon
(c) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 18 – Sample not deposited in malkhana – Non-examination of the private witnesses – Informant police officer making the allegations also investigating the case – Leads to an adverse inference (Para 13, 14)
(2011) 11 SCC 653; (1996) 11 SCC 709; (1976) 1 SCC 15; (2009)11 SCC 690 – Relied upon
1999 (113) ELT 785 (Mad.); 2015 (2) ShimLC 693; 2015 (2) ShimLC 693; 2000 (1) KLT 785 – Cited with approval
(2016) 4 SCC 617 – Referred
2001 CriLJ 4044 – Overruled
(2008) 8 SCC 557; (2004) 5 SCC 223; (1999) 6 SCC 172 – Distinguished
Facts of the case:
The appellant has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, sentencing him to rigorous imprisonment for 10 years and a fine of Rs.1,00,000/- ( Rupees one lakh only), with a default stipulation.
Finding of the Court:
The prosecution case is vitiated.
Result: Appeal allowed.
Key Points: - The judgment emphasizes that a fair investigation is essential under NDPS Act, especially when the informant and investigating officer are the same person, and the accused must demonstrate prejudice (paras discussing fairness and bias) (!) (!) (!) . - Non-compliance with NDPS procedures (e.g., failure to deposit sample in malkhana, failure to examine private witnesses, delays in sending samples for analysis) leads to adverse inferences and can vitiate the proceedings (!) (!) (!) (!) . - The NDPS Act carries a reverse burden of proof for certain facts (Sections 35 and 54), but the prosecution must first establish a prima facie case beyond reasonable doubt after investigation; burden shifts to the accused only after foundational facts are established (!) (!) . - Various authorities are cited to illustrate that bias or lack of impartial investigation when the informant investigates can render proceedings unfair and may justify acquittal or setting aside convictions (!) (!) (!) . - The court ultimately overruled or set aside the conviction due to unfair investigation linked to the informant serving as investigator (!) .
JUDGMENT
NAVIN SINHA, J.
The appellant assails his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as “the NDPS Act”), sentencing him to rigorous imprisonment for 10 years and a fine of Rs.1,00,000/- ( Rupees one lakh only), with a default stipulation.
2. An F.I.R. was lodged on 03.02.1997 by PW-1, 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 witness entertained doubts about the appellant upon seeing him. PW-4, Shri Rajinder N. Dhoke, IPS, a gazetted officer, was called and the appellant was searched, leading to recovery of 4 kg of opium in a bag carried by him. The consent memo, Exhibit-PB was signed by Darshan Singh and PW-1. The seized opium was separated into a sample of 20 gm. and 3kg 980 gm. The specimen seal was prepared by PW-1 and after use, the seal was handed over to ASI, Balwinder Singh. “Ruqa” was prepared by PW-1 and forwarded to Balianwali Police Station. PW-3, Assistant Sub-Inspector, Darshan Singh registered the formal F.I.R. and handed over investigation to PW-1. Upon conclusion of investigation, the appellant was chargesheeted, put on trial, and convicted.
3. Sh. Chanchal Kumar Ganguli, 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 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 bonafide. 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 PW-1 why he did not deposit the seized narcotics in the malkhana. Likewise, the delay of 9 days in sending the sample for chemical analysis also remains unexplained. The investigation was fundamentally flawed. PW-1, being the informant, he could not have been the investigating officer himself. Reliance was placed on Bhagwan Singh vs. State of Rajasthan, (1976) 1 SCC 15, Megha Singh vs. State of Haryana, 1996 (11) SCC 709, State by Inspector of Police, Narcotics Intelligence Bureau, Madurai, Tamilnadu vs. Rajangam, 2010 (15) SCC 369.
4. Ms. Jaspreet Gogia, learned counsel for the respondent contended that the appellant was searched in presence of a Gazetted Officer, PW-4. The failure to examine Darshan Singh or ASI Balwinder Singh was inconsequential as the search and recovery were duly proved by PW-1 and PW-4. 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 PW-1 may have been the informant himself. Reliance was placed on State of Punjab vs. Baldev Singh, (1999) 6 SCC 172, Bhaskar Ramappa Madar & Ors. vs. State of Karnataka, (2009)11 SCC 690, Surender vs. State of Haryana, (2016) 4 SCC 617.
5. We have considered the submissions on behalf of the parties. The primary question for our consideration in the present appeal is, 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. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof.
6. Darshan Singh was an illiterate person. He is stated to have been accompanying PW-1 in a police vehicle while on official duty along with ASI Balwinder Singh. This to our mind, is certainly not in t
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