ORDER

Date : 18-06-2019

1. Heard Mr. HRA Choudhury, learned senior counsel for the petitioner and Mr. Mr.

SC Keyal, learned standing counsel, NCB.

2. This is the second successive application under Section 439 Cr.P.C. praying for bail of the accused petitioner, namely, Rafik Uddin Ahmed, who has been in detention in connection with NCB Case No.21/2018 under Section 8(C) read with Section 20(b)(ii)(c) of the NDPS Act.

3. Learned senior counsel Mr. HRA Choudhury submits that no contraband substance was seized from the possession of the present petitioner who happens to be the owner of a courier service. According to Mr. Choudhury the contrabands were found lying on the side of the road, wherefrom, it was seized. Mr. Choudhury further submits, placing reliance on a decision of the Apex Court in Mohan Lal Vs. State of Punjab AIR 2018 SC 3853 that all the significant steps in the process of investigation like preparation of seizure list, taking of sample, arrest of the accused, examination of the seizure witness etc., were taken by the intelligence officer Mr. Bam Shankar, who himself was also the complainant, which is prejudicial to the accused and such investigation by the informant/complainant not only creates a doubt in the fairness of investigation but also vitiate the entire process and as such, the trial on the basis of such investigation is unlikely to culminate in the conviction of the petitioner.

4. Mr. Choudhury further submits placing reliance on a decision of the Delhi High Court in Kapil Dev Vs. State 2005 (121) DLT 380, that for the purpose of coming to a finding as to the requirement of section 37of the NDPS Act, while considering the bail, the Court needs to adopt a broad view to see, whether, the materials on record suggest any probability of conviction of the accused. When the materials brought on record suggest that in all probability the accused may not be ultimately convicted, the bail should not be refused, submits Mr. Choudhury.

5. The prayer for bail is strongly resisted by the learned standing counsel, NCB Mr. SC Keyal. The contention of the learned standing counsel is that the restriction of section 37 of the NDPS Act is applicable in the instant case as the contraband seized were of commercial quantity and the earlier bail petition having been rejected by this Court taking the view that rigor of section 37 of the NDPS Act applies in the instant case, the prayer for bail of the petitioner cannot be allowed in this present second application.

6. The Apex Court in Mohan Lal Vs. State of Punjab (supra) having extensively dealt with the issue of investigation of a case by the complainant or the informant himself in NDPS Act held that investigation of a case by the informant/complainant violates the constitutional gurantee of a fair investigation and thus vitiates the prosecution. The Apex Court held as under:

25. “In view of the conflicting opinion expressed by different two Judge Benches of this Court, the importance of 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 uncertainly 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 investigation 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.

26. Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of