REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1880 OF 2011 MOHAN LAL ....APPELLANT(S)

VERSUS THE STATE OF PUNJAB ...RESPONDENT(S)

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.

Signature Not Verified Digitally signed by NEETU KHAJURIA Date: 2018.08.16 Reason:

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 charge-sheeted, 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