Narcotic Drugs and Psychotropic Substances Act, 1985: Fairness and impartiality in investigation – Informant and investigator, if same person – Sanctity of such investigation – 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 – Held: If an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations and is himself asked to investigate, serious doubts would naturally arise with regard to his fairness and impartiality – It is not necessary to actually prove bias – It would be illogical to presume and would be contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself – The result of the investigation would, therefore, be a foregone conclusion – 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 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 – Bias – Criminal law – Fair trial – Investigation – Natural justice – Evidence – Reverse burden of proof.
Narcotic Drugs and Psychotropic Substances Act, 1985: s.18 – Conviction under – Recovery of opium – The informant-police official PW-1 accompanied by the Sarpanch and another police office recovered 4 kg of opium from a bag carried by appellant – Consent memo signed by the Sarpanch and PW-1 – PW-1 did not deposit the narcotics in the malkhana – Conviction by courts below – On appeal, held: The Sarpanch was stated to have been accompanying the police official (PW1) and ASI in a police vehicle while on official duty – This is certainly not in the normal course of events – The consent memo was stated to have been signed by the Sarpanch, despite he being an illiterate – There was no explanation from the prosecution why the Sarpanch and ASI were not examined despite service of summons on the official witness and issuance of bailable warrants against the private witness – In their absence, neither the consent memo nor the seal can be stated to be proved – The presence of a private person in a police vehicle while on patrol duty, the individual being an illiterate, but having signed the consent memo were surely matters for investigation – The case property was retained by PW-1 in his private custody in a rented accommodation and was not deposited in the malkhana nor entered in the roznamcha – There was nine days’ delay in sending the sample for chemical analysis – No explanation was furnished in respect of the same – The delay in sending the sample for chemical analysis, in the facts and circumstances of the case was again a matter for investigation – Prosecution was vitiated because of the infraction of the consitutional guarantee of a fair investigation – Appellant directed to be set at liberty forthwith.
Narcotic Drugs and Psychotropic Substances Act, 1985: s.55 – Held: It is the duty of the police officer to deposit the seized material in the police station malkhana.
Narcotic Drugs and Psychotropic Substances Act, 1985: Burden of proof – The stringent provisions of the NDPS Act 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.
Investigation: Fair trial – Reverse burden of proof – Onus to prove – In NDPS cases – Held: A fair trial to an accused, a constitutional guarantee under Art.21 of the Constitution, would be a hollow 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 – 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.
Allowing the appeal, the Court
HELD: 1. The presence of a private person in a police vehicle while on patrol duty, the individual being an illiterate, but having signed the consent memo were surely matters for investigation. Similarly, why the signature of ASI-’BS’ or PW-4 was not obtained on the consent memo was again a subject matter of investigation. The veracity of the sample seal handed over to ASI-’BS’ was likewise a matter for investigation as to whether it was the same as the seal on the case property retained in his private custody by PW-1 and that sent for chemical analysis. The mere fact that there may have been a seal cannot lead to any presumption in absence of the examination of ASI-’BS’. Likewise, it was also a subject of investigation why PW-1 did not make any roznamcha entry of the seized property and the reason why he retained the case property and sample in his private custody in a rented house despite the availability of a malkhana. The delay in sending the sample for chemical analysis, in the facts and circumstances of the case was again a matter for investigation. Had the investigator been different from the complainant, the issues for consideration may have been entirely different. [Paras 7, 8] [1013-E-H; 1014-A]
2. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, 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.[Para 10] [1015-D-F]
3. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow 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. [Para 11] [1015-G] Babubhai v. State of Gujarat, (2010) 12 SCC 254: [2010] 10 SCR 651; Bhola Singh v. State of Punjab, 2011(11) SCC 653:[2011] 2 SCR 642; Noor Aga v. State of Punjab, (2008) 16 SCC 417: [2008] 10 SCR 379 – relied on
4. If an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. 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 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. In the instant case, the prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. [Paras 14, 25 and 26] [1017-G-H; 1018-A-B; 1023B-D] Naushad v. State of Kerala 2000 (1) KLT 785 –
approved
Kader v. State of Kerala 2001 CriLJ 4044 – overruled
Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana 1996 (11) SCC 709; State by Inspector of Police, Narcotics Intelligence Bureau, Madurai, Tamilnadu v. Rajangam 2010 (15) SCC 369; State of Punjab v. Baldev Singh (1999) 6 SCC 172 : [1999] 3 SCR 977; Bhaskar Ramappa
Madar & Ors. v. State of Karnataka (2009)11 SCC 690 : [2009] 5 SCR 256; Surender v. State of Haryana, (2016) 4 SCC 617 : [2016] 1 SCR 174; Balasundaran v. State 1999 (113) ELT 785 (Mad.); State rep. by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu v. V. Jayapaul 2004 (5) SCC 223; State of Himachal Pradesh v. Atul Sharma 2015
(2) shimLC 693; Shri Fayas Ali v. State of Mizoram Crl. Appeal No. 26 of 2013 (J) dated 19.09.2013; Gannu and Ors. v. State of Punjab, 2017 (3) RCR (criminal) 566 (Crl. Appeal No. 1688-SB of 2004 dated 26.05.2017) – referred to
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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