Mukesh Singh vs State (Narcotic Branch of Delhi)

Code of Criminal Procedure, 1973 – ss.2(o), 154, 156, 157 – Held: Officer in charge of a police station defined u/s.2(o) has to reduce an information alleging commission of a cognizable offence in writing which may be termed as FIR and he is required to further investigate the information, which is reduced in writing. Words & Expressions –”information” in s.154, CrPC – Held: Use of expression “information” without any qualification denotes that police has to record information despite it being unsatisfied by its reasonableness or credibility – Code of Criminal Procedure, 1973 – s.154.

Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57, 57A, 67, 68 – Procedure to issue warrant; seizure and arrest in public place; entry; stop and search conveyance, persons – Scheme of the Act – Discussed.

Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.41, 42, 43, 44, 53 – Held: s.53 authorises the Central Government or the State Government, as the case may be, to invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer in charge of a police station for investigation of offences under the NDPS Act – It does not speak that all such officers shall be other than those officers authorised u/ss.41, 42, 43, and 44 – Code of Criminal Procedure, 1973.

Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.50, 52, 58 – Inbuilt safeguards under the Act – Discussed.

Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.35, 54 – Reverse burden of proof – Held: Presumption under the Act is against the accused as per ss.35 and 54 – In the cases of reverse burden of proof, the presumption can operate only after the initial burden existing on the prosecution is satisfied – Prevention of Corruption Act, 1988 – Penal Code, 1860 – s.304B – Code of Criminal Procedure, 1973 – s.157– Constitution of India – Art.21. Answering the reference, the Court

HELD: 1.1 In the case of Mohan Lal, after having noted the conflicting opinions expressed by different two Judge Benches of this Court, one in the cases of Bhagwan Singh and Megha Singh and other in the cases of State of Punjab v. Baldev Singh (1999) 6 SCC 172; Bhaskar Ramappa Madar; and Surender, this Court observed and held that in a case where the informant/complainant and the investigator is the same, the trial is vitiated and the accused is entitled to acquittal. However, thereafter the very decision of this Court in the case of Mohan Lal fell for consideration before another three Judges Bench of this Court in the case of Varinder Kumar, to which two Hon’ble Judges were also there in the case of Mohan Lal and it is observed that the facts in Mohan Lal were indeed extremely telling insofar as the defaults on part of the prosecution was concerned and in that background it was held that the issue could not be left to be decided on the facts of a case, impinging on the right of a fair trial to an accused under Article 21 of the Constitution of India. In light of the observations made by this Court in the case of Varinder Kumar that the law laid down by this Court in the case of Mohan Lal shall be applicable prospectively and shall not affect the pending criminal prosecutions, trials and the appeals, prior to the law laid down in Mohan Lal, meaning thereby that the same shall be applicable prospectively, still this Court has to consider the issue referred to this Court on its own merits. It appears that in Mohan Lal also the Court did not consider in detail the relevant provisions of the Cr.P.C. under which the investigation can be undertaken by the investigating officer, more particularly Sections 154, 156 and 157 and the other provisions, namely, Section 465 Cr.P.C. and Section 114 of the Indian Evidence Act. Even in the said decision, this Court did not consider the aspect of prejudice to be established and proved by the accused in case the investigation has been carried out by the informant/complainant, who will be one of the witnesses to be examined on behalf of the prosecution to prove the case against the accused. This Court also did not consider in detail and/or misconstrued both the scheme of the NDPS Act and the principle of reverse burden. [Para 8.1.4][279-E-H; 280-A-E]

1.2 Section 154 Cr.P.C. provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction. Section 156 Cr.P.C. provides that any officer in charge of a police station may investigate any cognizable offence without the order of a Magistrate. It further provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Therefore, as such, a duty is cast on an officer in charge of a police station to reduce the information in writing relating to commission of a cognizable offence and thereafter to investigate the same. Section 157 Cr.P.C. specifically provides that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender. Therefore, considering Section 157 Cr.P.C., either on receiving the information or otherwise (may be from other sources like secret information, from the hospital, or telephonic message), it is an obligation cast upon such police officer, in charge of a police station, to take cognizance of the information and to reduce into writing by himself and thereafter to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. Take an example, if an officer in charge of a police station passes on a road and he finds a dead body and/or a person being beaten who ultimately died and there is no body to give a formal complaint in writing, in such a situation, and when the said officer in charge of a police station has reason to suspect the commission of an offence, he has to reduce the same in writing in the form of an information/complaint. In such a situation, he is not precluded from further investigating the case. He is not debarred to conduct the investigation in such a situation. It may also happen that an officer in charge of a police station is in the police station and he receives a telephonic message, may be from a hospital, and there is no body to give a formal complaint in writing, such a police officer is required to reduce the same in writing which subsequently may be converted into an FIR/complaint and thereafter he will rush to the spot and further investigate the matter. There may be so many circumstances like such. That is why, Sections 154, 156 and 157 Cr.P.C. come into play. Under Section 173 Cr.P.C., the officer in charge of a police station after completing the investigation is required to file the final report/chargesheet before the Magistrate. Thus, under the scheme of Cr.P.C., it cannot be said that there is a bar to a police officer receiving information for commission of a cognizable offence, recording the same and then investigating it. On the contrary, Sections 154, 156 and 157 permit the officer in charge of a police station to reduce the information of commission of a cognizable offence in writing and thereafter to investigate the same. Officer in charge of a police station has been defined under Section 2(o) of the Cr. P.C. and it includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present. As observed and held by this Court in the case of Lalita Kumari v. Government of Uttar Pradesh, the word “shall” used in Section 154 leaves no discretion in police officer to hold preliminary enquiry before recording FIR. Use of expression “information” without any qualification also denotes that police has to record information despite it being unsatisfied by its reasonableness or credibility. Therefore, the officer in charge of a police station has to reduce such information alleging commission of a cognizable offence in writing which may be termed as FIR and thereafter he is required to further investigate the information, which is reduced in writing. [Paras 9-9.2][287-B-H; 288-A-H]

Lalita Kumari v. Government of Uttar Pradesh (2014)

2 SCC 1 : [2013] 14 SCR 713 – relied on.

1.3 Section 67 of the NDPS Act authorises/permits any officer referred to in section 42 to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the NDPS Act or any rule or order made thereunder, during the course of any enquiry. Section 68 of the NDPS Act provides that no officer acting in exercise of powers vested in him under any provision of the NDPS Act or any rule or order made thereunder shall be compelled to say from where he got any information as to the commission of any offence. From the aforesaid scheme and provisions of the NDPS Act, it appears that the NDPS Act is a complete Code in itself. Section 41(1) authorises a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act, or for the search, whether by day or by night……Subsection 2 of Section 41 authorises any such officer of gazetted rank of the Departments of Central Excise…… as is empowered in this behalf by general or special order by the Central Government, or any such officer of the Revenue…….police or any other department of a State Government as is empowered in this behalf by general or special order, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under the NDPS Act, authorising any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. As per Section 42, any officer of the Department of Central Excise…. as is empowered in this behalf by general or special order by the Central Government or any such officer…..of the revenue, drugs control…police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the NDPS Act has been committed, enter into and search any such building, conveyance or place; in case of resistance, break open any door and remove any obstacle to such entry; seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. As per sub-section 2 of Section 42, such an officer has to send a copy of the information taken down in writing under sub-section 1 or his grounds for belief, to his immediate official superior within 72 hours. [Paras 9.3.19.3.4][295-E-H; 296-A-G]

1.4 There are inbuilt safeguards provided under the NDPS Act itself, such as, Sections 50 and 52. Section 50 of the NDPS Act provides that when any officer duly authorised under section

42 is about to search any person under the provisions of section 41, 42 or 43, he shall inform the person to be searched in the presence of a Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such person so desires, he shall take such person without unnecessary delay to the nearest Gazetted Officer as mentioned in sub-section

1 of Section 50. As per sub-section 5 of Section 50, when an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. Sub-section 6 of Section 50 provides that after a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. Section 52 of the NDPS Act mandates that any officer arresting a person under Sections 41, 42, 43 or 44 to inform the person arrested of the grounds for such arrest. Sub-section 2 of Section 52 further provides that every person arrested and article seized under warrant issued under sub-section 1 of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. As per sub-section 3 of Section 52, every person arrested and article seized under sub-section 2 of Section 41, 42, 43, or 44 shall be forwarded without unnecessary delay to the officer in charge of the nearest police station, or the officer empowered under section 53. That thereafter the investigation is to be conducted by the officer in charge of a police station. As per Section 51 of the NDPS Act, the provisions of the Cr.P.C. shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Therefore, up to Section 52, the powers are vested with the officers duly authorised under Sections 41, 42, or 43 and thereafter so far as the investigation is concerned, it is to be conducted by an officer in charge of a police station. [Paras 9.3.5-9.3.7][296-H; 297-AG]

1.5 Section 53 of the NDPS Act does not speak that all those officers to be authorised to exercise the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act shall be other than those officers authorised under Sections 41, 42, 43, and 44 of the NDPS Act. It appears that the legislature in its wisdom has never thought that the officers authorised to exercise the powers under Sections 41, 42, 43 and 44 cannot be the officer in charge of a police station for the investigation of the offences under the NDPS Act. Investigation includes even search and seizure. As the investigation is to be carried out by the officer in charge of a police station and none other and therefore purposely Section 53 authorises the Central Government or the State Government, as the case may be, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under the NDPS Act. Section 42 confers power of entry, search, seizure and arrest without warrant or authorisation to any such officer as mentioned in Section 42 including any such officer of the revenue, drugs control, excise, police or any other department of a State Government or the Central Government, as the case may be, and as observed hereinabove, Section 53 authorises the Central Government to invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government….or any class of such officers with the powers of an officer in charge of a police station for the investigation. Similar powers are with the State Government. The only change in Sections 42 and 53 is that in Section 42 the word “police” is there, however in Section 53 the word “police” is not there. There is an obvious reason as for police such requirement is not warranted as he always can be the officer in charge of a police station as per the definition of an “officer in charge of a police station” as defined under the Cr. P.C. Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section

53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible. [Paras 9.3.8-9.5][298-D-H; 299-A-C]

1.6 Now so far as the submission on behalf of the accused that NDPS Act carries a reverse burden of proof under Sections

35 and 54 and therefore if the informant who himself has seized the offending material from the accused and he himself thereafter investigates the case, there shall be all possibilities of apprehension in the mind of the accused that there shall not be fair investigation and that the concerned officer shall try to prove his own version/seizure and therefore there shall be denial of the “fair investigation” enshrined under Article 21 of the Constitution of India is concerned, it is required to be noted that whether the investigation conducted by the concerned informant was fair investigation or not is always to be decided at the time of trial. The concerned informant/investigator will be cited as a witness and he is always subject to cross-examination. There may be cases in which even the case of the prosecution is not solely based upon the deposition of the informant/informant-cum-investigator but there may be some independent witnesses and/or even the other police witnesses. The testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration by independent witnesses his testimony cannot be relied upon. As per illustration (e) to Section 114 of the Indian Evidence Act, in law if an official act has been proved to have been done, it shall be presumed to be regularly done. Credit has to be given to public officers in the absence of any proof to the contrary of their not acting with honesty or within limits of their authority. In cases where any person empowered under Sections 42, 43 or 44 of the NDPS Act acts vexatiously or maliciously, the statute itself has provided the punishment as per section 58 and it is an offence under section 58 which is a cognizable offence and such an offence is required to be investigated by the “officer in charge of a police station” other than the officer who exercised the power of entry, search, seizure or arrest under Sections 42, 43, or 44 as naturally in such a case he would be a proposed accused and therefore he cannot be permitted to investigate and to be a judge in his own cause. However, so far as the investigation against the accused for the offence under the NDPS Act is concerned, the same analogy may not apply. Now so far as the observations made by this Court in para 13 in Mohan Lal that in the nature of 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 circumstance that may raise doubt about its veracity, it is to be noted that the presumption under the Act is against the accused as per Sections 35 and 54 of the NDPS Act. Thus, in the cases of reverse burden of proof, the presumption can operate only after the initial burden which exists on the prosecution is satisfied. The reverse burden does not merely exist in special enactments like the NDPS Act and the Prevention of Corruption Act, but is also a part of the IPC – Section 304B and all such offences under the Penal Code are to be investigated in accordance with the provisions of the Cr.P.C. and consequently the informant can himself investigate the said offences under Section 157 Cr.P.C. [Paras 10-10.3][299-D-H; 300-A-G] Karamjit Singh v. State (Delhi Administration) (2003) 5 SCC 291 : [2003] 3 SCR 25; Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234 : [2002] 2 SCR

767 – relied on.

1.7 Therefore, as such, there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice. The question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on the facts of each case. NDPS Act is a Special Act with the special purpose and with special provisions including Section 68 which provides that no officer acting in exercise of powers vested in him under any provision of the NDPS Act or any rule or order made thereunder shall be compelled to say from where he got any information as to the commission of any offence. Therefore, considering the NDPS Act being a special Act with special procedure to be followed under Chapter V, there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated and the accused is entitled to acquittal. Similarly, even with respect to offences under the IPC, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum-investigator and the case of the prosecution is merely based upon the deposition of the informant-cuminvestigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. [Para 11][300-H; 301-A-F]

State of Rajasthan v. Ram Chandra (2005) 5 SCC 151 : [2005] 3 SCR 496; Union of India v. Vipan Kumar Jain (2005) 9 SCC 579; State v. V. Jayapaul (2004) 5 SCC 223 : [2004] SCR 330; Bhaskar Ramappa Madar v. State of Karnataka (2009) 11 SCC 690 : [2009] 5 SCR 256 – relied on.

1.8 The reference is answered as under:

I. The observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan; Megha Singh v. State of Haryana; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal;

II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled. [Para 12][302-B-G]

Mohan Lal v. State of Punjab (2018) 17 SCC 627 : [2018] 9 SCR 1006 – 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, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369; Varinder Kumar v. State of Himachal Pradesh (2020) 3 SCC 321 : [2019] 2 SCR 707; Menaka Gandhi v. Union of India (1978) 1 SCC

248 : [1978] 2 SCR 621; H.N. Rishbud v. State of Delhi AIR 1955 SC 196 : [1955] 1 SCR 1150; Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103; Romila Thapar v. Union of India (2018) 10 SCC

753 : [2018] 11 SCR 951; Hema v. State (2013) 10 SCC 192 : [2013] 3 SCR 1; Babubhai v. State of Gujarat (2010) 12 SCC 254 : [2010] 10 SCR 651; Rafiq Ahmad v. State of U.P (2011) 8 SCC 300 : [2011] 11 SCR 907; Willie (William) Staney v. The State of Madhya Pradesh [1955] SCR 1140; Sunil Kumar Banerjee v. State of West Bengal (1980) 3 SCC 304 : [1980] 3 SCR 179; S. Jeevantham v. State (2004) 5 SCC 230 : [2004] 1 Suppl. SCR 607; Vinod Kumar v. State of Punjab (2015) 3 SCC 220 : [2015] 1 SCR 504; Surender v. State of Haryana (2016) 4 SCC 617 : [2016] 1 SCR 174;

Jamuna Chaudhary v. State of Bihar (1974) 3 SCC 774 : [1974] 2 SCR 609; Kashmeri Devi v. Delhi Admn., (1988) Suppl. SCC 482 : [1988] SCR 700; Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 : [2012] 13 SCR 1005; Niranjan Singh v. State of U.P. [1956] SCR 734; Paramjit Singh v. State of Punjab (2007) 13 SCC 530 : [2007] 11 SCR 776; Rekha v. State of Maharashtra (2010) 15 SCC 725; Union of India v. T. Nathamuni (2014) 16 SCC 285 : [2014] 12 SCR 297; Hardip Singh v. State of Punjab (2008) 8 SCC 557 : [2008] 12 SCR 311; State of Punjab v. Noor Aga (2008) 16 SCC 417 : [2008] 10 SCR 379; State of Punjab v. Baldev Singh (1999) 6 SCC 172 : [1999] 3 SCR 977; State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221 : [1964] 3 SCR 71 – referred to.

Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 – referred to.