Holding

A fair investigation under the NDPS Act requires that the informant and the investigating officer be different persons; otherwise the investigation is presumed biased and the prosecution is vitiated.

Summary

The appellant was convicted under Section 18 of the NDPS Act for possession of 4 kg of opium seized by a police Sub‑Inspector (PW‑1) who also acted as the informant. The investigation was riddled with irregularities: the informant‑officer retained the seized narcotics in private custody, failed to deposit them in the police malkhana, did not make a roznamcha entry, and delayed sending the sample for chemical analysis for nine days. The Court examined whether an informant who is also the investigating officer can satisfy the requirement of a fair and impartial investigation, especially in statutes that impose a reverse burden of proof. It held that the combination of informant and investigator creates a presumption of bias, violating the constitutional guarantee of a fair trial under Article 21, and that the prosecution must prove the fairness of the investigation on its face. Consequently, the conviction was set aside and the appellant was ordered to be released.

Issues considered

The propriety of an informant police officer also acting as the investigating officer in NDPS prosecutions carrying a reverse burden of proof.
Whether the prosecution bears the onus to demonstrate a fair and impartial investigation in such cases.
Whether violations of procedural requirements (non‑deposit of seized material, delay in sample analysis, lack of witness examination) vitiate the prosecution.
Interpretation of Sections 35, 54, 55 of the NDPS Act concerning the burden of proof and duty to deposit seized articles.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 155, s. 161, s. 162, s. 313
Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 35, s. 37, s. 54, s. 55

Subjects

NDPS Actfair investigationreverse burden of proofinformant‑investigator conflictArticle 21biasmalkhanasample analysis delay

Judgment

1006 [2018]REPORTS
SUPREME COURT 9 S.C.R. 1006 [2018] 9 S.C.R.

A MOHAN LAL
v.
THE STATE OF PUNJAB
(Criminal Appeal No. 1880 of 2011)
B AUGUST 16, 2018
[RANJAN GOGOI, R. BANUMATHI AND
NAVIN SINHA, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985:
Fairness and impartiality in investigation – Informant and
C
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,
D 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
E
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
F 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.
G
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
H
1006
MOHAN LAL v. THE STATE OF PUNJAB 1007

deposit the narcotics in the malkhana – Conviction by courts below – A
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
B
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 C
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
D
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 – E
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 F
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 G
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 H
1008 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 –
B
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
C 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
D 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,
E 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.
F 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
G 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,
H without the prosecution having to establish or prove anything
MOHAN LAL v. THE STATE OF PUNJAB 1009

more. The presumption is rebuttable. Section 35(2) provides A
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
B
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 C
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 D
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 E
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 F
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 G
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 H
1010 SUPREME COURT REPORTS [2018] 9 S.C.R.

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; 1023-
B-D]
B
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
C 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
D 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
E 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
F 26.05.2017) – referred to
Case Law Reference
(1976) 1 SCC 15 referred to Para 3
(1996) 11 SCC 709 referred to Para 3
(2010) 15 SCC 369 referred to Para 3
G
[1999] 3 SCR 977 referred to Para 4
[2009] 5 SCR 256 referred to Para 4
[2016] 1 SCR 174 referred to Para 4
[2008] 10 SCR 379 relied on Para 9
H [2010] 10 SCR 651 relied on Para 12
MOHAN LAL v. THE STATE OF PUNJAB 1011

[2011] 2 SCR 642 relied on Para 13 A
1999 (113) ELT 785 (Mad.) referred to Para 15
(2004) 5 SCC 223 referred to Para 17
2000 (1) KLT 785 approved Para 23
2001 CriLJ 4044 overruled Para 23
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1880 of 2011.
From the Judgment and Order dated 19.09.2008 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Appeal No. 486-SB
of 1998.
C
Chanchal Kumar Ganguli, Sanjoy Mondal, Karunesh K. Shukla,
Ms. Narmada Singh, Advs. for the appellant.
Ms. Jaspreet Gogia, Ms. Mandakini Singh, Advs. for the
respondent.
The Judgment of the Court was delivered by D

NAVIN SINHA, J. 1. 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. E

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 F
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, G
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.
H
1012 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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
C 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.
D
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
E 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
F 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.
G 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.
H
MOHAN LAL v. THE STATE OF PUNJAB [NAVIN SINHA, J.] 1013

6. Darshan Singh was an illiterate person. He is stated to have A
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 the
normal course of events. The consent memo Exhibit-PB was stated to
have been signed by Darshan Singh, despite his being an illiterate, along
with PW-1. The seal sample was prepared by PW-1, and signed by
B
Darshan Singh and ASI Balwinder Singh. The seal was then handed
over to ASI Balwinder Singh. The case property was retained by PW-
1 in his possession and was not deposited in the malkhana nor entered in
the roznamcha. There is no explanation for the same. The sample was
retained by PW-1 in his private custody in a rented accommodation. No
explanation is forthcoming from the prosecution why Darshan Singh, C
and ASI Balwinder Singh 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 have been proved. There was nine days’ delay in sending
the sample for chemical analysis. No explanation has been furnished in
D
respect of the same. PW-4 acknowledged that the recovery memo,
Exhibit-PC was not signed by the accused and that copies of documents
were not supplied to the accused nor any memo in this regard prepared
in his presence. Exhibit-PB, the consent memo only mentioned that he
was the ASP, Phul.
7. The presence of a private person in a police vehicle while on E
patrol duty, the individual being an illiterate, but having signed the consent
memo were surely matters for investigation. Similarly, why the signature
of ASI Balwinder Singh 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 Balwinder Singh was likewise a matter for F
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 Balwinder
Singh. 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 G
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 H
1014 SUPREME COURT REPORTS [2018] 9 S.C.R.

A been entirely different. The appellant in his defence under Section 313
Cr.P.C. had specifically taken a plea of false implication by PW-1 on
account of a dispute with regard to purchase of a tractor.
8. The view taken by the High Court that under Section 55 of
the NDPS Act, that PW-1 was empowered to keep the case property
B and sample in his individual safe custody is completely erroneous on the
face of it. The provision reads as follows:
“55. Police to take charge of articles seized and delivered-
An officer-in-charge of a police station shall take charge of
and keep in safe custody, pending the orders of the
C Magistrate, all articles seized under this Act within the local
area of that police station and which may be delivered to
him, and shall allow any officer who may accompany such
articles to the police station or who may be deputed for the
purpose, to affix his seal to such articles or to take samples
D of and from them and all samples so taken shall also be
sealed with a seal of the officer-in-charge of the police
station.”(emphasis added)
A plain reading of the provision makes it manifest that it is the
duty of the police officer to deposit the seized material in the police
E station malkhana.
9. Standing Order No. 1 of 88 issued by the Narcotics Control
Bureau in clause 1.13 reads as follows:
“Mode and time limit for dispatch of sample to Laboratory.
The samples should be sent either by insured post or through
F
special messenger duly authorised for the purpose. Dispatch of
samples by registered post or ordinary mail should not be resorted
to. Samples must be dispatched to the Laboratory within 72 hours
of seizure to avoid any legal objection.”(emphasis added)
The Drug Law Enforcement-Field Officer’s Hand Book issued
G by the Narcotics Control Bureau also provides that:
“28. Were the seized goods and samples deposited in the
Malkhana at the earliest opportunity after seizure, an
acknowledgement receipt obtained from the Malkhana-in-
Charge? (emphasis added)
H
MOHAN LAL v. THE STATE OF PUNJAB [NAVIN SINHA, J.] 1015

29. Were the samples sent to the designated laboratory for A
analysis and report within 72 hours of seizure?”
In Noor Aga vs. State of Punjab, (2008) 16 SCC 417, under the
NDPS Act, it was held :
“91. The logical corollary of these discussions is that the guidelines
such as those present in the Standing Order cannot be blatantly B
flouted and substantial compliance therewith must be insisted
upon for so that sanctity of physical evidence in such cases
remains intact. Clearly, there has been no substantial compliance
with these guidelines by the investigating authority which leads
to drawing of an adverse inference against them to the effect C
that had such evidence been produced, the same would have
gone against the prosecution.”
10. 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 D
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 E
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 F
shall shift to the accused. The case of the prosecution cannot be allowed
to rest on a preponderance of probabilities.
11. 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 G
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. The
obligation of proof beyond reasonable doubt will take within its ambit a
fair investigation, in absence of which there can be no fair trial. If the H
1016 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.
B 12. That investigation in a criminal offence must be free from
objectionable features or infirmities which may legitimately lead to a
grievance on part of the accused was noticed in Babubhai vs. State of
Gujarat, (2010) 12 SCC 254 as follows:
“32. The investigation into a criminal offence must be free from
C objectionable features or infirmities which may legitimately lead
to a grievance on the part of the accused that investigation was
unfair and carried out with an ulterior motive. It is also the duty
of the investigating officer to conduct the investigation avoiding
any kind of mischief and harassment to any of the accused. The
investigating officer should be fair and conscious so as to rule
D out any possibility of fabrication of evidence and his impartial
conduct must dispel any suspicion as to its genuineness. The
investigating officer “is not merely to bolster up a prosecution
case with such evidence as may enable the court to record a
conviction but to bring out the real unvarnished truth”.
E 33. In State of Bihar v. P.P. Sharma this Court has held as
under:
“57. … Investigation is a delicate painstaking and dextrous
process. Ethical conduct is absolutely essential for investigative
professionalism. … Therefore, before countenancing such
F allegations of mala fides or bias it is salutary and an onerous
duty and responsibility of the court, not only to insist upon making
specific and definite allegations of personal animosity against
the investigating officer at the start of the investigation but
also must insist to establish and prove them from the facts and
G circumstances to the satisfaction of the court.
* * *
59. Malice in law could be inferred from doing of wrongful act
intentionally without any just cause or excuse or without there
being reasonable relation to the purpose of the exercise of
H statutory power. …
MOHAN LAL v. THE STATE OF PUNJAB [NAVIN SINHA, J.] 1017

61. An investigating officer who is not sensitive to the A
constitutional mandates, may be prone to trample upon the
personal liberty of a person when he is actuated by mala fides.”
13. The duty of the prosecution under the NDPS Act, considering
the reverse burden of proof, was noticed in Noor Aga (supra) observing:-
“58……An initial burden exists upon the prosecution and only B
when it stands satisfied, would the legal burden shift. Even then,
the standard of proof required for the accused to prove his
innocence is not as high as that of the prosecution. Whereas the
standard of proof required to prove the guilt of the accused on
the prosecution is “beyond all reasonable doubt” but it is C
“preponderance of probability” on the accused. If the prosecution
fails to prove the foundational facts so as to attract the rigours of
Section 35 of the Act, the actus reus which is possession of
contraband by the accused cannot be said to have been
established.
D
59. With a view to bring within its purview the requirements of
Section 54 of the Act, element of possession of the contraband
was essential so as to shift the burden on the accused. The
provisions being exceptions to the general rule, the generality
thereof would continue to be operative, namely, the element of
possession will have to be proved beyond reasonable doubt.” E

Furthermore, the sample not having been deposited in the
malkhana, coupled with non-examination of the private witnesses, an
adverse inference was drawn therein against the prosecution. This
principle has been reiterated in Bhola Singh vs. State of Punjab, 2011(11)
SCC 653. F
14. In a criminal prosecution, there is an obligation cast on the
investigator not only to be fair, judicious and just during investigation, but
also that the investigation on the very face of it must appear to be so,
eschewing any conduct or impression which may give rise to a real and
genuine apprehension in the mind of an accused and not mere fanciful, G
that the investigation was not fair. In the circumstances, 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
H
1018 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.
B 15. The discussion in the present case may not be understood as
confined to the requirements of a fair investigation under the NDPS Act
only carrying a reverse burden of proof. Baldev Singh (supra) related
to a prosecution under Section 165A of the IPC. Nonetheless, it observed
that if the informant were to be made the investigating officer, it was
bound to reflect on the credibility of the prosecution case. Megha Singh
C (supra) concerned a prosecution under the Terrorist and Disruptive
Activities (Prevention) Act, 1985. It was held that the Head Constable
being the complainant himself could not have proceeded with the
investigation and it was a practice, to say the least, which should not be
resorted to so that there may not be any occasion to suspect fair and
D impartial investigation.Rajangam (supra) was a prosecution under the
NDPS Act, an objection was taken that PW-6 who apprehended the
accused could not have investigated the case. Upholding the objection,
relying on Megha Singh (supra) the accused was acquitted. The view
taken by the Madras High Court in Balasundaran vs. State, 1999 (113)
ELT 785 (Mad.), was also noticed as follows :
E
“16. Learned Counsel for the appellants also stated that P.W. 5
being the Inspector of Police who was present at the time of
search and he was the investigating officer and as such it is fatal
to the case of the prosecution. P.W. 5, according to the
prosecution, was present with PWs 3 and 4 at the time of search.
F In fact, P.W. 5 alone took up investigation in the case and he had
examined the witnesses. No doubt the successor to P.W. 5 alone
had filed the charge sheet. But there is no material to show that
he had examined any other witness. It therefore follows that
P.W. 5 was the person who really investigated the case. P.W. 5
G was the person who had searched the appellants in question and
he being the investigation officer, certainly it is not proper and
correct. The investigation ought to have been done by any other
investigating agency. On this score also, the investigation is bound
to suffer and as such the entire proceedings will be vitiated.”

H
MOHAN LAL v. THE STATE OF PUNJAB [NAVIN SINHA, J.] 1019

16. Bhaskar Ramappa Madar (supra) concerned a prosecution A
under Section 304B, I.P.C. which also carries a reverse burden of proof.
The Trial Court held that the investigating officer who was also the
complainant could not have investigated, and on that ground, held the
prosecution to be tainted. The acquittal was reversed by the High Court.
In appeal, this Court declined to interfere with the conviction. After
B
referring to Bhagwan Singh (supra) and Megha Singh (supra), it was
observed that the principles laid down therein had to be confined to the
facts of the said cases and that the matter would have to be decided on
the facts of each case without any universal generalisation.
17. Hardip Singh vs. State of Punjab, 2008 (8) SCC 557
concerned a prosecution under the NDPS Act. The contention was that C
the Inspector, PW-5 being the complainant himself would be an interested
person and should not have been made the investigating officer. The
argument was repelled relying on State rep. by Inspector of Police,
Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu vs. V.
Jayapaul, 2004 (5) SCC 223 observing as follows: D
“6…. We find no principle or binding authority to hold that the
moment the competent police officer, on the basis of information
received, makes out an FIR incorporating his name as the
informant, he forfeits his right to investigate. If at all, such
investigation could only be assailed on the ground of bias or real E
likelihood of bias on the part of the investigating officer. The
question of bias would depend on the facts and circumstances
of each case and it is not proper to lay down a broad and
unqualified proposition, in the manner in which it has been done
by the High Court, that whenever a police officer proceeds to
investigate after registering the FIR on his own, the investigation F
would necessarily be unfair or biased.”
Significantly, V. Jayapaul, (supra) related to a prosecution under
the Prevention of Corruption Act which sought to distinguish Megha
Singh, (supra) on its facts.
G
18. Baldev Singh, (supra) relied upon by the State is
distinguishable on its own facts concerning an irregularity in an
investigation by an officer not especially empowered under the NDPS
Act to do so.

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1020 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 19. In Surender (supra),theprosecution was under the NDPS
Act. There was no independent witness. The objection that PW-6, Sub-
inspector Satbir Singh being the complainant could not have investigated
relying on Rajangam, (supra) and Megha Singh, (supra) was rejected
on the ground that he was not the sole person investigating the case, and
that the ground had not been raised before the High Court in appeal.
B
20. In the nature of the controversy, it would be useful to also
notice the view taken by different High Courts on the issue. In State of
Himachal Pradesh vs. Atul Sharma 2015 (2) shimLC 693 (Crl. Appeal
No. 246 of 2008, decided on 28.02.2015), under the NDPS Act, it was
observed as follows:
C
“10.8 In present case it is proved on record that complainant is
SI Bahadur Singh as per FIR Ext.PW12/A and it is proved on
record that entire investigation has been conducted by
complainant himself and there is no evidence on record in order
to prove that investigation was handed over to some other
D independent Investigating Officer. It is not the case of prosecution
that no other independent Investigating Officer was available to
conduct impartial investigation. We are of the opinion that
conducting entire investigation i.e. preparation of seizure memo,
site plan, recording statements of witnesses by complainant
E himself has caused miscarriage of justice to accused qua fair
investigation.”
21. A similar view has been taken in Shri Fayas Ali vs. State of
Mizoram Crl. Appeal No. 26 of 2013 (J) dated 19.09.2013, relating to
prosecution under the NDPS Act, by the Gauhati High Court as follows:
F “From the evidence of PWs 1 and 4, it is clearly found that the
major part of the investigation including the arrest of the accused,
preparation of seizure, taking of sample, examination of the seizure
witnesses and examination of the accused person, was completed
by the PW1, who was the informant/complainant in the present
G case. Therefore, it is clearly found that the investigation, in its
true sense, was done by the complainant himself. In the case of
State by Inspector of Police, Narcotic Intelligence Bureau,
Madurai(supra), the Supreme Court, relying on the decision held
in the case of Megha Singh (supra), observed that the investigation
is to be done by a person other than the complainant and that the
H
MOHAN LAL v. THE STATE OF PUNJAB [NAVIN SINHA, J.] 1021

investigation done by the complainant is bound to suffer and vitiate A
the entire proceeding.”
22. The Punjab & Haryana High Court in Gannu and Ors. vs.
State of Punjab, 2017 (3) RCR (criminal)566 (Crl. Appeal No. 1688-
SB of 2004 dated 26.05.2017) relating to the NDPS Act, after referring
to Noor Aga, (supra)and the views of the Calcutta High Court also B
apart from Atul Sharma (supra), concluded as follows:
“14. Another aspect of the matter is that in sheer violation of the
principles of fair and impartial investigation, the complainant and
the investigating officer is the same person, which makes the
prosecution case doubtful. In Laltu Prasad v. State of West C
Bengal, 2017(2) R.C.R. (Criminal) 237 (Calcutta) (DB), it was
held that the complainant himself acting as the investigating officer
violating the principles of fair and impartial investigation is a
practice, to say the least, should not be resorted to and it is a
disturbing feature. To the same effect, is a Division Bench
judgment of Hon’ble Himachal Pradesh High Court reported as D
State of Himachal Pradesh v. Atul Sharma and others, 2015 (6)
R.C.R. (Criminal) 949, wherein, it has been held that where the
complainant himself conducts investigation, it causes miscarriage
of justice to accused qua fair investigation.”
23. A Single Judge of the Kerala High Court in Naushad vs. E
State of Kerala, 2000 (1) KLT 785, relating to the NDPS Act held as
follows:
“…In a case of this nature, when the complainants himself is a
Police Official, the investigation should have been conducted by
his top ranking officer and the final report also ought to have F
been filed by the higher official. A complainant being a police
officer cannot be an Investigating Officer. For, in such case, the
accused and the prosecution will be deprived of their valuable
rights of contradicting and corroborating, the previous information
recorded under Ss. 154 or 155 Cr.P.C. and previous statement G
of the witness, being a police officer, complaint recorded, under
S. 161 Cr.P.C. enjoined in S. 145 and 157 of the Indian Evidence
Act and proviso of S. 162 Cr.P.C. In the instant case, before me,
PW1 is an Assistant Sub Inspector of Police, and I understand
from the Public Prosecutor as well as from the Counsel for the
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1022 SUPREME COURT REPORTS [2018] 9 S.C.R.

A petitioner that the particular Police Station has got a Sub Inspector
of Police. Therefore, in this case, the investigation ought to have
been conducted by the Sub Inspector of Police or any other
Police Officer above the rank of PW1. In the instant case, thus
an incurable infirmity and flaw have been committed by the
prosecution, quite against the proposition of law. Therefore, on
B
that score itself, the petitioner is entitled to get an order of acquittal.
In view of my above conclusion on the footing of position of law,
this is a fit case, which has to be allowed by acquitting the
petitioner.”
Disapproving of the same, a Division Bench in Kader vs. State of
C Kerala, 2001 CriLJ 4044,held:
“6. Unlike usual cases under the Criminal Procedure Code, in
cases under the NDPS Act, by the time of arrest, main part of
investigation will be completed and duty of the investigating officer
is mainly in sending the samples for chemical analysis and other
D routine work and there is no likelihood of any prejudice in usual
circumstances. Therefore, we are of the opinion that merely
because a detecting officer himself is investigating officer or the
officer of the same ranks as that of the detecting officer is
investigating the case and files report before the Court will not
E vitiate the proceedings under N.D.P.S. act in the absence of
proof of specific prejudice to the accused. Therefore, legal
position stated in Naushad v. State of Kerala 2000 (1) KLT 785
to the contrary is overruled.”
24. The view taken by the Kerala High Court in Kader (supra)
F does to meet our approval. It tantamounts to holding that the F.I.R. was
a gospel truth, making investigation an empty formality if not a farce.
The right of the accused to a fair investigation and fair trial guaranteed
under Article 21 of the Constitution will stand negated in that event, with
arbitrary and uncanalised powers vested? with the police in matters
relating to the NDPS Act and similar laws carrying a reverse burden of
G proof. An investigation is a systemic collection of facts for the purpose
of describing what occurred and explaining why it occurred. The word
systemic suggests that it is more than a whimsical process. An investigator
will collect the facts relating to the incident under investigation. The fact
is a mere information and is not synonymous with the truth. Kader (supra)
H is, therefore, overruled. We approve the view taken in Naushad (supra).
MOHAN LAL v. THE STATE OF PUNJAB [NAVIN SINHA, J.] 1023

25. In view of the conflicting opinions expressed by different two A
Judge Benches of this Court, the importance of a 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
B
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 uncertainty
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 investigator must not be the same
person. Justice must not only be done, but must appear to be done also. C
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 the infraction of the D
constitutional guarantee of a fair investigation. The appellant is directed
to be set at liberty forthwith unless wanted in any other case.
Devika Gujral Appeal allowed.

E

F

G

H