Supreme Court of India
MUKESH SINGHversusSTATE (NARCOTIC BRANCH OF DELHI)
- Citation
- 2020 INSC 524
- Decided
- 31 August 2020
- Disposal
- Reference answered
- Bench
- ARUN MISHRA
Holding
An informant who is also the investigating officer does not per se vitiate the trial; each case must be assessed on its facts, and the Mohan Lal rule is overruled.
Summary
Mukesh Singh challenged his conviction under the NDPS Act on the ground that the police officer who lodged the FIR was also the investigating officer, alleging that this dual role vitiated the trial. The Supreme Court examined the statutory scheme of the CrPC (ss.154, 156, 157) and the NDPS Act (ss.41‑44, 50‑53, 58, 35, 54) to determine whether a police informant may lawfully investigate the offence. It held that the CrPC expressly permits an officer in charge of a police station to record information and subsequently investigate, and the NDPS Act does not bar the informant from acting as investigator. The Court overruled the earlier decision in Mohan Lal, stating that no general rule exists that such investigations are per se unfair; bias must be proved on the facts of each case. Consequently, the trial is not automatically vitiated merely because the informant is the investigator. The reference was answered, directing that the pending petitions be dealt with by the appropriate courts on their merits.
Issues considered
- Whether the police officer who is the informant/complainant can also act as the investigating officer under the NDPS Act and CrPC.
- Whether such dual role automatically vitiates the trial and entitles the accused to acquittal.
- Whether the decision in Mohan Lal v. State of Punjab laying down a general prohibition is good law.
Legislation cited
- Code of Criminal Procedure, 1973s. 100, s. 114, s. 154, s. 156, s. 157, s. 173, s. 2(o), s. 465
- Constitution of Indias. Article 21
- Indian Evidence Act, 1872s. 114
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 35, s. 41, s. 42, s. 43, s. 44, s. 49, s. 50, s. 51, s. 52, s. 53, s. 54, s. 55, s. 57, s. 57A, s. 58, s. 67, s. 68
Subjects
NDPS Actinformant investigatorbiasfair trialreverse burden of proofCrPC sections 154 156 157Article 21investigationprejudice
Judgment
[2020] 9 S.C.R. 245 245
MUKESH SINGH A
v.
STATE (NARCOTIC BRANCH OF DELHI)
(Special Leave Petition (Criminal) Diary No. 39528 of 2018)
AUGUST 31, 2020 B
[ARUN MISHRA, INDIRA BANERJEE,VINEET SARAN,
M. R. SHAH AND S. RAVINDRA BHAT, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
Informant-police officer who is the complainant himself conducts
C
investigation – Trial, if vitiated; and the accused if entitled to
acquittal – Conflicting opinions – Matter initially referred to three
Judge Bench – Further referred to five Judge Bench – Held: Under
the scheme of CrPC, there is no bar to a police officer receiving
information for commission of a cognizable offence, recording the
same and then investigating it – On the contrary, ss.154, 156 and D
157, CrPC permits the officer in charge of a police station to reduce
such information in writing and thereafter to investigate the same –
As per s.51, NDPS Act, the provisions of CrPC shall apply, insofar
as they are not inconsistent with its provisions, to all warrants issued
and arrests, searches and seizures made under the Act – NDPS Act
E
being a special Act with special procedure to be followed under
Chapter V, does not specifically bar the informant/complainant to
be an investigator and officer in charge of a police station for
investigation of offences under the NDPS Act – On the contrary, it
permits – In view of the safeguard provided under the Act itself in
s.58, there cannot be any general proposition of law that in every F
case where the informant is the investigator, the trial is vitiated and
the accused is entitled to acquittal – Further, whether the
investigation by the concerned informant was fair or not is always
to be decided at the time of trial – Merely because the informant is
the investigator, by that itself the investigation would not suffer the
G
vice of unfairness/bias – Matter has to be decided on a case to
case basis – Contrary decision in Mohan Lal v. State of Punjab
(2018) 17 SCC 627 and any other decision taking a contrary view
are not good law and are overruled – Code of Criminal
Procedure,1973 – ss.2(o), 100, 154, 156, 157, 173, 465 –
H
245
246 SUPREME COURT REPORTS [2020] 9 S.C.R.
A Constitution of India – Art.21– Evidence Act,1872 – Illustration(e)
to s.114.
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
B 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
C 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
D 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
E 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.
F 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
G
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.
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 247
Answering the reference, the Court A
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, B
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 C
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 D
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 E
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 F
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 G
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]
H
248 SUPREME COURT REPORTS [2020] 9 S.C.R.
A 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
B
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
C 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
D
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
E 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
F
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
G 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
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 249
a telephonic message, may be from a hospital, and there is no A
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
B
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 C
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
D
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 E
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
F
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] G
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
H
250 SUPREME COURT REPORTS [2020] 9 S.C.R.
A 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
B
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
C 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……Sub-
section 2 of Section 41 authorises any such officer of gazetted
rank of the Departments of Central Excise…… as is empowered
D
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
E 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
F
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
G 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,
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 251
break open any door and remove any obstacle to such entry; A
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
B
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, C
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 9.3.1-
9.3.4][295-E-H; 296-A-G]
1.4 There are inbuilt safeguards provided under the NDPS D
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 E
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 F
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, G
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 H
252 SUPREME COURT REPORTS [2020] 9 S.C.R.
A 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
B
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
C 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
D
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-A-
G]
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
E 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,
F 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
G 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
H without warrant or authorisation to any such officer as mentioned
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 253
in Section 42 including any such officer of the revenue, drugs A
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
B
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 C
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
D
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] E
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 F
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 G
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 H
254 SUPREME COURT REPORTS [2020] 9 S.C.R.
A 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
B
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
C 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
D
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
E 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.
F
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
G 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
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 255
SCC 291 : [2003] 3 SCR 25; Devender Pal Singh v. A
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 B
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 C
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 D
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 E
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 F
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-cum-
investigator, meaning thereby prosecution does not rely upon
other witnesses, more particularly the independent witnesses,
in that case, where the complainant himself had conducted the G
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
H
256 SUPREME COURT REPORTS [2020] 9 S.C.R.
A : [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.
B 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
C 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
D 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
E 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
F 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]
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
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 257
15; Megha Singh v. State of Haryana (1996) 11 SCC A
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
B
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 C
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.
D
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 E
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
F
(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 G
SCR 71 – referred to.
Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 –
referred to.
H
258 SUPREME COURT REPORTS [2020] 9 S.C.R.
A Case Law Reference
[2018] 9 SCR 1006 overruled Para 1
[2019] 2 SCR 707 referred to Para 2
(1976) 1 SCC 15 referred to Para 3.1
B (1996) 11 SCC 709 referred to Para 3.1
(2010) 15 SCC 369 referred to Para 3.1
[1978] 2 SCR 621 referred to Para 3.3
[1955] 1 SCR 1150 referred to Para 3.7
C
[2010] 4 SCR 103 referred to Para 3.7
[2018] 11 SCR 951 referred to Para 3.12
[2013] 3 SCR 1 referred to Para 3.12
[2010] 10 SCR 651 referred to Para 3.12
D
[2011] 11 SCR 907 referred to Para 3.16
[1955] SCR 1140 referred to Para 3.17
[1980] 3 SCR 179 referred to Para 5.9
[2004] SCR 330 relied on Para 5.9
E
[2004] 1 Suppl. SCR 607 referred to Para 5.9
[2009] 5 SCR 256 relied on Para 5.9
[2015] 1 SCR 504 referred to Para 5.9
F [2016] 1 SCR 174 referred to Para 5.9
[1974] 2 SCR 609 referred to Para 5.10
[1988] SCR 700 referred to Para 5.10
[2012] 13 SCR 1005 referred to Para 5.10
G [1956] SCR 734 referred to Para 5.10.2
[2007] 11 SCR 776 referred to Para 5.10.2
(2010) 15 SCC 725 referred to Para 5.10.2
[2014] 12 SCR 297 referred to Para 5.10.2
H [2008] 12 SCR 311 referred to Para 6.6.2
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 259
[2005] 3 SCR 496 relied on Para 6.6.3 A
(2005) 9 SCC 579 relied on Para 6.6.3
[2008] 10 SCR 379 referred to Para 6.7
[1999] 3 SCR 977 referred to Para 8.1.4
[1964] 3 SCR 71 referred to Para 8.2.1 B
[2013] 14 SCR 713 relied on Para 9.2
[2003] 3 SCR 25 relied on Para 10
[2002] 2 SCR 767 relied on Para 10
CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Criminal) Diary No. 39528 of 2018. C
From the Judgment and Order dated 08.04.2016 of the High Court
of Delhi at New Delhi in Criminal Appeal No. 1598 of 2013.
With
Special Leave Petition (Criminal) Nos. 5648, 5894 and 8499 of D
2019.
Tushar Mehta, S.G., Aman Lekhi, ASG, A.K. Srivastava, Sr. Adv.,
Kanu Agrawal, A.K. Shrivastav, Ms. Shradha Deshmukh, Shivani Misra,
Ritwiz Rishabh, Shantanu Sharma, Manan Popli, Saurabh Mishra, Rajat
Nair, B.V. Balram Das, Udit Atul Kumar, Ujjwal Sinha, Mehak Huria,
E
Adnan Siddiqui, Ms. Lakshika Sachdeva, B.Krishna Prasad, Puneet Jain,
Ms. Christi Jain, Harsh Jain, Harshit Khanduja, Abhinav Deshwal,
Ms. Sugam Gupta, Pankaj Sharma (for Ms. Pratibha Jain) Ajay Garg,
Manish Shankar, Ashwani K Sood, Ms. Vanika Bajaj, Ms. Tirpti Gola,
Syed Imtiyaz Ali, Rajiv Shankar Dvivedi, Advs. for the appearing parties.
The Judgment of the Court was delivered by F
M. R. SHAH, J.
1. Having doubted the correctness of the decision of this Court in
the case of Mohan Lal v. State of Punjab reported in (2018) 17 SCC
627 taking the view that in case the investigation is conducted by the
G
police officer who himself is the complainant, the trial is vitiated and the
accused is entitled to acquittal, initially by order dated 17.01.2019 the
matter was referred to a larger Bench consisting of three Judges.A
three Judge Bench vide order dated 12.09.2019 has referred to a larger
Bench of five Judges to consider the matter. That is why, the present
matter is placed before the Bench consisting of five Judges. H
260 SUPREME COURT REPORTS [2020] 9 S.C.R.
A 2. At the outset, it is required to be noted that the decision of this
Court in the case of Mohan Lal (supra) taking the view that in case the
investigation is conducted by the police officer who himself is the
complainant, the trial is vitiated and the accused is entitled to acquittal,
came up for consideration subsequently before this Court in the case of
Varinder Kumar v. State of Himachal Pradesh 2019 (3) SCALE 50
B
= (2020) 3 SCC 321 and a three Judge Bench of this Court [out of
which two Hon’ble Judges were also in the Bench in the case of Mohan
Lal (supra)] held that the decision of this Court in the case of Mohan
Lal (supra) shall be applicable prospectively, meaning thereby, all pending
criminal prosecutions, trials and appeals prior to the law laid down in
C Mohan Lal (supra) shall continue to be governed by individual facts of
the case. The relevant observations in the case of Varinder Kumar
(supra)to be referred and considered hereinbelow.
3. Shri Sushil Kumar Jain, learned Senior Advocate appearing on
behalf of the accused – Devendra Singh has made the following
D submissions in support of his submission that as rightly held by this Court
in the case of Mohan Lal (supra) in a given case where the complainant
himself has conducted the investigation the entire trial would be vitiated
and the accused would be entitled to acquittal:
3.1 The decision in Mohan Lal (supra) rests and is based upon
E substantive constitutional foundation and principles of criminal
jurisprudence. In the said decision in para 5, this Court specifically dealt
with and considered the question 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 and in such a case, is it necessary for the accused to
F demonstrate prejudice, especially under laws such as the NDPS Act,
carrying a reverse burden of proof. In the said decision, this Court
considered in detail the reverse burden of proof under Sections 35 and
54 of the NDPS Act. That thereafter, this Court had considered in detail
the constitutional guarantee of fair trial to an accused under Article 21
G which takes within its fold “Fair Investigation”. Thereafter it is observed
by this Court that 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. It is further observed that if the investigation
itself is unfair, to require the accused to demonstrate prejudice will be
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 261
[M. R. SHAH, J.]
fraught with danger vesting arbitrary powers in the police which may A
well lead to false implication also.Thereafter this Court considered in
paragraphs 17 and 29 the role and obligations of the investigator and the
investigation itself. Thereafter after having placed reliance on the decisions
of this Court in the cases of Bhagwan Singh v. State of Rajasthan
(1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC
B
709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam
(2010) 15 SCC 369, this Court specifically observed and held that in
case the investigation is conducted by the police officer who himself is
the complainant, the trial is vitiated and the accused is entitled to acquittal.
In the said decision, it is specifically observed that to leave the matter
for being determined on the individual facts of a case, may not only lead C
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. Thereafter it is held that a fair
investigation which is but the very foundation of a fair trial, necessarily
postulates that the informant and the investigator must not be the same
D
person. Justice must not only be done, but must appear to be done also.
Any possibility of bias or a pre-determined conclusion has to be excluded.
This requirement is all the more imperative in laws carrying a reverse
burden of proof;
3.2 The reasons which found favour in Mohan Lal (supra) are
inherent and inbuilt by the legislature in Chapter V – “Procedure”, which E
would be the “…procedure established by law” for the purpose of Article
21;
3.3 As is now settled after the decision in the case of Menaka
Gandhi v. Union of India (1978) 1 SCC 248 that the procedure
established by law under Article 21 cannot be “any procedure” but has F
to be a just and a reasonable procedure and hence right of the accused
to have a fair and independent investigation and trial, being inherent has
been “read into” into the statutes not confirming to fair procedure to
make them constitutionally compatible;
3.4 Learned Senior Advocate appearing on behalf of the accused G
has thereafter taken us to the “Scheme” of the NDPS Act, more
particularly Section 8(c) and Sections 15 to 22. He submitted that Section
54 gives rise to a presumption that the accused has committed an offence
under the Act and places a reverse burden of proof upon an accused
“found” to be in possession and which he fails to account for satisfactorily.
H
262 SUPREME COURT REPORTS [2020] 9 S.C.R.
A Section 35 mandates the Court to culpable mental state unless contrary
is proved. It is submitted that thus “recovery” and “possession” becomes
an important and vital aspect of investigation under the NDPS Act. If
the accused is “found” to be in possession of the prohibited substance,
Section 54 gives rise to a presumption of commission of offence and
Section 35 gives rise to a presumption of culpable mental state. The
B
officer or the raiding party which effects recovery are witnesses to the
said fact which would constitute an offence and therefore investigation
of the said aspect has to be carried out by an independent agency.
Investigation being a systemic process and not a forgone conclusion
making the FIR itself lodged by the informant who himself effects
C recoveries to be treated as a gospel truth;
3.5 In order to safeguard the interest of the accused, the legislation
has provided inbuilt safeguards under the NDPS Act. That the Act
requires recovery and investigation to be made by different officers, i.e.,
by officers empowered under Section 42 and 53. The role of an officer
D under Section 42 being limited to effect “entry”, “search”, “seizure” and
“arrest”. It is submitted that an officer under Section 42 has no power of
investigation;
3.6 That Section 52(3) requires an officer under Section 42 to
handover every person arrested or article seized to an officer empowered
under Section 53 (who has been conferred with power of investigation
E
under the Act) or an officer in charge of a police station who has power
of investigation under the Cr.P.C. At the stage when the officer under
Section 42 is required to handover the person arrested or the articles
seized by him to the officer in charge of a police station or the officer
under Section 53 of the NDPS Act, the information given by him to such
F officers would then be categorised as the first information report. As the
investigation starts on information relating to commission of an offence
given to an officer in charge of a police station and recorded under
Section 154 Cr.P.C.
3.7. A cryptic message on telephone etc. which under the NDPS
G Act is similar to the information provided by a secret informer etc. cannot
therefore constitutean FIR. It is only after recoveries are effected and/
or arrests made, information regarding commission of a cognizable
offence crystallises. After such handing over, the Role of a Section 42
officer comes to an end, except he has to make a report of his action to
his superior officer within 48 hours under Section 57 of the NDPS Act.
H For all practical purposes, the time when Section 42 officer hands over
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 263
[M. R. SHAH, J.]
the person arrested or the goods seized, is the first-time information is A
received by the “investigating officer” and that is the time of
commencement of investigation. Heavy reliance is placed upon the
decisions of this Court in the cases of H.N. Rishbud v. State of Delhi
AIR 1955 SC 196; and Manu Sharma v. State (NCT of Delhi) (2010)
6 SCC 1;
B
3.8 If the officer under Section 41(2) or Section 42 receives some
secret information, he is statutorily required to inform the same under
Section 42(2) of the Act to his superior officer after 72 hours. The officer
is not obliged and cannot be compelled to give the source of his information
in view of the bar contained in Section 68 of the Act. Thus, there is no
mechanism to verify, except the oral testimony of Section 42 officer C
himself or his subordinate officers who are part of his raiding party, that
he has acted on some prior secret information or that the recovery etc.
was a chance recovery or that the officer was acting maliciously for
extraneously. Even after effecting arrests or seizures, while the officer
under Section 42 is required to forward the articles seized and persons D
arrested “without unnecessary delay” to the investigation officers, he is
required to report to his immediate superior officer in 48 hours. Thus,
there is no person other than the officer under Section 42 who is the
“complainant”, i.e., the one who alleges commission of a cognizable
offence based on the arrests and the recoveries effected by himself or
his raiding party. He is the witness who “claims” seizures/recovery of E
prohibited substances from possession of the accused. These claims are
required to be verified and substantiated during investigation by the
investigating officer.Once the person arrested and the articles seized
come in the control of the “Investigating Officer”, he is required under
Section 52(4) of the Act to take measures for their disposal. The person F
arrested is produced before the magistrate under Section 167 Cr.P.C.
and the narcotic substance seized is then required to be dealt with by the
officer under Section 53 of the NDPS Act or the SHO in accordance
with Section 52A. In the process of investigation, the conduct of the
officer under Sections 42, 43 and 44 is also required to be investigated.
If after investigation it is found that the claim made by the complainant/ G
informant is justified, he would file a police report against the accused
for offences under the Act, however, in case he finds that the officer
under Section 42 has acted vexatiously or maliciously, he can also be
punished under Section 58 and therefore he would file a police report
against such officer for offence under Section 58. The offence under H
264 SUPREME COURT REPORTS [2020] 9 S.C.R.
A Section 58 is also a cognizable offence and hence on an allegation made
the “officer incharge of police station” is under an obligation to take
cognizance of that and investigate. An independent investigation by a
separate agency lends credibility and fairness to both the sides. If the
officer under Section 42 is to be proceeded against, his trial would also
be based upon “investigated” material. It would also exclude possibility
B
of abuse and source of corruption due to the wide powers under the
NDPS Act;
3.9 Handing over or continuation of investigation by the officer
who has acted under Section 42 to effect search, seizure or arrest is not
therefore be comprehended under the scheme. It would render Section
C 58 completely redundant and otiose as he would not investigate against
himself and file a chargesheet against himself. If the accused is not
found to be in possession, the Investigating Officer would have to explain
his source or else “possession” of a contraband in his possession would
also attract Section 8. The scheme of making two separate sections i.e.
D Sections 42 and 53 empowering officers for different purposes would
have been unnecessary. If the legislative intent was such, officer under
Section 42 would have been given an additional power of investigation
and then Section 53 was unnecessary;
3.10 There was no need for a provision like Section 52(3) which
E mandates handover of articles seized and persons arrested to a SHO or
an officer under Section 53;
3.11 NDPS Act does not contemplate “Joint Authorisations”, for
if that were the case, Section 42 would have conferred power of both
“entry, search, seizure or arrest” as well as “investigation” on the same
F officer. The very fact that two separate sections, namely, Section 42
and Section 53 have been provided and Section 52(3) contemplates
“handing over” by Section 42 officer to either Section 53 officer or to
SHO, meaning thereby that there ought to be two separate officers;
3.12 The object of “fair and independent investigation” is to unearth
G the truth. The “fair and independent investigation” is a right of an accused
flowing from Article 21 of the Constitution. Reliance is placed upon the
decisions of this Court in the case of Romila Thapar v. Union of India
(2018) 10 SCC 753 (para 67); Manu Sharma (supra)(paras 200 to
202); Hema v. State (2013) 10 SCC 192 (para 10); and Babubhai v.
State of Gujarat (2010) 12 SCC 254 (para 32);
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 265
[M. R. SHAH, J.]
3.13 “Liberty” of a person would be at serious peril if the scheme A
of the NDPS Act is interpreted and left over in the hands of a single
person without any checks and safeguards to protect the rights of the
accused. It is impermissible and beyond comprehension to allow a person
to (i) make an accusation; (ii) the fact that he accuses is “sufficient
ingredient” to make a penal offence; (iii) “investigate” that accusation
B
which he himself makes; and (iv) become a “witness” to prove the
accusation and then based on his testimony a person is convicted and
punished;
3.14 In order to bring home a conviction under the provisions of
the NDPS Act, prosecution is required to establish ingredients of an
offence “beyond reasonable doubt”; C
3.15 If the defence of the accused is not properly investigated to
rule out all other possibilities, it cannot ever be said that the prosecution
has established the guilt “beyond reasonable doubt”. A tainted investigation
by a complaint who is a “witness” himself to a substantial ingredient of
an offence, would in fact give rise to a “doubt” and it is impossible that D
the case can be established on the parameter of “beyond reasonable
doubt”;
3.16 A person accused of criminal offence punishable with a peril
to his life or liberty, enjoys certain rights under the Constitution or through
long standing development of criminal jurisprudence. Any action which E
impinges or affects those rights would be said to cause “prejudice to an
accused”. That in the case of Rafiq Ahmad v. State of U.P (2011) 8
SCC 300, it is observed and held that prejudice to an accused or failure
of justice has to be examined with reference to (i) right to fair trial (ii)
presumption of innocence until pronouncement of guilt and (iii) the F
standards of proof. It is observed in the said decision that whenever a
plea of prejudice is raised by the accused, it must be examined with
reference to the above rights and safeguards, as it is the violation of
these rights alone that may result in the weakening of the case of the
prosecution and benefit to the accused in accordance with law;
G
3.17 Section 457 Cr.P.C. in effect saves an order of conviction
and sentence despite there being an error, omission or irregularity in the
complaint, summons, warrant, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or other proceedings
under Cr.P.C., or in any sanction for the prosecution unless in the opinion
H
266 SUPREME COURT REPORTS [2020] 9 S.C.R.
A of the Court “failure of justice” has been occasioned thereby. According
to the prosecution therefore before an order ofconviction and sentence
is set aside the Court must be satisfied that there is a “actual prejudice”
caused to the accused. However, Section 457 Cr.P.C. does not include
within its fold the term “investigation” which has been specifically defined
under Section 2(h) separate from inquiry defined under Section 2(g).
B
Section 457 contemplates errors committed in judicial proceedings before
or during the commencement of trial and not “investigation” by the officers
of the police etc. Heavy reliance is placed upon the decision of this
Court in the case of Willie (William) Staney v. The State of Madhya
Pradesh 1955 SCR 1140 on the test for “failure of justice”.Therefore
C allowing the informant/complainant to be the investigator in which he
could himself faced prosecution if independently investigated would not
only violate the fundamental principles of fair trial which includes fair
investigation, but would be a denial of an opportunity of getting the
defence investigated and hence would also be abhorrent to the well-
established notion of natural justice rendering the trial a mockery.
D
3.18 Making the above submissions and relying upon the aforesaid
decisions, it is submitted that the law laid down by this Court in the case
of Mohan Lal (supra) taking the view that in case the investigation is
conducted by the police officer who himself is the complainant, the trial
is vitiated and the accused is entitled to acquittal is a correct law.
E
4. Shri Ajay Garg, learned Advocate appearing on behalf of
Mukesh Singh has made the following additional submissions other than
the submissions made by Shri Sushil Kumar Jain, learned counsel
appearing on behalf of the accused;
F 4.1 Right from Bhagwan Singh (supra) till the recent judgment
in the case of Varinder Kumar (supra), this Court is of the firm view
that the complainant/informant and the investigator must not be the same
person. The same is in consonance with the age-old principles of law
that “Nemo debetessejudex in causa proporiasua” (no person can be
a judge in his own cause) and that “justice should not only be done but
G appears to have been done”;
4.2 The aforesaid principles of law are touchstone of the principles
of natural justice and is a useful tool to maintain free, fair and unbiased
investigation and adjudication across legal systems;
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 267
[M. R. SHAH, J.]
4.3 Considering the scheme of the NDPS Act, more particularly A
Sections 41, 42, 43, 52(3) and 53 of the Act require that the officer
empowered to raid, seize and arrest who may be the complainant shall
be different from the investigator of the case;
4.4 The criminal proceedings stand vitiated if the complainant/
informant and the investigator of the case is the same person in view of B
the following reasons:
a) If the complainant/informer and the Investigator are same
persons, it will violate the principle of Rule against Bias which is a
part of Principles of Natural Justice and included in Fundamental
Right enshrined in Article 14 and 21 of the Constitution of India. C
In this regard he is relying upon para 14, 18 and 31 of Mohan Lal
(Supra).
b) In such case like NDPS where there is reverse burden of
proof in sections 35, 54, 66 and 68, the burden shall be on the
prosecution to prove that no prejudice is caused to the accused in D
the investigation conducted by the complainant/Informer. In this
regard he is relying upon para 14 and 18 of Mohan Lal (Supra).
c) In such case, the complainant will always be interested in filing
charge sheet against the accused (which is normal human
behavior). He will have personal bias against the accused and E
there will be no objectivity in the Investigation. He is relying upon
Megha Singh (Supra), Bhagwan Singh (supra), Mohan Lal
(supra).
d) This Hon’ble Court has consistently considered this as a serious
infraction to the guaranteed constitutional rights of accused and F
declared it to be the grave infirmity which reflects on the credibility
of the prosecution case.
e) Giving due weightage as observed in Mukeshsingh (supra)
will have same result because if the evidence of the Complainant/
Investigating officer is discarded, nothing remains in the prosecution
G
case and the entire Criminal proceedings stands vitiated.
f) The Accused will be deprived of his valuable rights of cross
examining the complainant/informer and the Investigation officer
separately if both are same. Further, the accused will also be
H
268 SUPREME COURT REPORTS [2020] 9 S.C.R.
A deprived of his valuable right of contradicting the previous
information recorded under section 154 or 155 Cr.P.C. and previous
statements of the witnesses, being a police officer, complaint
recorded under section 151 Cr.P.C. enjoined in section 145 and
157 of Indian Evidence Act and proviso to section 152 Cr.P.C.
B g) The meaningful reading of the scheme of NDPS Act as
discussed above also indicate that the Informer/complainant/raiding
officer cannot Investigate the said case.
h) There is no compulsion for the Police/any other agency to get
the Investigation conducted by the complainant/informer and on
C the other hand it can be an easy tool of false implication.
i) Investigating Officer could not be placed on any pedestal higher
than of a complainant and the complainant himself cannot be the
sole agency of investigation. The whole bedrock of the investigation
on the basis of which the appellant has been prosecuted is found
D be unfair and against the basic tenets of criminal jurisprudence,
the conviction and sentence based on such a highly infirm
investigation as aforesaid cannot be sustained in the eye of law
and accordingly the whole proceedings based on such investigation
as aforesaid deserve to be quashed and set aside.
E 5. Shri Tushar Mehta, learned Solicitor General of India has made
the following submissions:
5.1 Section 2(h) defines “investigation”. “Investigation” includes
all the proceedings under the Cr.P.C. for the collection of evidence
conducted by a police officer or by any person other than a magistrate
F who is authorised by a magistrate in this behalf. Section 2(o) defines
“officer in charge of a police station” 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 a constable or, when the State Government so directs, any other
G police officer so present. It is submitted that under Cr.P.C., the criminal
law is set into motion either under Chapter XII which relates to information
to police officers; or Chapter XV which relates to complaints to
magistrates. The present case relates to Chapter XII, Cr.P.C. where the
informant of the offence is a police officer;
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 269
[M. R. SHAH, J.]
5.2 As per Section 154 Cr.P.C., every information relating to the A
commission of a cognizable offence, if given orally to an officer in charge
of a police station shall be reduced in writing by him or under his direction,
and be read over to the informant; and every such information, whether
given in writing or reduced in writing shall be signed by the person giving
it, and the substance thereof shall be entered in a book to be kept by
B
such officer in such form as the State Government may prescribe in this
behalf. As per sub-section 3 of Section 154 Cr.P.C., any person aggrieved
by a refusal on the part of an officer in charge of a police station to
record the information referred to in sub-section 1 may send the substance
of such information, in writing and by post to the Superintendent of Police
concerned, who if satisfied that such information discloses the C
commission of a cognizable offence shall either investigate the case
himself or direct an investigation to be made by any police officer
subordinate to him and such officer shall have all the powers of an officer
in charge of the police station in relation to that offence;
5.3 Section 156 Cr.P.C. provides that any officer in charge of a D
police station may investigate a cognizable offence without an order of
the magistrate. Thus, even where the FIR under Section 154 Cr.P.C. is
registered at the instance of a police officer, there is no bar under Section
156 Cr.P.C. to an officer in charge of a police station to investigate the
same. Further, the competence of such investigating officer cannot be
called in question in any proceedings; E
5.4 Section 157 Cr.P.C. provides that if some 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 of the Code to investigate, he shall proceed in person to the spot to
investigate and if necessary to take measures for the discovery and F
arrest of the offender. Thus, an officer in charge of a police station who
himself receives information of commission of cognizable offence is
empowered to investigate the case. It is submitted that thus, under the
scheme of Cr.P.C., there is no bar on a police officer receiving information
of commission of a cognizable offence, recording the same and then G
investigate it;
5.5 Cr.P.C. itself has provisions for vitiation and non-vitiation of
trial if there is illegality committed by the magistrate. Section 460 of the
Code enumerates that if a magistrate does any of the acts specified in
the said section, which he is not empowered to, then his proceedings H
270 SUPREME COURT REPORTS [2020] 9 S.C.R.
A would not be set aside only on this ground. Section 461 of the Code
enumerates that if a magistrate does any of the acts specified in the said
section, which he is not empowered to, then his proceedings would be
void. However, the illegalities under both these provisions are by the
magistrate and not by the investigating officer;
B 5.6 Section 462 of the Code provides that no finding, sentence or
order of any Criminal Court shall be set aside merely on the ground that
the inquiry, trial or other proceedings took place in a wrong sessions
division, district, sub-division or other local area, unless it appears that
such error has in fact occasioned a failure of justice. Section 463 of the
Code provides that even if there is non-compliance in recording the
C confession under Section 164 of the Code, even then the same may be
admissible if such non-compliance has not injured the accused in his
defence on the merits and that he duly made the statement recorded,
admit such statement. Section 465 of the Code provides that no finding,
sentence or order passed by a court of competent jurisdiction shall be
D reversed or altered by a Court of Appeal on account of any error, omission
or irregularity in the complaint, summons, warrant, proclamation, order,
judgment or other proceedings before or during trial or in any enquiry or
other proceedings under this Code, or any error or irregularity in any
sanction for the prosecution, unless in the opinion of that Court, a failure
of justice has in fact been occasioned thereby. Thus, under Section 465,
E irregularity in other proceedings under the Code shall not lead to reversal
of conviction unless it led to failure of justice. Irregularity in investigation
would not lead to acquittal unless failure of justice is shown;
5.7 Further, illustration (e) to Section 114 of the Indian Evidence
Act which permits the Court to raise a presumption that official acts
F have been regularly performed;
5.8 The decisions of this Court in the cases of Bhagwan Singh
(supra); Megha Singh (supra); Rajangam (supra) and Mohan Lal
(supra) were, as such, can be said to be on facts;
G 5.8.1 In the case of Bhagwan Singh (supra), the head constable
who caught the accused for smuggling of grains lodged an FIR under
Section 161 IPC for offering Rs.510/- as bribe to the head constable.
The head constable himself was the complainant and the IO. There
were no independent witnesses in the case. Even, this Court also
commented that no effort was made by the IO to have independent
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 271
[M. R. SHAH, J.]
witnesses. That thereafter, it was held by this Court that the complainant A
himself cannot be an investigator. Therefore, the said decision can be
said to be on the facts and circumstances of that case and cannot be
said to be an absolute general proposition of law that in any case the
complainant cannot be the investigator and in such a case the accused is
entitled to acquittal.
B
5.8.2 In the case of Megha Singh (supra) also, no independent
witnesses were examined. Head constable who arrested the accused
with a country made pistol and cartridges lodged the complaint and he
only proceeded with the investigation. In the said case, it was found that
there were discrepancies in depositions of public witnesses. Therefore,
this Court held that PW3 – Head Constable himself being a complainant C
ought not to have proceeded with the investigation;
5.8.3 In the case of Rajangam (supra), this Court followed its
earlier judgment in the case of Megha Singh (supra);
5.8.4 Now so far as the decision of this Court in the case of D
Mohan Lal (supra) is concerned, the same again came to be considered
by this Court in the case of Varinder Kumar (supra) and it is specifically
observed that the facts in Mohan Lal (supra) were indeed extremely
telling insofar as the defaults on the part of the prosecution were
concerned. It is further observed that in that background it was held that
the issue could not be left to be decided on the facts of a case, impinging E
on the right of a fair trial to an accused under Article 21 of the Constitution
of India. It is further observed in the said decision in para 11 that the
paramount consideration being to interpret the law so that it operates
fairly, the facts of that case did not show any need to visualise what all
exceptions must be carved out and provided for. The attention of the F
Court was also not invited to the need for considering the carving out of
exceptions. It is further observed that individual rights of the accused
are undoubtedly important, but equally important is the social interest for
bringing the offender to book and for the system to send the right message
to all in the society – be it the law-abiding citizen or the potential offender.
It is further observed that the social interest mandates that the law laid G
down in Mohan Lal (supra) cannot be allowed to become a spring
board by an accused for being catapulted to acquittal, irrespective of all
other considerations pursuant to an investigation and prosecution when
the law in that regard was nebulous. Therefore, even as observed by
this Court in the case of Varinder Kumar (supra), the facts in the case H
272 SUPREME COURT REPORTS [2020] 9 S.C.R.
A of Mohan Lal (supra) were glaring and on facts it was held that the
accused was entitled to acquittal;
5.9 On the contrary there is a line of judgments wherein this Court
held that the investigating officer and the complainant being the same
person, does not vitiate the investigation. Reliance is placed upon the
B decisions of this Court in the cases of Sunil Kumar Banerjee v. State
of West Bengal (1980) 3 SCC 304; State v. V. Jayapaul (2004) 5
SCC 223; S. Jeevantham v. State (2004) 5 SCC 230; Bhaskar
RamappaMadar v. State of Karnataka (2009) 11 SCC 690;Vinod
Kumar v. State of Punjab (2015) 3 SCC 220; and Surender v. State
of Haryana (2016) 4 SCC 617.
C
Therefore, it may be seen that this Court declined to lay down a
hard and fast rule with regard to the said question despite taking note of
the judgments, which in peculiar facts, had held that the investigating
officer and the complainant cannot be the same person;
D 5.10 Relying upon the decisions of this Court in the cases of
Jamuna Chaudhary v. State of Bihar (1974) 3 SCC 774; Kashmeri
Devi v. Delhi Admn., 1988 Supp. SCC 482; and Vinay Tyagi v. Irshad
Ali (2013) 5 SCC 762, it is submitted that the duty of the investigating
officers is not merely to bolster up a prosecution casewith such evidence
as may enable the court to record a conviction but to bring out the real
E unvarnished truth;
5.10.1 As held by this Court in the case of Vinay Tyagi (supra),
what ultimately is the aim or significance of the expression “fair and
proper investigation” in criminal jurisprudence? It has a twin purpose,
firstly, the investigation must be unbiased, honest, just and in accordance
F with law, secondly, the entire emphasis on a fair investigation has to be
to bring out the truth of the case before the court of competent jurisdiction.
Once these twin paradigms of fair investigation are satisfied, there will
be the least requirement for the court of law to interfere with the
investigation, much less quash the same, or transfer it to another agency.
G Bringing out the truth by fair and investigative means in accordance
with law would essentially repel the very basis of an unfair, tainted
investigation or cases of false implication. Thus, it is inevitable for a
court of law to pass a specific order as to the fate of the investigation,
which in its opinion is unfair, tainted and in violation of the settled principles
of investigative canons. Therefore, failure of justice – defect in
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 273
[M. R. SHAH, J.]
investigation does not vitiate the trial unless prejudice is caused to the A
accused;
5.10.2 The second concept is with regard to failure of justice and
prejudice to the accused. This involves the shifting of the burden on the
accused to illustrate how the procedure and the factual circumstances/
countervailing factors, have resulted in grave prejudice to the investigation B
and to him/her in particular. Reliance is placed upon the decisions of this
Court in the cases of H.N. Rishbud v. State of Delhi 1955 (1) SCR
1150; Niranjan Singh v. State of U.P. 1956 SCR 734; Paramjit Singh
v. State of Punjab (2007) 13 SCC 530; Rekha v. State of
Maharashtra (2010) 15 SCC 725; and Union of India v. T.
Nathamuni (2014) 16 SCC 285; C
5.10.3 In light of the aforesaid twin tests, it is prayed to lay down
a flexible rule wherein the right to fair investigation does not become a
spring board for acquittal in cases wherein investigations are proper and
as per the statutory principles.
D
6. Shri Aman Lekhi, learned Additional Solicitor General of India
has made the following submissions:
6.1 This Court in Mohan Lal (supra) proceeded sub-silentio
Section 157 of the Code of Criminal Procedure under which investigation
can be undertaken by the investigating officer on the basis of his own E
knowledge of the commission of a cognizable offence; ignored Illustration
(e) to Section 114 of the Indian Evidence Act which permits the Court to
raise a presumption that official acts have been regularly performed;
disregarded the principle enunciated in the case of H.N. Rishbud (supra)
that illegality in investigation has no direct bearing on cognizance and a
valid police report is not necessarily the foundation for the Court to take F
cognizance; did not deal with Section 465 of the Cr.P.C. under which
any illegality, whether before or during trial or in any other proceeding,
will not justify reversal of any finding, sentence or order unless a failure
of justice is occasioned thereby; overlooked the rule that an objection to
an illegality if not raised at the right stage will be deemed to have been G
waived; did not consider the principle that mala fides have to be established
and not inferred and that mala fides are of secondary importance if the
trial otherwise discloses impeccable evidence; and misconstrued both
the scheme of the NDPS Act and the principle of reverse burden; and
failed to take notice of the principle that investigation is exclusively
H
274 SUPREME COURT REPORTS [2020] 9 S.C.R.
A reserved for the investigating agency under the Act, functions of the
investigating agency and the judiciary are complementary and not
overlapping and interference is warranted only is a clear case of abuse
of power which will be decided in the facts of each case;
6.2 In the case of Varinder Kumar (supra), this Court specifically
B held that in Mohan Lal (supra), the attention of the Court was also not
invited to the “need for considering the carving out of exceptions” and
that “human rights are not only of the accused but, extent apart, also of
the victim, the symbolic member of society as the potential victim and
the society as a whole”. The Court therefore held that the law in Mohan
Lal (supra) “cannot be allowed to become a spring board by an accused
C to be catapulted to an acquittal, irrespective of all other considerations
pursuant to an investigation”. The Court however, yet held that only
trials and appeals prior to the law laid down in Mohan Lal (supra) shall
continue to be governed by the individual facts of the case. It is submitted
that this distinction is artificial and unjustified in law;
D 6.3 The order of Reference dated 17.01.2019 correctly records
that in a given case, where the complainant himself had conducted
investigation, such aspect of the matter can certainly be given due
weightage while assessing the evidence on record but it would be
completely a different thing to say that the trial itself would be vitiated
E for such infraction. But Mohan Lal (Supra) has ruled that the trial itself
would stand vitiated on that count;
6.4 The decision of this Court in Mohan Lal (supra) has not
considered Section 157 of the Cr.P.C. The interference with the exercise
of power under Section 157 would be warranted only if the peculiar
F facts of each case require. This is more so because there are safeguards
in the statute itself and Section 157 has to be read with Sections 158 and
159 of the Cr.P.C.;
6.5 An information report is not a condition precedent for setting
criminal investigation to motion and an officer in charge of a police station
G can undertake the same even “otherwise”. Thus, investigation can
commence if an officer in charge of the police station is in possession
through his own knowledge or credible informal intelligence of the
commission of a cognizable offence. Reliance is placed on the decision
of the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad,
AIR 1945 PC 18;
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 275
[M. R. SHAH, J.]
6.6 In the case of V. Jayapaul (supra), wherein the inspector of A
police prepared the FIR upon receiving information himself about the
respondent indulging in corrupt practices and proceeded to take up the
investigation himself, eventually filed a chargesheet. This Court set aside
the order of the High Court which had quashed the proceedings on the
ground that investigation was by the same police officer who registered
B
the case. In the case of V. Jayapaul (supra), this Court distinguished
the cases of Bhagwan Singh (supra) and Megha Singh (supra),
wherein the Court had held that the complainant cannot be the
investigating officer;
6.6.1 In the case of Bhaskar Ramappa Madar (supra), this
Court also held that the judgments of Bhagwan Singh (supra) and C
Megha Singh (supra) were to be confined to their own facts;
6.6.2 the decision of this Court in the case of V. Jayapaul
(supra)was approved in the case of Hardip Singh v. State of Punjab
(2008) 8 SCC 557 wherein the investigating officer was the one who
had seized the opium for the possession of which the appellant had been D
convicted;
6.6.3 It is held by this Court in the case of State of Rajasthan v.
Ram Chandra (2005) 5 SCC 151, the question of prejudice or bias has
to be established and not inferred. Reliance is also placed on the decision
of this Court in the case of Union of India v. Vipan Kumar Jain (2005) E
9 SCC 579;
6.7 Even in cases of reverse burden, the presumption can operate
only after the initial burden which exists on the prosecution is satisfied
and even thereafter, the standard of proof on the accused is only that of
preponderance of probability. Without the foundational facts being F
established, provisions raising presumptions against the accused cannot
operate. Reliance is placed on the decision of this Court in the case of
State of Punjab v. Noor Aga (2008) 16 SCC 417;
6.8 Reverse burden does not merely exist in special enactments
like the NDPS Act and Prevention of Corruption Act, but is also a part G
of the IPC, namely Section 304B and all offences under the IPC are to
be investigated in accordance with the provisions of the Cr.P.C. and
consequently the informant himself can investigate the said offences
under Section 157 Cr.P.C. Law, in other words, does not disapprove of
nor frowns upon this practice. These protections will remain even when
H
the complainant is the investigating officer;
276 SUPREME COURT REPORTS [2020] 9 S.C.R.
A 6.9 That this Courtin the case of Mohan Lal (supra) also did not
consider the scheme of the NDPS Act;
6.10 Investigation of an offence is a field exclusively reserved for
the police whose powers remain unfettered as long as they remain
complaint with the provisions of the Code of Criminal Procedure. It is
B only in extraordinary circumstances of abuse of authority that the Court
may interfere. The rule as laid down in Mohan Lal (supra) imposed a
restriction on the procedure of investigation which is not contemplated
by the Code and disregards the principle that the functions of the judiciary
and the investigating agency are complementary and not overlapping
and each should be left to exercise its function in the area demarcated
C for it subject to intervention in an appropriate case. In other words, unless
the facts of a particular case show prejudice, no rule can be judicially
enacted that in no case can a complainant be the investigating officer;
6.11 Abuse of power cannot be presumed. Fairness of investigation
would always be a question of fact. In the absence of an express
D prohibition in the code barring investigation by a complainant himself,
the statutory incorporation of the rule that credit should be given to public
officers who have acted in the limits of their authority. The law is that
invalidity of investigation has no relation to the competence of the Court.
And the object of the Code that matters of failure of justice should be
E left to the discretion and vigilance of the Courts; hence, the formulation
of a general rule as contained in paragraph 25 of Mohan Lal (supra) is
wrong;
7. In rejoinder, Shri Sushil Kumar Jain, learned Senior Advocate
appearing on behalf of the accused has submitted that reliance placed
F upon Section 157 Cr.P.C. for the offence under the NDPS Act is
misplaced. NDPS Act is a special statute and all provisions of Cr.P.C.
have not been made applicable to the proceedings under the NDPS Act.
That the scheme of NDPS Act, being a special Act, overrides Section
157 Cr.P.C. to the extent of enabling taking of cognizance on personal
information and proceeding on that basis, more particularly the provisions
G of Section 42 of the NDPS Act.
8. The question which is referred to the larger Bench is, whether
in case the investigation is conducted by the informant/police officer
who himself is the complainant, the trial is vitiated and in such a situation,
the accused is entitled to acquittal?
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 277
[M. R. SHAH, J.]
8.1 While deciding the question referred, few earlier decisions of A
this Court on one side taking the view that in case the investigating
officer in the complaint being the same person, trial is vitiated and the
accused is entitled to acquittal, and on the other side taking contrary
view are required to be referred to and considered in detail.
8.1.1 The first decision relied upon on behalf of the accused is the B
decision in the case of Bhagwan Singh (supra), which has been
subsequently followed and even considered in the subsequent decisions.
It is true that in the case of Bhagwan Singh (supra), this Court acquitted
the accused by observing and holding that the complainant himself cannot
be an investigator. However, it is required to be noted that in that case
the investigation was conducted by a Head Constable who himself was C
the person to whom the bribe was alleged to have been offered and who
lodged the first information report as informant or the complainant. It
was noted that the entire case of the prosecution rests solely on the
testimony of the Head Constable – Ram Singh and four other police
constables. It was found that there was not a single independent witness D
to depose to the offer of bribe by the accused. It was noticed that the
Head Constable – Ram Singh did not make any effort to get independent
respectable witnesses in whose presence the seizure could be made.
This Court also noticed that the Head Constable could have easily sent
one of the four police constables accompanying him to a nereby village
in order to get some independent respectable witnesses, if for any reason E
that was not possible, he could have taken the accused and one another
together with the cart to the police station and then made a seizure
memo in the presence of independent respectable Panch witnesses. This
Court also noticed from the statement made by the accused under Section
342 Cr.P.C. that some other independent witnesses were present when F
the incident took place and therefore this Court noticed that any of them
could have been asked to witness the seizure memo. Thereafter, on
appreciation of evidence, this Court found inherent improbability in the
story of offer of bribe by the accused to the Head Constable. Thereafter,
this Court observed that the trial Court and the High Court failed to
notice the circumstances mentioned in para 7 which throw considerable G
doubt on the prosecution case against the accused. This Court further
observed that the Court is not at all satisfied that the evidence led on
behalf of the prosecution excludes reasonable doubt in regard to the
guilt of the accused. It was further observed that since the prosecution
case against the accused cannot be said to be free from reasonable H
278 SUPREME COURT REPORTS [2020] 9 S.C.R.
A doubt, the accused is entitled to acquittal. Therefore, on facts and
considering the entire evidence on record having doubted the prosecution
case against the accused and more particularly in the absence of any
independent witnesses, though the independent witnesses were available,
this Court acquitted the accused by giving him benefit of doubt.
Therefore, as such, the decision of this Court in the case of Bhagwan
B
Singh (supra) can be said to be a decision on its own facts and cannot
be said to be laying an absolute proposition of law that in no case the
informant/complainant can be the investigator and that in all the cases
where the complainant/informant and the investigating officer is the same,
the entire trial is vitiated and the accused is entitled to acquittal.
C 8.1.2 The next decision which is relied upon on behalf of the
accused is the decision in the case of Megha Singh (supra). On facts
and on appreciation of evidence on record, this Court held that the
investigation by the very police officer who lodged the complaint was
not conducive to fair and impartial investigation. In this case, the accused
D was apprehended by Constables PW2 and PW3 and a pistol and live
cartridges without any licence were recorded from the accused. On the
complaint of PW3 that a formal FIR was lodged. On facts, and on
appreciation of evidence on record, a discrepancy was found in the
evidence of PW2 and PW3 regarding number of cartridges recovered
and as to the place from where the pistol was recovered. No other
E independent witnesses were examined. In paragraph 4, it is observed
and held as under:
“4. After considering the facts and circumstances of the case, it
appears to us that there is discrepancy in the depositions of PWs
2 and 3 and in the absence of any independent corroboration such
F discrepancy does not inspire confidence about the reliability of
the prosecution case. We have also noted another disturbing feature
in this case. PW3, Siri Chand, Head Constable arrested the accused
and on search being conducted by him a pistol and the cartridges
were recovered from the accused. It was on his complaint a formal
G first information report was lodged and the case was initiated.
He being complainant should not have proceeded with the
investigation of the case. But it appears to us that he was not only
the complainant in the case but he carried on with the investigation
and examined witnesses under Section 161 Cr.P.C. Such practice,
to say the least, should not be resorted to so that there may not be
H any occasion to suspect fair and impartial investigation.”
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 279
[M. R. SHAH, J.]
Therefore, the decision of this Court in the case of Megha Singh A
(supra) also can be said to be on the peculiar facts of that case and
after appreciation of evidence having doubted the reliability of the
prosecution case and thereafter having noted that in such a case the
Head Constable who himself was the complainant ought not to have
carried on with the investigation. Therefore, it cannot be said that in this
B
decision also, there is an absolute proposition of law laid down by this
Court that in each and every case where the complainant himself is the
investigating officer, the trial is vitiated and the accused is entitled to
acquittal.
At this stage, it is required to be noted that in neither of the
cases this Court considered in detail the relevant provisions of the Cr.P.C. C
with respect to the investigation which shall be referred to and dealt
with hereinbelow.
8.1.3 The next decision which has been relied upon on behalf of
the accused is the decision in the case of rajangam (supra). In this
case, this Court acquitted the accused solely following the decision in D
the case of Megha Singh (supra). There is no further discussion on
the point in the said decision by this Court.
8.1.4 In the case of Mohan Lal (supra), after having noted the
conflicting opinions expressed by different two Judge Benches of this
Court, one in the cases of Bhagwan Singh (supra) and Megha Singh E
(supra) and other in the cases of State of Punjab v. Baldev Singh
(1999) 6 SCC 172; Bhaskar Ramappa Madar (supra); and Surender
(supra), thereafter 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, it is required to F
be noted that thereafter the very decision of this Court in the case of
Mohan Lal (supra) fell for consideration before another three Judges
Bench of this Court in the case of Varinder Kumar (supra), to which
two Hon’ble Judges were also there in the case of Mohan Lal (supra)
and it is observed that the facts in Mohan Lal (supra) were indeed
extremely telling insofar as the defaults on part of the prosecution was G
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. That
thereafter in the case of Varinder Kumar (supra), it is held that the
decision in the case of Mohan Lal (supra) shall be applicable H
280 SUPREME COURT REPORTS [2020] 9 S.C.R.
A prospectively and shall not affect the cases, pending criminal prosecutions,
trials and appeals and they shall be governed by the individual facts of
the case. That thereafter on merits and despite the fact that in that case
also the informant/complainant and the investigator was the same, this
Court has confirmed the conviction.
B Therefore, in light of the observations made by this Court in the
case of Varinder Kumar (supra) that the law laid down by this Court in
the case of Mohan Lal (supra) 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 (supra), meaning thereby that
the same shall be applicable prospectively, still this Court has to consider
C the issue referred to this Court on its own merits. On considering the
entire decision of this Court in the case of Mohan Lal (supra), it appears
that in this case 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
D 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
E also did not consider in detail and/or misconstrued both the scheme of
the NDPS Act and the principle of reverse burden.
8.2 Now let us consider the decisions taking the contrary view
holding that even in a case where the complainant himself had conducted
the investigation, the trial is not vitiated.
F
8.2.1 In the case of V. Jayapaul (supra), after considering the
entire scheme of investigation under the Cr.P.C., it is held that investigation
by the same police officer who lodged the FIR is not barred by law. It is
further observed that such investigation could only be assailed on the
ground of bias or real likelihood of bias on the part of the investigating
G officer and the question of bias would depend on the facts and
circumstances of each case. It is further observed that it is not proper to
law down a broad and unqualified proposition that such investigation
would necessarily be unfair or biased. In this decision, the decisions of
this Court in the cases of Bhagwan Singh (supra) and Megha Singh
H (supra) were pressed into service on behalf of the accused, however
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 281
[M. R. SHAH, J.]
this Court observed that both the decisions are on their own facts and A
circumstances and do not lay down a proposition that a police officer in
the course of discharge of his duties finds certain incriminating material
to connect a person to the crime, shall not undertake further investigation
if the FIR was recorded on the basis of the information furnished by
him. In this decision, this Court also considered the scheme of Sections
B
154, 156 and 157 Cr.P.C. and another decision of this Court in the case
of State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221(para
8). That thereafter this Court did not agree with the submission on behalf
of the accused that as the investigation was carried out by the informant
who himself submitted the final report, the trial is vitiated. This Court
confirmed the conviction by setting aside the order passed by the High C
Court acquitting the accused solely on the ground that the very same
police officer who registered the case by lodging the first information
ought not to have investigated the case and that itself had caused prejudice
to the accused. The relevant observations of this Court in the case of V.
Jayapaul (supra) are as under:
D
“4. We have no hesitation in holding that the approach of the
High Court is erroneous and its conclusion legally unsustainable.
There is nothing in the provisions of the Criminal Procedure Code
which precluded the appellant (Inspector of Police, Vigilance) from
taking up the investigation. The fact that the said police officer
prepared the FIR on the basis of the information received by him E
and registered the suspected crime does not, in our view, disqualify
him from taking up the investigation of the cognisable offence. A
suo motu move on the part of the police officer to investigate a
cognisable offence impelled by the information received from some
sources is not outside the purview of the provisions contained in F
Sections 154 to 157 of the Code or any other provisions of the
Code. The scheme of Sections 154, 156 and 157 was clarified
thus by Subba Rao, J. speaking for the Court in State of U.P. v.
Bhagwant Kishore Joshi: (AIR p. 223, para 8).
“Section 154 of the Code prescribes the mode of recording the G
information received orally or in writing by an officer in charge of
a police station in respect of the commission of a cognisable
offence. Section 156 thereof authorises such an officer to
investigate any cognisable offence prescribed therein. Though
ordinarily investigation is undertaken on information received by
H
282 SUPREME COURT REPORTS [2020] 9 S.C.R.
A a police officer, the receipt of information is not a condition
precedent for investigation. Section 157 prescribes the procedure
in the matter of such an investigation which can be initiated either
on information or otherwise. It is clear from the said provisions
that an officer in charge of a police station can start investigation
either on information or otherwise.”
B
6. Though there is no such statutory bar, the premise on which
the High Court quashed the proceedings was that the investigation
by the same officer who “lodged” the FIR would prejudice the
accused inasmuch as the investigating officer cannot be expected
to act fairly and objectively. We find no principle or binding authority
C 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
likelihood of bias on the part of the investigating officer. The
D 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 would necessarily
be unfair or biased. In the present case, the police officer received
E certain discreet information, which, according to his assessment,
warranted a probe and therefore made up his mind to investigate.
The formality of preparing the FIR in which he records the factum
of having received the information about the suspected commission
of the offence and then taking up the investigation after registering
F the crime, does not, by any semblance of reasoning, vitiate the
investigation on the ground of bias or the like factor. If the reason
which weighed with the High Court could be a ground to quash
the prosecution, the powers of investigation conferred on the police
officers would be unduly hampered for no good reason. What is
expected to be done by the police officers in the normal course of
G discharge of their official duties will then be vulnerable to attack.
7. There are two decisions of this Court from which support was
drawn in this case and in some other cases referred to by the
High Court. We would like to refer to these two decisions in some
detail. The first one is the case of Bhagwan Singh v. State of
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 283
[M. R. SHAH, J.]
Rajasthan. There, the Head Constable to whom the offer of bribe A
was allegedly made, seized the currency notes and gave the first
information report. Thereafter, he himself took up the investigation.
But, later on, when it came to his notice that he was not authorised
to do so, he forwarded the papers to the Deputy Superintendent
of Police. The DSP then reinvestigated the case and filed the
B
charge-sheet against the accused. The Head Constable and the
accompanying constables were the only witnesses in that case.
This Court found several circumstances which cast a doubt on
the veracity of the version of the Head Constable and his
colleagues. This Court observed that “the entire story sounds
unnatural”. While so holding, this Court referred to “a rather C
disturbing feature of the case” and it was pointed out that: (SCC
p. 18, para 5)
“Head Constable Ram Singh was the person to whom the offer
of bribe was alleged to have been made by the appellant and he
was the informant or complainant who lodged the first information D
report for taking action against the appellant. It is difficult to
understand how in these circumstances, Head Constable Ram
Singh could undertake investigation…. This is an infirmity which
is bound to reflect on the credibility of the prosecution case.”
8. It is not clear as to why the Court was called upon to make the E
comments against the propriety of the Head Constable, informant
investigating the case when the reinvestigation was done by the
Deputy Superintendent of Police. Be that as it may, it is possible
to hold on the basis of the facts noted above, that the so-called
investigation by the Head Constable himself would be a mere
ritual. The crime itself was directed towards the Head Constable F
which made him lodge the FIR. It is well-nigh impossible to expect
an objective and undetached investigation from the Head
Constable who is called upon to check his own version on which
the prosecution case solely rests. It was under those circumstances
the Court observed that the said infirmity “is bound to reflect on G
the credibility of the prosecution case”. There can be no doubt
that the facts of the present case are entirely different and the
dicta laid down therein does not fit into the facts of this case.
10. In Megha Singh case PW 3, the Head Constable, found a
country-made pistol and live cartridges on search of the person of H
284 SUPREME COURT REPORTS [2020] 9 S.C.R.
A the accused. Then, he seized the articles, prepared a recovery
memo and a “rukka” on the basis of which an FIR was recorded
by the SI of Police. However, PW 3, the Head Constable himself,
for reasons unexplained, proceeded to investigate and record the
statements of witnesses under Section 161 CrPC. The substratum
of the prosecution case was sought to be proved by the Head
B
Constable. In the appeal against conviction under Section 25 of
the Arms Act and Section 6(1) of the TADA Act, this Court found
that the evidence of PWs 2 and 3 was discrepant and unreliable
and in the absence of independent corroboration, the prosecution
case cannot be believed. Towards the end, the Court noted
C “another disturbing feature in the case”. The Court then observed:
(SCC p. 711, para 4)
“PW 3 Siri Chand, Head Constable arrested the accused and on
search being conducted by him a pistol and the cartridges were
recovered from the accused. It was on his complaint a formal
D first information report was lodged and the case was initiated. He
being complainant should not have proceeded with the investigation
of the case. But it appears to us that he was not only the
complainant in the case but he carried on with the investigation
and examined witnesses under Section 161 CrPC. Such practice,
to say the least, should not be resorted to so that there may not be
E any occasion to suspect fair and impartial investigation.”
12. At first blush, the observations quoted above might convey
the impression that the Court laid down a proposition that a police
officer who in the course of discharge of his duties finds certain
incriminating material to connect a person to the crime, shall not
F undertake further investigation if the FIR was recorded on the
basis of the information furnished by him. On closer analysis of
the decision, we do not think that any such broad proposition was
laid down in that case. While appreciating the evidence of the
main witness i.e. the Head Constable (PW 3), this Court referred
G to this additional factor, namely, the Head Constable turning out to
be the investigator. In fact, there was no apparent reason why the
Head Constable proceeded to investigate the case bypassing the
Sub-Inspector who recorded the FIR. The fact situation in the
present case is entirely different. The appellant Inspector of Police,
after receiving information from some sources, proceeded to
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 285
[M. R. SHAH, J.]
investigate and unearth the crime. Before he did so, he did not A
have personal knowledge of the suspected offences nor did he
participate in any operations connected with the offences. His
role was that of an investigator — pure and simple. That is the
obvious distinction in this case. That apart, the question of testing
the veracity of the evidence of any witness, as was done in Megha
B
Singh case does not arise in the instant case as the trial is yet to
take place. The High Court has quashed the proceedings even
before the trial commenced.
13. Viewed from any angle, we see no illegality in the process of
investigation set in motion by the Inspector of Police (appellant)
and his action in submitting the final report to the Court of Special C
Judge.”
(emphasis supplied)
8.2.2 In the case of S. Jeevanantham (supra), though the
investigation was carried out by the complainant – police officer himself D
and it was submitted relying upon the decision of this Court in the case
of Megha Singh (supra), that in case the informant/complainant and
the investigator is the same, the trial is vitiated, this Court refused to set
aside the conviction and acquit the accused on the aforesaid ground by
observing that the accused failed to show that the investigation by the
complainant – police officer himself has caused prejudice or was biased E
against the accused. It is required to be noted that it was also a case
under the NDPS Act. The relevant observations are as under:
“2. We heard the learned counsel for the appellants. The counsel
for the appellants contended that PW 8, the Inspector after
conducting search prepared the FIR and it was on the basis of the F
statement of PW 8 the case was registered against the appellants
and it is argued that PW 8 was the complainant and he himself
conducted the investigation of the case and this is illegal and the
entire investigation of the case is vitiated. Reliance was placed on
the decision in Megha Singh v. State of Haryana wherein this G
Court observed that the constable, who was the de facto
complainant had himself investigated the case and this affects
impartial investigation. This Court said that the Head Constable
who arrested the accused, conducted the search, recovered the
pistol and on his complaint FIR was lodged and the case was
H
286 SUPREME COURT REPORTS [2020] 9 S.C.R.
A initiated and later he himself recorded the statement of the
witnesses under Section 161 CrPC as part of the investigation
and such practice may not be resorted to as it may affect fair and
impartial investigation. This decision was later referred to by this
Court in State v. V. Jayapaul wherein it was observed that: (SCC
p. 227, para 6)
B
“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
C real 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….”
D 3. In the instant case, PW 8 conducted the search and recovered
the contraband article and registered the case and the article seized
from the appellants was narcotic drug and the counsel for the
appellants could not point out any circumstances by which the
investigation caused prejudice or was biased against the appellants.
E PW 8 in his official capacity gave the information, registered the
case and as part of his official duty later investigated the case and
filed a charge-sheet. He was not in any way personally interested
in the case. We are unable to find any sort of bias in the process
of investigation.”
F (emphasis supplied)
8.2.3 In the case of Bhaskar RamappaMadar (supra), again
this Court considered the very submissions and after considering the
entire scheme for investigation under the Cr.P.C., more particularly
Sections 154, 156 of the Cr.P.C. and after considering the decisions in
G the cases of Bhagwan Singh (supra), Megha Singh (supra) and other
decisions, it is observed and held that there is no legal bar against
conducting/undertaking the investigation by the complainant. It is observed
and held that the decisions of this Court in the cases of Bhagwan Singh
(supra) and Megha Singh(supra) are to be confined to the facts of
those cases. It is further observed and held that merely because the
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 287
[M. R. SHAH, J.]
complainant conducted the investigation, that would not be sufficient to A
cast doubt on the prosecution version to hold that the same makes the
prosecution version vulnerable. The matter has to be decided on a case
to case basis without any universal generalisation.
9. Now we consider the relevant provisions of the Cr. P. C. with
respect to the investigation. B
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 C
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 D
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 E
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. F
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 G
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
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288 SUPREME COURT REPORTS [2020] 9 S.C.R.
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
B
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.
C That is why, Sections 154, 156 and 157 Cr.P.C. come into play.
9.1 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
D 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.
E 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
F present.
9.2 As observed and held by this Court in the case of Lalita Kumari
v. Government of Uttar Pradesh AIR 2014 SC 187 = (2014) 2 SCC
1, the word “shall” used in Section 154 leaves no discretion in police
officer to hold preliminary enquiry before recording FIR. Use of
G 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
H further investigate the information, which is reduced in writing.
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 289
[M. R. SHAH, J.]
9.3 Now let us consider the relevant provisions under the NDPS A
Act with respect to the procedure to be followed to issue warrant,
authorisation of entry, search, seizure and arrest without warrant or
authorisation; seizure and arrest in public place; entry; stop and search
conveyance and the conditions under which search of persons shall be
conducted. The relevant provisions are Sections 41, 42, 43, 49, 50, 51,
B
52, 53, 54, 55, 57, 57A, which are as under:
“41. Power to issue warrant and authorisation.—(l) 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 C
any offence punishable under this Act, or for the search, whether
by day or by night, of any building, conveyance or place in which
he has reason to believe any narcotic drug or psychotropic
substance or controlled substance in respect of which an offence
punishable under this Act has been committed or any document D
or other article which may furnish evidence of the commission of
such offence or any illegally acquired property or any document
or other article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed.
E
(2) Any such officer of gazetted rank of the departments of central
excise, narcotics, customs, revenue intelligence or any other
department of the Central Government including the para-military
forces or the armed forces as is empowered in this behalf by
general or special order by the Central Government, or any such
officer of the revenue, drugs control, excise, police or any other F
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 in writing that any person has committed
an offence punishable under this Act or that any narcotic drug or G
psychotropic substance or controlled substance in respect of which
any offence under this Act has been committed or any document
or other article which may furnish evidence of the commission of
such offence or any illegally acquired property or any document
or other article which may furnish evidence of holding any illegally
H
290 SUPREME COURT REPORTS [2020] 9 S.C.R.
A acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed in any building,
conveyance or place, may authorise 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
B
building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is
addressed and the officer who authorised the arrest or search or
the officer who is so authorised under sub-section (2) shall have
all the powers of an officer acting under section 42.
C
42. Power of entry, search, seizure and arrest without
warrant or authorisation.—(l) Any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the departments
of central excise, narcotics, customs, revenue intelligence or any
other department of the Central Government including para-
D military forces or armed forces as is empowered in this behalf by
general or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon, sepoy or
constable) of the revenue, drugs control, excise, police or any
other department of a State Government as is empowered in this
E 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 this Act has been committed
or any document or other article which may furnish evidence of
F the commission of such offence or any illegally acquired property
or any document or other article which may furnish evidence of
holding any illegally acquired property which is liable for seizure
or freezing or forfeiture under Chapter VA of this Act is kept or
concealed in any building, conveyance or enclosed place, may
G between sunrise and sunset,—
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any
obstacle to such entry;
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 291
[M. R. SHAH, J.]
(c) seize such drug or substance and all materials used in the A
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
B
evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of this Act;
and
(d) 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: C
1 [Provided that in respect of holder of a licence for manufacture
of manufactured drugs or psychotropic substances or controlled
substances granted under this Act or any rule or order made
thereunder, such power shall be exercised by an officer not below
the rank of sub-inspector: Provided further that] if such officer D
has reason to believe that a search warrant or authorisation cannot
be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may enter
and search such building, conveyance or enclosed place at any
time between sunset and sunrise after recording the grounds of E
his belief. (2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his belief
under the proviso thereto, he shall within seventy-two hours send
a copy thereof to his immediate official superior.
43. Power of seizure and arrest in public place.—Any officer F
of any of the departments mentioned in section 42 may—
(a) seize in any public place or in transit, any narcotic drug or
psychotropic substance or controlled substance in respect of which
he has reason to believe an offence punishable under this Act has
been committed, and, along with such drug or substance, any animal G
or conveyance or article liable to confiscation under this Act, any
document or other article which he has reason to believe may
furnish evidence of the commission of an offence punishable under
this Act or any document or other article which may furnish
evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of this Act; H
292 SUPREME COURT REPORTS [2020] 9 S.C.R.
A (b) detain and search any person whom he has reason to believe
to have committed an offence punishable under this Act, and if
such person has any narcotic drug or psychotropic substance or
controlled substance in his possession and such possession appears
to him to be unlawful, arrest him and any other person in his
company.
B
Explanation.—For the purposes of this section, the expression
“public place” includes any public conveyance, hotel, shop, or other
place intended for use by, or accessible to, the public.]
49. Power to stop and search conveyance.—Any officer
C authorised under section 42, may, if he has reason to suspect that
any animal or conveyance is, or is about to be, used for the transport
of any narcotic drug or psychotropic substance 2 [or controlled
substance], in respect of which he suspects that any provision of
this Act has been, or is being, or is about to be, contravened at any
time, stop such animal or conveyance, or, in the case of an aircraft,
D compel it to land and—
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal or in the
conveyance;
E (c) if it becomes necessary to stop the animal or the conveyance,
he may use all lawful means for stopping it, and where such means
fail, the animal or the conveyance may be fired upon.
50. Conditions under which search of persons shall be
conducted.—
F
(1) When any officer duly authorised under section 42 is about to
search any person under the provisions of section 41, section 42
or section 43, he shall, if such person so requires, take such person
without unnecessary delay to nearest Gazetted Officer of any of
the departments mentioned in section 42 or to the nearest
G Magistrate.
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the Magistrate
referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any
H such person is brought shall, if he sees no reasonable ground for
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 293
[M. R. SHAH, J.]
search, forthwith discharge the person but otherwise shall direct A
that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) 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 B
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, C
1973 (2 of 1974).
(6) 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.] D
51. Provisions of the code of Criminal Procedure, 1973 to
apply to warrants, arrests, searches and seizures.—The
provisions of the Code of Criminal Procedure, 1973 (2 of 1974)
shall apply, in so far as they are not inconsistent with the provisions
of this Act, to all warrants issued and arrests, searches and seizures E
made under this Act.
52. Disposal of persons arrested and articles seized.—
(1) Any officer arresting a person under section 41, section 42,
section 43 or section 44 shall, as soon as may be, inform him of
the grounds for such arrest. F
(2) 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.
(3) Every person arrested and article seized under sub-section G
(2) of section 41, section 42, section 43 or section 44 shall be
forwarded without unnecessary delay to—
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under section 53. H
294 SUPREME COURT REPORTS [2020] 9 S.C.R.
A (4) The authority or officer to whom any person or article is
forwarded under sub-section (2) or sub-section (3) shall, with all
convenient despatch, take such measures as may be necessary
for the disposal according to law of such person or article.
53. Power to invest officers of certain departments with
B powers of an officer-in-charge of a police station.—(1) The
Central Government, after consultation with the State Government,
may, by notification published in the Official Gazette, invest any
officer of the department of central excise, narcotics, customs,
revenue intelligence [or any other department of the Central
Government including para-military forces or armed forces] or
C any class of such officers with the powers of an officer-in-charge
of a police station for the investigation of the offences under this
Act.
(2) The State Government may, by notification published in the
Official Gazette, invest any officer of the department of drugs
D control, revenue or excise 3 [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 this Act.
54. Presumption from possession of illicit articles.—In trials
under this Act, it may be presumed, unless and until the contrary
E is proved, that the accused has committed an offence under this
Act in respect of—
(a) any narcotic drug or psychotropic substance or controlled
substance;
F (b) any opium poppy, cannabis plant or coca plant growing on any
land which he has cultivated;
(c) any apparatus specially designed or any group of utensils
specially adopted for the manufacture of any narcotic drug or
psychotropic substance or controlled substance; or
G (d) any materials which have undergone any process towards the
manufacture of a narcotic drug or psychotropic substance or
controlled substance, or any residue left of the materials from
which any narcotic drug or psychotropic substance or controlled
substance has been manufactured, for the possession of which
he fails to account satisfactorily].
H
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 295
[M. R. SHAH, J.]
55. Police to take charge of articles seized and delivered.— A
An officer-in-charge of a police station shall take charge of and
keep in safe custody, pending the orders of the 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
B
who may be deputed for the purpose, to affix his seal to such
articles or to take samples 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.
57. Report of arrest and seizure.—Whenever any person makes
any arrest or seizure under this Act, he shall, within forty-eight C
hours next after such arrest or seizure, make a full report of all
the particulars of such arrest or seizure to his immediate official
superior.
57A. Report of seizure of property of the person arrested
by the notified officer.—Whenever any officer notified under D
section 53 makes an arrest or seizure under this Act, and the
provisions of Chapter VA apply to any person involved in the case
of such arrest or seizure, the officer shall make a report of the
illegally acquired properties of such person to the jurisdictional
competent authority within ninety days of the arrest or seizure.” E
9.3.1 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 F
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.
9.3.2 From the aforesaid scheme and provisions of the NDPS G
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 H
296 SUPREME COURT REPORTS [2020] 9 S.C.R.
A night……Sub-section 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
B
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,
C conveyance or place.
9.3.3 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
D 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;
E 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
F 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.
G
9.3.4 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.
H 9.3.5 There are inbuilt safeguards provided under the NDPS Act
itself, such as, Sections 50 and 52. Section 50 of the NDPS Act provides
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 297
[M. R. SHAH, J.]
that when any officer duly authorised under section 42 is about to search A
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-
B
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 C
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
D
hours send a copy thereof to his immediate official superior.
9.3.6 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 E
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. F
That thereafter the investigation is to be conducted by the officer
in charge of a police station.
9.3.7 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 G
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.
9.3.8 Section 53 of the NDPS Act provides that the Central H
Government, after consultation with the State Government, may, by
298 SUPREME COURT REPORTS [2020] 9 S.C.R.
A notification published in the Official Gazette, invest any officer of the
department of central excise, narcotics, customs, revenue intelligence
or any other department of the Central Government including para-military
forces or armed forces or any class of such officers with the powers of
an officer in charge of a police station for the investigation of the offences
under the NDPS Act. Sub-section 2 of Section 53 further provides that
B
the State Government, may, by notification published in the Official
Gazette, 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. Therefore, other persons authorised by
C the Central Government or the State Government can be the officer in
charge of a police station for the investigation of the offences.
Section 53 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
D 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.
E 9.4 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
F 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,
G 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
H such officers with the powers of an officer in charge of a police station
for the investigation. Similar powers are with the State Government.
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 299
[M. R. SHAH, J.]
The only change in Sections 42 and 53 is that in Section 42 the word A
“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.
B
9.5 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 C
not permissible.
10. Now so far as the submission on behalf of the accused that so
far as the NDPS Act is concerned, it 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 D
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 E
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 F
independent witnesses and/or even the other police witnesses. As held
by this Court in catena of decisions, 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. [See Karamjit Singh v. G
State (Delhi Administration) (2003) 5 SCC 291]. As observed and
held by this Court in the case of Devender Pal Singh v. State (NCT of
Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly
applies as much in favour of a police officer as of other persons, and it is
not judicial approach to distrust and suspect him without good grounds
therefor. H
300 SUPREME COURT REPORTS [2020] 9 S.C.R.
A 10.1 At this stage, reference may be made to illustration (e) to
Section 114 of the Indian Evidence Act. As per the said provision, 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. Therefore, merely because the complainant
B
conducted the investigation that would not be sufficient to cast doubt on
the entire prosecution version and to hold that the same makes the
prosecution version vulnerable. The matter has to be left to be decided
on a case to case basis without any universal generalisation.
10.2 At this stage, it is required to be noted that in cases where
C 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
D 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 for the reasons stated hereinabove.
E
10.3 Now so far as the observations made by this Court in para
13 in Mohan Lal (supra) 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
F 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.
At this stage, it is required to be noted that the reverse burden does not
merely exist in special enactments like the NDPS Act and the Prevention
G 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.
11. Therefore, as such, there is no reason to doubt the credibility
H of the informant and doubt the entire case of the prosecution solely on
MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI) 301
[M. R. SHAH, J.]
the ground that the informant has investigated the case. Solely on the A
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. As held by this Court in the case of Ram Chandra (supra)
the question of prejudice or bias has to be established and not inferred.
B
The question of bias will have to be decided on the facts of each case
[See Vipan Kumar Jain (supra)]. At this stage, it is required to be
noted and as observed hereinabove, 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 C
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,
and as observed hereinabove, there is no specific bar against conducting
the investigation by the informant himself and in view of the safeguard
D
provided under the Act itself, namely, Section 58, we are of the opinion
that 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, as observed hereinabove, there is no specific
bar against the informant/complainant investigating the case. Only in a E
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-cum-investigator, meaning thereby prosecution does not rely
upon other witnesses, more particularly the independent witnesses, in
F
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. Therefore, as rightly observed by this
Court in the case of Bhaskar Ramappa Madar (supra), the matter
has to be decided on a case to case basis without any universal
generalisation. As rightly held by this Court in the case of V. Jayapaul G
(supra), there is no bar against the informant police officer to investigate
the case. As rightly observed, if at all, such investigation could only be
assailed on the ground of bias or real 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 therefore it is not proper to lay down a
H
302 SUPREME COURT REPORTS [2020] 9 S.C.R.
A broad and unqualified proposition that in every case where the police
officer who registered the case by lodging the first information, conducts
the investigation that itself had caused prejudice to the accused and
thereby it vitiates the entire prosecution case and the accused is entitled
to acquittal.
B 12. From the above discussion and for the reasons stated above,
we conclude and answer the reference as under:
I.That the observations of this Court in the cases of Bhagwan
Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State
of Haryana (1996) 11 SCC 709; and State by Inspector of Police,
NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal
C
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
D 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
E 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
F 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.
13. The Reference is answered accordingly.
G 14. Now, respective petitions be placed before the appropriate
Court taking up such matters for deciding the petitions in accordance
with law and on merits and in light of the observations made hereinabove
and our answer to the Reference, as above.
H Divya Pandey Reference answered.
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