2018 (12) TMI 556 - HC - Indian Laws

Conflicting roles of Investigating Officer and complainant lead to acquittal

ANNABELLE ANALISTA MALIBAGO Versus DRI

The court concluded that the investigation and subsequent trial were vitiated due to the conflict of roles played by the Investigating Officer (IO) also ... Smuggling - heroin - NDPS Act - acquittal of offence - case of appellant is that the entire proceedings were vitiated as the Investigating Officer was herself the complainant, who had submitted/filed the written complaint, wherefrom these proceedings emanated. Held that:- A holistic reading of Mohan Lal [2018 (8) TMI 963 - SUPREME COURT OF INDIA] leaves no manner of doubt that the Supreme Court has disapproved, in cases relating to prosecution under the NDPS Act, not only the informant being the IO, but also the complainant, the officer who apprehends the accused, or the officer who conducts the search, being the IO. The reasons, for taking such a view are also clearly delineated in the said decision. The Supreme Court has clearly expressed a view that, if the person making the allegations is himself asked to investigate, serious doubts would arise with regard to his fairness and impartiality. It has also noted that it would be illogical to presume, and contrary to human conduct, to expect the IO, who had himself provided the initial information, or filed the complaint against the accused before the competent court, or even conducted the apprehension or search of the accused, to, at the conclusion of the investigation, submits a closure report, which could invite an inference that he had obviously implicated the accused, with all its attendant consequences, “for the complainant himself”. The submission of appellant to the effect that, if the complainant, who has filed the complaint in a case relating to prosecution under the NDPS Act, was herself/himself the IO, the entire investigation and subsequent prosecution and trial stand vitiated, and that the accused is entitled, ipso facto, to acquittal, merits acceptance. Also, there can be no manner of doubt that PW-1 Anju Singh was herself the IO as well as the complainant. The appellant is entitled to be acquitted of the offence for which she stands convicted - appeal allowed. Issues Involved:1. Whether the investigation and subsequent prosecution are vitiated if the complainant is also the Investigating Officer (IO).2. Applicability of the Supreme Court judgment in Mohan Lal v. State of Punjab, 2018 SCC OnLine SC 974.3. Determination of the actual Investigating Officer in the case.Detailed Analysis:1. Whether the investigation and subsequent prosecution are vitiated if the complainant is also the Investigating Officer (IO):The appellant challenged her conviction and sentence under Section 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), on the ground that the complainant, Ms. Anju Singh, was also the Investigating Officer (IO). The appellant argued that this dual role vitiated the entire proceedings. The court examined the facts and noted that Ms. Anju Singh, who filed the complaint, was indeed the IO. The court emphasized that the Supreme Court in Mohan Lal v. State of Punjab had ruled that such a practice is inherently prejudicial and violates principles of fair investigation and trial.2. Applicability of the Supreme Court judgment in Mohan Lal v. State of Punjab, 2018 SCC OnLine SC 974:The appellant relied on Mohan Lal v. State of Punjab, where the Supreme Court held that the investigation is vitiated if the informant and the IO are the same person. The respondent's counsel, Mr. Satish Aggarwala, argued that Mohan Lal distinguished between an 'informant' and a 'complainant' and that in cases investigated by the Directorate of Revenue Intelligence (DRI), the seizing officer being the complainant did not vitiate the proceedings. However, the court found that Mohan Lal applies to situations where the IO is also the complainant or the officer conducting the search, thereby covering the present case. The court reiterated that the Supreme Court's decision mandates that the informant and the IO must not be the same person to ensure a fair investigation.3. Determination of the actual Investigating Officer in the case:The respondent's written submissions claimed that the IO was PW-4 Ramesh Kumar, not PW-1 Anju Singh. However, the court found this argument unconvincing and unsupported by evidence. The court noted that no such argument was presented during oral submissions and that the evidence clearly indicated that PW-1 Anju Singh was the IO. This was corroborated by the testimony of PW-4 Ramesh Kumar, who confirmed that the report under Section 157 of the NDPS Act was submitted by the IO, PW-1 Anju Singh.Conclusion:The court concluded that the investigation and subsequent trial were vitiated due to the conflict of roles played by PW-1 Anju Singh as both the complainant and the IO. This conclusion was based on the principles laid down in Mohan Lal v. State of Punjab, which necessitates separate roles for the informant and the IO to ensure a fair investigation and trial. Consequently, the appellant was acquitted of the charges, and the appeal was allowed. The court ordered the immediate release of the appellant unless she was required in connection with any other case. The trial court record was directed to be sent back with a copy of the judgment, and intimation was to be sent to the Superintendent of Tihar Jail.