TaxTMI 
TaxTMI 
2018 (12) TMI 801
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....oming to ISBT, Delhi, by a Punjab Roadways bus at about 8:15 PM on 5th January, 2009, carrying narcotic drugs. Following thereon, a team of officers of the Directorate of Revenue Intelligence (DRI), accompanied by two public witnesses, Harendra and Vishal, intercepted the appellant, when she was disembarking from a Punjab Roadways bus. She was found carrying a black backpack. On being asked whether she was carrying narcotics, the appellant replied in the negative. She was, thereafter, given a written notice, under Section 50 of the NDPS Act (Ex. PW-1/B), giving her the option of having her search conducted in the presence of a Magistrate or a Gazetted Officer. She refused the offer in writing, and expressed her agreement to be searched by any lady officer. She also requested that the search be not carried out at the place of her interception as it was crowded and unsafe. Thereafter, she, along with the two public witnesses Harendra and Vishal, was brought to the DRI office, where the backpack carried by her was searched, which was found to contain, inter alia, two black polythene packets. On opening the said packets, they were found to contain one packet each, wrapped with brown ad....
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....iend Ms. Lucy had introduced her to the business of narcotics, in which she agreed to be involved as she was in need of money. She further deposed that, on 3rd January, 2009, she, and Ms. Lucy, flew to Amritsar, where they collected some packets of narcotics from an unknown person, which she concealed in her bag. Payment, in US Dollars, was made, by Ms. Lucy, to the person who had delivered the narcotics. The appellant further disclosed, in her second statement, that she had concealed the narcotics in her backpack as instructed by Ms. Lucy, who also directed her to carry the drugs, in her backpack to Delhi by bus, and hand them over to Mr. Ben, who would pay her US$ 2000/-for the job. The appellant further deposed that the seizure, effected from her, was of the same drugs. 4. The appellant was arrested, and subsequently remanded to judicial custody on 6th January, 2009. 5. The complainant PW-1 sent a detailed information/report, under Section 57 of the NDPS Act, to PW-2. The Trial 6. Fifteen witnesses were examined by the prosecution. 7. PW-1 was the I/O, Anju Singh, who testified regarding receipt of secret intelligence, reduction thereof into writing (Ex. PW-1/A), ....
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....tted returning, by bus, carrying the bag given by Ms. Lucy, but denied any knowledge that the bag contained heroin. She alleged that her statements had been dictated by the DRI officers. She did not choose to lead any evidence in her defence. The impugned judgment and order 11. The learned Special Judge has convicted the appellant, reasoning thus: (i) The statements of PW-1 and PW-2, who were witnesses to the recovery of heroin from the possession of the appellant, had made consistent uncontroverted depositions, regarding receipt of secret information, constitution of the raiding team, visit to the spot with two public witnesses, apprehension of the appellant with the bag, service of notice under Section 50 of the NDPS Act, as well as subsequent proceedings relating to search of the bag, recovery of the heroine, weighment, testing and sampling thereof, as also the preparation of parcels for further testing. Their oral depositions were corroborated by the panchnama (Ex. PW-1/C). They also deposed regarding the identity document of the appellant, her air ticket, boarding pass, and her bus tickets, all of which were recovered during the personal search of the appellant ....
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....ement (Ex. PW-1/K) tendered on 5th January, 2009. Both were written in English, which was a language well known to the appellant, and were recorded in her own handwriting. The statement dated 5th July, 2009 (Ex. PW-1/K) contained personal and family details, known only to the appellant. She had admitted, in her statement dated 6th July, 2009 (Ex. PW-1/R), having come into contact with Ms. Lucy, and had also explained how it came about. She also explained how Ms. Lucy had introduced her to the business of carriage of heroin. Except for the fact of actual carriage of heroin, all other details stood admitted, by the appellant, in her statement under Section 313 of the CrPC. As against this, there was only one lone letter of retraction, which did not bear any date, and was neither written or filed in the court, nor endorsed by the learned Special Judge. It appeared to have been filed during remand proceedings, and did not appear to be in the handwriting of the appellant. Moreover, it used legal expressions, which could have been incorporated only on the basis of legal advice. No reference, to the said retraction, was contained in the statement of the appellant, under Section 313 of the....
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....proved beyond reasonable doubt. Ms. Sidhu highlighted the fact that the independent witnesses were, in fact, reflected in the list of witnesses cited by the prosecution, but were dropped as their addresses were incomplete and were not traceable. This, Ms.Sidhu submits, was not believable. It gave rise to a reasonable presumption that the witnesses were fake, and that their names had been included to provide credibility to the case of the prosecution. This also, concomitantly, diluted the evidence of PW-1 and PW-2, who had not signed the documents executed during investigation. Ms. Sidhu submitted that the case deserved drawing of an adverse inference, against the prosecution, under Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as "the Evidence Act"). (ii) The proceedings also stood completely vitiated by the sole fact that the complainant and the I/O were one and the same person, i.e. PW-1 Anju Singh. Reliance was placed, for this purpose, on Mohan Lal v. State of Punjab, 2018 SCC Online SC 974. (iii) The learned Special Judge had erred in failing to take notice of the fact that the statement, of the appellant, under Section 67 ....
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....ely, for acquittal of the appellant, and for dismissal of her appeal. Analysis 17. I am of the opinion that the appellant is entitled to acquittal on both the accounts urged by Ms.Sidhu, i.e., because PW-1 was complainant as well as I/O, and because the public witnesses, who had supposedly been co-opted during investigation, had been dropped by the prosecution, after citing them as witnesses in their support. I do not intend, therefore, to enter into any other intricacies of the submissions advanced by learned counsel. 18. The reliance, by Ms. Sidhu, on the judgment of the Supreme Court in Mohan Lal (supra) is well taken. The semantic calisthenics, to which Mr. Aggarwala would seek to resort, by attempting to distinguish between "seizing officer", "complainant" and "informant", unfortunately, cannot detract from the applicability of the said decision, to which Article 141 of the Constitution of India lends its imprimatur. I have had occasion to examine the applicability of Mohan Lal (supra), in a similar case, in which, too, coincidentally, the IO/complainant happened to be Anju Singh, and learned counsel for the opposing parties, too, were the same, namely Ms. Sidhu and M....
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....o distinguish the said case by drawing my attention to the distinction between an "informant" and a "complainant", and that in cases investigated by the DRI, there was no "informant", as the cases proceeded on prior intelligence, and that the seizing officer was the complainant. He submits that there is no prohibition to the seizing officer being the complainant and that if, therefore, the seizing officer, who also investigated the case, happened to file the complaint, against the appellant-accused in court, no illegality, warranting a decision in favour of the accused, could be said to have been committed. 11. Mr. Satish Aggarwala has also filed written submissions, in which, besides advancing the legal arguments already noted hereinabove, it has been sought to be contended that Ms.Anju Singh was neither the informant nor the investigating officer, as "almost the entire investigation" had been conducted by PW-4 Ramesh Kumar, Senior Intelligence Officer (SIO). My attention has been invited, in this context, to the testimonies of Anju Singh and Ramesh Kumar, testified as PW-1 and PW-4 respectively. The filing of complaint by Anju Singh, it is sought to be contended in the w....
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.... of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities." 17. Thereafter, the prime necessity of the investigation, in cases under the NDPS Act being scrupulously fair and free from any objectionable features or infirmities, was highlighted in paras 14 to 16 of the judgment, thus: "14. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of ....
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....tutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides." 16. The duty of the prosecution under the NDPS Act, considering the reverse burden of proof, was noticed in Noor Aga v. State of Punjab, (2008) 16 SCC 417 observing: "58......An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actusreus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generali....
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....on, relying on Megha Singh (supra) the accused was acquitted. The view taken by the Madras High Court in Balasundaran v. State, 1999 (113) ELT 785 (Mad.), was also noticed as follows: "16. Learned Counsel for the appellants also stated that P.W 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. P.W 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, P.W 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W 5 alone had filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W 5 16 was the person who really investigated the case. P.W 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated." 20. Bhaskar Ramappa Madar (supra) conce....
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....he complainant could not have investigated relying on Rajangam, (supra) and Megha Singh, (supra) was rejected on the ground that he was not the sole person investigating the case, and that the ground had not been raised before the High Court in appeal. 25. In the nature of the controversy, it would be useful to also notice the view taken by different High Courts on the issue. In State of Himachal Pradesh v. Atul Sharma, 2015 (2) shim LC 693 (Crl. Appeal No. 246 of 2008, decided on 28.02.2015), under the NDPS Act, it was observed as follows: "10.8 In present case it is proved on record that complainant is SI Bahadur Singh as per FIR Ext.PW12.A and it is proved on record that entire investigation has been conducted by complainant himself and there is no evidence on record in order to prove that investigation was handed over to some other independent Investigating Officer. It is not the case of prosecution that no other independent Investigating Officer was available to conduct impartial investigation. We are of the opinion that conducting entire investigation i.e preparation of seizure memo, site plan, recording statements of witnesses by complainant himself has cau....
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....ating to the NDPS Act held as follows: "... In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under Ss. 154 or 155 Cr.P.C and previous statement of the witness, being a police officer, complaint recorded, under S. 161 Cr.P.C enjoined in S. 145 and 157 of the Indian Evidence Act and proviso of S. 162 Cr.P.C In the instant case, before me, PW1 is an Assistant Sub Inspector of Police, 22 and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got a Sub Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub Inspector of Police or any other Police Officer above the rank of PW1. In the instant case, thus an incurable infirmity and flaw have been c....
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....ght under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be donebut must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof." (Emphasis and underscoring supplied) 19. The opening words of para 31 of the judgment make it apparent that, prior thereto, there was considerable divergence of judicial opinion, amongst decisions of various benches, in each case of two Hon'ble judges of the Supreme Court, regarding the issue of whether the fact that the informant/complainant/searching of....
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.... and such a practice was one which should not be resorted to, so that there can be no occasion to suspect the fairness and impartiality of the investigation. (v) Following the law laid down in Megha Singh (supra), the Supreme Court had, in State v. Rajangam, (2010) 15 SCC 369, acquitted the accused, in a case under the NDPS Act, on the ground that the officer who apprehended the accused could not have investigated the case. The Supreme Court also affirmed the view taken by the Madras High Court in Balasundaran v. State, 1999 (113) ELT 785 (Mad.), which held that the person who had searched the appellants could not be the investigating officer. (vi) In Naushad v. State of Kerala, 2000 (1) KLT 785, it was categorically held by a learned Single Judge of the Kerala High Court, in a case relating to the NDPS Act that "the complainant being a police officer cannot be an investigating officer" as, "in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under Sections 154 or 155 of CrPC and previous statement of the witness, being a police officer, complaint recorded, un....
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....s the same view. 23. In view of the above, the submission, of Ms. Sidhu, 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." 19. As one may say, quod erat demonstrandum. As in the case of Anabelle Analista Malibago (supra), the proceedings, in the present case, too, stand completely vitiated even by the sole reason of the fact that PW-1 Anju Singh was IO, as well as complainant. 20. There is substance in the second contention of Ms Sidhu, as well, i.e. that the non-co-opting, of Harendra and Vishal, supposedly the two public witnesses to the search, recovery and seizure of the contraband heroin from the appellant, as witnesses for the prosecution, necessarily invites an inference adverse to it. The reliance, by Ms Sidhu, in this context, on the judgments of this Court in Anju Tiwari (supra) and Nnadi K. Iheanyi (supra), is apt and to the point. The situation, in the said cases, was identical, and this Court (speakin....