TaxTMI 
TaxTMI 
2018 (12) TMI 801
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....out 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 adhesive tapes. The said two packets were marked &bdqu....
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....ed 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), constitution of the raiding team and filing of complaint by her. Para 15 of the impugned j....
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....ntained 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 conducted by PW-1. (ii) The objection, of learned counsel for the appellant, that the documents did not bear ....
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....r 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 Cr PC. In these circumstances, the mere allegation that her statements in Ex. PW-1/K and PW-1/R were dictated by DRI officers, could not erode them of t....
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....ed 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 of the NDPS Act, had been retracted by her. The appellant had, in fact, relied on the said retraction even in her statement under Section 313 of the Cr PC. (iv) In the circumstances, Ms.Sidhu submits that ....
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....ic 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 Mr. Satish Aggarwala. (Significantly, in the said case, too, there were two public witnesses, who, however, testified, during trial, in favour of the DRI.) I take the liberty of reproducing, from the said decision [Anabelle Analista Malibago v. DRI, 2018 SCC Online D....
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....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 written submissions, was only by way of discharge of her official duties. 12. Before examining the rival contentions, it would be appropriate to peruse the judgment of the Supreme Court in Mohan Lal (supra), which constitutes the sheet-anchor, and the summum bonum, of the appellant's case. 13. M....
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....er, 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 which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. 15....
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....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 generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt." 18. The Supreme Court, thereafter, went on to examine the implication of the IO, carrying out investigation under the NDPS Act, being the informant, as well as being the complainant, in paras 18 to 31 of the decision, thus: "18. In a criminal prosecution, there is an obligation cast on the investigator not only to be fai....
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....he 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) concerned a prosecution under Section 304B, I.P.C which also carries a reverse burden of proof. The Trial Court held that the investigating officer who was also the complainant could not have investigated, and on that ground, held the prosecution to be tainted. The acquittal was reversed by the High Court. In appeal, this Court declined to interfere with the conviction. After referring to Bhagwan Singh (supra) and Megha Singh (supra), it was observed that the principles laid down therein had to....
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....bserved 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 caused miscarriage of justice to accused qua fair investigation." 26. A similar view has been taken in Shri Fayas Ali v. State of Mizoram Crl. Appeal No. 26 of 2013 (J) dated 19.09.2013, relating to prosecution under the NDPS Act, by the Gauhati High Court as follows: "From the evidence of PWs 1 and 4, it is clearly found that the major part of the investigation including the arrest of the accused, preparation of seizure, taking of sample, examination of the seizure witnesses and examination of the accused person, was completed by the P....
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.... 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 committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner." 29. Disapproving of the same, a Division Bench in Kader v. State of Kerala, 2001 Cri LJ 4044, held: "6. Unlike usual cases under the Criminal Procedure Code, in cases under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating off....
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....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 officer, was the IO, was fatal to the prosecution, especially in cases where the statute casts a reverse burden of proof. Needless to say, this Court is loath to revisit the issue and, thereby, undo the efforts of the Supreme Court, as manifested by the judgment in Mohan Lal (supra), which sets the legal position at rest. For the nonce, at least, this Court is sanguine about the position, in law, that all prosecutions, under the NDPS Act - or, for that matter, under any "criminal" statute which casts a reverse burden of proof - must abide by the enunciation of the law in Mohan Lal (supra). 20. Another feature which becomes apparent, from the under....
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....(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, under Section 161 CrPC enjoined in Section 145 and 157 of the Indian Evidence Act and proviso of Section 162 CrPC". The fact that the complainant was the investigating officer was held, by the learned Single Judge of the High Court of Kerala, to constitute an "incurable infirmity", entitling the petitioner to an order of acquittal. The said judgment of the learned Single Judge in Naushad (supra)stands specifically approved in Mohan Lal (supra), which overrules the contrary view, expressed by a Division Bench of the High Court of Kerala, in Kader (supra). The view of the learned Single Judge of the High Court of Kerala in Naushad (supra) stands, thereby, elevated to the status of the opinion of a bench of....
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....hat 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 (speaking, in each case, through Dr S. Muralidhar, J.), held that the failure to produce the public witnesses, as witnesses for the prosecution, on the ground that the addresses provided by them were found to be non-existent, was fatal to the case of the prosecution. This Court, in fact, noticed that this seemed to be an endemic problem, with the NCB. 21. Para 23 of the judgment in AnjuTiwari (supra) reads thus: " The Court would like to observe that conviction cannot depend only on the fact that a huge quantity of heroin is shown to have been seized. Also, the argument that the prosecution will not needlessly implicate innocent persons does not impress the Court. The NCB has to discharge the burden of proving beyond reasona....