NDPS Act: Can informant and investigating officer be the same? Constitution Bench begins hearing case
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NDPS Act: Can informant and investigating officer be the same? Constitution Bench begins hearing case

Shruti Mahajan

A Constitution Bench of the Supreme Court today began hearing the case involving the question whether an investigation under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) will get vitiated if the informant is the investigating officer.

The case is listed before the Constitution Bench headed by Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat.

In 2018, a three-judge Bench of the Supreme Court had held that the trial stands vitiated in case where the informant and the IO are the same. This judgment was passed in the case of Mohanlal v. State of Punjab, by a Bench headed by Justice Ranjan Gogoi. It also specified that the benefit of the same will not be extended to trials and appeals pending as of the date of the judgment.

The correctness of Mohanlal judgment was, however, questioned by a two-Judge Bench in the case of Mukesh Singh vs State (Narcotic Branch of Delhi). In that case, the Bench of Justices UU Lalit and MR Shah had held,

“Since we are in respectful disagreement with the view taken in Mohan Lal (Supra), this matter may require consideration by a Bench of atleast three Hon’ble Judges. We, therefore, direct the Registry to place the papers before the Hon’ble the Chief Justice of India to constitute a Bench of appropriate strength to consider the matter.”

The case was subsequently placed before the present Bench for determination.

When the case came up for hearing before the Constitution Bench today, the Court was told that in case where the informant and the IO are the same, there exists a likelihood of bias owing to which the principle in the Mohanlal case is correct.

The Court, however, took the view that the decision in such cases is based on the facts and circumstances of each case. Portions of a judgment cannot be read in isolation, the Court said. Justice Mishra added,

“All these cases state that after considering the facts and circumstances of the case. What is the prescribed law should not be changed unless there is a compelling reason to change the law which has been administered by this Court.”

Weighing in on the discussion, Justice Bhat said that several solitary instances of bias or false implication have led to an inflexible rule in the Mohanlal judgment.

“What is the great public mischief that you wish to avoid that you want to depart from the mandate laid down by this Court?”

The statue does not state that an informant or complainant cannot prosecute, Justice Bhat added. He said that merely on the presumption of bias, an iron-cast rule cannot be laid down.

Amicus Curiae in the case, Senior Counsel Ranjit Kumar also made his submissions today. He argued that the NDPS act is one of the legislations that provide for severe and stringent punishments and a reverse principle on burden of proof. Owing to this, the likelihood of false implications are high and often leaves accused helpless and in a position where they cannot defend themselves.

The case remained part heard today and the submissions in the case will continue on the next date of hearing.

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