Constitution Bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat
Constitution Bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat
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NDPS Act: Can informant and investigating officer be the same? Constitution Bench of the Supreme Court answers

The Court held that there is no automatic apprehension of bias when the informant and the investigation officer (IO) is the same, and such cases will have to be decided on a case-to-case basis.

Shruti Mahajan

A Constitution Bench of the Supreme Court held today that a person accused for an offence under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) is not entitled to acquittal on the ground that the informant and the investigating officer are the same [Mukesh Singh v. State (Narcotic Branch of Delhi)].

The judgment was rendered by a Constitution Bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat on the question of whether an investigation under the NDPS Act will get vitiated if the informant is the investigating officer.

The Court held that there is no automatic apprehension of bias when the informant and the investigation officer (IO) is the same, and such cases will have to be decided on a case-to-case basis.

"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 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."

The Court said that the observations made and conclusions arrived at by the Supreme Court in the previous judgments where the trial was found to be vitiated on account of the informant being the same as the investigating officer were not general propostions laid down by the Court.

The Court decided those cases on the facts and circumstances of each case and it cannot be said that an accused under the NDPS Act is entitled to an acquittal on this ground, the five-Judge Constitution Bench held. Referring to the judgments in the cases of Bhagwan Singh v. State of Rajasthan of 1976, Megha Singh v. State of Haryana of 1996 and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam of 2010, the judgment said,

"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 prosecution case is to be disbelieved and the accused is entitled to acquittal;

While arriving at this conclusion, the Court said that when a police official is an informant in the case, his testimony in the cases would be treated as those of the witnesses and he will be subjected to cross-examination. The prosecution's entire case may not depend solely on the deposition made by such an investigating officer.

Moreover, the presumption of a person's honest conduct also brings under it police officials as much as it does other people, the Court said.

"...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."

in fact, the NDPS Act itself carves out penal provisions for the event a person empowered under this Act is found to have acted dishonestly, vexatiously and maliciously, the judgment further reasons.

The judgment also touches upon the aspect of reverse burden of proof in relation to Sections 35 and 54 of the NDPS Act and said, "in the cases of reverse burden of proof, the presumption can operate only after the initial burden which exists on 58 the prosecution is satisfied."

Even in relation to certain offences under the IPC, such as Section 304B, which envision reverse burden of proof, the offences are required to be investigated as per the provisions of the CrPC and as such the informant is allowed to investigate the offences himself under Section 157 of the CrPC The same principle would apply even under the NDPS Act, the Court implied.

The accused persons were represented by Senior Advocate Sushil Kumar Jain and Advocate Ajay Garg.

Solicitor General Tushar Mehta and Additional Solicitor General Aman Lekhi had represented the government.

In 2018, a three-judge Bench of the Supreme Court had held that the trial stands vitiated in case 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 v. 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 instant Constitution Bench for determination.

Read Judgment:

Mukesh vs State (Narcotics Branch).pdf
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