Authored By: Mayank Shandilya
Date of judgement: 31/08/2020
Citation: Special Leave Petition (Crl.) Dairy No. 39528/2018
Bench: Justice Arun Mishra, Justice Vineet Saran, Justice Indra Banerjee, Justice M.R. Shah, Justice S. Ravindra Bhat
Court: Supreme Court of India
Overview of the Case
In the 2018 case of Mohan Lal v. The State of Punjab, a three-judge bench of the Supreme Court ruled [1] that in the event of the Investigating Officer (I.O.) and the informant being the same person, the case would be vitiated. It was considered that such a situation created a bias and the defendant was entitled to be acquitted. Further, it was also mentioned that from the date of judgement, no such benefits will be passed on to any of the pending trials.
However, in the case of Mukesh Singh v. State (Narcotic Branch of Delhi), [2] the validity of this judgement was questioned by a two-judge bench consisting of Justices U.U. Lalit and M.R. Shah disaccorded the decisions in Mohan Lal’s case. They fundamentally saw it fit to transfer the case to a larger bench consisting of a minimum of three judges.
Facts of the Case
The accuracy of the decision in Mohan Lal v. the State of Punjab was questioned by the constitutional bench. Mohan Lal had previously taken a firm stand when the high courts had laid down conflicting decisions. The case, however, was not an unusual situation in which a formal criminal investigation, the informant and the investigating officer were essentially the same people. For instance, in cases related to drugs, it is common for the raiding officer to be the first informant.
But the question arises, can a raiding officer continue to investigate the case? And if so, does that question the legitimacy of the investigation?
The case of Mohan Lal sums up the answers as:
(1)The same police officer who has reported the case will not continue as its investigating officer.
(2) In the event that this happens, the procedure should be changed as it creates a bias.
Although the facts in the case of Mohan Lal were clear in the Narcotic Drugs and Psychotropic Substance Act, 1985 [3], the decision of the bench came in effect to a larger application, to the extent of considering criminal investigations in general. Following that, in Varinder Kumar v. the State of Himachal Pradesh [4], a three-judge bench (two of whom were members of the Mohan Lal Bench) upheld the previous decision but with numerous reservations (and some with language issues concerning the accused's procedural rights).
However, within only a year, doubts were raised regarding the decision by the two jurors in the case of Mukesh Singh.
Concerning Issue
If the informant is the same person as the investigating officer, will an investigation under the Narcotic Drugs and Psychotropic Substances Act be renewed simply because of the fear of bias?
Arguments Advanced
The appellants of the Mukesh Singh case praised Mohan Lal's statements in his verdict, particularly his sense of fear of favouritism. Along with this, they also attempted to interpret [5] Sections 42 and 52 of the NDPS Act. As stated in Section 52[3], a police officer who conducts a search/seizure/seizure, under Section 42 must send that person or items to an authorized investigating officer of the case under Section 53. As a result, they have attempted to demonstrate that the legislature intended that the investigator and informant should not be the same individual. The entry, search, arrest, and detention powers of the Section 42 officer are limited, and as a result, an officer has no authority to investigate.
Section 54 of the NDPS Act puts the burden of proof on the respondent who has been found in possession but is unable to react satisfactorily, as it gives the impression that the respondent has committed an offence. As a result, in an investigation under the NDPS Act, the finding and discovery of an object are extremely critical, and it was also argued that if a suspect is found in possession of a restricted object, Section 54 allows for the charge to be considered, while Section 35 allows for the consideration of an unreasonable attitude. An investigation into this subject should be done by an impartial agency/officer because the raiding officer or the assaulting party participating in the retrieval are witnesses to this reported fact, which may be the case. As a result, the law must be updated to protect the defendant's interests, and a thorough investigation must be conducted by several parties, namely, the police officers authorized under Sections 42 and 53 of the NDPS Act.
On the other hand, respondents, argued that the Mohan Lal Case continued to apply Section 157[6] of the Criminal Procedure Code, which allows an investigator to conduct an investigation based on his or her knowledge of the acquittal; ignoring Figure (e) of Section 114 of the Indian Evidence Act, which allows the Court to express the view that legal proceedings are being carried out properly; and ignoring the principle stated in H.N. Rishbud v. State of Delhi[7]. Further, it did not apply to Section 465 of the Criminal Procedure Code, which states that an unlawful act committed before, during, or after the processes, or in any other proceeding, would not allow for the revision of any judgment, sentence, or order save in the event of a failure of justice.
He did not consider the principle that malafide should be established and not considered, and that mala fides are essential if the case presents implicit evidence. He did not consider the principle that illegal protests should be raised in the appropriate category and misunderstood the NDPS Act's dual structure as well as the retrenchment policy. Moreover, he failed to follow the principle that under the Act, investigations are limited to investigative agencies, the functions of investigative and judicial agencies are consistent and inclusive, and interference is only permitted if it is a clear case of abuse of power that will determine the facts of each case.
The defendants further asserted that the proper technology should not be used as the one and only basis for contesting all future investigations and convictions and that the matter should instead be tried on its merits. Many well-established cases will be dismissed for technical reasons if this does not happen.
The court’s observations
The Constitutional Bench has stated that where a police officer receives information regarding litigation and registers it, and subsequently investigates it, there is no illegitimacy under the Criminal Procedure Code. Sections 154, 156, and 157, on the other hand, allow the officer in charge of a police station to limit the specifics of a criminal complaint by writing and then investigating it. The Court went on to look at the relevant parts of the NDPS Act, concluding that Section 52 requires any police officer arresting a person under sections 41, 42, 43, or 44 to tell the apprehended person of the reason for his or her detention. Additionally, clause 2 of Section 52 additionally states that any person arrested or property seized pursuant to a warrant issued under subsection 1 of Article 41 must be sent to the Magistrate who gave permission as soon as possible. Every person arrested and subsequently arrested under Article 2 of Sections 41, 42, 43, or 44 will be sent without undue delay to the officer in charge of the nearest police station, or to a police officer authorized under Section 53. in charge of the police station, according to Section 3 of Article 52.
Section 53 of the NDPS Act does not require that all officers authorized to employ the powers of a police officer in charge of a police station to investigate matters be present. Officials authorized to exercise power under sections 41, 42, 43, and 44 appear to have never anticipated that officers in charge of a police station in the investigation of cases under the NDPS Act could not be officers in charge of a police station in the investigation of cases. The act does not expressly permit a person with knowledge or complainant to be an investigator and officer in charge of a police station in order to investigate matters. Taking the opposing viewpoint, Section 53 and the related provisions of the NDPS Act should be amended and/or any non-existent, invalid item should be supplemented.
The Court pointed out that whether the inquiry of the informant in question was impartial or not was always decided at trial. The investigator in question will be named as a witness and interrogated, and police evidence will be regarded in the same way as any other witness' testimony, with no rule that his or her testimony cannot be relied upon without the confirmation of independent witnesses. This Court held in Devender Pal Singh v. State (NCT of Delhi) [8], that believing that a person acts with integrity is as effective in the police force as believing that other individuals act with integrity, and it is not a way to determine mistrust and suspicion without cause.
Judgement
After noting all of the concerns and relevant provisions of the NDPS Act as well as the Cr. P.C, the Court concluded that there was no reason to mistrust the informant's veracity or to call into question the prosecution's whole case just because the informant had investigated the matter. All forms of persecution cannot be dismissed based on mere fear or suspicion, and the defendant must not be released until he or she can show and prove partiality and discrimination.
The Court further found that, because the NDPS Act is a special Act with a particular procedure to be followed under Chapter V, and because of the protection granted by the Act itself, Section 58, there are no restrictions on the informant conducting his own inquiry. The trial will be held in all cases when the informant is an investigator, and the defendant has the right to be found not guilty, according to a legal suggestion.
Conclusion
The court concluded its verdict by stating its position on the contentious issue in Mohan Lal's case as follows: "In each situation, the question of bias would be determined by the facts and circumstances. As a result, just because an informant is an investigator, the investigation would not have suffered as a result of injustice or prejudice, and hence the defendant has no right to be acquitted on the basis that the informant is an investigator. In each circumstance, a decision must be made. The Court's negative decision in the case of 'Mohan Lal v. the State of Punjab (2018)', as well as any other decision that holds that an informant cannot be an investigator and that, in such a situation, the defendant is entitled to conviction, is not good law, and they are immediately dismissed."
Nonetheless, the conclusions demonstrate a logical reversal of Mohan Lal's automatic discrimination rule. It is not conceivable in a legal system where law enforcement is ineffectual and where standards are always in control when it comes to issues that measure the impact of procedural protection Furthermore, I continue to believe that a rule like this will incentivize law enforcement to seek out vacancies that they perceive as violations of the law, rather than the law furthering the promise of a fair investigation. Finally, the dreadful nature of the terms of the breach of the process was bound to give the courts a second opinion about Mohan Lal's continued operation, as evidenced by the quickness with which the matter was settled by the Constitutional Bench.
References
[1] Mohan Lal v. The State of Punjab, AIR 2018 SC 3853
[2] Mukesh Singh v. State Narcotic Branch of Delhi, Diary No. 39528/2018
[3] NDPS Act, 1985, No. 61, Acts of Parliament, 2005 (India)
[4] Varinder Kumar v. the State of Himachal Pradesh, 2019 SCC OnLine SC 190
[5] NDPS Act, 1985, No. 61, Acts of Parliament, 2005 (India)
[6] Cr. P.C, 1973, No. 2, Acts of Parliament, 2005 (India)
[7] H.N. Rishbud v. the State of Delhi, 1955 AIR 196, 1955 SCR (1)1150
[8] AIR 2002 Supreme Court 1661, 2002 CriLJ 2034, 2002 (2) Crimes 133 SC, 97 (2002) DLT 57 SC, JT 2002 (3) SC 264, 2002 (3) SCALE 139, (2002) 5 SCC 234, 2002 2 SCR 767
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