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2018 DIGILAW 1038 (MP)

Mangaraj v. State of Madhya Pradesh

2018-12-19

SUBODH ABHYANKAR

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JUDGMENT : Subodh Abhyankar, J. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved of the judgment dated 19/10/2011 passed by the Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act"), Bhopal, in Special Criminal Case No.3/2011, whereby the present appellant has been convicted under Section 8(c) read with Section 20(b)(2) (b) of the NDPS Act and sentenced to ten years' rigorous imprisonment with fine of Rs.1,00,000/- with default clause. 2. In brief the facts of the case are that on 22.1.2011, at around 8:15 PM, Assistant Sub Inspector K.B. Sharma (PW-8) of Police Station GRP Bhopal received an information from an informant (Mukhbir) that two persons have disembarked from Dakshin Express which came at Platform No.3 and the suitcase and bag which they are carrying Ganja (Canabis) which they intend to sell somewhere. After recording the information received from the informant (Mukhbir) in the Rojnamcha vide Ex.P-25 and dispatching the same vide P-28, the said Assistant Sub Inspector K.B. Sharma (PW-8) proceeded to the spot i.e. the platform No.3 where the present appellant was allegedly sitting along with contraband. The accused was detained and after completing the formalities under Section 50 of the N.D.P.S. Act a notice was issued to him and was examined through Assistant Sub Inspector PW-8 K.B. Sharma himself. Although from the person of accused Mangaraj no contraband was found, however when his suitcase and bag were searched, from his bag, 12 kg Ganja and from his suitcase 18 kg ganja was recovered vide Ex.P-7 and thus in all 30 kg ganja was found from the conscious possession of the appellant. After investigation, the charge sheet was filed against the present appellant and the learned Judge of the trial Court, after recording the evidence of the parties, has convicted the appellant as aforesaid vide judgment dated 19.10.2011, which is under challenge before this Court. 3. Learned counsel for the appellant has submitted that the appeal has been preferred on two grounds, firstly on the ground that the complainant in the present case PW-8 K.B. Sharma is the person who has conducted the entire investigation which has vitiated the entire trial and secondly, in the present case, there is no compliance of Section 50 of the N.D.P.S. Act. In support of his contention regarding investigating officer being the author of FIR Ex.P/31, learned counsel for the appellant has relied upon the recent judgment of the Hon'ble Apex Court in the case of Mohan Lal Vs. State of Punjab, 2018 SCC OnLine(SC) 974 in Criminal Appeal No.1880/2011 on 16.8.2018, as also in the case of Megha Singh Vs. State of Haryana, (1996) 11 SCC 709 . 4. On the other hand learned counsel for the State has opposed the prayer of the appellant and has submitted that the appellant has rightly been convicted by the learned Judge of the trial Court. It is further submitted that this being a case under NDPS Act and all the procedural formalities having been followed as provided under the NDPS Act, no case for interference is made out. 5. Heard the learned counsel for the parties and perused the record. 6. On perusal of record this Court finds that Assistant Sub Inspector K.B. Sharma (PW-8) is the person, who had initially received the information from the informant (Mukhbir) regarding the appellant carrying the contraband with him and thereafter the entire investigation was conducted by himself only including all the procedural formalities as provided under the NDPS Act and thus it is not in dispute that Assistant Sub Inspector K.B. Sharma (PW-8) is the person who had not only lodged the FIR Ex.P/31 but had also carried out the investigation which fact has also been admitted by him in his statement before the Court. 7. So far as the legal position regarding the investigating officer himself being the complainant is concerned, the Hon'ble Apex Court in the case of Megha Singh (supra) in para 4 has observed as under:- "4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." (emphasis supplied) Similarly in the recent judgment of the Hon'ble Apex Court in the case of Mohan Lal (supra), in a case relating to NDPS Act, while referring other judgments on the same point, it is held as under:- "27. The Punjab & Haryana High Court in Gannu vs. State of Punjab, (2017) 3 RCR(Cri) 566 (Crl. Appeal No. 1688-SB of 2004 dated 26.05.2017) relating to the NDPS Act, after referring to Noor Aga, (supra) and the views of the Calcutta High Court also apart from Atul Sharma (supra), concluded as follows: "14. Another aspect of the matter is that in sheer violation of the principles of fair and impartial investigation, the complainant and the investigating officer is the same person, which makes the prosecution case doubtful. In Laltu Prasad v. State of West Bengal, (2017) 2 RCR(Cri) 237 (Calcutta) (DB), it was held that the complainant himself acting as the investigating officer violating the principles of fair and impartial investigation is a practice, to say the least, should not be resorted to and it is a disturbing feature. To the same effect, is a Division Bench judgment of Hon'ble Himachal Pradesh High Court State of Himachal Pradesh v. Atul Sharma, (2015) 6 RCR(Cri) 949, wherein, it has been held that where the complainant himself conducts investigation, it causes miscarriage of justice to accused qua fair investigation." 28. To the same effect, is a Division Bench judgment of Hon'ble Himachal Pradesh High Court State of Himachal Pradesh v. Atul Sharma, (2015) 6 RCR(Cri) 949, wherein, it has been held that where the complainant himself conducts investigation, it causes miscarriage of justice to accused qua fair investigation." 28. A Single Judge of the Kerala High Court in Naushad v. State of Kerala, (2000) 1 KerLT 785, relating to the NDPS Act held as follows: "In a case of this nature, when the complainants 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, 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) CriLJ 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 officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. 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 officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. Therefore, we are of the opinion that merely because a detecting officer himself is investigating officer or the officer of the same ranks as that of the detecting officer is investigating the case and files report before the Court will not vitiate the proceedings under N.D.P.S. act in the absence of proof of specific prejudice to the accused. Therefore, legal position stated in Naushad v. State of Kerala, (2000) 1 KerLT 785 to the contrary is overruled." 30. The view taken by the Kerala High Court in Kader (supra) does to meet our approval. It tantamounts to holding that the F.I.R. was a gospel truth, making investigation an empty formality if not a farce. The right of the accused to a fair investigation and fair trial guaranteed under Article 21 of the Constitution will stand negated in that event, with arbitrary and uncanalised powers vested? with the police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof. An investigation is a systemic collection of facts for the purpose of describing what occurred and explaining why it occurred. The word systemic suggests that it is more than a whimsical process. An investigator will collect the facts relating to the incident under investigation. The fact is a mere information and is not synonymous with the truth. Kader (supra) is, therefore, overruled. We approve the view taken in Naushad (supra). 31. In view of the conflicting opinions expressed by different two Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right 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. 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 done, but 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. 32. Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. The appellant is directed to be set at liberty forthwith unless wanted in any other case." (emphasis supplied) 8. Applying the aforesaid dictum to the facts of the present case, this Court is of the considered view that apparently the rights of the appellant has been violated by the action of the overzealous Investigating Officer Assistant Sub Inspector (PW-8) who has taken upon himself to lodge the FIR and to carry out the investigation as well, and as such the same cannot be sustained. In this regard PW-8 in para 27 of his cross examination has admitted that he is the complainant of the case. A suggestion is also put to this witness in para 27 that as he himself is the complainant in the case, he could not have carried out the investigation, to which this witness has denied. Be that as it may, in view of the aforesaid infirmity which goes to the root of the matter and demolishes the case of the prosecution, in the considered opinion of this Court, it is not necessary now to dwell upon the other grounds raised by the appellant. 9. In the result, the appeal stands allowed and the impugned judgment dated 19.10.2011 passed in Special Criminal Case No.3/2011 by the Special Judge under NDPS Act, Bhopal is hereby set aside. The appellant is acquitted from all the charges leveled against him. At present the appellant is in jail, hence it is directed that he be released forthwith. 10. 9. In the result, the appeal stands allowed and the impugned judgment dated 19.10.2011 passed in Special Criminal Case No.3/2011 by the Special Judge under NDPS Act, Bhopal is hereby set aside. The appellant is acquitted from all the charges leveled against him. At present the appellant is in jail, hence it is directed that he be released forthwith. 10. A certified copy of this judgment be sent to the learned Court below for information and compliance, if any.