The Supreme Court set aside the conviction in a case under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) stating that where the burden of proof is reversed in NDPS cases, the investigation carried out should be free from apprehension of bias or unfairness.

The Supreme Court Bench of Justices Ranjan Gogoi, Navin Sinha and R Banumathilaid down that the right to a fair investigation is a constitutional right guaranteed under Article 21 of the Constitution of India and any possibility of bias or predetermined conclusion needs to be excluded.

This requirement, the Court held, is even more imperative in cases under laws like NDPS Act which hold a reverse burden of proof.

What this case is

In this instant case of Mohan Lal v. the State of Punjab, the accused-appellant was apprehended by one Chand Singh, a Sub-Inspector of the Balianwali Police Station, on the suspicion of possession of contraband items. The Sub-Inspector was accompanied by a Sarpanch and an Assistant Sub-Inspector.

After apprehending the appellant, a gazetted IPS officer was called for carrying out search and seizure as mandated by the NDPS Act. A total of four kilograms of opium was recovered from the bag carried by the appellant. A sample specimen was separated from the recovered items, handed over to Sub-Inspector Chand Singh who apprehended the appellant.

Subsequently, a formal FIR was registered against the appellant based on which a chargesheet was prepared by Singh leading to a trial resulting in appellant’s conviction. Effectively, the informant in the case was handed over the responsibility of investigating the case.

What was argued

Advocate Chanchal Kumar Ganguli, the Counsel representing the appellant, argued before the Court that there were some pertinent questions raised about the manner in which the investigation was carried out. He argued that these questions left a genuine apprehension in the mind of the accused-appellant that it may not have been a fair and bonafide investigation.

Calling the investigation “fundamentally flawed”, the appellant submitted that since SI Chand Singh was the informant in the case, he could not have been the investigating officer himself.

However, the Respondent, represented by Advocate Jaspreet Gogia contended that the appellant was searched in the presence of a gazetted officer as is required by the NDPS Act and argued that as per the statutory presumptions under Sections 35 and 54 of the NDPS Act, the burden of proof rested on the appellant.  That is, there is a reverse burden of proof under the Act.

What the Court said

The Court observed that when the question before it was whether a criminal investigation would stand vitiated on account of the informant being the investigating officer, it would be necessary for the accused to show prejudice on the part of the IO.

It was observed by the Court that even though the burden of proof in a case under the NDPS Act lies with the accused to prove his innocence, this presumption is rebuttable. The judgement penned by Justice Navin Sinha reads,

“Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable.”

The Court stressed that the requirement of the prosecution to prove a prima facie case beyond a reasonable doubt cannot be done away with based on the presumption under the NDPS Act, especially when the provisions are so stringent. The Court said,

“The case of the prosecution cannot be allowed to rest on a preponderance of probabilities.”

Touching upon the Right to a fair investigation as envisaged under Article 21 of the Constitution of India, the Court held that this right would be a “hollow promise” if the investigation under the NDPS Act was not fair or raised questions about the fairness 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.”

The Court also noted that in a case like this with a reverse burden of proof, if the informant police official is himself carrying out the investigation, the said investigation will be marred by serious apprehensions regarding his impartiality and fairness. The result of such an investigation will be viewed as a “foregone conclusion.”

In the absence of a concrete law in such matters, the Court opined that a law with certainty is required to be laid down owing to the importance of a fair investigation as a Constitutional Right under Article 21, particularly from the point of view of an accused. The Court said that a question like this cannot be left open to be determined on the individual facts of a case.

“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.”

Allowing the appeal, the Court effectively set aside the conviction of the appellant and held that the prosecution, in this case, was held to be vitiated “because of the infraction of the constitutional guarantee of a fair investigation”.

As carried in BB