Will Trial In NDPS Cases Be Vitiated If Investigation Is Carried Out By The Complainant? SC Constitution Bench Reserves Judgment

A Constitution Bench of the Supreme Court of India, comprising of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah, and S. Ravindra Bhat on Monday reserved the Judgment in the matter involving the question of whether an investigation under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) will get vitiated if the IO and the Complainant is the same person. 



The case stems from a judgment delivered in the case of Mohanlal v. State of Punjab [(2018) SCC OnLine SC 974] on 16.08.2018 wherein a three-judge bench of the Supreme Court comprising of then Justice Ranjan Gogoi, Justice R. Banumathi and Justice Navin Sinha had held that, 



"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"

"

On 17.01.2019, a Division Bench comprising of Justices U.U. Lalit and M.R. Shah expressed their disagreement with the Mohanlal Case in the case of Mukesh Singh v. State (Narcotics Branch of Delhi):



"We may prima facie express that we find it difficult to accept the view taken in Mohan Lal. Some of the decided cases have maintained a distinction in that where the investigation was conducted by the informant himself, appropriate weightage was given while appreciating the evidence. In a given case, where the complainant himself had conducted investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record, but it would be completely a different thing to say that the trial itself would be vitiated for such infractionBut, Mohan Lal has ruled that the trial itself would stand vitiated on that count."



The Division Bench then expressed that the matter needed reconsideration by a Bench of at least three Judges. Consequently, the matter was listed before the Constitution Bench and the arguments remained part-heard.



While the Appellants had wrapped up their arguments on the previous dates, ASG Aman Lekhi commenced with his arguments today. He read out the Statement and Object of the NDPS Act which is as follows: 

"An Act to consolidate and amend the law relating to narcotic drugs to make stringent provisions for the control and regulation of operations relating to narcotics drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith." 



ASG Lekhi stated that the Purpose of the NDPS Act was to expand the power. The question of powers delegated to an officer under Sections 41 and 42 of the NDPS Act were taken into consideration and thus differentiated from the powers accorded under Section 53 of the NDPS Act. He contended that the provisions of the Code of Criminal Procedure (CrPC) also provided certain safeguards with respect to the recoding of an IO's own statements.



Justice Bhat raised a pertinent point regarding the interference of the Executive in the conviction of "low-hanging fruits". The fact that too many investigations get botched, leading to subsequent acquittals was taken into account. He stated that the gravity of the offence and the severity of the punishment had to be seen. He raised the question of authorization of officers under both Sections 42 and 53 of the NDPS Act. 



When the Appellants submitted their arguments, Justice Mishra reasserted his earlier statement regarding the facts and circumstances of a case. The Counsel for the Appellant continued to assert that the powers under Section 42 of the NDPS Act were special and could only be employed in special circumstances. They were not powers of investigation. Provisions of the CrPC already provided the adequate powers to an officer. Justice Mishra however stated that the counsels had to restrict themselves to the question of whether an IO and a Complainant could be the same person. 

On the same grounds, the matter was finally heard and the judgement has been reserved.