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

On Thursday, 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 heard 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  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 infraction. But, 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 Hon'ble Judges.

Consequently, the matter was listed on Wednesday and Thursday before the Constitution Bench. 

While the Counsel, Mr. Ajay Garg argued that the complainant would adopt any means to justify the complaint, thereby prejudicing the entire trial and called for its vitiation, the Justices of the Constitution Bench disagreed with him and stated that every case must be observed from the prism of the differing facts and circumstances.

They pointed out that the numerous cases cited by the Counsel were relying on the facts and circumstances so as to reach a conclusion. 

The Counsel also brought the attention of the Bench to Section 68 of the NDPS Act which allowed the Complainant to preserve his sources and not disclose the same. The Counsel raised the issue that the case should not have the same person operating as a Complainant, an IO as well as a witness. The Justices however maintained that none of the cases elaborated the reason for not according the role of a Complainant and an IO to the same person.



Senior Counsel, S.K. Jain appeared as the Amicus Curiae in the case and, submitted that the stringent provisions of the NDPS Act and the helplessness of an accused called for a better facilitation of the trial. Therefore, any room for false implications had to be considered very carefully. 

Justice Bhat however countered saying that false implications form a part of various cases. An iron-cast rule could be not promulgated and there was a requirement for a presumption. Due weightage had to be given when the facts speak for themselves. 



Submissions pertaining to the case remained part-heard and will continue on the next date of hearing.