In an authoritative pronouncement of the Supreme Court, rendered by a bench of Three Judges, the Supreme Court has answered an important question concerning prosecutions under the Narcotic Drugs and Psychotropic Substances Act, 1985.
In Mohan Lal v. State of Punjab, speaking for the bench, Justice Navin Sinha has answered the question that‘…[w]hether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof…’ to hold that a fair investigation necessarily warranted that the informant and the investigator must not be the same person.
Pronouncement was by a three-judge bench of Justice Ranjan Gogoi, Justice R Banumathi and Justice Navin Sinha.
In this case, the Supreme Court, analyzed the conflicting decisions of various courts and has finally settled an issue, benefit whereof will ensure to those accused persons, who have been victims of a prejudiced investigation.
It is no secret that in a majority of cases under the NDPS Act, there is often no complainant and the Investigating Officer purportedly act on source and secret informations.
The Supreme Court has clarified that if the IO is the complainant, it would reflect on the credibility of the investigation and the obligation cast on the investigator to act fairly and judiciously would not be met. The court emphasized that the prosecutions under the NDPS Act carry a reverse burden of proof and this exemplifies the solemn duty of the prosecution to act fairly.
It further goes on to say that the case of the prosecution would not be allowed to rest on a preponderance of probabilities.
Bench further observed,
”A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face 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. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided.”
NDPS prosecutions are often invoked wrongfully for purposes such as retribution. It remains to be seen whether the Police Departments will issue orders to the officials to make sure that the prescribed procedure of investigation is intricately followed.
Failure to do so would result in rampant acquittals. It is the need of the hour that the police force is adequately sensitized to the nuances of the special Criminal Laws.
By Rushab Aggarwal, Advocate
Read Text of the Judgement Here-