Shri. Vishnu Hugar vs The Asst. Drugs Controller-2
2022 Latest Caselaw 2931 Kant

                             1




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

           CRIMINAL PETITION NO.101503 OF 2018

BETWEEN:

SHRI. VISHNU HUGAR
S/O BILYAN SIDDAPPA
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O: NAGNUR, TQ: ATHANI,
DIST.: BELGAVI.
                                              ... PETITIONER
(BY SRI JAGADISH PATIL, AND
    KUM.POOJA R.SAVADATTI, ADVOCATES)

AND:

STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA, DHARWAD
THROUGH THE ASST. DRUGS CONTROLLER-2
OFFICE OF REGIONAL
DEPUTY DRUGS CONTROLLER,
DIST.: BELGAUM.
                                            ... RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 26.03.2016 IN
C.C.NO.1185/2015 ON THE FILE OF THE PRL. CIVIL JUDGE &
JMFC COURT, ATHANI, TAKING COGNIZANCE AGAINST THE
PETITIONER FOR OFFENCES U/S 18(c), 18a AND SEC. 22(1) (cca)
                                  2




sec.-27(b) (ii), 28 AND 22(3) OF THE DRUGS AND COSMETICS ACT,
1940 AND QUASH THE COMPLAINT AND GRANT ANY OTHER
RELIEF.


     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioner calls in question order dated 26-03-2016

passed by the Principal Civil Judge & JMFC, Athani in C.C.No.

1185 of 2015 registered for offences punishable under Sections

18(c), 18A, 22(1)(cca), 27(b)(ii), 28 and 22(3) of the Drugs and

Cosmetics Act, 1940 ('the Act' for short).

2. Heard Sri.Jagadish Patil and Smt.Pooja.R.Savadatti,

learned counsel appearing for petitioners and Sri.Ramesh

Chigari, learned High Court Government Pleader appearing for

respondent.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

Inspection in Hugar Clinic owned by the petitioner was

conducted by the competent officer under the Act. The raid

resulted in seizure of certain drugs which were stored without a

licence. This led to registration of a case under the Act for the

offences punishable as afore-mentioned. Pursuant to

registration of crime, the Police have also filed a charge sheet. At

that juncture, the petitioner knocks the doors of this Court in

the subject petition.

4. This court entertaining the petition grants an interim

order of stay of all further proceedings by its order dated

21-01-2019 upon which, no further proceedings have taken

place against the petitioner. Various grounds on merits of the

matter are urged by the petitioner. The issue that goes to the

root of the matter is, whether the informant-complainant could

be the Investigating Officer.

5. Charge sheet is filed along with the list of witnesses in

which the first witness is one Sri N.V. Raghuram, Assistant

Drugs Controller who is the person who had conducted the

search, registered the complaint and functioned as Investigating

Officer. Therefore, the role of Sri N.V.Raghuram is that of the

complainant and the Investigating Officer though other

witnesses are indicated. Another witness by name Gurunath

Maganageri, the Drugs Inspector is also shown as Investigating

Officer. It is the investigation conducted by the complainant that

has led to filing of the charge sheet as he is shown as CW-1.

Therefore, the issue that requires to be answered is whether the

complainant could be the Investigating Officer.

6. The issue again need not detain this Court for long or

delve deep into the matter, as the Apex Court considering the

prosecution under the NDPS Act where presumption against the

accused is that they are guilty unless proved innocent, in the

case of MOHAN LAL v. THE STATE OF PUNJAB1 has held as

follows:

"13. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a

(2018) 17 SCC 627

hollow promise if the investigation in an 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 the 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.

14. That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused was noticed in Babubhai v. State of Gujarat [Babubhai v. State of Gujarat, (2010) 12 SCC 254: (2011) 1 SCC (Cri) 336] as follows: (SCC p. 269, paras 32-

33)

"32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer 'is not merely to bolster up a prosecution case with such evidence as may enable the court to record

a conviction but to bring out the real unvarnished truth'.

33. In State of Bihar v. P.P. Sharma [State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222: 1992 SCC (Cri) 192] this Court has held as under: (SCC pp. 263-65, paras 57, 59 & 61) '57. ... Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ... Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court.

***

59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. ...

***

61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.'"

15. The duty of the prosecution under the NDPS Act, considering the reverse burden of proof, was noticed in Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] observing: (SCC p. 450, paras 58-59) "58. ... An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of

the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt."

(emphasis supplied)

16. Furthermore, the sample not having been deposited in the malkhana, coupled with non-examination of the private witnesses, an adverse inference was drawn therein against the prosecution. This principle has been reiterated in Bhola Singh v. State of Punjab [Bhola Singh v. State of Punjab, (2011) 11 SCC 653 : (2011) 3 SCC (Cri) 454] .

17. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a

closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.

18. The discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] related to a prosecution under Section 165-A IPC. Nonetheless, it observed that if the informant were to be made the investigating officer, it was bound to reflect on the credibility of the prosecution case. Megha Singh [Megha Singh v. State of Haryana, (1996) 11 SCC 709 : 1997 SCC (Cri) 267] concerned a prosecution under the Terrorist and Disruptive Activities (Prevention) Act, 1985. It was held that the Head Constable being the complainant himself could not have proceeded with the investigation and it was a practice, to say the least, which should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. Rajangam [State of T.N. v.Rajangam, (2010) 15 SCC 369 : (2012) 4 SCC (Cri) 714] was a prosecution under the NDPS Act, an objection was taken that PW 6 who apprehended the accused could not have investigated the case. Upholding the objection, relying on Megha Singh [Megha Singh v. State of Haryana, (1996) 11 SCC 709: 1997 SCC (Cri) 267] the accused was acquitted. The view taken by the Madras High Court in Balasundaran v. State [Balasundaran v. State, 1999 SCC OnLine Mad 1130: (1999) 113 ELT 785], was also noticed as follows: (SCC OnLine Mad para 16)

"16. The learned counsel for the appellants also stated that PW 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. PW 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, PW 5 alone took up

investigation in the case and he had examined the witnesses. No doubt the successor to PW 5 alone had filed the charge-sheet. But there is no material to show that he had examined any other witness. It therefore follows that PW 5 was the person who really investigated the case. PW 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated."

19.Bhaskar Ramappa Madar [Bhaskar Ramappa Madar v. State of Karnataka, (2009) 11 SCC 690 : (2010) 1 SCC (Cri) 133] concerned a prosecution under Section 304- B IPC which also carries a reverse burden of proof. The trial court held that the investigating officer who was also the complainant could not have investigated, and on that ground, held the prosecution to be tainted. The acquittal was reversed [State v. Bhaskar Ramappa Madar, 2001 SCC OnLine Kar 826] by the High Court. In appeal, this Court declined to interfere with the conviction. After referring to Bhagwan Singh [Bhagwan Singh v. State of Rajasthan, (1976) 1 SCC 15 : 1975 SCC (Cri) 737] and Megha Singh [Megha Singh v. State of Haryana, (1996) 11 SCC 709 : 1997 SCC (Cri) 267] , it was observed that the principles laid down therein had to be confined to the facts of the said cases and that the matter would have to be decided on the facts of each case without any universal generalisation.

20.Hardip Singh v. State of Punjab [Hardip Singh v. State of Punjab, (2008) 8 SCC 557 : (2008) 3 SCC (Cri) 580] concerned a prosecution under the NDPS Act. The contention was that the Inspector, PW 5 being the complainant himself would be an interested person and should not have been made the investigating officer. The argument was repelled relying on State v. V. Jayapaul [State v. V. Jayapaul, (2004) 5 SCC 223 : 2004

SCC (Cri) 1607] observing as follows: (V. Jayapaul case [State v. V. Jayapaul, (2004) 5 SCC 223 : 2004 SCC (Cri) 1607] , SCC p. 227, para 6)

"6. ... We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased."

21. Significantly, V. Jayapaul [State v. V. Jayapaul, (2004) 5 SCC 223 : 2004 SCC (Cri) 1607] related to a prosecution under the Prevention of Corruption Act which sought to distinguish Megha Singh [Megha Singh v. State of Haryana, (1996) 11 SCC 709 : 1997 SCC (Cri) 267] on its facts.

22.Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] relied upon by the State is distinguishable on its own facts concerning an irregularity in an investigation by an officer not especially empowered under the NDPS Act to do so.

23. In Surender [Surender v. State of Haryana, (2016) 4 SCC 617 : (2016) 2 SCC (Cri) 448] , the prosecution was under the NDPS Act. There was no independent witness. The objection that PW 6, Sub- Inspector Satbir Singh being the complainant could not have investigated relying on Rajangam [State of

T.N. v. Rajangam, (2010) 15 SCC 369 : (2012) 4 SCC (Cri) 714] and Megha Singh [Megha Singh v. State of Haryana, (1996) 11 SCC 709 : 1997 SCC (Cri) 267] was rejected on the ground that he was not the sole person investigating the case, and that the ground had not been raised before the High Court [Surender v. State of Haryana, Criminal Appeal No. S-318-SB of 2004, order dated 11-12-2014 (P&H)] in appeal.

24. In the nature of the controversy, it would be useful to also notice the view taken by different High Courts on the issue. In State of H.P. v. Atul Sharma [State of H.P. v. Atul Sharma, 2015 SCC OnLine HP 4183 : (2015) 2 Shim LC 693 : (2015) 6 RCR (Criminal) 949] , under the NDPS Act, it was observed as follows:

"10.8 In present case it is proved on record that complainant is SI Bahadur Singh as per FIR Ext. PW12/A and it is proved on record that entire investigation has been conducted by complainant himself and there is no evidence on record in order to prove that investigation was handed over to some other independent investigating officer. It is not the case of prosecution that no other independent investigating officer was available to conduct impartial investigation. We are of the opinion that conducting entire investigation i.e. preparation of seizure memo, site plan, recording statements of witnesses by complainant himself has caused miscarriage of justice to accused qua fair investigation."

25. A similar view has been taken in Fayas Ali v. State of Mizoram [Fayas Ali v. State of Mizoram, 2013 SCC OnLine Gau 763] , relating to prosecution under the NDPS Act, by the Gauhati High Court as follows: (SCC OnLine Gau para 15)

"15. From the evidence of PWs 1 and 4, it is clearly found that the major part of the investigation including the arrest of the accused, preparation of seizure, taking of sample, examination of the seizure witnesses and examination of the accused person, was completed by PW 1, who was the informant/complainant in the present case. Therefore, it is clearly found that the investigation, in its true sense, was done by the complainant himself. In Rajangam [State of T.N. v. Rajangam, (2010) 15 SCC 369 : (2012) 4 SCC (Cri) 714] , the Supreme Court, relying on the decision held in Megha Singh [Megha Singh v. State of Haryana, (1996) 11 SCC 709 : 1997 SCC (Cri) 267] , observed that the investigation is to be done by a person other than the complainant and that the investigation done by the complainant is bound to suffer and vitiate the entire proceeding."

26. The Punjab and Haryana High Court in Gannu v. State of Punjab [Gannu v. State of Punjab, 2017 SCC OnLine P&H 4660 : (2017) 3 RCR (Criminal) 566] relating to the NDPS Act, after referring to Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] and the views [Laltu Prasad v. State of W.B., 2016 SCC OnLine Cal 4879 : (2017) 2 RCR (Criminal) 237] of the Calcutta High Court also apart from Atul Sharma [State of H.P. v. Atul Sharma, 2015 SCC OnLine HP 4183 : (2015) 2 Shim LC 693 : (2015) 6 RCR (Criminal) 949] , concluded as follows: (Gannu case [Gannu v. State of Punjab, 2017 SCC OnLine P&H 4660 : (2017) 3 RCR (Criminal) 566] , SCC OnLine P&H para 14)

"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 W.B. [Laltu Prasad v. State of W.B., 2016 SCC OnLine Cal 4879 : (2017) 2 RCR (Criminal) 237] , 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 the Hon'ble Himachal Pradesh High Court reported as State of H.P. v. Atul Sharma [State of H.P. v. Atul Sharma, 2015 SCC OnLine HP 4183 : (2015) 2 Shim LC 693 : (2015) 6 RCR (Criminal) 949] , wherein, it has been held that where the complainant himself conducts investigation, it causes miscarriage of justice to accused qua fair investigation."

27. A Single Judge of the Kerala High Court [Ed.: In Xavier v. State of Kerala, 1998 SCC OnLine Ker 249, para 3.] in Naushad v. State of Kerala [Naushad v. State of Kerala, 2000 SCC OnLine Ker 365 : (2000) 1 KLT 785] , relating to the NDPS Act held as follows:

"3. ... In a case of this nature, when the complainant 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 informations recorded under Section 154 or 155 CrPC and previous statement of the witness, being a police officer, complaint recorded, under Section 161 CrPC enjoined in Sections 145 and 157 of the Evidence Act and proviso of Section 162 CrPC. [Ed.: The matter between two asterisks has been quoted in Naushad v. State of Kerala, 2000 SCC OnLine Ker 365, para 6.] 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."

28. Disapproving of the same, a Division Bench in Kader v. State of Kerala [Kader v. State of Kerala, 2001 SCC OnLine Ker 107 : 2001 Cri LJ 4044] , held: (SCC OnLine Ker para 13)

"13. 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 rank as that of the detecting officer is investigating the case and files report before the court will not vitiate the proceedings under the NDPS Act in the absence of proof of specific prejudice to the accused. Therefore, legal position stated in Naushad v. State of Kerala [Naushad v. State of Kerala, 2000 SCC OnLine Ker 365: (2000) 1 KLT 785] to the contrary is overruled."

29. The view taken by the Kerala High Court in Kader [Kader v. State of Kerala, 2001 SCC OnLine Ker 107 : 2001 Cri LJ 4044] does to (sic not) meet our approval. It tantamounts to holding that the FIR 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 [Kader v. State of Kerala, 2001 SCC OnLine Ker 107 : 2001 Cri LJ 4044] is, therefore, overruled. We approve the view taken in Naushad [Naushad v. State of Kerala, 2000 SCC OnLine Ker 365: (2000) 1 KLT 785].

30. 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. 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."

In the light of the findings in the judgment rendered by the Apex

Court (supra) and the undisputable fact that the complainant/

informant and the Investigating Officer being one person, the

entire proceedings against the petitioner would stand vitiated.

7. For the aforesaid reasons, I pass the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The order dated 26.03.2016 passed by the Principal Civil Judge and JMFC, Athani in C.C.No.1185 of 2015 stands quashed.

Sd/-

JUDGE

bkp CT:MJ