- Bookmark
- Share
- CaseIQ
Gyan Chand v. The State Of Rajasthan .
Factual and Procedural Background
This appeal under Section 374, Cr. P.C. challenges the judgment and order dated 29 May 1992 of the Sessions Judge, Jaisalmer in Sessions Case No. 6/91, which convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1989 and sentenced him to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/-, with an additional 2½ years' R.I. in default.
On 30 March 1988, Circle Inspector Pratap Singh (P.W.6) recorded a source information (Ex. P-10) that the appellant kept unauthorized opium and sold it, and that opium could be recovered by an immediate search. Pratap Singh proceeded to the appellant's house with others; a search was carried out and 350 grams of opium were recovered from a room adjacent to the kitchen, contained in a black bag in a bedroll. A 30 gram sample was taken and sent to the F.S.L., which reported 2.8% morphine. The appellant was arrested on the spot, a case was registered, investigation completed and a challan filed; the trial was conducted by the Sessions Judge after committal.
At trial the Sessions Court took cognizance under Sections 17 and 18 NDPS Act and examined six prosecution witnesses (P.W.1 Khetaram; P.W.2 Prayag Singh; P.W.3 Jeev Prakash; P.W.4 Dal Singh; P.W.5 Phool Singh; P.W.6 Pratap Singh). P.W.1 denied the search and recovery; the other five witnesses supported the prosecution. The appellant denied the charges in his Section 313 Cr.P.C. statement and called two defence witnesses (D.W.1 Bhagwandas and D.W.2 Indra Ram). The Sessions Judge framed three questions (recovery from appellant's house, recovery from the appellant's possession, and commission of offence under Section 18 NDPS Act) and answered all in the affirmative, leading to the conviction and sentence.
Legal Issues Presented
- Whether the opium was recovered from the house of the appellant?
- Whether the opium was recovered from the possession of the appellant?
- Whether the appellant committed any offence under Section 18 of the NDPS Act?
- Whether an officer who records the source information, conducts the search, effects recovery and seizure, and then conducts the investigation (here, the Circle Inspector Pratap Singh) ought to investigate the case, or whether such an investigation is vitiated because the investigating officer effectively acts as the complainant and should not be the sole agency of investigation?
Arguments of the Parties
Appellant's Arguments
- The appellant, through Mr. Mridul Jain (and Mr. L.D. Khatri), contended that Pratap Singh (the officer who recorded the source information) himself carried out the search, effected the seizure and investigated the case; therefore he should not have conducted the investigation. The submission was that the officer, being both the recorder of the information and the investigating officer, ought not to have investigated and that the investigation should have been entrusted to another agency or to an officer of higher rank.
- As part of this argument, counsel cited a prior judgment of the court in S.B. Cr. Appeals Nos. 105 and 286 of 1989 reported in 1992 (2) EFR 128 (Rajasthan) and 1989 RLR 417 (as authority for the proposition on the impropriety of investigation by the complainant/recorder of information).
Prosecution's Case / Evidence
- The prosecution presented evidence through six witnesses. Five witnesses (P.Ws.2–6) supported the prosecution's account of search and recovery; P.W.1 (Khetaram) denied the search and recovery but admitted meeting the police and signing documents (Ext. P-1 and P-2).
- The prosecution relied on the seizure memo, the sample sent to the F.S.L. (reporting 2.8% morphine) and the testimony of investigating officer P.W.6 to prove recovery, seizure and chain of events leading to arrest and charge.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| S.B Cr. Appeals Nos. 105 and 286 of 1989 reported in 1992 (2) EFR 128 (Rajasthan) and 1989 RLR 417 | "The complainant himself cannot be the sole agency of investigation." (principle relied upon by counsel and considered by the court) | The court relied on the principle to hold that since P.W.6 (Pratap Singh) recorded the source information, conducted the search, effected the recovery and investigated the case, his role was akin to that of a complainant and that such conduct militated against fair investigation; accordingly the court held the investigation to be vitiated. |
Court's Reasoning and Analysis
The appellate court observed that although the Sessions Judge had framed and answered three factual questions in the affirmative, it was unnecessary for the appellate court to adjudicate those factual points because counsel for the appellant had raised a pure question of law regarding the fairness of the investigation. The court analysed the record and found the following facts established on the material and evidence:
- Pratap Singh (P.W.6), the Circle Inspector, registered the case on the basis of a source information.
- Pratap Singh himself led the search at the appellant's house, effected the recovery of 350 grams of opium, seized the material and carried out the entire investigation.
The court held that this sequence of conduct "militates against the basic tenets of jurisprudence and fair investigation." The court reasoned that the status of the investigating officer, in these facts, could not be placed higher than that of a complainant, and that a complainant should not be the sole agency of investigation. The court characterised this infirmity as one that went to the root of the matter and was sufficient to vitiate the whole investigation. Because the conviction and sentence rested on that investigation, they could not be sustained in law.
On this legal ground the court concluded that the investigation was highly infirm and therefore the entire proceedings founded on it deserved to be quashed and set aside.
The court expressly stated that it was not necessary to decide the other factual questions framed by the Sessions Judge because the legal infirmity in the investigation was decisive.
Holding and Implications
Core Ruling: Appeal allowed; the conviction and sentence dated 29th May, 1992 under Section 18 of the NDPS Act, 1989 are set aside and the appellant is acquitted of the charges.
Implications and direct consequences:
- The appellant's conviction and sentence were quashed and set aside on the ground that the investigation was vitiated because the investigating officer had acted in the capacity of complainant and conducted the entire investigation.
- The accused, who was said to be in jail, was ordered to be released if not required in any other case.
- The record of the court below was to be returned without delay.
The opinion does not discuss broader legal consequences beyond the direct effect on the parties; the decision rests on the specific infirmity in investigation identified by the court and does not announce any novel legal doctrine beyond the application of the cited principle regarding a complainant acting as sole investigator.
1. This is an appeal under Section 374, Cr. P.C against the judgment and order dated 29th May, 1992 passed by Sessions Judge, Jaisalmer in Sessions Case No. 6/91 whereby the appellant has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1989 and he has been sentenced to 10 years rigorous imprisonment and a fine of Rupees 1,00,000/- and in default to undergo further rigorous imprisonment for a period of 2½ years.
2. On 30th March, 1988, Circle Inspector Mr. Pratap Singh of Sadar Kotwali, Jaisalmer received a source information that the appellant keeps unauthorised opium and sells it, the opium was available in his house; in case search is taken immediately, opium can be recovered. Having received this source information, Mr. Pratap Singh recorded above information in Ex. P-10 and proceeded by a jeep to the house of the appellant along with other persons viz. Jeev Prakash P.W 3, Dal Singh P.W 4, Ghewar Singh and other constables. The appellant was searched by Mr. Pratap Singh in presence of motbirs Kheta Ram and Palekar. In this search, 350 grams opium was recovered from the room adjacent to the kitchen in the house of the appellant and this opium contained in a black bag in a bedroll. 30 gms opium out of the 350 gms. was taken for the sample and the rest was placed in sealed cover according to the seizures and the search memo. Thereafter, case was registered, the appellant had been arrested on spot; the sample of the material was sent to F.S.L and it was reported that the sample contained 2.8 percent morphin. On completion of the investigation, the challan was filed in the Court of Chief Judicial Magistrate, Jaisalmer, it was committed to Addl. Sessions Judge and the trial was conducted by the Sessions Judge, Jaisalmer according to new jurisdiction.
3. The Sessions Court having taken cognizance of the offence under Sections 17 and 18 of the NDPS Act embarked upon the trial. The prosecution examined six oral witnesses as under:—
(1) P.W 1, Khetaram
(2) P.W 2, Prayag Singh
(3) P.W 3, Jeev Prakash
(4) P.W 4, Dal Singh
(5) P.W 5, Phool Singh and
(6) P.W 6, Pratap Singh.
4. P.W 1, Khetaram who was a motbir denied the factum of the search and the recovery of opium. He has of course admitted his meeting the police people outside the house of the appellant and also admits his signature in Ext. P-1 and Ex. P-2. All other five witnesses have supported the case of the prosecution.
5. The appellant's statement was recorded under Section 313, Cr. P.C and his case is of total denial. He has stated that in the house in question, he resides with his children and his wife and some tenants are also there. D.W 1, Bhagwandas and D.W 2m Indra Ram were examined in defence.
6. The learned Sessions Judge, Jaisalmer framed the three questions under:—
(i) Whether the opium was recovered from the house of the appellant?
(ii) Whether the opium was recovered from the possession of the appellant?
(iii) Whether the appellant committed any offence under Section 18 of the NDPS Act?
7. All the three questions have been answered in affirmative by the learned Sessions Judge resulting into the appellant's conviction under Section 18 of the NDPS Act and looking to the quantity 350 gms. opium the learned Sessions Judge has sentenced the appellant to 10 years' R.I with a fine of Rs. 1,00,000/- and in default of the payment of the fine to undergo further imprisonment for a period of 2½ years.
8. It has been submitted by Dr. Mridul Jain and Mr. L.D Khatri that the appellant is in jail since the date of the judgment i.e 29th May, 1992 and he is 57 years an old man.
9. Mr. Mridul Jain has assailed the sentence and conviction based on the finding arrived on all the three points on several grounds but neither I am impressed with submission made by Mr. Jain on any of these three questions nor it is necessary for me to adjudicate on these questions for the simple reason that a new point has been raised by Mr. Mridul Jain before me which is a pure question of law as has been raised by Mr. Mridul Jain and Mr. L.D Khatri. The point raised on behalf of the appellant before me is that according to the prosecution this case was registered on the basis of a source information by Mr. Pratap Singh who was the concerned SHO and he having recorded this source information proceeded to take the search himself; in fact he himself took the search and he himself was the officer who seized the opium and investigated the whole case. The submission made by Mr. Mridul Jain is that Mr. Pratap Singh, himself being the police personnel to record the information, he himself being the officer to recover and seize the opium ought not to have investigated the case by himself and the investigation should have been entrusted to some other agency or the officer of a rank higher than the rank of Pratap Singh. In no case Mr. Pratap Singh himself should have investigated the case. Mr. Mridul Jain has cited before me a judgment of this court rendered in S.B Cr. Appeals Nos. 105 and 286 of 1989 reported in 1992 (2) EFR 128 (Rajasthan) and 1989 RLR 417.
10. On the basis of the material and the evidence available on record, there is no room for any doubt that the case was registered by PW6, Pratap Singh on the basis of source information and it is fully established by the statement of other witnesses as well as Pratap Singh himself that he, himself had gone for the search, had effected the recovery had seized opium and had investigated the whole case throughout. This course of action militates against the basic tenets of jurisprudence and fair investigation. In the facts of the case, I find that the status of Investigating Officer, Pratap Singh could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. In my humble opinion the prosecution in this case suffers from the basic infirmity as aforesaid and it is a question which goes to the very root of the matter and in the facts of the case it must be held to be sufficient to vitiate the whole investigation. Once I find that the whole bedrock of the investigation on the basis of which the appellant has been prosecuted is found to be unfair and against the basic tenets of criminal jurisprudence, the conviction and sentence based on such a highly infirm investigation as aforesaid cannot be sustained in the eye of law and accordingly the whole proceedings based on such investigation as aforesaid deserve to be quashed and set aside, which I hereby do.
11. In the result, this appeal succeeds and is allowed the judgment dated 29th May, 1992 passed by the learned Sessions Judge, Jaisalmer convicting and sentencing the appellant under Section 18 of the NDPS Act, 1989 in Sessions Case No. 6/91 is set aside and the appellant is acquitted of the charges levelled against him.
12. The accused is said to be in jail; he shall be released if not required in any other case. The record of the court below may be returned without any kind of delay.
13. Appeal allowed.
Alert