referred to as the "IO") was herself the complainant, who had submitted/filed the written complaint, wherefrom these proceedings emanated. She relies on a recent judgment of the Supreme Court, rendered by a Bench of three Hon'ble Judges, in Mohan Lal v. State Of Punjab ., 2018 SCC OnLine SC 974.

3. Arguing per contra, on behalf of the Directorate of Revenue Intelligence (hereinafter referred to as "DRI"), Mr. Satish Aggarwala, learned counsel, would seek to distinguish the judgment in Mohan Lal (supra) on the ground that the said judgment held the proceedings to be vitiated where the informant was the IO, and not where the complainant was the IO. He submits that there is a distinction between an "informant" and a "complainant", and that the cases investigated by the DRI are based, not on information, but on intelligence sourced by the DRI and the documents recovered pursuant thereto. He submits that, where the seizing officer was the complainant, as in the present case, the proceedings were not vitiated and Mohan Lal (supra) would not apply. He draws my attention to the contents of the complaint, and to the contentions advanced by him in his written submissions before the learned ASJ.

4. Ms. Sidhu, in rejoinder, submits that the distinction, sought to be drawn by Mr. Aggarwala, between an informant and a complainant, is a distinction without a difference, in cases relating to prosecution under the NDPS Act, as the source of intelligence was not known in such cases. Besides, she submits that a holistic reading of Mohan Lal (supra) reveals that it covers cases where the informant was the IO, as

2

well as cases where the complainant was the IO. She, therefore, reiterates her reliance on Mohan Lal (supra).

5. Having thus identified the fulcrum around which the rival submissions, before this court, circumambulated, one may make a brief reference to the facts of the present case, insofar as they are relevant to decide the controversy in dispute.

6. The case of the respondent-DRI, as set out before the learned ASJ, was that, pursuant to receipt of a secret intelligence, a team of the DRI, accompanied by two public witnesses, intercepted the appellant, at the check-in counter of SpiceJet Flight No. SG-237, at about 3 p.m. on 15^thOctober, 2008, and that 1.240 kgs of heroin was found concealed in a trolley bag carried by her. Three representative samples, of 5 gms each, were stated to have been recovered therefrom, sealed with the seal of the DRI and got tested by the Central Revenues Control Laboratory (CRCL), which revealed that the powder was heroin of 35.6% purity. Summons were issued to the appellant under Section 67 of the NDPS Act, and her statement was recorded on 15^th/16^thOctober, 2008, in which she admitted being in possession of the abovementioned heroin.

7. The DRI cited sixteen prosecution witnesses (PWs) including the two public witnesses referred to hereinabove. After recording of their statements, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"). The appellant did not choose to lead the evidence of any witness in her defence.

3

The complaint dated 9^th8. April, 2009, was admittedly filed, before the learned ASJ, by Ms. Anju Singh, Intelligence Officer, DRI (PW-1). The said complaint notes that intelligence was received, by the complainant, on 15^thOctober, 2008, and that investigation had commenced thereupon. Admittedly, Ms. Anju Singh was the IO in the present case and investigations were carried on by her or under her supervision; though a faint attempt is made, in the written submissions filed by Mr. Aggarwala after reserving of judgement, to contend otherwise, with which I shall deal presently.

9. Mr. Aggarwala has led great emphasis on the facts of the case, including the purportedly admitted recovery of heroin from the baggage of the appellant, depositions of the various witnesses, the insubstantial - as he would aver - nature of the statement, of the appellant, under Section 313 of the CrPC, the fact that the case was proved by credible and disinterested public witnesses, whose evidence was corroborated by official witnesses, and that the statement of the appellant, recorded under Section 67 of the NDPS Act, was also retracted only by a single belated retraction. All these circumstances, Mr. Aggarwala would exhort me to appreciate, proved the offence, against the appellant, beyond all reasonable doubt, and it would be a travesty of justice to enlarge the appellant at liberty, given these facts.

10. Insofar as the applicability of Mohan Lal (supra) is concerned, Mr. Aggarwala, as already noted hereinabove, seeks to distinguish the said case by drawing my attention to the distinction between an

"informant" and a "complainant", and that in cases investigated by the

4

DRI, there was no "informant", as the cases proceeded on prior intelligence, and that the seizing officer was the complainant. He submits that there is no prohibition to the seizing officer being the complainant and that if, therefore, the seizing officer, who also investigated the case, happened to file the complaint, against the appellant-accused in court, no illegality, warranting a decision in favour of the accused, could be said to have been committed.

11. Mr. Satish Aggarwala has also filed written submissions, in which, besides advancing the legal arguments already noted hereinabove, it has been sought to be contended that Ms. Anju Singh was neither the informant nor the investigating officer, as "almost the entire investigation" had been conducted by PW-4 Ramesh Kumar, Senior Intelligence Officer (SIO). My attention has been invited, in this context, to the testimonies of Anju Singh and Ramesh Kumar, testified as PW-1 and PW-4 respectively. The filing of complaint by Anju Singh, it is sought to be contended in the written submissions, was only by way of discharge of her official duties.

12. Before examining the rival contentions, it would be appropriate to peruse the judgment of the Supreme Court in Mohan Lal (supra), which constitutes the sheet-anchor, and the summum bonum, of the appellant's case.

13. Mohan Lal v. State Of Punjab ., 2018 SCC OnLine SC 974

13.1 The proceedings, in Mohan Lal (supra) commenced from an FIR, lodged on 3^rdFebruary, 1997 by PW-1 Chand Singh, Sub-

5

Inspector, who alleged that, while on patrol duty in the company of other officers of the police station, they saw Mohan Lal and, on entertaining doubts, called Mr. Rajinder N. Dhoke, a gazetted IPS officer and, in his presence, searched Mohan Lal, leading to recovery of 4 kg of opium in a bag carried by him. The matter proceeded, inexorably, to his incarceration, trial and eventual conviction.

13.2 Based on the contentions advanced before it, the Supreme Court delineated the "primary question" arising for its consideration, in para 5 of the judgment, "whether in a criminal prosecution, it will be in consonance with the principles of natural justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person". Additionally, the Supreme Court examined whether, in such a case, it was "necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof".

13.3 On the "reverse burden of proof" cast by the NDPS Act, the Supreme Court ruled, in para 13 of its judgment thus:

"13. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.

6

The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities."

13.4 Thereafter, the prime necessity of the investigation, in cases under the NDPS Act being scrupulously fair and free from any objectionable features or infirmities, was highlighted in paras 14 to 16 of the judgment, thus :

"14. 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.

15. That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on part of the accused was noticed in Babubhai v. State of Gujarat, (2010) 12 SCC 254 as follows:

"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

7

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, AIR 1991 SC 1260 this Court has held as under:

"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."

8

16. The duty of the prosecution under the NDPS Act, considering the reverse burden of proof, was noticed in Noor Aga v. State of Punjab, (2008) 16 SCC 417 observing:

"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."

13.5 The Supreme Court, thereafter, went on to examine the implication of the IO, carrying out investigation under the NDPS Act, being the informant, as well as being the complainant, in paras 18 to 31 of the decision, thus :

"18. 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, who makes the allegations himself, is asked to investigate, serious doubts will naturally arise with regard to his fairness and

9

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.

19. 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 (supra) related to a prosecution under Section 165A of the 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 (supra) 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 (supra) was a prosecution under the NDPS Act. An objection was taken that PW6 who apprehended the accused could not have investigated the case. Upholding the objection, relying on Megha Singh (supra) the accused was acquitted. The view taken by the Madras High Court in

Balasundaran v. State, 1999 (113) ELT 785 (Mad.), was also noticed as follows :

"16. Learned Counsel for the appellants also stated that P.W. 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. P.W. 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, P.W. 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W. 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 P.W. 5 16 was the person who really investigated the case. P.W. 5 was the person who had searched the appellants in question and he being the investigation

10

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."

20. Bhaskar Ramappa Madar (supra) concerned a prosecution under Section 304B, I.P.C. 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 by the High Court. In appeal, this Court declined to interfere with the conviction. After referring to Bhagwan Singh (supra) and Megha Singh (supra), 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.

21. Hardip Singh v. State Of Punjab ., 2008 (8) SCC 557 concerned a prosecution under the NDPS Act. The contention was that the Inspector, PW5 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 rep. by Inspector of Police, Vigilance and AntiCorruption, Tiruchirapalli, Tamil Nadu v. V. Jayapaul, 2004 (5) SCC 223 observing as follows:

"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

11

officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased."

22. Significantly, V. Jayapaul, (supra) related to a prosecution under the Prevention of Corruption Act which sought to distinguish Megha Singh, (supra) on its facts.

23. Baldev Singh, (supra) 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.

24. In Surender (supra), the prosecution was under the NDPS Act. There was no independent witness. The objection that PW6, Subinspector Satbir Singh being the complainant could not have investigated relying on

Rajangam, (supra) and Megha Singh, (supra) 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 in appeal.

25. 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 2015 (2) shimLC 693 (Crl. Appeal No. 246 of 2008, decided on 28.02.2015), 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

12

complainant himself has caused miscarriage of justice to accused qua fair investigation."

26. A similar view has been taken in Shri Fayas Ali vs. State of Mizoram Crl. Appeal No. 26 of 2013 (J) dated 19.09.2013, relating to prosecution under the NDPS Act, by the Gauhati High Court as follows:

"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 the PW1, 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 the case of State by Inspector of Police, Narcotic Intelligence Bureau, Madurai(supra), the Supreme Court, relying on the decision held in the case of

Megha Singh (supra), 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."

27. The Punjab & Haryana High Court in Gannu and Ors. v. State of Punjab, 2017 (3) RCR (criminal) 566 (Crl. Appeal No. 1688SB of 2004 dated 26.05.2017) relating to the NDPS Act, after referring to Noor Aga, (supra) and the views of the Calcutta High Court also, apart from Atul Sharma (supra), concluded as follows:

"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 West Bengal, 2017(2) R.C.R. 21 (Criminal) 237 (Calcutta) (DB), it was held that the complainant himself acting as the investigating officer violating the principles of

13

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 Hon'ble Himachal Pradesh High Court reported as State Of H.P. v. Atul Sharma and others, 2015 (6) R.C.R. (Criminal) 949, wherein, it has been held that where the complainant himself conducts investigation, it causes miscarriage of justice to accused qua fair investigation."

28. A Single Judge of the Kerala High Court in

Naushad v. State Of Kerala, 2000 (1) KLT 785, relating to the NDPS Act held as follows:

"... 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 information recorded under Ss. 154 or 155 Cr.P.C. and previous statement of the witness, being a police officer, complaint recorded, under S. 161 Cr.P.C. enjoined in S. 145 and 157 of the Indian Evidence Act and proviso of S. 162 Cr.P.C. In the instant case, before me, PW1 is an Assistant Sub Inspector of Police, 22 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

14

the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner."

29. Disapproving of the same, a Division Bench in

Kader v. State Of Kerala, 2001 CriLJ 4044, held:

"6. 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 ranks as that of the detecting officer is investigating the case and files report before the Court will not vitiate the proceedings under N.D.P.S. act in the absence of proof of specific prejudice to the accused. Therefore, legal position stated in Naushad 23 v. State of Kerala 2000 (1) KLT 785 to the contrary is overruled."

30. The view taken by the Kerala High Court in

Kader (supra) does not meet our approval. It tantamounts to holding that the F.I.R. 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 (supra) is,

15

therefore, overruled. We approve the view taken in

Naushad (supra).

31. 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 donebut 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."

(Emphasis and underscoring supplied)

13.6 The opening words of para 31 of the judgment make it apparent that, prior thereto, there was considerable divergence of judicial opinion, amongst decisions of various benches, in each case of two Hon'ble judges of the Supreme Court, regarding the issue of whether the fact that the informant/complainant/searching officer, was the IO, was fatal to the prosecution, especially in cases where the statute casts a reverse burden of proof. Needless to say, this Court is loath to revisit the issue and, thereby, undo the efforts of the Supreme Court, as manifested by the judgment in Mohan Lal (supra), which sets the legal position at rest. For the nonce, at least, this Court is sanguine about the position, in law, that all prosecutions, under the NDPS Act -

16

or, for that matter, under any "criminal" statute which casts a reverse burden of proof - must abide by the enunciation of the law in Mohan Lal (supra).

13.7 Another feature which becomes apparent, from the underscored words in the above extracted passages from Mohan Lal (supra), is that they apply, not only to a situation in which the IO is the informant, but also to a situation in which the IO is the complainant or even, for that matter, the searching officer.

13.8 With those prefatory remarks, the following principles may justifiably be said to emerge, from the judgment in Mohan Lal (supra), insofar as the effect, on prosecutions under the NDPS Act, of the IO being the informant, complainant or searching officer, is concerned :

(i) In every criminal prosecution, it was essential that the investigation, on the face of it, had to be free, judicious and just, and that it had also to appear to be so, eschewing any conduct or impression which may give rise to a real and genuine, and not a mere fanciful, apprehension, in the mind of the accused, that the investigation was not fair.

(ii) If, therefore, the informant police official in a criminal prosecution, especially one which carries a reverse burden of proof, who had made the allegations, was himself asked to

17

investigate, serious doubts would naturally arise with regard to his fairness and impartiality.

(iii) Actual proof of bias was not required in such a case. It would be illogical to presume and contrary to normal human conduct, that the IO would, in such a case, conclude the investigation with a closure report, which would mean that he had falsely implicated the petitioner and would result in attendant consequences on the complainant himself.

(iv) In Megha Singh v. State Of Haryana ., (1996) 11 SCC 709, it had been held that the Head Constable, being the complainant himself, could not have proceeded with the investigation, and such a practice was one which should not be resorted to, so that there can be no occasion to suspect the fairness and impartiality of the investigation.

(v) Following the law laid down in Megha Singh (supra), the Supreme Court had, in State v. Rajangam, (2010) 15 SCC 369, acquitted the accused, in a case under the NDPS Act, on the ground that the officer who apprehended the accused could not have investigated the case. The Supreme Court also affirmed the view taken by the Madras High Court in

Balasundaran v. State, 1999 (113) ELT 785 (Mad.), which held that the person who had searched the appellants could not be the investigating officer.

18

(vi) In Naushad v. State Of Kerala, 2000 (1) KLT 785, it was categorically held by a learned Single Judge of the Kerala High Court, in a case relating to the NDPS Act that "the complainant being a police officer cannot be an investigating officer" as, "in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under Sections 154 or 155 of CrPC and previous statement of the witness, being a police officer, complaint recorded, under Section 161 CrPC enjoined in Section 145 and 157 of the Indian Evidence Act and proviso of Section 162 CrPC". The fact that the complainant was the investigating officer was held, by the learned Single Judge of the High Court of Kerala, to constitute an "incurable infirmity", entitling the petitioner to an order of acquittal. The said judgment of the learned Single Judge in Naushad (supra) stands specifically approved in Mohan Lal (supra), which overrules the contrary view, expressed by a Division Bench of the High Court of Kerala, in Kader (supra). The view of the learned Single Judge of the High Court of Kerala in Naushad (supra) stands, thereby, elevated to the status of the opinion of a bench of three Hon'ble judges of the Supreme Court.

14. A holistic reading of Mohan Lal (supra), in my view, leaves no manner of doubt that the Supreme Court has disapproved, in cases relating to prosecution under the NDPS Act, not only the informant being the IO, but also the complainant, the officer who apprehends the accused, or the officer who conducts the search, being the IO. The

19

reasons, for taking such a view are also clearly delineated in the said decision. The Supreme Court has clearly expressed a view that, if the person making the allegations is himself asked to investigate, serious doubts would arise with regard to his fairness and impartiality. It has also noted that it would be illogical to presume, and contrary to human conduct, to expect the IO, who had himself provided the initial information, or filed the complaint against the accused before the competent court, or even conducted the apprehension or search of the accused, to, at the conclusion of the investigation, submits a closure report, which could invite an inference that he had obviously implicated the accused, with all its attendant consequences, "for the complainant himself". While limiting the earlier judgement in Megha Singh (supra) to its own facts, the Supreme Court also held that the complainant could not be the IO, and that such a practice was inherently pernicious in nature. Rajangam (supra) which arose under the NDPS Act, also stated that the officer who apprehended the accused could not have investigated the case. The judgment of the learned Single Judge of the Kerala High Court in Naushad (supra), which stands affirmed by the Supreme Court in Mohan Lal (supra), too, affirms the same view.

15. In view of the above, the submission, of Ms. Sidhu, to the effect that, if the complainant, who has filed the complaint in a case relating to prosecution under the NDPS Act, was herself/himself the IO, the entire investigation and subsequent prosecution and trial stand vitiated, and that the accused is entitled, ipso facto, to acquittal, merits acceptance.

20

16. Adverting, lastly, to the asseveration, in the written submissions of Mr. Aggarwala, to the effect that the IO was not PW-1 Anju Singh but actually PW-4 Ramesh Kumar, I am of the view that the said submission is merely an argument of desperation, which neither merits consideration, nor inspires confidence. I may note, in this regard, that no such submission was canvassed by Mr. Aggarwala during arguments in this matter before me. Even so, I have examined the evidence and find that, rather than indicating that the IO was PW-4 Ramesh Kumar, the evidence clearly indicates that the IO was, in fact, PW-1 Anju Singh. In fact in the evidence of PW-4 Ramesh Kumar, as distilled in para 16 of the impugned judgment - to which specific reference has been invited in the written submissions of Mr. Aggarwala -it is specifically noted that PW-4 Ramesh Kumar was the person to whom the report, under Section 157 of the NDPS Act, "was submitted by the IO/PW-1".

17. In view thereof, there can be no manner of doubt that PW-1 Anju Singh was herself the IO as well as the complainant.

18. Given the law now enunciated by the Supreme Court in Mohan Lal (supra), which, in view of the mandate of Article 141 of the Constitution of India, has to be regarded as the law that existed for all times, it is clear that the entire investigation and consequent trial and conviction of the appellant, in the present case, stands vitiated by the sole fact of PW-1 Anju Singh being herself the complainant as well as the IO.

21

19. For the above reasons, the appellant is entitled to be acquitted of the offence for which she stands convicted by the learned ASJ.

20. The appeal is accordingly allowed.

21. The appellant would be entitled to be released forthwith unless her detention is required in connection with any other case.

22. Trial court record be sent back with copy of the judgment. Intimation be sent to the Superintendent of Tihar Jail.

C. HARI SHANKAR, J

OCTOBER 25, 2018/kr

22