‘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.’
In a significant pronouncement, a three-judge bench of the Supreme Court has categorically held that the informant and the investigator in NDPS cases must not be the same person.
“Whether 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?” This question was considered in Mohanlal vs. State of Punjab, by a three-judge bench of Justice Ranjan Gogoi, Justice R Banumathi and Justice Navin Sinha.
The bench noticed that in State by Inspector of Police, Narcotics Intelligence Bureau, Madurai, Tamilnadu vs. Rajangam, the two-judge bench of the apex court had held that the investigating officer who apprehended the accused could not have investigated the case. Two decisions of the apex court in Hardip Singh vs. State of Punjab and Surender vs. State of Haryana had taken a contrary view. In Surender, the bench had distinguished Rajangam, on the ground that there were other officers investigating the case.
It also noticed that there is a conflicting opinion expressed by various high courts. It took note of two decisions of Kerala High Court in Naushad vs. State of Kerala by a single bench and Kader vs. State of Kerala, by a division bench which had disapproved the view taken in Naushad.
Kader(DB) vs. Naushad(SB)
A division bench of Kerala High court in Kader had overruled the single bench view in Naushad, observing 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 the N.D.P.S. Act in the absence of proof of specific prejudice to the accused.
Upholding the single bench view in this regard, the apex court bench observed: “The view taken by the Kerala High Court in Kader (supra) does to meet our approval. It tantamount 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, therefore, overruled.”
Laying down the law with certainty
The bench then proceeded to lay down the law with certainty. It said: “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.”
‘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,’ Justice Navin Sinha observed in the judgment speaking for the bench.