The Constitution Bench of the Supreme Court is set to settle the issue whether complainant being the investigating officer in NDPS cases will vitiate the trial.
The case Mukesh Singh v State is listed before the five judges bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and Ravindra Bhat on October 24.
In this case, a two judges bench comprising Justices U U Lalit and M R Shah had doubted the correctness of dicutm laid down by a three judges bench in Mohanlal v State of Punjab case that the trial of cases under NDPS Act will be vitiated if the informant and the investigating officer is the same person. In Mohanlal case, a three judges bench comprising Justice Gogoi (as he was then), Justices Banumathi and Navin Sinha observed that :
"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."
The correctness of this view was doubted in Mukesh Singh by a two judges bench saying that the issue has to be decided on case to case basis and that there cannot be blanket rule that trial will be vitiated in all such cases where informant and the investigating officer are the same.
"In a given case, where the complainant himself had conducted investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction", observed the bench headed by Justice Lalit.
On this observation, the matter was referred to larger bench.
The decision in Mohanlal had in fact settled conflicting decisions on this point.
In State by Inspector of Police, Narcotics Intelligence Bureau, Madurai, Tamilnadu vs. Rajangam(2009), a 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.
Last February, a bench comprising CJI Gogoi, Justices Navin Sinha and K M Joseph clarified in Varinder Kumar v State of Himachal Pradesh that the benefit of Mohanlal decision will not be available to trials and appeals pending as on the date of that decision.