Above: Under the NDPS Act, the onus of proving innocence lies on the accused/Photo: prlog.org
The apex court’s acquittal of an accused under the NDPS Act raises questions about investigators’ compliance with its provisions
~By Venkatasubramanian
A cardinal principle of criminal jurisprudence is that an accused is presumed innocent unless proved guilty. But under the Narcotics, Drugs and Psychotropic Substances Act, 1985, the burden of proof that he is innocent is on the accused.
A Supreme Court bench of Justices Ranjan Gogoi, R Banumathi and Navin Sinha on August 16 held that an accused under the Act is entitled to acquittal if the Informant and the Investigating Officer (IO) are the same person.
The bench made this possible through its liberal interpretation of the Act’s stringent and draconian provisions, for abuse by the prosecution while setting aside the conviction of an accused, Mohan Lal.
The First Information Report in the case was lodged on February 3, 1997 by a sub-inspector of Balianwali Police Station, Punjab, against Mohan Lal, alleging that four kg of opium was recovered from his bag. Upon conclusion of investigation, Mohan Lal was chargesheeted, put on trial and convicted.
While arguing his criminal appeal before the Supreme Court, Mohan Lal’s counsel, Chanchal Kumar Ganguli, submitted that with the NDPS Act being a stringent law carrying a reverse burden of proof, there had to be strict adherence to the law and procedures. The investigation is not only required to be fair and judicious, but must also appear to have been so.
The Supreme Court found that no reasons had been furnished why key Prosecution Witnesses (PW)—Darshan Singh, an illiterate person, who was in the police vehicle used for patrol and ASI Balwinder Singh—had not been examined by the prosecution, despite service of summons and issuance of bailable warrants. In their absence, neither the consent memo nor the seal could be stated to have been proved, the bench held.
While Darshan Singh’s signature was found on the consent memo, the signatures of Balwinder Singh, and PW-4 were not found on it. The bench doubted the veracity of the sample seal handed over to Balwinder, asking whether it was the same as the seal on the case property retained in his private custody by PW-1 which was sent for chemical analysis later. “The mere fact that there may have been a seal cannot lead to any presumption in the absence of the examination of ASI Balwinder Singh,” the bench noted.
The bench did not find any reason for the police officer who first apprehended the accused not to deposit the seized narcotics in the malkhana (store room to preserve case property), as required. Nor did he enter it in the roznamcha (police daily diary). The bench questioned the delay of nine days in sending the sample for chemical analysis. The sample was retained by PW-1 in his private custody in a rented accommodation. PW-4 admitted that the recovery memo was not signed by the accused and that copies of documents were not supplied to the accused. He also admitted that no memo in this regard was prepared in his presence.
More significant, the bench held that PW-1, being the informant, could not have been the IO himself. Asking whether in criminal prosecution, it will be in consonance with the principles of justice, fair play, and fair investigation, if the informant and the IO were the same person, the bench held that in such a case it is necessary for the accused to demonstrate prejudice, especially under laws such as the NDPS Act, carrying a reverse burden of proof.
Sub-clause (1) of Section 35 of the Act states that in any prosecution for an offence under this Act, the court shall presume the existence of a culpable mental state of the accused, but it shall be a defence for the accused to prove that he had no such mental state with respect to the act named as an offence in the prosecution. This presumption is rebuttable. Sub-clause (2) of this section clarifies that a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Section 54 of the Act requires that it may be presumed that, unless and until the contrary is proved, the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance or any materials which have undergone any process towards the manufacture of the same, for the possession of which he fails to account satisfactorily.
Section 37 of the Act makes every offence punishable under this Act cognizable. It imposes a bar on release of an accused of specified offences on bail or on his own bond unless the Public Prosecutor (PP) has been given an opportunity to oppose the application for such release, and where the PP opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
Section 37, coupled with other stringent provisions of the Act, such as the minimum sentence of 10 years’ imprisonment and 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 this, the burden of proof shall shift to the accused, the bench held.
Had the investigator been different from the complainant, the issues for consideration may have been different, the bench added. The appellant, Mohan Lal, in his defense, had resorted to the plea of false implication by PW-1 on account of a dispute over a tractor purchase.
The bench held that a fair trial of an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in an NDPS case were not to be fair or give rise to serious questions about its fairness. “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,” the bench made it clear.
The bench explained that if the probe itself was unfair, to require the accused to demonstrate prejudice would be fraught with danger, vesting arbitrary powers in the police which might lead to false implication also. “Investigation in such a case would then become a farce,” the bench added.
The bench made it clear that if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, and 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,” the bench noted.
“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 bench emphasised, while directing the appellant to be set free.
It has been found that a large number of offenders in NDPS cases are acquitted due to non-compliance with mandatory procedures. The number of acquittals in such cases greatly outnumber the convictions. If the investigators comply with all the mandatory procedures, there would be fewer acquittals by the courts on technical grounds.