NDPS Act: To Vitiate Or Not To Vitiate: A Legal Conundrum Survives
Jay S. Shah, Advocate
B.Com., LL.M., PG in Cyber Law
Practicing Advocate at Gujarat High Court
Date : 08/09/2020
Gujarat High Court
📱 +91 9898036137
NDPS Act: To Vitiate Or Not To Vitiate: A Legal Conundrum SurvivesThis article explores two questions that arose from the recent decision of the Hon'ble Supreme Court in Mukesh Singh v. State (Narcotic Branch of Delhi), the first question is "To vitiate or not to vitiate: A legal Conundrum Survives" and the Second question is "A Fair Investigation Revisited" in context of The Narcotic Drugs And Psychotropic Substances (NDPS) Act. Background of Reference: In Mohanlal v. State of Punjab, (2018) 17 SCC 627, A three-judge bench of the Hon'ble Supreme Court held that the trial of cases under NDPS Act will be vitiated if the complainant/informant and the investigating officer is the same person. The correctness of this view was doubted in Mukesh Singh v. State (Narcotic Branch of Delhi), Special Leave Petition (Criminal) Diary No. 39528/2018 by a two judges bench stating that: "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." The matter was then placed before a Three-Judge Bench of the Hon'ble Supreme Court, which in turn has referred a question of law to the Constitutional Bench. The Hon'ble Constitutional Bench was called upon to answer:
Whether in case the investigation is conducted by the informant /police officer who himself is the complainant, the trial is vitiated and in such a situation, the accused is entitled to acquittal?In answering the question the Hon'ble Supreme Court has laid down that merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. Now, let us explore the effects of the judgment from the viewpoint of the two questions: To vitiate or not to vitiate: A legal Conundrum Survives: The Supreme Court has taken a rather interesting view on when does the trial is said to be vitiated in the view of the fact that the "informant/complainant himself is investigator" the Supreme Court summarized the findings as follow:
II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled. [Emphasis Supplied][3*]
[3* Para 12 : Conclusion no. II]The above finding is interesting because the bench has left the decision on the question of law on case to case basis without any guiding objective criteria being laid down under the scheme of the act and such exercise is solely left on the subjective satisfaction of the court trying the issue. Objective law is the groundwork of subjective law. Subjective law is a set of applications of objective principles onto a specific situation. Its application differs from case to case. For example, while everyone has a right to free speech, which is an objective right, although its application could somehow downplay to some exceptions, which brings us back to subjective law. Hence, Subjective satisfaction without any Objective Criteria to drive it will be like a Bull in a China Shop. When a Constitutional Bench is called upon to decide a substantial question of law, it answers to such question of law by Objective Expression of broad legal principles that can be applied to many situations rather than be dependent on circumstances or factual situations. In the Mukesh Singh's case, the Constitutional bench not only failed to lay down any Objective Expression of law but also did not enunciated any objective criteria's that can be uniformly applied in a case to case basis. Case in point Justice K.S. Puttaswamy (Retd.) v. Union of India, 2015(3) R.C.R.(Civil) 988 where a Nine Judge Bench of the Hon'ble Supreme Court held Right to Privacy as a Fundamental Right and goes on to state: "This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy." as same is to be tested on case to case basis and expressed objective criteria that: "A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21." Similarly, in the recent case of Sushila Aggarwal v. State (NCT of Delhi), 2020 SCC OnLine SC 98, the Hon'ble Supreme Court decided that the "Anticipatory Bail Cannot Be Limited to A Fixed Period Except In Special And Peculiar Circumstances" and the same has to be decided on a case to case basis but has laid down the guidelines which will help in the adjudication of cases. On the contrary, in the present case, the bench left the question hanging on Subjective Satisfaction on case to case basis, which will leave room for non-uniform decision making and A grey area of law is created because of the fact that the Subjective Satisfaction changes from Courts to Courts. An argument or fact that satisfies the conscious of a Lower Court may not satisfy the conscious of Appellate Court and the same will lead to non-uniformity in the decision-making process. The purpose of the Constitutional Bench is to settle the question of law decisively and in cases when the question cannot be answered decisively and a view is taken that the question is to be answered on case to case basis then an objective criteria's guiding such decision making have to be laid down, to not only keep a check on possible abuse of powers but more importantly it will not leave any ambiguity in the interpretation of facts and circumstances on a case to case basis. In my opinion, the Supreme Court rather than putting the legal conundrum to rest by laying down Objective Expression of legal principles or guidelines based on the Scheme of the Act, has left the legal conundrum up for discussion for times to come and created a grey area of the non-uniform decision-making process which could have been avoided. A Fair Investigation Revisited: Judex in causa sua means "no-one is judge in his own cause." It is a principle of natural justice that no person can judge a case in which they have an interest and this principle is applied to any appearance of a possible bias, even if there exist none: "Justice must not only be done but must be seen to be done". The right to a fair trial is enshrined under various articles of the Universal Declaration of Human Rights (UDHR) but most importantly under Article 10. The right to a fair and impartial investigation has been considered an integral part of the Fair Trial. Under the Indian Constitutional Scheme, the Right to Fair Trial is considered as a Fundamental Right under Article 21. The foundations of a fair trial under the Indian Constitutional context are 1. Principle of Justice, Fair Play and Fair Investigation 2. Any possibility of bias must be excluded 3. Speedy Justice. Now, let us see how the foundations of fair trial and the Main reasoning of the Bench stacks up. Following are the main reasonings of the Bench culled out from the judgment:
1. Under the scheme of Cr.P.C. Sections 154, 156 and 157 permit the officer in charge of a police station to reduce the information of commission of a cognizable offence in writing and thereafter to investigate the same.
2. Section 53 does not speak that all those officers to be authorised to exercise the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act shall be other than those officers authorised under Sections 41, 42, 43, and 44 of the NDPS Act. NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of theoffences under the NDPS Act.
3. It is required to be noted that in cases where any person empowered under Sections 42, 43 or 44 of the NDPS Act acts vexatiously or maliciously, the statute itself has provided the punishment as per section 58 and it is an offence under section 58 which is a cognizable offence and such an offence is required to be investigated by the "officer in charge of a police station" other than the officer who exercised the power of entry, search, seizure or arrest under Sections 42, 43, or 44 as naturally in such a case he would be a proposed accused and therefore he cannot be permitted to investigate and to be a judge in his own cause.
4. It is required to be noted that whether the investigation conducted by the concerned informant was a fair investigation or not is always to be decided at the time of trial. In the cases of reverse burden of proof, the presumption can operate only after the initial burden which exists on the prosecution is satisfied. The concerned informant/investigator will be cited as a witness and he is always subject to cross-examination.
5. Reference may be made to illustration (e) to Section 114 of the Indian Evidence Act. As per the said provision, in law, if an official act has been proved to have been done, it shall be presumed to be regularly done.
6. At this stage, it is required to be noted that the reverse burden does not merely exist in special enactments like the NDPS Act and the Prevention of Corruption Act, but is also a part of the IPC - Section 304B and all such offences under the Penal Code are to be investigated in accordance with the provisions of the Cr.P.C. and consequently the informant can himself investigate the said offences under Section 157 Cr.P.C.Now let us test the reasonings of the bench from the jurisprudence of Law and scheme of the NDPS Act: In the first & sixth reasoning, The Supreme Court has gone on to enunciate the provisions of the Code of Criminal Procedure, 1973 to point out that there is no bar for investigation by the informant under the scheme of the Cr.P.C. But the Bench agrees (Para 9.3.2) that from the scheme and provisions of the NDPS Act it is a complete code. It can be seen that there is a lucid procedure provided for every step from entry, search, seizure, investigation and right upto the completion of the trial. A complete code means a legislation that exhaustively covers a complete system of laws or a particular area of law. The Supreme Court ought to have considered that the NDPS Act is a special act and being complete code in itself, any analogy to the provisions of the Cr.P.C. will go against the basic tenets of having a special legislation, the legislature in its wisdom has provided a complete code to differentiate it from the General Code. Otherwise, there was no need for laying down detailed procedures in the NDPS Act by the legislature. As per Section 51 of the NDPS Act, the provisions of the Cr.P.C. shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. The said provision nowhere provides for applicability of Cr.P.C. to investigation under the NDPS Act and hence, the analogy of Cr.P.C. will be inconsistent with the scheme. In second and third reasoning, the Bench reasons that section 53 read with 41,42,43 and 44 does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under NDPS Act and further goes on to state that the statute itself has provided the punishment as per section 58 and it is an offence under section 58 which is a cognizable offence and such an offence is required to be investigated by the "officer in charge of a police station" other than the officer who exercised the power of entry, search, seizure as naturally in such a case he would be a proposed accused. The Bench overlooked the legislative scheme of the NDPS Act, which acts as an inbuilt mechanism for checks and balances, the legislature in its wisdom has provided two different sections for "entry", "search", "seizure" and "arrest" (Section 42) and power of investigation (Section 53). In between both the stage of section 42 and 53, the legislature has provided another check in the form of Section 52(3), which requires an officer under Section 42 to handover every person arrested or article seized to an officer empowered under Section 53 or an officer in charge of a police station and the information given by the officer acting under Section 42 to such officer acting under Section 53 would then be categorised as the first information report. If the intention of the Legislature would have been to provide all the above power and authority in a single officer, they would not have felt the necessity of laying down the detailed procedure of handing over of the arrested person and seized articles to an officer empowered to investigate the offences under the Act. The reasoning of the bench leads to an astonishing procedure where the officer under section 42 (informant/complainant) hands over the custody of the arrested and seized article under Section 52(3) to himself (being an investigating officer) under Section 53. The legislative intent reflected in section 52(3) will merely become an empty formality. The NDPS Act is a special act carrying a reverse burden of proof and was enacted to consolidate and amend prevailing laws on the subject and for implementation of international conventions relating to the subject. The Legislature in its wisdom understood that the act has far-reaching consequences and a potential for misuse and hence, provided checks and balances in the Act. "With great power comes great responsibility" alternatively known as the Peter Parker principle, the legislature understood the power and need to balance the power by inserting Section 58 for punishment for vexatious entry, search, seizure or arrest. The counter balance in the form of Section 58 also shows the legislative intent of offsetting wrongful prosecution and misuse of power under the act. The insertion of section 58 also strengthens the fact that the officers under section 42 and 53 must be a different officer and cannot be the same person. The legislative intent behind section 58 is very clear and that is to stop a wrongful prosecution at the earliest point of time that is to say at the time of Investigation of the complaint provided by the officer empowered under Section 42. The Investigating officer while investigating the offence will have greater responsibility to investigate the complaint to find out whether the crime is committed or not and in case if the offence is not committed then prosecution for vexatious entry, search, seizure or arrest can be initiated on the erring officer under section 58 of the Act. The Supreme Court ought to have considered the fact that an informant/complainant if considered empowered to investigate his own complaint, will try to end the investigation against the accused because the alternative will be being punished for vexatious entry, search, seizure or arrest under section 58 of the Act. The informant/complainant has a personal interest in the investigation of the offence and hence, allowing him to investigate the complaint will amount to allowing him to judge his own cause, against the settled proposition of law "no-one is judge in his own cause." The general rule of interpretation suggests that the provisions of the act must be co-jointly read to bring out its true intent and to avoid reading sections in isolation unless it's an absolute necessity. The co-joint reading of sections 42, 52, 53 and 58 of the Act lead to inevitable conclusions that the informant/complainant is different from the investigating officer under section 53 as explained hereinabove. The intention of the legislature of not including the word Investigation in Section 58 also clearly shows that it envisaged the officers carrying out entry, search, seizure or arrest under section 42 will not be the officer who will investigate the offences under section 53 because the investigating officer will be duty-bound to scrutinise the complaint given by the officer empowered under section 42, which may result in the initiation of prosecution of an officer empowered under section 42 for vexatious entry, search, seizure or arrest. Hence, the legislature in laying down different procedures and powers under section 42, 52 and 53 of the act had differentiated the role of different officers and in doing so have laid down inbuilt mechanism of checks and balances on the power exercised by different officers acting under the Act and have also laid down Section 58 providing punishment for vexatious entry, search, seizure or arrest. The fair and impartial investigation consists of an obligation on the investigating officer to scrutinise the veracity of the complaint. The Reasoning of the bench leads to an interesting situation where an officer under section 42(informant/complainant) after providing the complaint goes on to check the veracity of his own complaint and has to conclude whether the complaint is right or to prosecute himself, such a scenario will result in FIR being a gospel truth and a foregone conclusion. The Judgment lays down the law in para 9.5as under:
"Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible."If the above reasoning is to be accepted as true, then the section squarely falls on the wrong side of Substantive due process of law and Doctrine of Manifest Arbitrariness. The section permitting an officer to be complainant and investigator fails to pass the test of Substantive due process as explained above the only two options for the investigator who is complainant himself will be either to file a final report or face prosecution under section 58, hence it's a foregone conclusion which is neither fair nor just and is highly unreasonable and prejudicial to the accused rights of a fair trial. As is now settled after the decision in the case of Menaka Gandhi v. Union of India, 1978(1) S.C.C. 248 that the procedure established by law under Article 21 cannot be "any procedure" but has to be a just and a reasonable procedure i.e. it has to meet the Doctrine of Substantive Due Process. Further, The section fails to meet the Manifest Arbitrariness test as well, the act of allowing a person to be a judge in his own cause i.e. in an investigation where he himself is a complainant and has personal interest to safeguard is a capricious, irrational and needless to say arbitrary. Hence if the above reasoning is accepted the Section fails to meet legislative competence required to pass the test of Article 14, 19 and 21 on the Constitution of India. The only way Section 53 then can be constitutionally reconciled is to read into it the right of the accused to have a fair and independent investigation and the said right will include an impartial investigation from an officer not having personal interest to safeguard in the investigation or in other words is not a complainant himself. Hence, the finding of the Bench that the provision of law permits such a scenario is not tenable under the constitutional framework. The last reasoning of the Bench to support the conclusion was to rely on illustration (e) on Section 114 of the Evidence Act, the section states :
"The Court may presume the existence of any fact which it thinks to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." and illustration (e) states "That judicial and official acts have been regularly performed;"But, the Bench has not taken into consideration second part of section 114 of the Evidence which states:"But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:- As to illustration" and further provides "As to illustration (e)-A judicial act, the regularity of which is in question, was performed under exceptional circumstances;" Hence, it can be seen that the said presumption is not absolute and is only an illustration. While deciding whether to grant a Special Leave in a Criminal Cases, Lord Sumner speaking for the Privy Council states in a well-known passage in the case in Ibrahim v. Emperor, pointed out that ''misdirection as Such, even irregularity as such, will not suffice. There must be something which in the particular case deprives the accused of the substance of fair trial and the protection of the law, or which in general tends to divert the due and orderly administration of the law into a new course which may be drawn into an evil precedent in future." [Emphasis Supplied] This very observation of Lord Sumner's regarding deviation of the orderly administration of law into a new course which may be drawn into an evil precedent in future, it is this very essence and substance of criminal jurisprudence, which requires the above course of action[where the informant/complainant himself investigate the offence]is required to be deprecated and struck down for avoiding an evil precedent in future. As can be perceived from the explanations above and the reasoning failing to meet the scheme of the act and jurisprudence of law, it can be fairly said that the reasonings provided by the Bench is flawed and needs to be revisited. The US Supreme Court in Rippo v. Baker noted that "under our precedents, the Due Process Clause may sometimes demand recusal even when a judge `has no actual bias.' Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable." The same principle shall apply at the question of law at hand, the probability of actual bias on the part of the informant/complainant acting as an investigator is too high to be constitutionally tolerable.
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