FREE TRIAL IN NARCOTICS CASES

In a significant pronouncement, a three-judge bench of the Supreme Court has categorically held that the informant and the investigator in NDPS cases (The Narcotic Drugs and Psychotropic Substance Act, 1985) must NOT be the same person.

This issue was raised in Mohanlal vs. State of Punjab, by a three-judge bench of Justice Ranjan Gogoi, Justice R Banumathi and Justice Navin Sinha;

“Whether in a criminal prosecution, it will be in a 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 the laws such as NDPS Act, carrying a reverse burden of proof?”

It was noticed that there were many conflicting opinions being expressed by various High Courts. Conflicting views were noted particularly in two decisions of Kerela High Court in Naushad vs. State of Kerela by a single bench and Kader vs. State of Kerela, by a division bench which had disapproved the view taken in Naushad.

KADER vs. NAUSHAD

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.P.D.S. Act in the absence of proof of specific prejudice to the accused.

Upholding the single bench view in the regard, the apex court bench observed:

“The view was taken by the Kerala High Court in Kader (supra) does to meet our approval.

It is 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 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.

On 16th August 2018, a three-judge bench of SC 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.”

BY- Sagarika Mishra,

Student Reporter-INBA