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Mohan Lal v. State of Punjab (2018) -

Acquittal of Accused when Complainant
and I O are same
JINALI SHAH ,
 09 January 2021  Share  Bookmark

Court :
Supreme Court of India
Brief :
In the said judgement the 3 judge bench of J. Ranjan Gogoi, J. R.
Banumati, J. Navin Sinha dealing with the question was as to whether in
a criminal prosecution it will be in consonance with the principles of
justice, fair play and fair investigation if the informant and investigating
officer were to be same persons.
Citation :
CRIMINAL APPEAL NO. : 1880 Of 2011

Mohan Lal v. State of Punjab (2018)

(Accused is entitled for acquittal when complainant and
Investigating Officer are same)

(Article 21 of the Indian Constitution and Sections 35(2) and 54

of the NDPS Act)

JUDGMENT SUMMARY: Mohan Lal v. State of Punjab

DATE OF JUDGEMENT: 16th August 2018

JUDGES: Justice Ranjan Gogoi, Justice Navin Sinha, Justice R.

Banumati

REFERENCE : AIR 2018 SC 3853

PARTIES : Mohan Lal (Appellant)
The State Of Punjab (Respondent)

SUBJECT
n the said judgement the 3 judge bench of J. Ranjan Gogoi, J. R.

Banumati, J. Navin Sinha dealing with the question was as to

whether in a criminal prosecution it will be in consonance with

the principles of justice, fair play and fair investigation if the

informant and investigating officer were to be same persons.

This case deals with the Narcotic Drugs and Psychotropic

Substances Act hereinafter referred to as “NDPS Act”.

AN OVERVIEW
1. F.I.R. was lodged by Prosecution witness (Hereinafter referred

to as “PW”) PW-1 by Chand Singh, Balianwali Police Station

while on patrol duty. Upon suspicion PW-4, Shri. Rajinder N.

Dhoke, IPS Officer was called and Appellant was searched

leading to recovery of 4 kg of opium in a bag carried by him.

2. Assistant Sub Inspector, Balwinder Singh and Sarpanch,

Darshan Singh registered a formal F.I.R and handed over the

Investigation to PW-1.

3. The case property was retained by PW-1 in his possession and

was not deposited in the malkhana neither entered in

roznamcha. And the samples were retained by him in his private

custody in a rented accommodation.

4. Upon conclusion of investigation, the accused was charge

sheeted, put on trial and convicted. The appellant thereby

strongly criticizing his conviction challenged it under Section 18

of the Narcotic Drugs and Psychotropic Substances Act, 1985

sentencing him to rigorous imprisonment for 10 years and a

fine of ₹1,00,000 (Rupees One lakh only) with a default

stipulation.

IMPORTANT PROVISIONS
Constitution of India
1. Article 21 – Protection of life and personal liberty
• A fair trial to an accused, a constitutional guarantee under

Article 21 of the constitution.

NDPS Act
1. Section 35 (2) provides that fact can be said to have been

proved if it is established be beyond reasonable ground and not

on preponderance of probability

2. Section 54 - Presumption from possession of illicit articles.

In trials under this Act, it may be presumed, unless and until the

contrary is proved, that the accused has committed an offence.

ISSUES
1. Whether in a criminal prosecution it will be in consonance

with the principles of justice, fair play and fair investigation if the

informant and investigating officer were to be same person?

ANALYSIS OF THE JUDGEMENT
1. The learned counsel for the appellant submitted that 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 required not only to be fair and

judicious, but must also appear to have been so. The

investigation ought not to be in a manner leaving a genuine

apprehension in the mind of the accused that it was not fair and

bonafide. The investigation was fundamentally flawed. Also the

learned counsel for the appellant pointed out the following 3

things regarding :

• No explanation being given by PW-1 that why he didn’t

deposit the seized narcotics in malkhana.

• No explanation regarding the 9 days delay in sending the

samples for chemical analysis.

• No explanation furnished why Darshan Singh and ASI

Balwinder Singh not been examined by the prosecution.

2. Whereas the learned counsel for Respondent contended that

the appellant was searched in the presence of a gazette officer

and regarding the examination of Darshan Singh or Balwinder

Singh was inconsequential.

3. The Court was of the view that in such a case it is necessary for

the accused to demonstrate prejudice especially under laws such

as NDPS Act carrying a reverse burden of proof. Also it was a

subject of investigation that the seized property by PW-1 was

kept by him in private accommodation despite the availability of

malkhana. Similarly signatures of ASI Balwinder Singh or PW-4
not obtained on consent memo was a subject matter of

investigation.

4. The court also pointed out that the view taken by High Court

that under section 55 of the NDPS Act PW-1 was empowered to

keep the case property and sample in his individual safe custody
is highly erroneous on the face of it. A plain reading of the

provision manifests that it is the duty of the police officer in

charge to deposit the seized material in the malkhana. The court

quoted to the Standing order 1 of 88 issued by the Narcotics

Control Bureau in Clause 1.13 and the Drug Law Enforcement

Field Officer's Hand Book. The court also referred to Noor Aga v.

State of Punjab (2008) 16 SCC 417 case wherein the duty of the

prosecution under the NDPS Act considering the reverse

burden of proof was noticed.

5. The court was of the view that a fair trial to an accused is a

constitutional right guaranteed under Article 21 of the

constitution of India which would be a hollow promise if the

investigation in the NDPS case were not be fair or raises serious

questions about its fairness apparent on the face of the

investigation. The obligation of proof beyond reasonable doubt

will take within its ambit a fair investigation the absence of which

there can be no fair trial. The court further remarked that if the

investigation is itself unfair, to require the accused to

demonstrate prejudice will be fraught with danger vesting

arbitrary powers with the police which may well lead to false

implication also. Investigations in such cases would then become

an empty formality and a farce. Such an interpretation should be

thus avoided.
6. The court while mentioning Babubhai v. State of Gujarat

(2010) 12 SCC 254 case quoted that the investigation in a

criminal case must be free from objectionable features or

infirmities which may legitimately lead to any grievance on part

of the accused In view of the conflicting opinions

expressed by different two Judge Benches of this Court the

importance of a fair investigation from the point of view of

the accused as a guaranteed constitutional right under Article

21 of the constitution of India. To leave the matter for being
determined on individual facts of the case may not only lead to

possible abuse of powers but more importantly leave the police,

the accused, the lawyer and the courts in a state of uncertainty

and confusion which has to be avoided. 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
it must appear to be done also. This requirement is all the more

imperative in laws carrying reverse burden of proof. The

appellant was directed to be set at liberty unless wanted in any

other case .

CONCLUSION
As it is rightly said, in a criminal prosecution there is an
obligation cast on the investigator not only to be fair, judicious

and just during investigation but also that the investigation on

the very face of it must appear to be so. In the above case the

paramount consideration was to interpret the law in a way which

operates fairly. As in this case it is held that if the investigation is
conducted by a police officer who himself is the complainant
then the trial is vitiated and the accused is entitled to acquittal as

a matter of law.

However, the apex court in a recent case overruled the above

2018 judgement and has cleared that this cannot be laid down
as a general preposition and held that the question of bias

essentially would depend upon facts and circumstances of each

case.

To download the original copy of the judgment, click here

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