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2019 SCeJ 216

Criminal prosecution - Informant and the investigating officer were the same person - Hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal v. State of Punjab, (2018)2 SCeJournal 1314, shall continue to be governed by the individual facts of the case.

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Criminal prosecution - Informant and the investigating officer were the same person - Hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal v. State of Punjab, (2018)2 SCeJournal 1314,  AIR 2018 SC 3853 shall continue to be governed by the individual facts of the case – The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it uni­directional exercise -  A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal, is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations - Societal interest mandates that the law laid down in Mohan Lal  cannot be allowed to become a spring board by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous - Criminal jurisprudence mandates balancing the rights of the accused and the prosecution - We cannot be oblivious of the fact that while the law stood nebulous, charge sheets have been submitted, trials in progress or concluded, and appeals pending all of which will necessarily be impacted - Narcotic Drugs and Psychotropic Substances Act, 1985, Section 20(ii)(c). Held,   If the facts in Mohan Lal (supra) were telling with regard to the prosecution, the facts in the present case are equally telling with regard to the accused.  There is a history of previous convictions of the appellant also. Present appeals lack merit and are therefore dismissed. 11 February, 2019 // 2019 SCeJ 216


Investigation  - An investigation is a systemic collection of facts for the purpose of describing what occurred and explaining why it occurred. The word systemic suggests that it is more than a whimsical process. An investigator will collect the facts relating to the incident under investigation - The fact is a mere information and is not synonymous with the truth - Constitution of India , Article 21. (2018)2 SC eJournal 1314

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FIR  and Investigation  -  FIR  Is not a gospel truth – The view taken by the Kerala High Court in Kader vs. State of Kerala, 2001 CriLJ 4044 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 N.D.P.S. act in the absence of proof of specific prejudice to the accused” - It tantamounts 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 and uncanalised 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 - The word systemic suggests that it is more than a whimsical process. An investigator will collect the facts relating to the incident under investigation - The fact is a mere information and is not synonymous with the truth - Constitution of India , Article 21.

 

Held, view taken by the Kerala High Court in Kader vs. State of Kerala, 2001 CriLJ 4044 does to meet our approval where it was held that “Unlike usual cases under the Criminal Procedure Code, in cases under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. Therefore, we are of the opinion 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 N.D.P.S. act in the absence of proof of specific prejudice to the accused”  - It tantamounts 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 and uncanalised powers vested with the police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof.  Kader vs. State of Kerala, 2001 CriLJ 4044 is, overruled. We approve the view taken in Naushad vs. State of Kerala, 2000 (1) KLT 785.  (2018)2 SC eJournal 1314

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