Summary
An NDPS conviction followed an investigation conducted by the police officer who was also the informant, with unexplained private custody of the seized material and delay in sending the sample. The Supreme Court held the prosecution vitiated by denial of a fair investigation, ruled that informant and investigator must be different persons, and directed the appellant’s release.
Issues
- Whether investigation by the informant himself satisfied the constitutional requirement of fairness, particularly under a statute carrying a reverse burden of proof.
- Whether the statutory presumptions displaced the prosecution’s obligation to establish foundational facts and reliable custody of the seized material.
Provisions considered
- Article 21, Constitution of IndiaFair investigation was treated as a necessary foundation of a fair trial; the Court required separation of informant and investigator to exclude possible bias. (¶¶ 11, 14, 24, 25, 26)
- Sections 35 and 54, Narcotic Drugs and Psychotropic Substances Act, 1985The prosecution first had to establish foundational facts beyond reasonable doubt before the rebuttable reverse burden could operate. (¶¶ 10, 13)
- Section 55, Narcotic Drugs and Psychotropic Substances Act, 1985The provision required deposit of seized material in police-station safe custody, not its unexplained retention by the officer in his private rented accommodation. (¶¶ 6, 7, 8)
Held
- The reverse burden did not arise merely from allegations in an FIR asserting procedural compliance. The prosecution first had to establish foundational facts, including possession, beyond reasonable doubt; the accused’s rebuttal was governed by a lower standard. (¶¶ 10, 13)
- Unexplained private custody instead of malkhana deposit, failure to examine material witnesses, doubts about the consent memo and seal, and unexplained nine-day delay in sample dispatch raised serious questions about the investigation’s fairness and the physical evidence. (¶¶ 6, 7, 8, 9)
- The Court held that fair investigation required the informant and investigator not to be the same person, with particular importance in reverse-burden prosecutions. Actual bias need not be proved. It overruled Kader and approved Naushad on this issue. (¶¶ 14, 24, 25)
Result
Appeal allowed; prosecution held vitiated for infringement of the constitutional guarantee of fair investigation. Appellant directed to be released forthwith unless wanted in another case.