LAW FINDER

Submitted By: Sh. Anil Pal Singh Shergill, Advocate

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Mukesh Singh v. State (Narcotic Branch of Delhi) (SC)(Constitution Bench) : Law Finder Doc Id #
1738791
SUPREME COURT OF INDIA
(Constitution Bench)
Before:-Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, JJ.
Special Leave Petition (Criminal) Diary No. 39528 of 2018. D/d. 31.8.2020.
Mukesh Singh - Petitioner
Versus
State (Narcotic Branch of Delhi) - Respondent
With
Special Leave Petition (Criminal) No. 5648 of 2019, Special Leave Petition (Criminal) No. 5894 of 2019,
Special Leave Petition(Criminal) No. 8499 of 2019.
For the Petitioner :- Rajiv Shankar Dvivedi, Advocate.
IMPORTANT
NDPS - Investigation would not suffer vice of unfairness or bias if informant itself is
Investigator.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Investigation by Informant/Investigator
- Held, informant is investigator, by that itself investigation would not suffer vice of
unfairness or bias - Therefore, on sole ground that informant is investigator, accused not
entitled to acquittal.
[Para 12]
Cases Referred :-
Babubhai v. State of Gujarat, (2010) 12 SCC 254.
Bhagwan Singh v. State of Rajasthan, (1976) 1 SCC 15.
Bhaskar Ramappa Madar v. State of Karnataka, (2009) 11 SCC 690.
Devender Pal Singh v. State (NCT of Delhi), (2002) 5 SCC 234.
Emperor v. Khwaja Nazir Ahmad, AIR 1945 Privy Council 18.
H.N. Rishbud v. State of Delhi, 1955 (1) SCR 1150 : AIR 1955 Supreme Court 196.
Hardip Singh v. State of Punjab, (2008) 8 SCC 557.
Hema v. State, (2013) 10 SCC 192.

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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Jamuna Chaudhary v. State of Bihar, (1974) 3 SCC 774.

Karamjit Singh v. State (Delhi Administration), (2003) 5 SCC 291.
Kashmeri Devi v. Delhi Admn., 1988 Supp. SCC 482.
Lalita Kumari v. Government of Uttar Pradesh, AIR 2014 Supreme Court 187 = (2014) 2 SCC 1.
Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.
Megha Singh v. State of Haryana, (1996) 11 SCC 709.
Menaka Gandhi v. Union of India, (1978) 1 SCC 248.
Mohan Lal v. State of Punjab, (2018) 17 SCC 627.
Niranjan Singh v. State of U.P., 1956 SCR 734.
Paramjit Singh v. State of Punjab, (2007) 13 SCC 530.
Rafiq Ahmad v. State of U.P, (2011) 8 SCC 300.
Rekha v. State of Maharashtra, (2010) 15 SCC 725.
Romila Thapar v. Union of India, (2018) 10 SCC 753.
S. Jeevantham v. State, (2004) 5 SCC 230.
State by Inspector of Police, NIB, Tamil Nadu v. Rajangam, (2010) 15 SCC 369.
State of Punjab v. Baldev Singh, (1999) 6 SCC 172.
State of Punjab v. Noor Aga, (2008) 16 SCC 417.
State of Rajasthan v. Ram Chandra, (2005) 5 SCC 151.
State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 Supreme Court 221.
State v. V. Jayapaul, (2004) 5 SCC 223.
Sunil Kumar Banerjee v. State of West Bengal, (1980) 3 SCC 304.
Surender v. State of Haryana, (2016) 4 SCC 617.
Union of India v. T. Nathamuni, (2014) 16 SCC 285.
Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579.
Varinder Kumar v. State of Himachal Pradesh, 2019 (3) SCALE 50 = (2020) 3 SCC 321.
Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762.
Vinod Kumar v. State of Punjab, (2015) 3 SCC 220.
Willie (William) Staney v. The State of Madhya Pradesh, (1955) 2 SCR 1140.
JUDGMENT

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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M.R. Shah, J. - Having doubted the correctness of the decision of this Court in the case of Mohan
Lal v. State of Punjab reported in (2018) 17 SCC 627 taking the view that in case the investigation
is conducted by the police officer who himself is the complainant, the trial is vitiated and the
accused is entitled to acquittal, initially by order dated 17.01.2019 the matter was referred to a
larger Bench consisting of three Judges. A three Judge Bench vide order dated 12.09.2019 has
referred to a larger Bench of five Judges to consider the matter. That is why, the present matter is
placed before the Bench consisting of five Judges.
2. At the outset, it is required to be noted that the decision of this Court in the case of Mohan Lal
(supra) taking the view that in case the investigation is conducted by the police officer who himself
is the complainant, the trial is vitiated and the accused is entitled to acquittal, came up for
consideration subsequently before this Court in the case of Varinder Kumar v. State of Himachal
Pradesh 2019 (3) SCALE 50 = (2020) 3 SCC 321 and a three Judge Bench of this Court [out of which
two Hon'ble Judges were also in the Bench in the case of Mohan Lal (supra)] held that the decision
of this Court in the case of Mohan Lal (supra) shall be applicable prospectively, meaning thereby, all
pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra)
shall continue to be governed by individual facts of the case. The relevant observations in the case
of Varinder Kumar (supra) to be referred and considered hereinbelow.
3. Shri Sushil Kumar Jain, learned Senior Advocate appearing on behalf of the accused - Devendra
Singh has made the following submissions in support of his submission that as rightly held by this
Court in the case of Mohan Lal (supra) in a given case where the complainant himself has
conducted the investigation the entire trial would be vitiated and the accused would be entitled to
acquittal:
3.1 The decision in Mohan Lal (supra) rests and is based upon substantive constitutional foundation
and principles of criminal jurisprudence. In the said decision in para 5, this Court specifically dealt
with and considered the question whether in a criminal prosecution, it will be in 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 and in such a case, is it necessary for the accused to
demonstrate prejudice, especially under laws such as the NDPS Act, carrying a reverse burden of
proof. In the said decision, this Court considered in detail the reverse burden of proof under
Sections 35 and 54 of the NDPS Act. That thereafter, this Court had considered in detail the
constitutional guarantee of fair trial to an accused under Article 21 which takes within its fold "Fair
Investigation". Thereafter it is observed by this Court that in the nature of the reverse burden of
proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation
was fair, judicious with no circumstances that may raise doubts about its veracity. It is further
observed that if the investigation itself is unfair, to require the accused to demonstrate prejudice
will be fraught with danger vesting arbitrary powers in the police which may well lead to false
implication also. Thereafter this Court considered in paragraphs 17 and 29 the role and obligations
of the investigator and the investigation itself. Thereafter after having placed reliance on the
decisions of this Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15;
Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil
Nadu v. Rajangam (2010) 15 SCC 369, this Court specifically observed and held that in case the
investigation is conducted by the police officer who himself is the complainant, the trial is vitiated
and the accused is entitled to acquittal. In the said decision, it is specifically observed that to leave
the matter for being determined on the individual facts of a case, may not only lead to a possible
abuse of powers but more importantly will leave the police, the accused, the lawyer and the courts
in a state of uncertainty and confusion which has to be avoided. Thereafter it is held that a fair

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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investigation which is but the very foundation of a 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 pre-determined conclusion has to be
excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof;
3.2 The reasons which found favour in Mohan Lal (supra) are inherent and inbuilt by the
legislature in Chapter V - "Procedure", which would be the ".. procedure established by law" for the
purpose of Article 21;
3.3 As is now settled after the decision in the case of Menaka Gandhi v. Union of India (1978) 1
SCC 248 that the procedure established by law under Article 21 cannot be "any procedure" but has
to be a just and a reasonable procedure and hence right of the accused to have a fair and
independent investigation and trial, being inherent has been "read into" into the statutes not
confirming to fair procedure to make them constitutionally compatible;
3.4 Learned Senior Advocate appearing on behalf of the accused has thereafter taken us to the
"Scheme" of the NDPS Act, more particularly Section 8(c) and Sections 15 to 22. He submitted that
Section 54 gives rise to a presumption that the accused has committed an offence under the Act and
places a reverse burden of proof upon an accused "found" to be in possession and which he fails to
account for satisfactorily. Section 35 mandates the Court to culpable mental state unless contrary is
proved. It is submitted that thus "recovery" and "possession" becomes an important and vital aspect
of investigation under the NDPS Act. If the accused is "found" to be in possession of the prohibited
substance, Section 54 gives rise to a presumption of commission of offence and Section 35 gives rise
to a presumption of culpable mental state. The officer or the raiding party which effects recovery
are witnesses to the said fact which would constitute an offence and therefore investigation of the
said aspect has to be carried out by an independent agency. Investigation being a systemic process
and not a forgone conclusion making the FIR itself lodged by the informant who himself effects
recoveries to be treated as a gospel truth;
3.5 In order to safeguard the interest of the accused, the legislation has provided inbuilt safeguards
under the NDPS Act. That the Act requires recovery and investigation to be made by different
officers, i.e., by officers empowered under Section 42 and 53. The role of an officer under Section 42
being limited to effect "entry", "search", "seizure" and "arrest". It is submitted that an officer under
Section 42 has no power of investigation;
3.6 That Section 52(3) requires an officer under Section 42 to handover every person arrested or
article seized to an officer empowered under Section 53 (who has been conferred with power of
investigation under the Act) or an officer in charge of a police station who has power of
investigation under the Cr.P.C. At the stage when the officer under Section 42 is required to
handover the person arrested or the articles seized by him to the officer in charge of a police
station or the officer under Section 53 of the NDPS Act, the information given by him to such
officers would then be categorised as the first information report. As the investigation starts on
information relating to commission of an offence given to an officer in charge of a police station
and recorded under Section 154 Cr.P.C., 1973
3.7 A cryptic message on telephone etc. which under the NDPS Act is similar to the information
provided by a secret informer etc. cannot therefore constitute an FIR. It is only after recoveries are
effected and/or arrests made, information regarding commission of a cognizable offence crystallises.
After such handing over, the Role of a Section 42 officer comes to an end, except he has to make a
report of his action to his superior officer within 48 hours under Section 57 of the NDPS Act. For all

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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practical purposes, the time when Section 42 officer hands over the person arrested or the goods
seized, is the first-time information is received by the "investigating officer" and that is the time of
commencement of investigation. Heavy reliance is placed upon the decisions of this Court in the
cases of H.N. Rishbud v. State of Delhi AIR 1955 Supreme Court 196; and Manu Sharma v. State
(NCT of Delhi) (2010) 6 SCC 1;
3.8 If the officer under Section 41(2) or Section 42 receives some secret information, he is statutorily
required to inform the same under Section 42(2) of the Act to his superior officer after 72 hours.
The officer is not obliged and cannot be compelled to give the source of his information in view of
the bar contained in Section 68 of the Act. Thus, there is no mechanism to verify, except the oral
testimony of Section 42 officer himself or his subordinate officers who are part of his raiding party,
that he has acted on some prior secret information or that the recovery etc. was a chance recovery
or that the officer was acting maliciously for extraneously. Even after effecting arrests or seizures,
while the officer under Section 42 is required to forward the articles seized and persons arrested
"without unnecessary delay" to the investigation officers, he is required to report to his immediate
superior officer in 48 hours. Thus, there is no person other than the officer under Section 42 who is
the "complainant", i.e., the one who alleges commission of a cognizable offence based on the arrests
and the recoveries effected by himself or his raiding party. He is the witness who "claims"
seizures/recovery of prohibited substances from possession of the accused. These claims are required
to be verified and substantiated during investigation by the investigating officer. Once the person
arrested and the articles seized come in the control of the "Investigating Officer", he is required
under Section 52(4) of the Act to take measures for their disposal. The person arrested is produced
before the magistrate under Section 167 Cr.P.C., 1973 and the narcotic substance seized is then
required to be dealt with by the officer under Section 53 of the NDPS Act or the SHO in accordance
with Section 52A. In the process of investigation, the conduct of the officer under Sections 42, 43 and
44 is also required to be investigated. If after investigation it is found that the claim made by the
complainant/informant is justified, he would file a police report against the accused for offences
under the Act, however, in case he finds that the officer under Section 42 has acted vexatiously or
maliciously, he can also be punished under Section 58 and therefore he would file a police report
against such officer for offence under Section 58. The offence under Section 58 is also a cognizable
offence and hence on an allegation made the "officer in charge of police station" is under an
obligation to take cognizance of that and investigate. An independent investigation by a separate
agency lends credibility and fairness to both the sides. If the officer under Section 42 is to be
proceeded against, his trial would also be based upon "investigated" material. It would also exclude
possibility of abuse and source of corruption due to the wide powers under the NDPS Act;
3.9 Handing over or continuation of investigation by the officer who has acted under Section 42 to
effect search, seizure or arrest is not therefore be comprehended under the scheme. It would
render Section 58 completely redundant and otiose as he would not investigate against himself and
file a chargesheet against himself. If the accused is not found to be in possession, the Investigating
Officer would have to explain his source or else "possession" of a contraband in his possession would
also attract Section 8. The scheme of making two separate sections i.e. Sections 42 and 53
empowering officers for different purposes would have been unnecessary. If the legislative intent
was such, officer under Section 42 would have been given an additional power of investigation and
then Section 53 was unnecessary;
3.10 There was no need for a provision like Section 52(3) which mandates handover of articles
seized and persons arrested to a SHO or an officer under Section 53;

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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3.11 NDPS Act does not contemplate "Joint Authorisations", for if that were the case, Section 42
would have conferred power of both "entry, search, seizure or arrest" as well as "investigation" on
the same officer. The very fact that two separate sections, namely, Section 42 and Section 53 have
been provided and Section 52(3) contemplates "handing over" by Section 42 officer to either Section
53 officer or to SHO, meaning thereby that there ought to be two separate officers;
3.12 The object of "fair and independent investigation" is to unearth the truth. The "fair and
independent investigation" is a right of an accused flowing from Article 21 of the Constitution.
Reliance is placed upon the decisions of this Court in the case of Romila Thapar v. Union of India
(2018) 10 SCC 753 (para 67); Manu Sharma (supra)(paras 200 to 202); Hema v. State (2013) 10 SCC
192 (para 10); and Babubhai v. State of Gujarat (2010) 12 SCC 254 (para 32);
3.13 "Liberty" of a person would be at serious peril if the scheme of the NDPS Act is interpreted and
left over in the hands of a single person without any checks and safeguards to protect the rights of
the accused. It is impermissible and beyond comprehension to allow a person to (i) make an
accusation; (ii) the fact that he accuses is "sufficient ingredient" to make a penal offence; (iii)
"investigate" that accusation which he himself makes; and (iv) become a "witness" to prove the
accusation and then based on his testimony a person is convicted and punished;
3.14 In order to bring home a conviction under the provisions of the NDPS Act, prosecution is
required to establish ingredients of an offence "beyond reasonable doubt";
3.15 If the defence of the accused is not properly investigated to rule out all other possibilities, it
cannot ever be said that the prosecution has established the guilt "beyond reasonable doubt". A
tainted investigation by a complaint who is a "witness" himself to a substantial ingredient of an
offence, would in fact give rise to a "doubt" and it is impossible that the case can be established on
the parameter of "beyond reasonable doubt";
3.16 A person accused of criminal offence punishable with a peril to his life or liberty, enjoys certain
rights under the Constitution or through long standing development of criminal jurisprudence. Any
action which impinges or affects those rights would be said to cause "prejudice to an accused". That
in the case of Rafiq Ahmad v. State of U.P (2011) 8 SCC 300, it is observed and held that prejudice
to an accused or failure of justice has to be examined with reference to (i) right to fair trial (ii)
presumption of innocence until pronouncement of guilt and (iii) the standards of proof. It is
observed in the said decision that whenever a plea of prejudice is raised by the accused, it must be
examined with reference to the above rights and safeguards, as it is the violation of these rights
alone that may result in the weakening of the case of the prosecution and benefit to the accused in
accordance with law;
3.17 Section 457 Cr.P.C., 1973 in effect saves an order of conviction and sentence despite there being
an error, omission or irregularity in the complaint, summons, warrant, proclamation, order,
judgment or other proceedings before or during trial or in any inquiry or other proceedings under
Cr.P.C., or in any sanction for the prosecution unless in the opinion of the Court "failure of justice"
has been occasioned thereby. According to the prosecution therefore before an order of conviction
and sentence is set aside the Court must be satisfied that there is a "actual prejudice" caused to the
accused. However, Section 457 Cr.P.C., 1973 does not include within its fold the term "investigation"
which has been specifically defined under Section 2(h) separate from inquiry defined under Section
2(g). Section 457 contemplates errors committed in judicial proceedings before or during the
commencement of trial and not "investigation" by the officers of the police etc. Heavy reliance is
placed upon the decision of this Court in the case of Willie (William) Staney v. The State of

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

Madhya Pradesh (1955) 2 SCR 1140 on the test for "failure of justice". Therefore allowing the
informant/complainant to be the investigator in which he could himself faced prosecution if
independently investigated would not only violate the fundamental principles of fair trial which
includes fair investigation, but would be a denial of an opportunity of getting the defence
investigated and hence would also be abhorrent to the well-established notion of natural justice
rendering the trial a mockery.
3.18 Making the above submissions and relying upon the aforesaid decisions, it is submitted that the
law laid down by this Court in the case of Mohan Lal (supra) taking the view that in case the
investigation is conducted by the police officer who himself is the complainant, the trial is vitiated
and the accused is entitled to acquittal is a correct law.
4. Shri Ajay Garg, learned Advocate appearing on behalf of Mukesh Singh has made the following
additional submissions other than the submissions made by Shri Sushil Kumar Jain, learned counsel
appearing on behalf of the accused;
4.1 Right from Bhagwan Singh (supra) till the recent judgment in the case of Varinder Kumar
(supra), this Court is of the firm view that the complainant/informant and the investigator must not
be the same person. The same is in consonance with the age-old principles of law that "Nemo
debetessejudex in causa proporiasua" (no person can be a judge in his own cause) and that "justice
should not only be done but appears to have been done";
4.2 The aforesaid principles of law are touchstone of the principles of natural justice and is a useful
tool to maintain free, fair and unbiased investigation and adjudication across legal systems;
4.3 Considering the scheme of the NDPS Act, more particularly Sections 41, 42, 43, 52(3) and 53 of
the Act require that the officer empowered to raid, seize and arrest who may be the complainant
shall be different from the investigator of the case;
4.4 The criminal proceedings stand vitiated if the complainant/informant and the investigator of the
case is the same person in view of the following reasons:
a) If the complainant/informer and the Investigator are same persons, it will violate the
principle of Rule against Bias which is a part of Principles of Natural Justice and included in
Fundamental Right enshrined in Article 14 and 21 of the Constitution of India. In this regard
he is relying upon para 14, 18 and 31 of Mohan Lal (Supra).
b) In such case like NDPS where there is reverse burden of proof in sections 35, 54, 66 and 68,
the burden shall be on the prosecution to prove that no prejudice is caused to the accused in
the investigation conducted by the complainant/Informer. In this regard he is relying upon
para 14 and 18 of Mohan Lal (Supra).
c) In such case, the complainant will always be interested in filing charge sheet against the
accused (which is normal human behavior). He will have personal bias against the accused
and there will be no objectivity in the Investigation. He is relying upon Megha Singh (Supra),
Bhagwan Singh (supra), Mohan Lal (supra).
d) This Hon'ble Court has consistently considered this as a serious infraction to the guaranteed
constitutional rights of accused and declared it to be the grave infirmity which reflects on the
credibility of the prosecution case.
e) Giving due weightage as observed in Mukeshsingh (supra) will have same result because if

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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the evidence of the Complainant/Investigating officer is discarded, nothing remains in the

prosecution case and the entire Criminal proceedings stands vitiated.
f) The Accused will be deprived of his valuable rights of cross examining the
complainant/informer and the Investigation officer separately if both are same. Further, the
accused will also be deprived of his valuable right of contradicting the previous information
recorded under section 154 or 155 Cr.P.C., 1973 and previous statements of the witnesses, being
a police officer, complaint recorded under section 151 Cr.P.C., 1973 enjoined in section 145 and
157 of Indian Evidence Act and proviso to section 152 Cr.P.C., 1973
g) The meaningful reading of the scheme of NDPS Act as discussed above also indicate that the
Informer/complainant/raiding officer cannot Investigate the said case.
h) There is no compulsion for the Police/any other agency to get the Investigation conducted by
the complainant/informer and on the other hand it can be an easy tool of false implication.
i) Investigating Officer could not be placed on any pedestal higher than of a complainant and
the complainant himself cannot be the sole agency of investigation. The whole bedrock of the
investigation on the basis of which the appellant has been prosecuted is found be unfair and
against the basic tenets of criminal jurisprudence, the conviction and sentence based on such a
highly infirm investigation as aforesaid cannot be sustained in the eye of law and accordingly
the whole proceedings based on such investigation as aforesaid deserve to be quashed and set
aside.
5. Shri Tushar Mehta, learned Solicitor General of India has made the following submissions:
5.1 Section 2(h) defines "investigation". "Investigation" includes all the proceedings under the Cr.P.C.
for the collection of evidence conducted by a police officer or by any person other than a magistrate
who is authorised by a magistrate in this behalf. Section 2(o) defines "officer in charge of a police
station" and it includes when the officer in charge of the police station is absent from the station-
house or unable from illness or other cause to perform his duties, the police officer present at the
station-house who is next in rank to such officer and is above the rank of a constable or, when the
State Government so directs, any other police officer so present. It is submitted that under Cr.P.C.,
the criminal law is set into motion either under Chapter XII which relates to information to police
officers; or Chapter XV which relates to complaints to magistrates. The present case relates to
Chapter XII, Cr.P.C. where the informant of the offence is a police officer;
5.2 As per Section 154 Cr.P.C., 1973 every information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police station shall be reduced in writing by him
or under his direction, and be read over to the informant; and every such information, whether
given in writing or reduced in writing shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such officer in such form as the State Government
may prescribe in this behalf. As per sub-section 3 of Section 154 Cr.P.C., 1973 any person aggrieved
by a refusal on the part of an officer in charge of a police station to record the information
referred to in sub-section 1 may send the substance of such information, in writing and by post to
the Superintendent of Police concerned, who if satisfied that such information discloses the
commission of a cognizable offence shall either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him and such officer shall have all the
powers of an officer in charge of the police station in relation to that offence;
5.3 Section 156 Cr.P.C., 1973 provides that any officer in charge of a police station may investigate a

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cognizable offence without an order of the magistrate. Thus, even where the FIR under Section 154
Cr.P.C., 1973 is registered at the instance of a police officer, there is no bar under Section 156 Cr.P.C.,
1973 to an officer in charge of a police station to investigate the same. Further, the competence of
such investigating officer cannot be called in question in any proceedings;
5.4 Section 157 Cr.P.C., 1973 provides that if some information received or otherwise, an officer in
charge of a police station has reason to suspect the commission of an offence which he is
empowered under Section 156 of the Code to investigate, he shall proceed in person to the spot to
investigate and if necessary to take measures for the discovery and arrest of the offender. Thus, an
officer in charge of a police station who himself receives information of commission of cognizable
offence is empowered to investigate the case. It is submitted that thus, under the scheme of Cr.P.C.,
there is no bar on a police officer receiving information of commission of a cognizable offence,
recording the same and then investigate it;
5.5 Cr.P.C. itself has provisions for vitiation and non-vitiation of trial if there is illegality committed
by the magistrate. Section 460 of the Code enumerates that if a magistrate does any of the acts
specified in the said section, which he is not empowered to, then his proceedings would not be set
aside only on this ground. Section 461 of the Code enumerates that if a magistrate does any of the
acts specified in the said section, which he is not empowered to, then his proceedings would be void.
However, the illegalities under both these provisions are by the magistrate and not by the
investigating officer;
5.6 Section 462 of the Code provides that no finding, sentence or order of any Criminal Court shall
be set aside merely on the ground that the inquiry, trial or other proceedings took place in a wrong
sessions division, district, sub-division or other local area, unless it appears that such error has in
fact occasioned a failure of justice. Section 463 of the Code provides that even if there is non-
compliance in recording the confession under Section 164 of the Code, even then the same may be
admissible if such non-compliance has not injured the accused in his defence on the merits and
that he duly made the statement recorded, admit such statement. Section 465 of the Code provides
that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or
altered by a Court of Appeal on account of any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in
any enquiry or other proceedings under this Code, or any error or irregularity in any sanction for
the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned
thereby. Thus, under Section 465, irregularity in other proceedings under the Code shall not lead to
reversal of conviction unless it led to failure of justice. Irregularity in investigation would not lead
to acquittal unless failure of justice is shown;
5.7 Further, illustration (e) to section 114 of the Indian Evidence Act which permits the Court to
raise a presumption that official acts have been regularly performed;
5.8 The decisions of this Court in the cases of Bhagwan Singh (supra); Megha Singh (supra);
Rajangam (supra) and Mohan Lal (supra) were, as such, can be said to be on facts;
5.8.1 In the case of Bhagwan Singh (supra), the head constable who caught the accused for
smuggling of grains lodged an FIR under Section 161 IPC for offering L 510/- as bribe to the head
constable. The head constable himself was the complainant and the IO. There were no independent
witnesses in the case. Even, this Court also commented that no effort was made by the IO to have
independent witnesses. That thereafter, it was held by this Court that the complainant himself
cannot be an investigator. Therefore, the said decision can be said to be on the facts and

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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circumstances of that case and cannot be said to be an absolute general proposition of law that in
any case the complainant cannot be the investigator and in such a case the accused is entitled to
acquittal.
5.8.2 In the case of Megha Singh (supra) also, no independent witnesses were examined. Head
constable who arrested the accused with a country made pistol and cartridges lodged the complaint
and he only proceeded with the investigation. In the said case, it was found that there were
discrepancies in depositions of public witnesses. Therefore, this Court held that PW3 - Head
Constable himself being a complainant ought not to have proceeded with the investigation;
5.8.3 In the case of Rajangam (supra), this Court followed its earlier judgment in the case of Megha
Singh (supra);
5.8.4 Now so far as the decision of this Court in the case of Mohan Lal (supra) is concerned, the
same again came to be considered by this Court in the case of Varinder Kumar (supra) and it is
specifically observed that the facts in Mohan Lal (supra) were indeed extremely telling insofar as
the defaults on the part of the prosecution were concerned. It is further observed that in that
background it was held that the issue could not be left to be decided on the facts of a case,
impinging on the right of a fair trial to an accused under Article 21 of the Constitution of India. It is
further observed in the said decision in para 11 that the paramount consideration being to
interpret the law so that it operates fairly, the facts of that case did not show any need to visualise
what all exceptions must be carved out and provided for. The attention of the Court was also not
invited to the need for considering the carving out of exceptions. It is further observed that
individual rights of the accused are undoubtedly important, but equally important is the social
interest for bringing the offender to book and for the system to send the right message to all in the
society - be it the law-abiding citizen or the potential offender. It is further observed that the social
interest mandates that the law laid down in Mohan Lal (supra) 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. Therefore,
even as observed by this Court in the case of Varinder Kumar (supra), the facts in the case of
Mohan Lal (supra) were glaring and on facts it was held that the accused was entitled to acquittal;
5.9 On the contrary there is a line of judgments wherein this Court held that the investigating
officer and the complainant being the same person, does not vitiate the investigation. Reliance is
placed upon the decisions of this Court in the cases of Sunil Kumar Banerjee v. State of West
Bengal (1980) 3 SCC 304; State v. V. Jayapaul (2004) 5 SCC 223; S. Jeevantham v. State (2004) 5
SCC 230; Bhaskar Ramappa Madar v. State of Karnataka (2009) 11 SCC 690;Vinod Kumar v.
State of Punjab (2015) 3 SCC 220; and Surender v. State of Haryana (2016) 4 SCC 617.
Therefore, it may be seen that this Court declined to lay down a hard and fast rule with regard to
the said question despite taking note of the judgments, which in peculiar facts, had held that the
investigating officer and the complainant cannot be the same person;
5.10 Relying upon the decisions of this Court in the cases of Jamuna Chaudhary v. State of Bihar
(1974) 3 SCC 774; Kashmeri Devi v. Delhi Admn., 1988 Supp. SCC 482; and Vinay Tyagi v. Irshad
Ali (2013) 5 SCC 762, it is submitted that the duty of the investigating officers is not merely to
bolster up a prosecution case with such evidence as may enable the court to record a conviction but
to bring out the real unvarnished truth;
5.10.1 As held by this Court in the case of Vinay Tyagi (supra), what ultimately is the aim or

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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significance of the expression "fair and proper investigation" in criminal jurisprudence? It has a
twin purpose, firstly, the investigation must be unbiased, honest, just and in accordance with law,
secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case
before the court of competent jurisdiction. Once these twin paradigms of fair investigation are
satisfied, there will be the least requirement for the court of law to interfere with the investigation,
much less quash the same, or transfer it to another agency. Bringing out the truth by fair and
investigative means in accordance with law would essentially repel the very basis of an unfair,
tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a
specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in
violation of the settled principles of investigative canons. Therefore, failure of justice - defect in
investigation does not vitiate the trial unless prejudice is caused to the accused;
5.10.2 The second concept is with regard to failure of justice and prejudice to the accused. This
involves the shifting of the burden on the accused to illustrate how the procedure and the factual
circumstances/countervailing factors, have resulted in grave prejudice to the investigation and to
him/her in particular. Reliance is placed upon the decisions of this Court in the cases of H.N.
Rishbud v. State of Delhi 1955 (1) SCR 1150; Niranjan Singh v. State of U.P. 1956 SCR 734;
Paramjit Singh v. State of Punjab (2007) 13 SCC 530; Rekha v. State of Maharashtra (2010) 15
SCC 725; and Union of India v. T. Nathamuni (2014) 16 SCC 285;
5.10.3 In light of the aforesaid twin tests, it is prayed to lay down a flexible rule wherein the right
to fair investigation does not become a spring board for acquittal in cases wherein investigations
are proper and as per the statutory principles.
6. Shri Aman Lekhi, learned Additional Solicitor General of India has made the following
submissions:
6.1 This Court in Mohan Lal (supra) proceeded sub-silentio section 157 of the Code of Criminal
Procedure, 1973 under which investigation can be undertaken by the investigating officer on the
basis of his own knowledge of the commission of a cognizable offence; ignored Illustration (e) to
section 114 of the Indian Evidence Act which permits the Court to raise a presumption that official
acts have been regularly performed; disregarded the principle enunciated in the case of H.N.
Rishbud (supra) that illegality in investigation has no direct bearing on cognizance and a valid
police report is not necessarily the foundation for the Court to take cognizance; did not deal with
section 465 of the Cr.P.C., 1973 under which any illegality, whether before or during trial or in any
other proceeding, will not justify reversal of any finding, sentence or order unless a failure of
justice is occasioned thereby; overlooked the rule that an objection to an illegality if not raised at
the right stage will be deemed to have been waived; did not consider the principle that mala fides
have to be established and not inferred and that mala fides are of secondary importance if the trial
otherwise discloses impeccable evidence; and misconstrued both the scheme of the NDPS Act and
the principle of reverse burden; and failed to take notice of the principle that investigation is
exclusively reserved for the investigating agency under the Act, functions of the investigating
agency and the judiciary are complementary and not overlapping and interference is warranted
only is a clear case of abuse of power which will be decided in the facts of each case;
6.2 In the case of Varinder Kumar (supra), this Court specifically held that in Mohan Lal (supra),
the attention of the Court was also not invited to the "need for considering the carving out of
exceptions" and that "human rights are not only of the accused but, extent apart, also of the victim,
the symbolic member of society as the potential victim and the society as a whole". The Court
therefore held that the law in Mohan Lal (supra) "cannot be allowed to become a spring board by

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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an accused to be catapulted to an acquittal, irrespective of all other considerations pursuant to an

investigation" . The Court however, yet held that only trials and appeals prior to the law laid down
in Mohan Lal (supra) shall continue to be governed by the individual facts of the case. It is
submitted that this distinction is artificial and unjustified in law;
6.3 The order of Reference dated 17.01.2019 correctly records 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. But Mohan Lal (Supra) has ruled
that the trial itself would stand vitiated on that count;
6.4 The decision of this Court in Mohan Lal (supra) has not considered section 157 of the Cr.P.C.,
1973 The interference with the exercise of power under Section 157 would be warranted only if the
peculiar facts of each case require. This is more so because there are safeguards in the statute itself
and Section 157 has to be read with sections 158 and 159 of the Cr.P.C., 1973;
6.5 An information report is not a condition precedent for setting criminal investigation to motion
and an officer in charge of a police station can undertake the same even "otherwise". Thus,
investigation can commence if an officer in charge of the police station is in possession through his
own knowledge or credible informal intelligence of the commission of a cognizable offence. Reliance
is placed on the decision of the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad, AIR
1945 Privy Council 18;
6.6 In the case of V. Jayapaul (supra), wherein the inspector of police prepared the FIR upon
receiving information himself about the respondent indulging in corrupt practices and proceeded to
take up the investigation himself, eventually filed a chargesheet. This Court set aside the order of
the High Court which had quashed the proceedings on the ground that investigation was by the
same police officer who registered the case. In the case of V. Jayapaul (supra), this Court
distinguished the cases of Bhagwan Singh (supra) and Megha Singh (supra), wherein the Court had
held that the complainant cannot be the investigating officer;
6.6.1 In the case of Bhaskar Ramappa Madar (supra), this Court also held that the judgments of
Bhagwan Singh (supra) and Megha Singh (supra) were to be confined to their own facts;
6.6.2 the decision of this Court in the case of V. Jayapaul (supra) was approved in the case of
Hardip Singh v. State of Punjab (2008) 8 SCC 557 wherein the investigating officer was the one
who had seized the opium for the possession of which the appellant had been convicted;
6.6.3 It is held by this Court in the case of State of Rajasthan v. Ram Chandra (2005) 5 SCC 151,
the question of prejudice or bias has to be established and not inferred. Reliance is also placed on
the decision of this Court in the case of Union of India v. Vipan Kumar Jain (2005) 9 SCC 579;
6.7 Even in cases of reverse burden, the presumption can operate only after the initial burden
which exists on the prosecution is satisfied and even thereafter, the standard of proof on the
accused is only that of preponderance of probability. Without the foundational facts being
established, provisions raising presumptions against the accused cannot operate. Reliance is placed
on the decision of this Court in the case of State of Punjab v. Noor Aga (2008) 16 SCC 417;
6.8 Reverse burden does not merely exist in special enactments like the NDPS Act and Prevention of
Corruption Act, but is also a part of the IPC, namely Section 304B and all offences under the IPC are
to be investigated in accordance with the provisions of the Cr.P.C. and consequently the informant

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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himself can investigate the said offences under Section 157 Cr.P.C., 1973 Law, in other words, does
not disapprove of nor frowns upon this practice. These protections will remain even when the
complainant is the investigating officer;
6.9 That this Court in the case of Mohan Lal (supra) also did not consider the scheme of the NDPS
Act;
6.10 Investigation of an offence is a field exclusively reserved for the police whose powers remain
unfettered as long as they remain complaint with the provisions of the Code of Criminal Procedure.
It is only in extraordinary circumstances of abuse of authority that the Court may interfere. The
rule as laid down in Mohan Lal (supra) imposed a restriction on the procedure of investigation
which is not contemplated by the Code and disregards the principle that the functions of the
judiciary and the investigating agency are complementary and not overlapping and each should be
left to exercise its function in the area demarcated for it subject to intervention in an appropriate
case. In other words, unless the facts of a particular case show prejudice, no rule can be judicially
enacted that in no case can a complainant be the investigating officer;
6.11 Abuse of power cannot be presumed. Fairness of investigation would always be a question of
fact. In the absence of an express prohibition in the code barring investigation by a complainant
himself, the statutory incorporation of the rule that credit should be given to public officers who
have acted in the limits of their authority. The law is that invalidity of investigation has no relation
to the competence of the Court. And the object of the Code that matters of failure of justice should
be left to the discretion and vigilance of the Courts; hence, the formulation of a general rule as
contained in paragraph 25 of Mohan Lal (supra) is wrong;
7. In rejoinder, Shri Sushil Kumar Jain, learned Senior Advocate appearing on behalf of the accused
has submitted that reliance placed upon Section 157 Cr.P.C., 1973 for the offence under the NDPS
Act is misplaced. NDPS Act is a special statute and all provisions of Cr.P.C. have not been made
applicable to the proceedings under the NDPS Act. That the scheme of NDPS Act, being a special Act,
overrides Section 157 Cr.P.C., 1973 to the extent of enabling taking of cognizance on personal
information and proceeding on that basis, more particularly the provisions of Section 42 of the
NDPS Act.
8. The question which is referred to the larger Bench is, 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?
8.1 While deciding the question referred, few earlier decisions of this Court on one side taking the
view that in case the investigating officer in the complaint being the same person, trial is vitiated
and the accused is entitled to acquittal, and on the other side taking contrary view are required to
be referred to and considered in detail.
8.1.1 The first decision relied upon on behalf of the accused is the decision in the case of Bhagwan
Singh (supra), which has been subsequently followed and even considered in the subsequent
decisions. It is true that in the case of Bhagwan Singh (supra), this Court acquitted the accused by
observing and holding that the complainant himself cannot be an investigator. However, it is
required to be noted that in that case the investigation was conducted by a Head Constable who
himself was the person to whom the bribe was alleged to have been offered and who lodged the
first information report as informant or the complainant. It was noted that the entire case of the
prosecution rests solely on the testimony of the Head Constable - Ram Singh and four other police

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

constables. It was found that there was not a single independent witness to depose to the offer of
bribe by the accused. It was noticed that the Head Constable - Ram Singh did not make any effort
to get independent respectable witnesses in whose presence the seizure could be made. This Court
also noticed that the Head Constable could have easily sent one of the four police constables
accompanying him to a nereby village in order to get some independent respectable witnesses, if for
any reason that was not possible, he could have taken the accused and one another together with
the cart to the police station and then made a seizure memo in the presence of independent
respectable Panch witnesses. This Court also noticed from the statement made by the accused under
Section 342 Cr.P.C., 1973 that some other independent witnesses were present when the incident
took place and therefore this Court noticed that any of them could have been asked to witness the
seizure memo. Thereafter, on appreciation of evidence, this Court found inherent improbability in
the story of offer of bribe by the accused to the Head Constable. Thereafter, this Court observed
that the trial Court and the High Court failed to notice the circumstances mentioned in para 7
which throw considerable doubt on the prosecution case against the accused. This Court further
observed that the Court is not at all satisfied that the evidence led on behalf of the prosecution
excludes reasonable doubt in regard to the guilt of the accused. It was further observed that since
the prosecution case against the accused cannot be said to be free from reasonable doubt, the
accused is entitled to acquittal. Therefore, on facts and considering the entire evidence on record
having doubted the prosecution case against the accused and more particularly in the absence of
any independent witnesses, though the independent witnesses were available, this Court acquitted
the accused by giving him benefit of doubt. Therefore, as such, the decision of this Court in the case
of Bhagwan Singh (supra) can be said to be a decision on its own facts and cannot be said to be
laying an absolute proposition of law that in no case the informant/complainant can be the
investigator and that in all the cases where the complainant/informant and the investigating officer
is the same, the entire trial is vitiated and the accused is entitled to acquittal.
8.1.2 The next decision which is relied upon on behalf of the accused is the decision in the case of
Megha Singh (supra). On facts and on appreciation of evidence on record, this Court held that the
investigation by the very police officer who lodged the complaint was not conducive to fair and
impartial investigation. In this case, the accused was apprehended by Constables PW2 and PW3 and
a pistol and live cartridges without any licence were recorded from the accused. On the complaint
of PW3 that a formal FIR was lodged. On facts, and on appreciation of evidence on record, a
discrepancy was found in the evidence of PW2 and PW3 regarding number of cartridges recovered
and as to the place from where the pistol was recovered. No other independent witnesses were
examined. In paragraph 4, it is observed and held as under:
"4. After considering the facts and circumstances of the case, it appears to us that there is
discrepancy in the depositions of PWs 2 and 3 and in the absence of any independent
corroboration such discrepancy does not inspire confidence about the reliability of the
prosecution case. We have also noted another disturbing feature in this case. PW3, Siri Chand,
Head Constable arrested the accused and on search being conducted by him a pistol and the
cartridges were recovered from the accused. It was on his complaint a formal first information
report was lodged and the case was initiated. He being complainant should not have
proceeded with the investigation of the case. But it appears to us that he was not only the
complainant in the case but he carried on with the investigation and examined witnesses
under Section 161 Cr.P.C., 1973 Such practice, to say the least, should not be resorted to so that
there may not be any occasion to suspect fair and impartial investigation."
Therefore, the decision of this Court in the case of Megha Singh (supra) also can be said to be on

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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the peculiar facts of that case and after appreciation of evidence having doubted the reliability of
the prosecution case and thereafter having noted that in such a case the Head Constable who
himself was the complainant ought not to have carried on with the investigation. Therefore, it
cannot be said that in this decision also, there is an absolute proposition of law laid down by this
Court that in each and every case where the complainant himself is the investigating officer, the
trial is vitiated and the accused is entitled to acquittal.
At this stage, it is required to be noted that in neither of the cases this Court considered in detail
the relevant provisions of the Cr.P.C. with respect to the investigation which shall be referred to and
dealt with hereinbelow.
8.1.3 The next decision which has been relied upon on behalf of the accused is the decision in the
case of rajangam (supra). In this case, this Court acquitted the accused solely following the decision
in the case of Megha Singh (supra). There is no further discussion on the point in the said decision
by this Court.
8.1.4 In the case of Mohan Lal (supra), after having noted the conflicting opinions expressed by
different two Judge Benches of this Court, one in the cases of Bhagwan Singh (supra) and Megha
Singh (supra) and other in the cases of State of Punjab v. Baldev Singh (1999) 6 SCC 172; Bhaskar
Ramappa Madar (supra); and Surender (supra), thereafter this Court observed and held that in a
case where the informant/complainant and the investigator is the same, the trial is vitiated and the
accused is entitled to acquittal. However, it is required to be noted that thereafter the very decision
of this Court in the case of Mohan Lal (supra) fell for consideration before another three Judges
Bench of this Court in the case of Varinder Kumar (supra), to which two Hon'ble Judges were also
there in the case of Mohan Lal (supra) and it is observed that the facts in Mohan Lal (supra) were
indeed extremely telling insofar as the defaults on part of the prosecution was concerned and in
that background it was held that the issue could not be left to be decided on the facts of a case,
impinging on the right of a fair trial to an accused under Article 21 of the Constitution of India.
That thereafter in the case of Varinder Kumar (supra), it is held that the decision in the case of
Mohan Lal (supra) shall be applicable prospectively and shall not affect the cases, pending criminal
prosecutions, trials and appeals and they shall be governed by the individual facts of the case. That
thereafter on merits and despite the fact that in that case also the informant/complainant and the
investigator was the same, this Court has confirmed the conviction.
Therefore, in light of the observations made by this Court in the case of Varinder Kumar (supra)
that the law laid down by this Court in the case of Mohan Lal (supra) shall be applicable
prospectively and shall not affect the pending criminal prosecutions, trials and the appeals, prior to
the law laid down in Mohan Lal (supra), meaning thereby that the same shall be applicable
prospectively, still this Court has to consider the issue referred to this Court on its own merits. On
considering the entire decision of this Court in the case of Mohan Lal (supra), it appears that in this
case also the Court did not consider in detail the relevant provisions of the Cr.P.C. under which the
investigation can be undertaken by the investigating officer, more particularly Sections 154, 156 and
157 and the other provisions, namely, Section 465 Cr.P.C., 1973 and section 114 of the Indian
Evidence Act. Even in the said decision, this Court did not consider the aspect of prejudice to be
established and proved by the accused in case the investigation has been carried out by the
informant/complainant, who will be one of the witnesses to be examined on behalf of the
prosecution to prove the case against the accused. This Court also did not consider in detail and/or
misconstrued both the scheme of the NDPS Act and the principle of reverse burden.
8.2 Now let us consider the decisions taking the contrary view holding that even in a case where

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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the complainant himself had conducted the investigation, the trial is not vitiated.
8.2.1 In the case of V. Jayapaul (supra), after considering the entire scheme of investigation under
the Cr.P.C., it is held that investigation by the same police officer who lodged the FIR is not barred
by law. It is further observed that such investigation could only be assailed on the ground of bias or
real likelihood of bias on the part of the investigating officer and the question of bias would depend
on the facts and circumstances of each case. It is further observed that it is not proper to law down
a broad and unqualified proposition that such investigation would necessarily be unfair or biased.
In this decision, the decisions of this Court in the cases of Bhagwan Singh (supra) and Megha Singh
(supra) were pressed into service on behalf of the accused, however this Court observed that both
the decisions are on their own facts and circumstances and do not lay down a proposition that a
police officer in the course of discharge of his duties finds certain incriminating material to connect
a person to the crime, shall not undertake further investigation if the FIR was recorded on the basis
of the information furnished by him. In this decision, this Court also considered the scheme of
sections 154, 156 and 157 Cr.P.C., 1973 and another decision of this Court in the case of State of U.P.
v. Bhagwant Kishore Joshi, AIR 1964 Supreme Court 221(para 8). That thereafter this Court did
not agree with the submission on behalf of the accused that as the investigation was carried out by
the informant who himself submitted the final report, the trial is vitiated. This Court confirmed the
conviction by setting aside the order passed by the High Court acquitting the accused solely on the
ground that the very same police officer who registered the case by lodging the first information
ought not to have investigated the case and that itself had caused prejudice to the accused. The
relevant observations of this Court in the case of V. Jayapaul (supra) are as under:
"4. We have no hesitation in holding that the approach of the High Court is erroneous and its
conclusion legally unsustainable. There is nothing in the provisions of the Criminal Procedure
Code which precluded the appellant (Inspector of Police, Vigilance) from taking up the
investigation. The fact that the said police officer prepared the FIR on the basis of the
information received by him and registered the suspected crime does not, in our view,
disqualify him from taking up the investigation of the cognisable offence. A suo motu move on
the part of the police officer to investigate a cognisable offence impelled by the information
received from some sources is not outside the purview of the provisions contained in Sections
154 to 157 of the Code or any other provisions of the Code. The scheme of Sections 154, 156 and
157 was clarified thus by Subba Rao, J. speaking for the Court in State of U.P. v. Bhagwant
Kishore Joshi: (AIR p. 223, para 8).
"Section 154 of the Code prescribes the mode of recording the information received orally or in
writing by an officer in charge of a police station in respect of the commission of a cognisable
offence. Section 156 thereof authorises such an officer to investigate any cognisable offence
prescribed therein. Though ordinarily investigation is undertaken on information received by a
police officer, the receipt of information is not a condition precedent for investigation. Section
157 prescribes the procedure in the matter of such an investigation which can be initiated
either on information or otherwise. It is clear from the said provisions that an officer in charge
of a police station can start investigation either on information or otherwise."
6. Though there is no such statutory bar, the premise on which the High Court quashed the
proceedings was that the investigation by the same officer who "lodged" the FIR would
prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly
and objectively. We find no principle or binding authority to hold that the moment the
competent police officer, on the basis of information received, makes out an FIR incorporating

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

his name as the informant, he forfeits his right to investigate. If at all, such investigation could
only be assailed on the ground of bias or real likelihood of bias on the part of the investigating
officer. The question of bias would depend on the facts and circumstances of each case and it
is not proper to lay down a broad and unqualified proposition, in the manner in which it has
been done by the High Court, that whenever a police officer proceeds to investigate after
registering the FIR on his own, the investigation would necessarily be unfair or biased. In the
present case, the police officer received certain discreet information, which, according to his
assessment, warranted a probe and therefore made up his mind to investigate. The formality
of preparing the FIR in which he records the factum of having received the information about
the suspected commission of the offence and then taking up the investigation after registering
the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of
bias or the like factor. If the reason which weighed with the High Court could be a ground to
quash the prosecution, the powers of investigation conferred on the police officers would be
unduly hampered for no good reason. What is expected to be done by the police officers in the
normal course of discharge of their official duties will then be vulnerable to attack.
7. There are two decisions of this Court from which support was drawn in this case and in
some other cases referred to by the High Court. We would like to refer to these two decisions
in some detail. The first one is the case of Bhagwan Singh v. State of Rajasthan. There, the
Head Constable to whom the offer of bribe was allegedly made, seized the currency notes and
gave the first information report. Thereafter, he himself took up the investigation. But, later
on, when it came to his notice that he was not authorised to do so, he forwarded the papers to
the Deputy Superintendent of Police. The DSP then reinvestigated the case and filed the
charge-sheet against the accused. The Head Constable and the accompanying constables were
the only witnesses in that case. This Court found several circumstances which cast a doubt on
the veracity of the version of the Head Constable and his colleagues. This Court observed that
"the entire story sounds unnatural". While so holding, this Court referred to "a rather
disturbing feature of the case" and it was pointed out that: (SCC p. 18, para 5)
"Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have
been made by the appellant and he was the informant or complainant who lodged the first
information report for taking action against the appellant. It is difficult to understand how in
these circumstances, Head Constable Ram Singh could undertake investigation... This is an
infirmity which is bound to reflect on the credibility of the prosecution case."
8. It is not clear as to why the Court was called upon to make the comments against the
propriety of the Head Constable, informant investigating the case when the reinvestigation was
done by the Deputy Superintendent of Police. Be that as it may, it is possible to hold on the
basis of the facts noted above, that the so-called investigation by the Head Constable himself
would be a mere ritual. The crime itself was directed towards the Head Constable which made
him lodge the FIR. It is well-nigh impossible to expect an objective and undetached
investigation from the Head Constable who is called upon to check his own version on which
the prosecution case solely rests. It was under those circumstances the Court observed that the
said infirmity "is bound to reflect on the credibility of the prosecution case". There can be no
doubt that the facts of the present case are entirely different and the dicta laid down therein
does not fit into the facts of this case.
10. In Megha Singh case PW 3, the Head Constable, found a country-made pistol and live
cartridges on search of the person of the accused. Then, he seized the articles, prepared a

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

recovery memo and a "rukka" on the basis of which an FIR was recorded by the SI of Police.
However, PW 3, the Head Constable himself, for reasons unexplained, proceeded to investigate
and record the statements of witnesses under section 161 CrPC, 1973. The substratum of the
prosecution case was sought to be proved by the Head Constable. In the appeal against
conviction under section 25 of the Arms Act and Section 6(1) of the TADA Act, this Court found
that the evidence of PWs 2 and 3 was discrepant and unreliable and in the absence of
independent corroboration, the prosecution case cannot be believed. Towards the end, the
Court noted "another disturbing feature in the case". The Court then observed: (SCC p. 711,
para 4)
"PW 3 Siri Chand, Head Constable arrested the accused and on search being conducted by him
a pistol and the cartridges were recovered from the accused. It was on his complaint a formal
first information report was lodged and the case was initiated. He being complainant should
not have proceeded with the investigation of the case. But it appears to us that he was not
only the complainant in the case but he carried on with the investigation and examined
witnesses under section 161 CrPC, 1973. Such practice, to say the least, should not be resorted
to so that there may not be any occasion to suspect fair and impartial investigation."
12. At first blush, the observations quoted above might convey the impression that the Court
laid down a proposition that a police officer who in the course of discharge of his duties finds
certain incriminating material to connect a person to the crime, shall not undertake further
investigation if the FIR was recorded on the basis of the information furnished by him. On
closer analysis of the decision, we do not think that any such broad proposition was laid down
in that case. While appreciating the evidence of the main witness i.e. the Head Constable (PW
3), this Court referred to this additional factor, namely, the Head Constable turning out to be
the investigator. In fact, there was no apparent reason why the Head Constable proceeded to
investigate the case bypassing the Sub-Inspector who recorded the FIR. The fact situation in
the present case is entirely different. The appellant Inspector of Police, after receiving
information from some sources, proceeded to investigate and unearth the crime. Before he did
so, he did not have personal knowledge of the suspected offences nor did he participate in any
operations connected with the offences. His role was that of an investigator - pure and simple.
That is the obvious distinction in this case. That apart, the question of testing the veracity of
the evidence of any witness, as was done in Megha Singh case does not arise in the instant
case as the trial is yet to take place. The High Court has quashed the proceedings even before
the trial commenced.
13. Viewed from any angle, we see no illegality in the process of investigation set in motion by
the Inspector of Police (appellant) and his action in submitting the final report to the Court of
Special Judge."
(emphasis supplied)
8.2.2 In the case of S. Jeevanantham (supra), though the investigation was carried out by the
complainant - police officer himself and it was submitted relying upon the decision of this Court in
the case of Megha Singh (supra), that in case the informant/complainant and the investigator is the
same, the trial is vitiated, this Court refused to set aside the conviction and acquit the accused on
the aforesaid ground by observing that the accused failed to show that the investigation by the
complainant - police officer himself has caused prejudice or was biased against the accused. It is
required to be noted that it was also a case under the NDPS Act. The relevant observations are as
under:

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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"2. We heard the learned counsel for the appellants. The counsel for the appellants contended
that PW 8, the Inspector after conducting search prepared the FIR and it was on the basis of
the statement of PW 8 the case was registered against the appellants and it is argued that PW
8 was the complainant and he himself conducted the investigation of the case and this is
illegal and the entire investigation of the case is vitiated. Reliance was placed on the decision
in Megha Singh v. State of Haryana wherein this Court observed that the constable, who was
the de facto complainant had himself investigated the case and this affects impartial
investigation. This Court said that the Head Constable who arrested the accused, conducted the
search, recovered the pistol and on his complaint FIR was lodged and the case was initiated
and later he himself recorded the statement of the witnesses under section 161 CrPC, 1973 as
part of the investigation and such practice may not be resorted to as it may affect fair and
impartial investigation. This decision was later referred to by this Court in State v. V. Jayapaul
wherein it was observed that: (SCC p. 227, para 6)
"We find no principle or binding authority to hold that the moment the competent police
officer, on the basis of information received, makes out an FIR incorporating his name as the
informant, he forfeits his right to investigate. If at all, such investigation could only be assailed
on the ground of bias or real likelihood of bias on the part of the investigating officer. The
question of bias would depend on the facts and circumstances of each case and it is not proper
to lay down a broad and unqualified proposition, in the manner in which it has been done..."
3. In the instant case, PW 8 conducted the search and recovered the contraband article and
registered the case and the article seized from the appellants was narcotic drug and the
counsel for the appellants could not point out any circumstances by which the investigation
caused prejudice or was biased against the appellants. PW 8 in his official capacity gave the
information, registered the case and as part of his official duty later investigated the case and
filed a charge-sheet. He was not in any way personally interested in the case. We are unable
to find any sort of bias in the process of investigation."
(emphasis supplied)
8.2.3 In the case of Bhaskar Ramappa Madar (supra), again this Court considered the very
submissions and after considering the entire scheme for investigation under the Cr.P.C., more
particularly sections 154, 156 of the Cr.P.C., 1973 and after considering the decisions in the cases of
Bhagwan Singh (supra), Megha Singh (supra) and other decisions, it is observed and held that there
is no legal bar against conducting/undertaking the investigation by the complainant. It is observed
and held that the decisions of this Court in the cases of Bhagwan Singh (supra) and Megha
Singh(supra) are to be confined to the facts of those cases. It is further observed and held that
merely because the complainant conducted the investigation, that would not be sufficient to cast
doubt on the prosecution version to hold that the same makes the prosecution version vulnerable.
The matter has to be decided on a case to case basis without any universal generalisation.
9. Now we consider the relevant provisions of the Cr. P. C. with respect to the investigation.
Section 154 Cr.P.C., 1973 provides that every information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him
or under his direction. Section 156 Cr.P.C., 1973 provides that any officer in charge of a police station
may investigate any cognizable offence without the order of a Magistrate. It further provides that
no proceeding of a police officer in any such case shall at any stage be called in question on the
ground that the case was one which such officer was not empowered under this section to

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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investigate. Therefore, as such, a duty is cast on an officer in charge of a police station to reduce
the information in writing relating to commission of a cognizable offence and thereafter to
investigate the same.
Section 157 Cr.P.C., 1973 specifically provides that if, from information received or otherwise, an
officer in charge of a police station has reason to suspect the commission of an offence which he is
empowered under Section 156 to investigate, he shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in
person to the spot to investigate the facts and circumstances of the case and, if necessary, to take
measures for the discovery and arrest of the offender.
Therefore, considering Section 157 Cr.P.C., 1973 either on receiving the information or otherwise
(may be from other sources like secret information, from the hospital, or telephonic message), it is
an obligation cast upon such police officer, in charge of a police station, to take cognizance of the
information and to reduce into writing by himself and thereafter to investigate the facts and
circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the
offender. Take an example, if an officer in charge of a police station passes on a road and he finds
a dead body and/or a person being beaten who ultimately died and there is no body to give a
formal complaint in writing, in such a situation, and when the said officer in charge of a police
station has reason to suspect the commission of an offence, he has to reduce the same in writing in
the form of an information/complaint. In such a situation, he is not precluded from further
investigating the case. He is not debarred to conduct the investigation in such a situation. It may
also happen that an officer in charge of a police station is in the police station and he receives a
telephonic message, may be from a hospital, and there is no body to give a formal complaint in
writing, such a police officer is required to reduce the same in writing which subsequently may be
converted into an FIR/complaint and thereafter he will rush to the spot and further investigate the
matter. There may be so many circumstances like such. That is why, sections 154, 156 and 157
Cr.P.C., 1973 come into play.
9.1 Under Section 173 Cr.P.C., 1973 the officer in charge of a police station after completing the
investigation is required to file the final report/chargesheet before the Magistrate. Thus, under the
scheme of Cr.P.C., it cannot be said that there is a bar to a police officer receiving information for
commission of a cognizable offence, recording he same and then investigating it. On the contrary,
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.
Officer in charge of a police station has been defined under section 2(o) of the Cr. P.C., 1973 and it
includes, when the officer in charge of the police station is absent from the station-house or unable
from illness or other cause to perform his duties, the police officer present at the station-house who
is next in rank to such officer and is above the rank of constable or, when the State Government so
directs, any other police officer so present.
9.2 As observed and held by this Court in the case of Lalita Kumari v. Government of Uttar
Pradesh AIR 2014 Supreme Court 187 = (2014) 2 SCC 1, the word "shall" used in Section 154 leaves
no discretion in police officer to hold preliminary enquiry before recording FIR. Use of expression
"information" without any qualification also denotes that police has to record information despite it
being unsatisfied by its reasonableness or credibility. Therefore, the officer in charge of a police
station has to reduce such information alleging commission of a cognizable offence in writing which
may be termed as FIR and thereafter he is required to further investigate the information, which is
reduced in writing.

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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9.3 Now let us consider the relevant provisions under the NDPS Act with respect to the procedure to
be followed to issue warrant, authorisation of entry, search, seizure and arrest without warrant or
authorisation; seizure and arrest in public place; entry; stop and search conveyance and the
conditions under which search of persons shall be conducted. The relevant provisions are Sections
41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57, 57A, which are as under:
"41. Power to issue warrant and authorisation.-(l) A Metropolitan Magistrate or a Magistrate of
the first class or any Magistrate of the second class specially empowered by the State
Government in this behalf, may issue a warrant for the arrest of any person whom he has
reason to believe to have committed any offence punishable under this Act, or for the search,
whether by day or by night, of any building, conveyance or place in which he has reason to
believe any narcotic drug or psychotropic substance or controlled substance in respect of
which an offence punishable under this Act has been committed or any document or other
article which may furnish evidence of the commission of such offence or any illegally acquired
property or any document or other article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this
Act is kept or concealed.
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs,
revenue intelligence or any other department of the Central Government including the para-
military forces or the armed forces as is empowered in this behalf by general or special order
by the Central Government, or any such officer of the revenue, drugs control, excise, police or
any other department of a State Government as is empowered in this behalf by general or
special order of the State Government if he has reason to believe from personal knowledge or
information given by any person and taken in writing that any person has committed an
offence punishable under this Act or that any narcotic drug or psychotropic substance or
controlled substance in respect of which any offence under this Act has been committed or any
document or other article which may furnish evidence of the commission of such offence or
any illegally acquired property or any document or other article which may furnish evidence
of holding any illegally acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may
authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable
to arrest such a person or search a building, conveyance or place whether by day or by night
or himself arrest such a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who
authorised the arrest or search or the officer who is so authorised under sub-section (2) shall
have all the powers of an officer acting under section 42.
42. Power of entry, search, seizure and arrest without warrant or authorisation.-(l) Any such
officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue intelligence or any other department of the Central
Government including para-military forces or armed forces as is empowered in this behalf by
general or special order by the Central Government, or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or
any other department of a State Government as is empowered in this behalf by general or
special order of the State Government, if he has reason to believe from personal knowledge or
information given by any person and taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in respect of which an offence punishable

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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under this Act has been committed or any document or other article which may furnish
evidence of the commission of such offence or any illegally acquired property or any document
or other article which may furnish evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in
any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any
other article and any animal or conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article which he has reason to believe
may furnish evidence of the commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to
believe to have committed any offence punishable under this Act:
1 [Provided that in respect of holder of a licence for manufacture of manufactured drugs or
psychotropic substances or controlled substances granted under this Act or any rule or order
made thereunder, such power shall be exercised by an officer not below the rank of sub-
inspector: Provided further that] if such officer has reason to believe that a search warrant or
authorisation cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset and sunrise after recording the
grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records
grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy
thereof to his immediate official superior.
43. Power of seizure and arrest in public place.-Any officer of any of the departments
mentioned in section 42 may-
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or
controlled substance in respect of which he has reason to believe an offence punishable under
this Act has been committed, and, along with such drug or substance, any animal or
conveyance or article liable to confiscation under this Act, any document or other article which
he has reason to believe may furnish evidence of the commission of an offence punishable
under this Act or any document or other article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter
VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence
punishable under this Act, and if such person has any narcotic drug or psychotropic substance
or controlled substance in his possession and such possession appears to him to be unlawful,
arrest him and any other person in his company.
Explanation.-For the purposes of this section, the expression "public place" includes any public

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conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.]
49. Power to stop and search conveyance.-Any officer authorised under section 42, may, if he
has reason to suspect that any animal or conveyance is, or is about to be, used for the
transport of any narcotic drug or psychotropic substance 2 [or controlled substance], in respect
of which he suspects that any provision of this Act has been, or is being, or is about to be,
contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel
it to land and-
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal or in the conveyance;
(c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means
for stopping it, and where such means fail, the animal or the conveyance may be fired upon.
50. Conditions under which search of persons shall be conducted.-
(1) When any officer duly authorised under section 42 is about to search any person under the
provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such
person without unnecessary delay to nearest Gazetted Officer of any of the departments
mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before
the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he
sees no reasonable ground for search, forthwith discharge the person but otherwise shall
direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not
possible to take the person to be searched to the nearest Gazetted Officer or Magistrate
without the possibility of the person to be searched parting with possession of any narcotic
drug or psychotropic substance, or controlled substance or article or document, he may, instead
of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the
person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for
such belief which necessitated such search and within seventy-two hours send a copy thereof
to his immediate official superior.]
51. Provisions of the code of Criminal Procedure, 1973 to apply to warrants, arrests,
searches and seizures.-The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall
apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants
issued and arrests, searches and seizures made under this Act.
52. Disposal of persons arrested and articles seized.-
(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as
soon as may be, inform him of the grounds for such arrest.

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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(2) Every person arrested and article seized under warrant issued under subsection (1) of
section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the
warrant was issued.
(3) Every person arrested and article seized under sub-section (2) of section 41, section 42,
section 43 or section 44 shall be forwarded without unnecessary delay to-
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or article is forwarded under sub-section (2)
or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary
for the disposal according to law of such person or article.
53. Power to invest officers of certain departments with powers of an officer-in-charge of
a police station.-(1) The Central Government, after consultation with the State Government,
may, by notification published in the Official Gazette, invest any officer of the department of
central excise, narcotics, customs, revenue intelligence [or any other department of the Central
Government including paramilitary forces or armed forces] or any class of such officers with
the powers of an officer-in-charge of a police station for the investigation of the offences under
this Act.
(2) The State Government may, by notification published in the Official Gazette, invest any
officer of the department of drugs control, revenue or excise 3 [or any other department] or
any class of such officers with the powers of an officer-in-charge of a police station for the
investigation of offences under this Act.
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 under this
Act in respect of-
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has
cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the
manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic
drug or psychotropic substance or controlled substance, or any residue left of the materials
from which any narcotic drug or psychotropic substance or controlled substance has been
manufactured, for the possession of which he fails to account satisfactorily].
55. Police to take charge of articles seized and delivered.-An officer-in-charge of a police
station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all
articles seized under this Act within the local area of that police station and which may be
delivered to him, and shall allow any officer who may accompany such articles to the police
station or who may be deputed for the purpose, to affix his seal to such articles or to take
samples of and from them and all samples so taken shall also be sealed with a seal of the
officer-in-charge of the police station.

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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57. Report of arrest and seizure.-Whenever any person makes any arrest or seizure under
this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report
of all the particulars of such arrest or seizure to his immediate official superior.
57A. Report of seizure of property of the person arrested by the notified officer.-Whenever
any officer notified under section 53 makes an arrest or seizure under this Act, and the
provisions of Chapter VA apply to any person involved in the case of such arrest or seizure, the
officer shall make a report of the illegally acquired properties of such person to the
jurisdictional competent authority within ninety days of the arrest or seizure."
9.3.1 Section 67 of the NDPS Act authorises/permits any officer referred to in section 42 to call for
information from any person for the purpose of satisfying himself whether there has been any
contravention of the provisions of the NDPS Act or any rule or order made thereunder, during the
course of any enquiry. Section 68 of the NDPS Act provides that no officer acting in exercise of
powers vested in him under any provision of the NDPS Act or any rule or order made thereunder
shall be compelled to say from where he got any information as to the commission of any offence.
9.3.2 From the aforesaid scheme and provisions of the NDPS Act, it appears that the NDPS Act is a
complete Code in itself. Section 41(1) authorises a Metropolitan Magistrate or a Magistrate of the
first class or any Magistrate of the second class specially empowered by the State Government in
this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to
have committed any offence punishable under the NDPS Act, or for the search, whether by day or
by night...Sub-section 2 of Section 41 authorises any such officer of gazetted rank of the
Departments of Central Excise... as is empowered in this behalf by general or special order by the
Central Government, or any such officer of the Revenue....police or any other department of a State
Government as is empowered in this behalf by general or special order, if he has reason to believe
from personal knowledge or information given by any person and taken in writing that any person
has committed an offence punishable under the NDPS Act, authorising any officer subordinate to
him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a
building, conveyance or place whether by day or by night or himself arrest such a person or search
a building, conveyance or place.
9.3.3 As per Section 42, any officer of the Department of Central Excise... as is empowered in this
behalf by general or special order by the Central Government or any such officer....of the revenue,
drugs control..police or any other department of a State Government as is empowered in this behalf
by general or special order of the State Government, if he has reason to believe from personal
knowledge or information given by any person and taken down in writing that any narcotic drug,
or psychotropic substance, or controlled substance in respect of which an offence punishable under
the NDPS Act has been committed, enter into and search any such building, conveyance or place; in
case of resistance, break open any door and remove any obstacle to such entry; seize such drug or
substance and all materials used in the manufacture thereof and any other article and any animal
or conveyance which he has reason to believe to be liable to confiscation under this Act and any
document or other article which he has reason to believe may furnish evidence of the commission
of any offence punishable under this Act or furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to
have committed any offence punishable under this Act.
9.3.4 As per sub-section 2 of Section 42, such an officer has to send a copy of the information taken
down in writing under sub-section 1 or his grounds for belief, to his immediate official superior

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within 72 hours.
9.3.5 There are inbuilt safeguards provided under the NDPS Act itself, such as, Sections 50 and 52.
Section 50 of the NDPS Act provides that when any officer duly authorised under section 42 is about
to search any person under the provisions of section 41, 42 or 43, he shall inform the person to be
searched in the presence of a Gazetted Officer of any of the departments mentioned in Section 42
or to the nearest Magistrate and if such person so desires, he shall take such person without
unnecessary delay to the nearest Gazetted Officer as mentioned in sub-section 1 of Section 50. As
per sub-section 5 of Section 50, when an officer duly authorised under section 42 has reason to
believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be searched parting with possession of any
narcotic drug or psychotropic substance, or controlled substance or article or document, he may,
instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the
person as provided under section 100 of the Code of Criminal Procedure, 1973. Subsection 6 of
Section 50 provides that after a search is conducted under sub-section (5), the officer shall record
the reasons for such belief which necessitated such search and within seventy-two hours send a
copy thereof to his immediate official superior.
9.3.6 Section 52 of the NDPS Act mandates that any officer arresting a person under Sections 41, 42,
43 or 44 to inform the person arrested of the grounds for such arrest. Sub-section 2 of Section 52
further provides that every person arrested and article seized under warrant issued under sub-
section 1 of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom
the warrant was issued. As per sub-section 3 of Section 52, every person arrested and article seized
under sub-section 2 of Section 41, 42, 43, or 44 shall be forwarded without unnecessary delay to the
officer in charge of the nearest police station, or the officer empowered under section 53.
That thereafter the investigation is to be conducted by the officer in charge of a police station.
9.3.7 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. Therefore, up to Section 52, the powers are vested with the
officers duly authorised under Sections 41, 42, or 43 and thereafter so far as the investigation is
concerned, it is to be conducted by an officer in charge of a police station.
9.3.8 Section 53 of the NDPS Act provides that the Central Government, after consultation with the
State Government, may, by notification published in the Official Gazette, invest any officer of the
department of central excise, narcotics, customs, revenue intelligence or any other department of
the Central Government including para-military forces or armed forces or any class of such officers
with the powers of an officer in charge of a police station for the investigation of the offences
under the NDPS Act. Sub-section 2 of Section 53 further provides that the State Government, may,
by notification published in the Official Gazette, invest any officer of the department of drugs
control, revenue or excise or any other department or any class of such officers with the powers of
an officer in charge of a police station for the investigation of offences under the NDPS Act.
Therefore, other persons authorised by the Central Government or the State Government can be
the officer in charge of a police station for the investigation of the offences.
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. It appears that the
legislature in its wisdom has never thought that the officers authorised to exercise the powers

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Submitted By: Sh. Anil Pal Singh Shergill, Advocate
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under Sections 41, 42, 43 and 44 cannot be the officer in charge of a police station for the
investigation of the offences under the NDPS Act.
9.4 Investigation includes even search and seizure. As the investigation is to be carried out by the
officer in charge of a police station and none other and therefore purposely Section 53 authorises
the Central Government or the State Government, as the case may be, invest any officer of the
department of drugs control, revenue or excise or any other department or any class of such
officers with the powers of an officer in charge of a police station for the investigation of offences
under the NDPS Act.
Section 42 confers power of entry, search, seizure and arrest without warrant or authorisation to
any such officer as mentioned in Section 42 including any such officer of the revenue, drugs
control, excise, police or any other department of a State Government or the Central Government,
as the case may be, and as observed hereinabove, Section 53 authorises the Central Government to
invest any officer of the department of central excise, narcotics, customs, revenue intelligence or
any other department of the Central Government...or any class of such officers with the powers of
an officer in charge of a police station for the investigation. Similar powers are with the State
Government. The only change in Sections 42 and 53 is that in Section 42 the word "police" is there,
however in Section 53 the word "police" is not there. There is an obvious reason as for police such
requirement is not warranted as he always can be the officer in charge of a police station as per
the definition of an "officer in charge of a police station" as defined under the Cr. P.C.
9.5 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.
10. Now so far as the submission on behalf of the accused that so far as the NDPS Act is concerned,
it carries a reverse burden of proof under Sections 35 and 54 and therefore if the informant who
himself has seized the offending material from the accused and he himself thereafter investigates
the case, there shall be all possibilities of apprehension in the mind of he accused that there shall
not be fair investigation and that the concerned officer shall try to prove his own version/seizure
and therefore there shall be denial of the "fair investigation" enshrined under Article 21 of the
Constitution of India is concerned, it is required to be noted that whether the investigation
conducted by the concerned informant was fair investigation or not is always to be decided at the
time of trial. The concerned informant/investigator will be cited as a witness and he is always
subject to cross-examination. There may be cases in which even the case of the prosecution is not
solely based upon the deposition of the informant/informant-cum-investigator but there may be
some independent witnesses and/or even the other police witnesses. As held by this Court in catena
of decisions, the testimony of police personnel will be treated in the same manner as testimony of
any other witness and there is no principal of law that without corroboration by independent
witnesses his testimony cannot be relied upon. [See Karamjit Singh v. State (Delhi
Administration) (2003) 5 SCC 291]. As observed and held by this Court in the case of Devender Pal
Singh v. State (NCT of Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly applies
as much in favour of a police officer as of other persons, and it is not judicial approach to distrust
and suspect him without good grounds therefor.
10.1 At this stage, 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

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

be presumed to be regularly done. Credit has to be given to public officers in the absence of any
proof to the contrary of their not acting with honesty or within limits of their authority. Therefore,
merely because the complainant conducted the investigation that would not be sufficient to cast
doubt on the entire prosecution version and to hold that the same makes the prosecution version
vulnerable. The matter has to be left to be decided on a case to case basis without any universal
generalisation.
10.2 At this stage, 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. However, so far as the investigation
against the accused for the offence under the NDPS Act is concerned, the same analogy may not
apply for the reasons stated hereinabove.
10.3 Now so far as the observations made by this Court in para 13 in Mohan Lal (supra) that in the
nature of reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face
of it that the investigation was fair, judicious with no circumstance that may raise doubt about its
veracity, it is to be noted that the presumption under the Act is against the accused as per Sections
35 and 54 of the NDPS Act. Thus, in the cases of reverse burden of proof, the presumption can
operate only after the initial burden which exists on the prosecution is satisfied. 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., 1973
11. Therefore, as such, there is no reason to doubt the credibility of the informant and doubt the
entire case of the prosecution solely on the ground that the informant has investigated the case.
Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be
discarded and the accused is not to be straightway acquitted unless and until the accused is able to
establish and prove the bias and the prejudice. As held by this Court in the case of Ram Chandra
(supra) the question of prejudice or bias has to be established and not inferred. The question of
bias will have to be decided on the facts of each case [See Vipan Kumar Jain (supra)]. At this stage,
it is required to be noted and as observed hereinabove, NDPS Act is a Special Act with the special
purpose and with special provisions including Section 68 which provides that no officer acting in
exercise of powers vested in him under any provision of the NDPS Act or any rule or order made
thereunder shall be compelled to say from where he got any information as to the commission of
any offence. Therefore, considering the NDPS Act being a special Act with special procedure to be
followed under Chapter V, and as observed hereinabove, there is no specific bar against conducting
the investigation by the informant himself and in view of the safeguard provided under the Act
itself, namely, Section 58, we are of the opinion that there cannot be any general proposition of law
to be laid down that in every case where the informant is the investigator, the trial is vitiated and
the accused is entitled to acquittal. Similarly, even with respect to offences under the IPC, as
observed hereinabove, there is no specific bar against the informant/complainant investigating the
case. Only in a case where the accused has been able to establish and prove the bias and/or unfair
investigation by the informant-cum-investigator and the case of the prosecution is merely based

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 LAW FINDER
Submitted By: Sh. Anil Pal Singh Shergill, Advocate
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely
upon other witnesses, more particularly the independent witnesses, in that case, where the
complainant himself had conducted the investigation, such aspect of the matter can certainly be
given due weightage while assessing the evidence on record. Therefore, as rightly observed by this
Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to
case basis without any universal generalisation. As rightly held by this Court in the case of V.
Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As
rightly observed, if at all, such investigation could only be assailed on the ground of bias or real
likelihood of bias on the part of the investigating officer the question of bias would depend on the
facts and circumstances of each case and therefore it is not proper to lay down a broad and
unqualified proposition that in every case where the police officer who registered the case by
lodging the first information, conducts the investigation that itself had caused prejudice to the
accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal.
12. From the above discussion and for the reasons stated above, we conclude and answer the
reference as under:
I. That the observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan
(1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector
of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the accused
by this Court on the ground that as the informant and the investigator was the same, it has
vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to
their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any
general proposition of law that in each and every case where the informant is the investigator
there is a bias caused to the accused and the entire prosecution case is to be disbelieved and
the accused is entitled to acquittal;
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.
13. The Reference is answered accordingly.
14. Now, respective petitions be placed before the appropriate Court taking up such matters for
deciding the petitions in accordance with law and on merits and in light of the observations made
hereinabove and our answer to the Reference, as above.
.
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