Constitution Bench of the Supreme Court hearing the case raising the issue of whether proceedings under the NDPS act will get vitiated if the complainant is the same as the investigative officer.
Counsel cites the 2018 decision of the three Judge Bench headed by CJI Ranjan Gogoi in the case of Mohanlal vs State of Punjab.
It was held that the informant and the investigative officer cannot be the same in a case under NDPS Act.
It was held that the informant and the investigative officer cannot be the same in a case under NDPS Act.
Counsel cites a judgment under the TADA which also laid down a similar principle that the informant ought not to have proceeded with the investigation. The case was found to have been one of false implications.
Justice Bhat: Solitary instances where some words here and there leave a trail which ultimately becomes a law in a cases like Mohanlal
Justice Banerjee: Sentences in a judgment are not to be read in isolation
Justice Banerjee: Sentences in a judgment are not to be read in isolation
Justice Mishra: All these cases state that after considering the facts and circumstances of the case. What is the prescribed law should not be changes unless there is a compelling reason to change the law which has been administered by this Court.
Justice Mishra: Even these cases of Megha Singh and Balwant Singh that you are quoting say "facts and circumstances of the case".
Justice Shah: You are only quoting some part of the case
Justice Shah: You are only quoting some part of the case
Justice Bhat: What is the great public mischief that you wish to avoid that you want to depart from the mandate laid down by this Court?
Counsel: likelihood of bias
Counsel: likelihood of bias
Justice Bhat: If you are citing likelihood of bias then do you have any statute from anywhere in the world that states that informant cannot prosecute
Counsel: The statute itself provides for a free and fair procedure
Justice Bhat: There is a presumption of bias, there cannot be an iron cast rule on this. Due wright is given when facts speak for themselves
Senior Counsel Ranjit Kumar begins making submissions. He argues that the NDPS provides for very stringent punishment
Justice Mishra: Offences are also that kind, it's not a one way thing. Offences are grave and punishment is stringent.
Justice Mishra: Offences are also that kind, it's not a one way thing. Offences are grave and punishment is stringent.
Kumar: In areas like Mandsaur etc, there are very few licences left, not many people are going there, actual culprits are not investigated. There are false implications and investigation is not conducted to go into who the actual sellers are.
Kumar: There are persons arrested for minimum offence under the Act but are not able to defend themselves
Kumar: The sections under NDPS provide for the identity of the informant to be a secret.
Kumar: Sections 42, 52, 53, and 58 of the NDPS are given to the accused persons. These sections can be misused.
Kumar: The officers are not fair.
Justice Saran: Then you have to allege mala fide. You cannot say all officers are not fair
Kumar: Ultimately the accused cannot defend themselves
Justice Saran: Then you have to allege mala fide. You cannot say all officers are not fair
Kumar: Ultimately the accused cannot defend themselves
Kumar: The power under section 42 is that of search and seizure, entry and arrest..not to investigate
Kumar: there are two types of officers, one is 42 officer, another 53 officer. Investigation cannot be conducted by the officer having power of search, seizure, enter and arrest
Justice Bhat: Is it your case that investigation part is different from the powers of officers under 42?
Kumar: Yes, otherwise section 58 becomes redundant
Kumar: Yes, otherwise section 58 becomes redundant
Justice Bhat: In most cases authorisation is dual, under 42 and 53. You will have to challenge those notifications
Bench rises for lunch
