Can an informant /raiding officer conduct investigation in offences under NDPS Act?

 Supreme Court Ruling: Mukesh Singh vs. State (Narcotic Branch of Delhi)2020 SCC OnLine SC 700, decided on 31.08.2020.

Yes, an informant/raiding officer can conduct investigation in offences under the NDPS Act, according to the Supreme Court's landmark judgment in Mukesh Singh vs. State (Narcotic Branch of Delhi) decided on August 31, 2020.

Key Holdings of the 5-Judge Constitution Bench

No Blanket Rule Against Informant as Investigator

The 5-judge Constitution Bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat held that "accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer".

The Court specifically ruled that "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".

No Statutory Bar in NDPS Act

The Court noted that "the NDPS Act does not specifically bar the informant/complainant to be an investigator". The Court emphasized 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".

Petitioner's Arguments (Rejected by the Court)

The petitioner had argued that the NDPS Act's scheme requires separation between recovery and investigation officers:

• Section 42 officers have limited powers to effect "entry", "search", "seizure" and "arrest" with no power of investigation

• Section 53 officers are empowered with investigation powers

• Section 52(3) requires Section 42 officers to handover arrested persons or seized articles to Section 53 officers or police station officers

The petitioner contended that "informer/complainant/raiding officer cannot investigate the said case" due to these statutory safeguards.

Exception: Proof of Bias Required

The Court did recognize one important exception: "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 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".

Distinction for Section 58 Offences

The Court made an important distinction regarding Section 58 offences, noting that "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".

The Supreme Court's ruling establishes that while informant/raiding officers can generally investigate NDPS cases, the accused must prove specific bias or unfairness to challenge such investigations, and the matter must be decided on a case-by-case basis rather than applying a blanket prohibition.

Print Page