Patna High Court
Manoj Murmu @ Manoj Murmur vs The State Of Bihar on 19 August, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.848 of 2023
Arising Out of PS. Case No.-370 Year-2022 Thana- GOVERNMENT OFFICIAL COMP.
District- Katihar
======================================================
Manoj Murmu @ Manoj Murmur, Son of Bitka Murmu @ Bhutku Murmu
R/v- Bhawara Shahib Tola, P.S.- Mufassil, District- Katihar
... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Ankesh Bibhu, Amicus Curiae
For the Respondent : Mr. Zeyaul Hoda, A.P.P
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
Date : 19-08-2025
Heard the parties.
2. The present appeal has been directed against the
judgment of conviction and order of sentence dated 04.01.2023
passed by learned A.D.J-Cum-Spl. Judge, Excise Court No.1,
Katihar in connection with Excise P.S. Non F.I.R No. 370 of
2022 whereby and whereunder the appellant has been convicted
for the offence punishable under Section 37 of Bihar Prohibition
And Excise Act read with Rule-18(4) of Bihar Prohibition and
Excise Rule-2021 and has been pleased to sentence him to
undergo simple imprisonment for a period of one year. Period
undergone during the trial was directed to be set off.
3. As per prosecution case, the appellant was said
to have found in the drunken condition on the basis of breath
analyzer test.
4. On the basis of prosecution report, Excise P.S.
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Non F.I.R No. 370 of 2022 was registered under section 37 of
Bihar Prohibition and Excise Act, 2016. Routine investigation
followed. Statement of witnesses came to be recorded and on
the completion of investigation, charge sheet has been submitted
against the appellant under section 37 of Bihar Prohibition and
Excise Act, 2016. Thereafter, on 09.11.2022 the learned trial
court took cognizance against the appellant under the
aforementioned section. Charge was framed against the
appellant on 18.11.2022 and after hearing the parties,
acquisition has been explained to the accused in Hindi for the
said offence to which he pleaded not guilty and claimed to be
tried.
5. After closing the evidence, statement of
witnesses under Section 313 Cr.P.C of appellant has been
recorded on 12.12.2022 where he denied the charges and
claimed innocent and it was admitted that earlier he was arrested
in non FIR Excise P.S. Case No. 284 of 2022 dated 14.10.2022
for the consumption of liquor and released from court after
depositing the fine.
6. During course of trial, prosecution has
examined two witnesses. P.W-1,Pawan Kumar Yadav, who is
informant and investigating officer of the Case and P.W-2, Tala
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Hansda, who is police official.
7. Prosecution has relied upon following
documentary evidence on record:-
Exhibit P1/1- Breath Analyzer Report and Certificate under
Section 65 B Indian Evidence Act.
Exhibit P2- Arrest Memo
Exhibit P2/1-Signature of witness on arrest memo
Exhibit P3-Self Written Statement.
Exhibit P4-Form VI.
8. Learned counsel of behalf of appellant has
submitted that neither P.W. 1 nor P.W. 2 has made any statement
with regard to description of the place of occurrence. In this
way, place of occurrence is not proved and if place of
occurrence is not proved, the genesis of case cannot be proved
by prosecution. The counsel of appellant has submitted that
informant has become investigating officer and no reason has
been assigned as to why informant has become investigating
officer and the appellant has been prejudiced thereby. Learned
counsel on behalf of the appellant has submitted that it is
admitted fact that informant is not expert and he has used the
breath analyzer for testing the appellant which is beyond the
stretch of imagination for putting allegation upon the appellant
for which no substance is available with the informant and it has
been submitted that breath analyzer test is not a conclusive test.
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Hon'ble Supreme Court in the case of Bachubhai Hassanalli
Karyani Vrs. State of Maharashtra reported in 1971 (3) SCC
930, has held that:-
"no conclusion with regard to consumption of
alcohol by a person can be made on the facts
that the appellant's breath was smelling of
alcohol, that his gait was unsteady, that his
speech was incoherent and that his pupiles
were dilated. Consumption of alchol can only
be ascertained by way of blood and urine test
by a person suspected to have consumed
alcohol."
9. Learned counsel for the appellant further
submits that in the present case, there was no material
information which disclosed that either blood or urine test was
conducted by the prosecution side to prove the case. In the light
of aforesaid facts and circumstances of the case, the prosecution
has completely failed to prove its case beyond reasonable doubt
against the appellant. Apart from that, two witnesses were
examined on behalf of the prosecution but during the course of
examination of said witnesses, major contradiction have been
reflected in their statements as P.W 2 has stated that 8-10
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persons were available beside the appellant but P.W. 1 is
completely silent regarding the presence of other persons apart
from the appellant. During course of examination, P.W 2 has
stated that no test was conducted on appellant with regard to
intoxication at the place of occurrence and the said point creates
doubt when the appellant was apprehended on a particular point
but why the test was not done on a particular point. On the said
score, the conduct of the informant is very much doubtful. The
counsel of appellant has further submitted that breath analyzer
machine was not specially marked for identification. There was
nothing on record which suggests or reflects that this particular
machine was used for testing the appellant. P.W. 1, who is I.O.
and informant, has clearly stated that he has no specialized
training for conducting the test.
10. On the score of Section 65-B of the Indian
Evidence Act, 1872 , the prosecution has failed to prove that
whether ASI who having no knowledge about breath analyzing
machine is a person who can authenticate the said machine.
11. Learned counsel on behalf of State has
submitted that whole prosecution story rests on breath analyzer
test and the said test has been exhibited. P.W 1 and P.W 2 both
have been examined and both have supported and corroborated
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the story of prosecution and the judgment of conviction and
order of sentence passed by the concerned court is on the basis
of material available on record and same is also based on the
sound principle of law and hence, the impugned judgment does
not require any interference.
12. In the present appeal, the question which is
necessary for consideration is :
"Whether the prosecution has proved the case
beyond the shadow of reasonable doubt ?"
13. I have perused the impugned judgment,
order of trial court and trial court records. I have given my
thoughtful consideration to the rival contention made on behalf
of the parties, as noted above.
14. It is necessary to evaluate, analyze and
screen out the evidence of witnesses adduced before the trial
court in the light of offence punishable under section 37 of
Bihar Prohibition and Excise Act, 2016.
15. It is crystal clear that place of occurrence
which is the genesis of the case finds no place in the evidence of
P.W 1 and P.W 2. On the point of place of occurrence, both
witnesses are silent. P.W 1, during cross examination, has
admitted that he has not pointed out the boundary of the place of
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occurrence, though, he is the investigating officer of the case.
The investigating officer has been examined as P.W 1, who is
informant, has not properly identified the place of occurrence
and not identified the very genesis of the case. Learned counsel
for the appellant has pointed out several flaws in the story of
prosecution. It has been pointed out that breath analyzer test is
not a conclusive test and there is no material that there was urine
or blood test. In the absence of material information with regard
to blood test or urine test, it is unfathomable to reach out a
particular conclusion so far as allegation against the appellant is
concerned.
16. Section 65-B of the Indian Evidence Act,
1872 reads as follows:-
"65-B. Admissibility of electronic records.
--(1) Notwithstanding anything contained
in this Act, any information contained in an
electronic record which is printed on a
paper, stored, recorded or copied in optical
or magnetic media produced by a computer
(hereinafter referred to as the computer
output) shall be deemed to be also a
document, if the conditions mentioned in
this section are satisfied in relation to the
information and computer in question and
shall be admissible in any proceedings,
without further proof or production of the
original, as evidence of any contents of the
original or of any fact stated therein of
which direct evidence would be admissible.
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(2) The conditions referred to in subsection
(1) in respect of a computer output shall be
the following, namely:--
(a) the computer output containing the
information was produced by the computer
during the period over which the computer
was used regularly to store or process
information for the purposes of any
activities regularly carried on over that
period by the person having lawful control
over the use of the computer;
(b) during the said period, information of
the kind contained in the electronic record
or of the kind from which the information so
contained is derived was regularly fed into
the computer in the ordinary course of the
said activities;
(c) throughout the material part of the said
period, the computer was operating
properly or, if not, then in respect of any
period in which it was not operating
properly or was out of operation during that
part of the period, was not such as to affect
the electronic record or the accuracy of its
contents; and
(d) the information contained in the
electronic record reproduces or is derived
from such information fed into the computer
in the ordinary course of the said activities.
(3) Where over any period, the function of
storing or processing information for the
purposes of any activities regularly carried
on over that period as mentioned in clause
(a) of sub-section (2) was regularly
performed by computers, whether--
(a) by a combination of computers
operating over that period; or
(b) by different computers operating in
succession over that period; or
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(c) by different combinations of computers
operating in succession over that period; or
(d) in any other manner involving the
successive operation over that period, in
whatever order, of one or more computers
and one or more combinations of
computers, all the computers used for that
purpose during that period shall be treated
for the purposes of this section as
constituting a single computer; and
references in this section to a computer shall
be construed accordingly.
(4) In any proceedings where it is desired to
give a statement in evidence by virtue of this
section, a certificate doing any of the
following things, that is to say,--
(a) identifying the electronic record
containing the statement and describing the
manner in which it was produced;
(b) giving such particulars of any device
involved in the production of that electronic
record as may be appropriate for the
purpose of showing that the electronic
record was produced by a computer;
(c) dealing with any of the matters to which
the conditions mentioned in sub-section (2)
relate, and purporting to be signed by a
person occupying a responsible official
position in relation to the operation of the
relevant device or the management of the
relevant activities (whichever is
appropriate) shall be evidence of any matter
stated in the certificate; and for the
purposes of this subsection it shall be
sufficient for a matter to be stated to the
best of the knowledge and belief of the
person stating it.
(5) For the purposes of this section,--
(a) information shall be taken to be supplied
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to a computer if it is supplied thereto in any
appropriate form and whether it is so
supplied directly or (with or without human
intervention) by means of any appropriate
equipment;
(b) whether in the course of activities
carried on by any official information is
supplied with a view to its being stored or
processed for the purposes of those
activities by a computer operated otherwise
than in the course of those activities, that
information, if duly supplied to that
computer, shall be taken to be supplied to it
in the course of those activities;
(c) a computer output shall be taken to have
been produced by a computer whether it
was produced by it directly or (with or
without human intervention) by means of
any appropriate equipment.
Explanation.--For the purposes of this
section any reference to information being
derived from other information shall be a
reference to its being derived therefrom by
calculation, comparison or any other
process."
17. It is necessary to cite the judgment
delivered by Hon'ble Supreme Court in the case of Arjun
Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal reported
in (2020) 7 SCC 1. The Hon'ble Supreme Court, in paragraph
60, 61, 73.2, 81 and 82 of the aforesaid judgment has held as
follows :
"60. It may also be seen that the person
who gives this certificate can be anyone
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out of several persons who occupy a
'responsible official position' in relation to
the operation of the relevant device, as also
the person who may otherwise be in the
'management of relevant activities' spoken
of in Sub-section (4) of Section 65B.
Considering that such certificate may also
be given long after the electronic record
has actually been produced by the
computer, Section 65B(4) makes it clear
that it is sufficient that such person gives
the requisite certificate to the "best of his
knowledge and belief" (Obviously, the
word "and" between knowledge and belief
in Section 65B(4) must be read as "or", as
a person cannot testify to the best of his
knowledge and belief at the same time).
61. We may reiterate, therefore, that the
certificate required under Section 65B(4) is
a condition precedent to the admissibility
of evidence by way of electronic record, as
correctly held in Anvar P.V. (supra), and
incorrectly "clarified" in Shafhi
Mohammed (supra). Oral evidence in the
place of such certificate cannot possibly
suffice as Section 65B(4) is a mandatory
requirement of the law. Indeed, the
hallowed principle in Taylor v. Taylor
(1876) 1 Ch.D 426, which has been
followed in a number of the judgments of
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this Court, can also be applied. Section
65B(4) of the Evidence Act clearly states
that secondary evidence is admissible only
if lead in the manner stated and not
otherwise. To hold otherwise would render
Section 65B(4) otiose.
73.2. The clarification referred to above is
that the required certificate under Section
65B(4) is unnecessary if the original
document itself is produced. This can be
done by the owner of a laptop computer,
computer tablet or even a mobile phone, by
stepping into the witness box and proving
that the concerned device, on which the
original information is first stored, is
owned and/or operated by him. In cases
where the "computer" happens to be a part
of a "computer system" or "computer
network" and it becomes impossible to
physically bring such system or network to
the Court, then the only means of providing
information contained in such electronic
record can be in accordance with Section
65B(1), together with the requisite
certificate under Section 65B(4). The last
sentence in Anvar P.V. (supra) which reads
as "...if an electronic record as such is
used as primary evidence under Section 62
of the Evidence Act..." is thus clarified; it
is to be read without the words "under
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Section 62 of the Evidence Act,..." with
this clarification, the law stated in
paragraph 24 of Anvar P.V. (supra) does
not need to be revisited.
81. What is laid down in Section 65B as a
precondition for the admission of an
electronic record, resembles what is
provided in the second part of Section 136.
For example, if a fact is sought to be
proved through the contents of an
electronic record (or information contained
in an electronic record), the Judge is first
required to see if it is relevant, if the first
part of Section 136 is taken to be
applicable.
82. But Section 65B makes the
admissibility of the information contained
in the electronic record subject to certain
conditions, including certification. The
certification is for the purpose of proving
that the information which constitutes the
computer output was produced by a
computer which was used regularly to store
or process information and that the
information so derived was regularly fed
into the computer in the ordinary course of
the said activities."
18. In the present case the Investigating Officer,
who is informant, has himself stated that he has not got any
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specialized training for conduction breath analyzer test, then,
question arises as to how machine will be handled at a
particular point of time and under what circumstances test is
required to be conducted and how the said officer will give
certification if he has no proper for training for handling the
said machine. Any certification given by said person is beyond
any stretch of imagination and same does not satisfy the
requirement prescribed under the law.
19. Learned counsel for the appellant has raised a
very pertinent point that there was no special mark put on the
breath analyzer machine and appellant was not tested on
particular point which is the place of occurrence. P.W. 2 has
already admitted that apart from the appellant, 8-10 persons
were present. In that context, role of informant, who is I.O. of
the case, is questionable. Being informant and I.O. of the case,
he failed to reveal that apart from the appellant, 8-10 persons
were present and why others were not made as witness to the
prosecution case and why they were not apprehended and tested
for the alcoholic test. The fair play of the Investigating Officer
is put under question whether the I.O. has done fair play or
not ?
20. With reference to the aforesaid aspect of the
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matter, it is necessary to cite few judgments pronounced by the
Hon'ble Supreme Court.
21. In Megha Singh v. State of Haryana
reported in (1996) 11 SCC 709, the Hon'ble Supreme Court, in
para 4, has held as under :
"4. .................We have also noted
another disturbing feature in this case. 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. 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."
22. In the case of Bhagwan Singh v. State of
Rajasthan, (1976) 1 SCC 15, the Hon'ble Supreme Court, in
para 5, has held as under :
"5. Now, ordinarily this Court does not
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interfere with concurrent findings of fact
reached by the trial court and the High
Court on an appreciation of the evidence.
But this is one of those rare and
exceptional cases where we find that
several important circumstances have not
been taken into account by the trial court
and the High Court and that has resulted
in serious miscarriage of justice calling
for interference from this Court. We may
first refer to a rather disturbing feature of
this case. It is indeed such an unusual
feature that it is quite surprising that it
should have escaped the notice of the trial
court and the High Court. 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 of the case.
How could the complainant himself be the
investigator? In fact, Head Constable
Ram Singh, being an officer below the
rank of Deputy Superintendent of Police,
was not authorised to investigate the case
but we do not attach any importance to
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that fact, as that may not affect the
validity of the conviction. The infirmity
which we are pointing out is not an
infirmity arising from investigation by an
officer not authorised to do so, but an
infirmity arising from investigation by a
Head Constable who was himself the
person to whom the bribe was alleged to
have been offered and who lodged the first
information report as informant or
complainant. This is an infirmity which is
bound to reflect on the credibility of the
prosecution case."
23. In the case of State by Inspector of Police ,
Narcotic Intelligence Bureau, Madurai, Tamilnadu Vs.
Rajangam reported in (1976) 1 SCC 15, the Hon'ble Supreme
Court, in paras 8, 9, 10, 11 & 12, has held as under :
"8. The short question which falls for
consideration of this Court is: whether
PW 6 who registered the crime could have
investigated the case or an independent
officer ought to have investigated the
case?
9. The learned counsel appearing for the
accused submitted that the controversy
involved in this case is no longer res
integra. In Megha Singh v. State of
Haryana [(1996) 11 SCC 709 : 1997 SCC
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(Cri) 267] , this Court has taken a
categorical view that the officer who
arrested the accused should not have
proceeded with the investigation of the
case. The relevant paragraph reads as
under: (SCC p. 711, para 4)
"4. ... We have also noted another
disturbing feature in this case. 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. 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."
10. The ratio of Megha case has been
followed by other cases. In another case
in Balasundaran v. State [(1999) 113 ELT
785 (Mad)] , in para 16, the Madras High
Court took the same view. The relevant
portion reads as under: (ELT p. 790, para
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16)
"16. Learned counsel for the appellants
also stated that PW 5 being the Inspector
of Police who was present at the time of
search and he was the investigating
officer and as such it is fatal to the case of
the prosecution. PW 5, according to the
prosecution, was present with PWs 3 and
4 at the time of search. In fact, PW 5
alone took up investigation in the case
and he had examined the witnesses. No
doubt the successor to PW 5 alone had
filed the charge-sheet. But there is no
material to show that he had examined
any other witness. It therefore follows that
PW 5 was the person who really
investigated the case. PW 5 was the
person who had searched the appellants
in question and he being the investigation
officer, certainly it is not proper and
correct. The investigation ought to have
been done by any other investigating
agency. On this score also, the
investigation is bound to suffer and as
such the entire proceedings will be
vitiated."
11. In this view of the legal position, as
crystallised in Megha Singh case, the
High Court was justified in acquitting the
accused. We see no infirmity in the view
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which has been taken by the High Court
in the impugned judgment.
12. In our considered view, no
interference is called for. The appeal,
being devoid of any merit, is accordingly
dismissed."
24. In the case of Mohan Lal v. State of
Punjab, reported in (2018) 17 SCC 627, the Hon'ble
Supreme Court, in paras 24, 25, 26, 27, 28, 29 & 30, has held
as under :
"24. In the nature of the controversy, it
would be useful to also notice the view
taken by different High Courts on the
issue. In State of H.P. v. Atul Sharma
[2015 SCC OnLine HP 4183 : (2015) 2
Shim LC 693 : (2015) 6 RCR (Criminal)
949], under the NDPS Act, it was
observed as follows:
"10.8. In present case it is proved on
record that complainant is SI Bahadur
Singh as per FIR Ext. PW12/A and it is
proved on record that entire investigation
has been conducted by complainant
himself and there is no evidence on record
in order to prove that investigation was
handed over to some other independent
investigating officer. It is not the case of
prosecution that no other independent
investigating officer was available to
conduct impartial investigation. We are of
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the opinion that conducting entire
investigation i.e. preparation of seizure
memo, site plan, recording statements of
witnesses by complainant himself has
caused miscarriage of justice to accused
qua fair investigation."
25. A similar view has been taken in
Fayas Ali v. State of Mizoram [2013 SCC
OnLine Gau 763] , relating to prosecution
under the NDPS Act, by the Gauhati High
Court as follows: (SCC OnLine Gau para
15) "15. From the evidence of PWs 1 and
4, it is clearly found that the major part of
the investigation including the arrest of
the accused, preparation of seizure, taking
of sample, examination of the seizure
witnesses and examination of the accused
person, was completed by PW 1, who was
the informant/complainant in the present
case. Therefore, it is clearly found that the
investigation, in its true sense, was done
by the complainant himself. In Rajangam
[State of T.N. v. Rajangam, (2010) 15 SCC
369 : (2012) 4 SCC (Cri) 714], the
Supreme Court, relying on the decision
held in Megha Singh [Megha Singh v.
State of Haryana, (1996) 11 SCC 709 :
1997 SCC (Cri) 267], observed that the
investigation is to be done by a person
other than the complainant and that the
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investigation done by the complainant is
bound to suffer and vitiate the entire
proceeding."
26. The Punjab and Haryana High Court
in Gannu v. State of Punjab [2017 SCC
OnLine P&H 4660 : (2017) 3 RCR
(Criminal) 566] relating to the NDPS Act,
after referring to Noor Aga [Noor Aga v.
State of Punjab, (2008) 16 SCC 417 :
(2010) 3 SCC (Cri) 748] and the views
[Laltu Prasad v. State of W.B., 2016 SCC
OnLine Cal 4879 : (2017) 2 RCR
(Criminal) 237] of the Calcutta High
Court also apart from Atul Sharma
concluded as follows:
"14. Another aspect of the matter is that
in sheer violation of the principles of fair
and impartial investigation, the
complainant and the investigating officer
is the same person, which makes the
prosecution case doubtful. In Laltu
Prasad v. State of W.B., it was held that
the complainant himself acting as the
investigating officer violating the
principles of fair and impartial
investigation is a practice, to say the least,
should not be resorted to and it is a
disturbing feature. To the same effect, is a
Division Bench judgment of the Hon'ble
Himachal Pradesh High Court reported
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as State of H.P. v. Atul Sharma, wherein, it
has been held that where the complainant
himself conducts investigation, it causes
miscarriage of justice to accused qua fair
investigation."
27. A Single Judge of the Kerala High
Court in Naushad v. State of Kerala [2000
SCC OnLine Ker 365 : (2000) 1 KLT
785], relating to the NDPS Act held as
follows:
"3. ... In *a case of this nature, when the
complainant himself is a Police Official,
the investigation should have been
conducted by his top ranking officer and
the final report also ought to have been
filed by the higher official. A complainant
being a police officer cannot be an
investigating officer. For, in such case, the
accused and the prosecution will be
deprived of their valuable rights of
contradicting and corroborating, the
previous informations recorded under
Section 154 or 155 CrPC and previous
statement of the witness, being a police
officer, complaint recorded, under Section
161 CrPC enjoined in Sections 145 and
157 of the Evidence Act and proviso of
Section 162 CrPC. In the instant case,
before me, PW1 is an Assistant Sub-
Inspector of Police, and I understand from
Patna High Court CR. APP (SJ) No.848 of 2023 dt.19-08-2025
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the Public Prosecutor as well as from the
counsel for the petitioner that the
particular police station has got a Sub-
Inspector of Police. Therefore, in this
case, the investigation ought to have been
conducted by the Sub-Inspector of Police
or any other police officer above the rank
of PW1. In the instant case, thus an
incurable infirmity and flaw have been
committed by the prosecution, quite
against the proposition of law. Therefore,
on that score itself, the petitioner is
entitled to get an order of acquittal. In
view of my above conclusion on the
footing of position of law, this is a fit case,
which has to be allowed by acquitting the
petitioner."
28. Disapproving of the same, a Division
Bench in Kader v. State of Kerala [2001
SCC OnLine Ker 107 : 2001 Cri LJ 4044]
, held: (SCC OnLine Ker para 13)
"13. Unlike usual cases under the
Criminal Procedure Code, in cases under
the NDPS Act, by the time of arrest, main
part of investigation will be completed
and duty of the investigating officer is
mainly in sending the samples for
chemical analysis and other routine work
and there is no likelihood of any prejudice
in usual circumstances. Therefore, we are
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of the opinion that merely because a
detecting officer himself is investigating
officer or the officer of the same rank as
that of the detecting officer is
investigating the case and files report
before the court will not vitiate the
proceedings under the NDPS Act in the
absence of proof of specific prejudice to
the accused. Therefore, legal position
stated in Naushad v. State of Kerala to the
contrary is overruled."
29. The view taken by the Kerala High
Court in Kader [Kader v. State of Kerala,
2001 SCC OnLine Ker 107 : 2001 Cri LJ
4044] does to (sic not) meet our approval.
It tantamounts to holding that the FIR was
a gospel truth, making investigation an
empty formality if not a farce. The right of
the accused to a fair investigation and fair
trial guaranteed under Article 21 of the
Constitution will stand negated in that
event, with arbitrary and uncanalised
powers vested with the police in matters
relating to the NDPS Act and similar laws
carrying a reverse burden of proof. An
investigation is a systemic collection of
facts for the purpose of describing what
occurred and explaining why it occurred.
The word systemic suggests that it is more
than a whimsical process. An investigator
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will collect the facts relating to the
incident under investigation. The fact is a
mere information and is not synonymous
with the truth. Kader is, therefore,
overruled. We approve the view taken in
Naushad.
30. In view of the conflicting opinions
expressed by different two-Judge Benches
of this Court, the importance of a fair
investigation from the point of view of an
accused as a guaranteed constitutional
right under Article 21 of the Constitution
of India, it is considered necessary that
the law in this regard be laid down with
certainty. 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. It is therefore held that a fair
investigation, which is but the very
foundation of 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 predetermined conclusion has to
be excluded. This requirement is all the
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more imperative in laws carrying a
reverse burden of proof."
25. In the present case, role of the Investigating
Officer is very important in the light of the fact that place of
occurrence has not been clearly identified and the statement of
P.W. 1, who is the Investigating Officer, is clearly inconsistent
on the point regarding presence of other persons apart from the
appellant. The statement of I.O. during course of examination
had put question mark regarding the fair investigation when his
statement is silent not only on the point of place of occurrence
but regarding the presence of other persons apart from the
appellant also.
26. After hearing both sides, the discrepancies
which have come to fore are :
(i) regarding the place of occurrence;
(ii) regarding presence of others at the place of
occurrence apart from the appellant;
(iii) appellant was not tested at the place of
occurrence and place of occurrence was not identified;
(iv) breath analyzer test was not conclusive in the
absence of any urine or blood test; and
(v) there is vital contradictions in the statements
of P.W. 1 and P.W. 2 on the point of presence of other persons
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apart from the appellant at the place of occurrence.
27. All the discrepancies which have been
discussed above makes the prosecution story doubtful on the
basis of materials available on record.
28. In the result, in my view, prosecution case
suffers from several infirmities, as noticed above. The learned
trial court fell in error of law as well as appreciation of facts of
the case in view of settled criminal jurisprudence. Hence,
impugned judgment of conviction and order of sentence dated
04.01.2023
is hereby set aside and this appeal stands allowed.
Since the appellant is already on bail, he is discharged from the
liability of his bail bonds.
29. The interlocutory application, if any, also
stands disposed of.
30. The records of this case be also returned to
the concerned trial court forthwith.
31. This Court appreciates the assistance given by
Mr. Ankesh Bibhu, learned counsel as amicus curiae.
(Alok Kumar Pandey, J)
vashudha/-
AFR/NAFR AFR CAV DATE NA Uploading Date 22.08.2025 Transmission Date 22.08.2025