18 Nov 2023 5:00 AM GMT
The Supreme Court is set to examine whether a subsequent change in law can be a ground for condoning delay or to disturb the acquittal finding.
To provide a brief background, the Bench of Justices Hrishikesh Roy and Sanjay Karol recently (on November 06) issued notice in a special leave petition (SLP) filed against an interim order of the Kerala High Court. Therein, the High Court had admitted an appeal against the acquittal of a person charged under NDPS (Narcotic Drugs and Pshychotropic Substances Act, 1985). Apart from this, the High Court also condoned the delay of 1184 days in filing the appeal.
Imperatively, the acquittal was based on the decision rendered in Mohanlal v. State of Punjab. Thus, before the High Court, the Prosecution submitted that the law established in Mohanlal was overruled in Mukesh Singh. v. State Narcotic Branch, Delhi. Accordingly, the High Court, observing that the judgment passed by the Trial Court is primarily based on the decision of Mohanlal, stated that the appeal has to be heard on merits. While holding so, the High Court also condoned the delay.
“As the judgment under appeal is seen rendered solely based on the dictum in Mohanlal (supra) and the legal position having changed, the appeal has to be heard on merits. Being so, the delay is liable to be condoned.”
Aggrieved from the same, the accused has filed the present appeal.
Before the Apex Court, the Counsel for the petitioner/ accused, while assailing the impugned order, submitted that a subsequent change in law cannot be a ground for condoning the delay.
“It is submitted by the learned Counsel that subsequent change of law cannot be a ground for condonation of delay or to disturb the acquittal finding. But the High Court under impugned order dated 23.06.2023 has not only condoned the huge delay of 1148 days but also decided to consider the Prosecution's appeal, on merit.”
Based on these facts and circumstances, the Supreme Court issued a notice returnable in six weeks while also staying further proceedings.
Law Laid Down in Mukesh Singh
It may be noted that in 2018, a three-judge bench of the Supreme Court, in Mohanlal vs. State of Punjab, 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.
However, after about two years, in 2020, a five-judge Constitution Bench overruled it. The judgment, authored by Justice MR Shah, held that the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for investigating the offences under the NDPS Act.
Brief Factual Background
The Excise Range Inspector, Vandiperiyar, detected the present case by arresting the accused and seizing the contraband ganja from his possession. Consequently, he registered the case under the relevant provision, investigated, and later filed a complaint before the Court.
Basis this, the Trial Court opined:
“It is well settled 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. It is axiomatic that justice must not only be done but must appear to be done also.”
Thereafter, relying upon the dictum laid down in Mohan Lal, it held:
“….as the informant and the investigator are the same person, it cannot be said that the investigation was fair, judicious and just and no prejudice was caused to the accused.”
Case Details: HYDER vs. STATE OF KERALA, Diary No.- 39255 - 2023
Click Here To Read/Download Order