S. M. JAIN, J. - (1.) HEARD learned counsel for the appellant and the Public Prosecutor for the State.
(2.) THE principal contention advanced by the counsel for the appellant is that he has been denied a just and fair trial inasmuch as it was Head Constable, Ganpat Singh who made the search of the appellant and recovered 200 grams of opium from his pocket. It was Ganpat Singh who arrested the accused, registered the case and investigated the stame. Thus, Ganpat Singh acted both as a complainant and an investigator. This was unpermissible and has resulted in gross-miscarriage of justice to the accused. Learned counsel has pointed out that there was violation of the provisions of Sections 42, 50 and 57 of the Act. In any event, argues learned counsel for the appellant, the role of head constable Ganpat Singh-both as a complainant and investigator- goes to the foot of the matter and vitiates the entire trial. Learned counsel has, in this connection, cited before me: Ronald Markas Goonthar vs. State of Rajasthan (1), Rana Ram vs. State of Rajasthan (2) and Bhagwan Singh vs. State of Rajasthan (3 ). The point raised by the counsel for the appellant is no more res-integra and stands finally decided by this Court. In the case of Ronald Markas Goonthar vs. State of Rajasthan (supra), it was observed:- "when S. H. O. seizes drugs and sends F. I. R. to police station, it is expected that investigation should be by any other agency, may be of superior rank. " In the case of Rana Ram vs. the State of Rajasthan (supra), it was observed:- "the learned counsel for the appellant argued that Padamsingh, the S. H. O. , was the person who caught the appellant, recovered the opium and who was the investigating officer in this case. He should not have investigated the matter, because, he was a witness to the recovery. This is an infirmity in the prosecution case. Padamsingh should have handed over the investigation of this case to some other police officer. " It was held:- "the argument of the learned counsel has great substance. S. H. O. Padamsingh, who had recovered the opium in this case and lodged the report, should not have investigated the matter. This is an infirmity in the prosecution case. " In Bhagwansingh vs. State of Rajasthan (supra) the Supreme Court also held:- "investigation by a Head Constable who was himself the person, to whom bribe was alleged to have been offered and who lodged the F. I. R. as informant or complainant. This was an infirmity which was bound to reflect on the credibility of the prosecution case. "
(3.) THE principal enunciated above applies to the present case. Following the aforesaid cases, I hold that the prosecution has failed to prove fairly and beyond a reasonable doubt its case against the accused. In the result, the appeal is accepted and the conviction and sentence of the appellant for the offences under section 8/18 of the N. D. P. S. Act, is set-aside. The accused shall be released forthwith if not required, in any other case. .;