CALLA, J. - (1.) THIS is an appeal under Sec. 374, Cr. P. C. against the judgment of the Addl. Sessions Judge, Raisinghnagar dated 9. 06. 1992, in Sessions Case No. 58/1989, State vs. Sahi Ram, whereby he has been convicted under Sec. 8/18 of the NDPS Act and sentenced to 10 years' rigorous imprisonment and a fine of Rs. 1 lac and in default thereof to undergo further rigorous imprisonment for two years.
(2.) KAILASH Chand, S. H. O. Anupgarh, District Sriganganagar lodged a written report on 5. 08. 1988 at Police Station Anupgarh, alleging therein that he had received an information that one man having opium was sitting on the bridge. He went to the bridge, asked the name of the person and on search he found 250 grams of opium from the pocket of the pants of that person. After usual investigation by the SHO KAILASH Chand, challan was filed under Sec. 8/18 of the NDPS Act and the case was committed to the Court of Addl. Sessions Judge, Raisinghnagar. The Addl. Sessions Judge framed charge under Sec. 8/18 of the NDPS Act. The accused-appellant denied the charge and claimed the trial. The prosecution examined seven witnesses in support of its case and thereafter accused-appellant's version was recorded under Sec. 313, Cr. P. C. After hearing both the parties, the Addl. Sessions Judge, Raisinghnagar has convicted and sentenced the accused-appellant to 10 years' rigorous imprisonment and a fine of Rs. 1 lac in default to undergo further rigorous imprisonment for two years. It is further submitted on behalf of the accused-appellant that since then the accused-appellant is in jail. Shri P. R. Choudhary, counsel for the accused-appellant has submitted that there are several grounds to assail the conviction and sentence, but he chooses to press only one of the grounds on which this appeal can be disposed of. He has submitted that in this case the report was lodged by the SHO himself on 5. 08. 1988. In the evening 250 grams of opium was recovered by the SHO Kailash Chand from the pocket of the pants of the accused-appellant at the Anupgarh Raisinghnagar Chouraha. The recovery memo was prepared then and there. A criminal case was registered and after completing the investigation, challan was filed and he was subjected to trial. Learned Addl. Public Prosecutor has cited Munni Lal vs. Delhi Administration (1) and Nanak Chand vs. State of HP (2), in which it has been laid down that if cognizance in fact has been taken on the police report in breach of the mandatory provisions relating to the investigation, the results which follow, cannot be set aside unless the illegality in the investigation, can be shown to have brought about a miscarriage of justice. All illegality committed in the course of an investigation does not affect the competence and jurisdiction of the court of trial. However, I find that these cases are not applicable to the facts of the case at hand, because the question whether prejudice has been caused or not, is a very abstract proposition and the trial cannot be vitiated unless there is any question of miscarriage of justice. I have gone through the record of the case. On the basis of the material available on record there is no room for any doubt that the case was registered by Kailash Chand, SHO on the basis of the source information. It is also established by the statements of other witnesses as well as of Kailash Chand, SHO himself that he himself had gone for search, had effected the recovery and seized the opium and had investigated the whole case throughout. This course of action, according to me, militates against the basic tenets of criminal jurisprudence and fair investigation. In the facts of the case, I find that the status of Investigating Officer, Kailash Chand, cannot be placed on any pedestal higher than that of a complainant and the complainant himself cannot be the sole agency of investigation. In my humble opinion, the prosecution in this case suffers from the basic infirmity as aforesaid, which goes to the root of the matter. In the facts of the case, it must be held to be sufficient to vitiate the whole investigation. Once I find that the whole bedrock of the investigation, on the basis of which the prosecution is founded, is unfair and against the basic tenets of criminal jurisprudence, the conviction and sentence based on investigation on the information as aforesaid, cannot be sustained in the eye of law. Accordingly, the whole proceedings based on the investigation as aforesaid deserve to be quashed and set aside, which I hereby do. In the result, this appeal succeeds and is allowed. The judgment dated 9. 06. 1992 passed by the learned Addl. Sessions Judge, Raisinghnagar, convicting and sentencing the appellants under Sec. 8/18 of the NDPS Act, 1985, in Sessions Case No. 59 of 1989, is set aside and the appellant is acquitted of the charge levelled against him. The accused-appellant is said to be in jail. He shall be released forthwith, if not required in any other case.
(3.) THE record of the court below may be returned without any kind of delay. .;