- (1.) -This appeal is directed against the judgment dated 17. 9. 92, passed by the Additional District and Sessions Judge, Barmer, by which the learned Additional Sessions Judge convicted appellant Shahjad for the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the N. D. P. S. Act. ') and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. l,00,00o/- and in default of payment of fine further to undergo two years' simple imprisonment.
(2.) ACCUSED-appellant Shahjad was tried by the learned Additional Sessions Judge, Barmer, for the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The case of the prosecution is that on 7. 12. 90, at about 9. 00 p. m. , Gopal Singh Bhati, Station House Officer, Police Station, Dhorimanna, received a secret information from some Mukhbir that in a bus, which is going from Barmer to Ahmedabad, Charas is being smuggled. Gopal Singh Bhati entered this information in the Roznamcha and he, alongwith Shanker Singh F. C. , Chhatar Singh L. C. and Constables Budh Ram and Khet Ram, on a jeep No. RJC 6108, driven by Nahar Singh, proceeded towards Sanchore Road and near Lukhu Bhakri, made the Nakabandi. Bus No. RJ-04-P. 0077, which came there, was got stopped by the raiding party and the raiding party entered in the bus. Suspicion arose looking to the conduct of the accused and thereafter, in the presence of two Motbir witnesses, viz. , Balwanit Singh and Chattar Singh, after giving his own search to Balwant Singh, Gopal Singh Bhati, the S. H. O. , searched the accused and found him in the possession of 170 Grams of Charas hidden in the fold of his Dhoti. The accused, also, gave further information regarding the Charas which was hidden by him and on the basis of this information and at his instance, Charas weighing 1. 530 kgs. was, also, recovered. Gopal Singh Bhati, after making the seizure of these articles, arrested the accused and thereafter went to the Police Station, lodged the F. I. R. and completed the investigation and after completion of the investigation, he submitted the challan in the Court. The prosecution, in support of its case, examined nine witnesses. Two Motbir witnesses, viz. , PW 2 Balwant Singh and PW 7 Dalu Ram, who were the witnesses of the recoveries, have not supported the prosecution case and they were declared hostile. The learned Additional Sessions Judge, after trial, convicted and sentenced the accused-appellant for the offence under Section 21 of the Act, as stated above. It is contended by the learned counsel for the appellant that the investigation in the present case was conducted by Gopal Singh Bhati, who himself made the recoveries, arrested the accused and lodged the report and, therefore, the investigation should have been done by some other person because he is the party interested in the conviction of the accused as he himself was the complainant. It has, also, been contended by the learned counsel for the appellant that the site plan of the place, from where the recovery was made, was prepared after twelve days of the arrests of the accused, which reflects adversely on the prosecution case. His further contention is that the compliance of the provisions of Sections 42, 50,55 and 57 of the N. D. P. S. Act have not been made and as the mandatory provisions of the Act have not been complied with, the whole prosecution, therefore, stand vitiated. In support of its contention, learned counsel for the appellant has placed reliance over Umrao vs. The State of Raj. (1), Bhanwar Singh and Another vs. The State of Raj. (2), Mohmmed vs. The State of Raj. (3), Chhattar Ram vs. The State of Raj. (4), Manohar Lal vs. The State of Raj. (5), Pohalya Motya Valvi vs. The State of Maharastra (6) and Ladu Ram vs. The State of Raj. The learned Public Prosecutor, on the other hand, has supported the judgment, passed by the Court below and submitted that the compliance of the provisions of Sections 42, 50, 55 and 57 of the N. D. P. S. Act have been fully made-out in the present case and Gopal Singh Bhati, the Station House Officer was competent to conduct the investigation and no irregularity has been committed by him. He has, also, submitted that if at all there is any irregularity, that will not vitiated the whole trial. I have considered the submissions made by the learned counsel for the parties. Though the judgment, passed by the learned trial Court, convicting and sentencing the appellant, has been challenged by the learned counsel for the appellant on a number of grounds but the appeal can be disposed of only on one point and, therefore, it is not necessary to consider the other points, as stated by the learned counsel for the appellant. The prosecution case suffers from basic infirmity that Gopal Singh Bhati, Station House Officer, who, in pursuance of the information received from some Mukhbir, proceeded to the place of the occurrence, got the bus stopped, made certain recoveries and lodged the report, himself investigated the matter. The investigation, made by a complainant, is contrary to the criminal jurisprudence and is had is the eye of law. Gopal Singh Bhati, the S. H. O. , can be placed in the category of a complainant. and, therefore, the investigation conducted by him is an infirmity, which reflects against the credibility of the prosecution case and the investigation made by him. Shri Gopal Singh Bhati, who was the complainant, was not entitled to undertake the investigation in such circumstances and the investigation should have been conducted by some other agency senior in rank to Gopal Singh Bhati, S. H. O. Similar question came up for consideration before this Court in a number of cases and this Court took the same view in Ronald Maras Goonthar vs. The State of Raj. (8), Nathiya and Another vs. The State of Raj. (9) and Rana Ram vs. the State of Raj. This infirmity goes to the root of the matter and as the investigation was conducted by the complainant himself, as such all the proceedings, based on that investigation, conducted by the Station House, Officer Gopal Singh Bhati, deserves to be quashed and set- aside.
(3.) IN the result, the appeal, filed by the accused-appellant, is allowed. The judgment dated 16. 9. 92, passed by the learned Additional Sessions Judge, Barmer, convicting and sentencing accused-appellant for the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is set-aside and the appellant is acquitted of the Charges levelled against him. The appellant is in jail. He may be released forthwith if he is not required in any other case. .;