VERMA, J. - (1.) THESE two appeals pertain to the same incident and involve identical questions of fact and law, based on identical evidence. Hence, they have been heard together with consent of all concerned and are being disposed of by a common judgment.
(2.) IN nut shell the prosecution story is that on 6. 8. 1992 Shri Virendra Jakhar, S. H. O. P. S. Bhirahi, Shri Tara Chand, S. H. O. , P. S. , Bhadra and Shri Atar Singh, S. H. O. , P. S. , Nohar were proceeding along with members of the staff on the road connecting village Daidas to Lal Khan's Dhani. They spotted two persons, namely, Ram Kumar Singh and Mahesh. The Police Officers suspected that the two persons were carrying opium with them. Hence, the aforesaid police officers accosted both these persons. Atar Singh informed these persons that if they so wanted, they could be searched in presence of a Magistrate or a Gazetted Officer. Both these persons, namely, Ram Kumar Singh and Mahesh consented to searches being made by Atar Singh. Upon this Atar Singh summoned two independent witnesses, namely, Sher Mohd. and Chanan Mal from a nearby place. Thereafter searches of the two persons were made by Atar Singh in presence of aforesaid police officers and Sher Mohd. and Chanan Mal. It is alleged that upon search of Ram Kumar Singh, a small parcel was found in the right pocket of his trouser and the same contained opium. A sum of Rs. 19,000/- was also recovered from pocket of Ram Kumar Singh. Ram Kumar Singh was arrested since he was found in possession of opium without any license and an arrest memo was prepared in this regard. Out of the recovered contraband; a sample of 30 gms. of opium was taken separately and the sample was duly sealed and the remaining contraband was also sealed and proper memos were prepared in this regard. Shri Atar Singh also searched Mahesh after obtaining his consent and he was found to carry in his right hand a bag which contained two small bags of plastic containing opium. A sum of Rs. 10,600/- was also recovered from possession of Mahesh Kumar. The opium so recovered was found to weigh 850/- gms. , out of which a sample of 30 gms. was taken separately and the remaining opium was sealed and memos were prepared in this regard. Site inspection and site plan were also prepared. The prosecution story is that Atar Singh proceeded to Police Station, Nohar with the arrested accused person and recorded two distinct First Information Reports with regard to the two recoveries, one made from Mahesh Kumar and the other made from Ram Kumar Singh. The F. I. R. pertaining to recovery made from Mahesh Kumar is 177/92 and F. I. R. with regard to Ram Kumar Singh was recorded as F. I. R. No. 178 of 1992. It is alleged in both the cases that the sealed contraband and the sealed samples were kept in the custody of Police. Station, Nohar and were sent to the State Forensic Science Laboratory, from where reports were received showing that both the samples contained opium. Upon such evidence separate trials were conducted in respect of Ram Kumar Singh as well as Mahesh Kumar. In respect of Ram Kumar Singh, trial was conducted in Sessions Case No. 55/92 and the same was decided on 08. 4. 1993. Accepting the prosecution case, the learned trial court found Ram Kumar Singh guilty of charge under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him to undergo R. I. for 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo further R. I. for one year. In respect of Mahesh Kumar trial was conducted in Sessions Case No. 56792 and by judgment dated 9. 4. 1993, the learned trial Judge accepting the prosecution case, convicted Mahesh Kumar for offence under section 8/18 of the aforesaid Act and sentenced him to undergo R. I. for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo further R. I. for one year.
(3.) RAM Kumar Singh has filed SB. Criminal Appeal No. 181/1993 and Mahesh Kumar has filed S. B. Criminal Appeal No. 182/1993. In both the appeals, the learned counsel for the appellants. submits that the investigation suffered from a very serious infirmity inasmuch as the officer effecting seizures and recoveries has himself conducted the investigation. This has caused serious prejudice to the appellants in both the cases inasmuch as independent as fair investigation could not be made. It is contended that out of the independent alleged eye-witnesses, only one witness, namely, Sher Mohd. was examined. The other alleged independent witness Chanan Mal was not examined at all. Sher Mohd. has not supported the prosecution story at all and hence the accused appellants in both the cases deserve to be acquitted. The learned P. P. opposes both the appeals and submits that the law no-where mandates that a person affecting seizures and recoveries cannot investigate into the offence. She submits that the appellants in both the cases had a fair trial and they had opportunity of showing that the investigation suffered from any remissness on the part of the Investigating Officer. She submits that the testimony of Atar Singh in this case, though not supported by Sher Mohd. has been supported by Shri Virendra Jakhar and Tara Chand, both of whom are senior police officers. ;