ARORA, J. - (1.) THIS appeal is directed against the judgment dated 1-3-93, passed by the Additional District and Sessions Judge, Churu, by which the learned Additional Sessions Judge convicted the appellants for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act and sentenced each of them to undergo ten years rigorous imprisonment and a fine of Rs. 1,00,000/- each and in default of payment of fine further to undergo two years' rigorous imprisonment.
(2.) THE accused-appellants were tried by the learned Additional Sessions Judge, Churu, for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act. THE case of the prosecution is that on 5. 10. 91, at about 3. 30 p. m. , a search of a house was taken where appellants Gulam Mohammed and Mangtu were found present and from their possession the poppy-heads weighing 27 kilograms were recovered and the sample of which was sent for examination and the same was found to be the poppy heads. THE prosecution, in support of its case, examined eight witnesses and the accused, in their defence, examined DW 1 Liyakat Ali. THE nature of the evidence, produced by the prosecution, consists of the statements of PW 1 Bhanwar Lal, PW 2 Ratan Singh and PW 3 Ikramuddin, the three Motbir witnesses. PW 1 Bhanwar Lal and PW 2 Ratan Singh are the two Motbir witnesses to the recovery while PW 3 Ikramuddin is a Motbir witness with regard to the weighing of the poppy-heads: All these three Motbir witnesses have not supported the prosecution case and they have been declared hostile. PW 5 Jagdish Chandra is the Constable, who took the sealed packet for F. S. L. examination to the State Forensic Science Laboratory, Jaipur, and handed-over the same at the Laboratory for F. S. L. examination. PW 6 Mange Ram was the Malkhana Incharge at Police Station, Churu, in whose custody the packet containing 27 kilograms of poppy-heads was deposited and a sample of 500 grams of poppy-heads was, also, deposited with him and he gave the sample of 500 grams of poppy-heads to PW 5 Jagdish Chandra, Constable, for taking the same to the Laboratory at Jaipur for F. S. L. examination. The prosecution case, therefore, rests upon the statements of PW 6 Mange Ram, PW 7 Abdul Aziz, the S. H. O. , Police Station, Taranagar-the In-vestigating Officer and PW 8 Bhera Ram - the A. S. I. , Police Station, Taranagar. The statements of all these witnesses regarding the possession of the appellants are only to the extent that the house in question was not inhabited and belongs to one Smt. Wajida and when they went there, the accused- appellants were found in the house and from their possession, a bag containing 27 kilograms of poppy-heads was recovered. The independent witnesses have not supported the prosecution case and they turned hostile. Liyakat Ali S/o. Mst. Wajida appeared in the defence and he has stated that the house in question was in their possession and they used to live in the house on the relevant date and time and no such search was conducted in the house. None of the witnesses have stated that the accused-appellants were living in that house. The prosecution has, therefore, failed to prove that the house, from where the recovery of the poppy-heads was made, was in the possession of the accused-appellants. There is, also, no independent evidence to prove the recovery of the poppy-heads from the possession of the accused-appellants. The recovery of the poppy-heads weighing 27 kilograms, therefore, cannot be said to be made from the possession of the accused- appellants. There is yet another aspect of the matter and the appeal can be allowed on that point. PW 7 Abdul Aziz, who registered the case against the appellants made, the recoveries, was the person, who himself made the investigation and presented the challan against the appellants. Ram Kumar Singh vs. The State of Rajasthan (1) and the several other decisions of this Court, wherein it has been held that an Officer making recovery should not investigate into the matter and the investigation should be made by an independent Officer preferably a Superior Officer. In the present case, the recovery was made by PW 7 Abdul Aziz, the F. I. R. was lodged by him and further the investigation was conducted by him. This is the basic infirmity with which the investigation suffers in the present case. As the Officer recovering the poppy-heads was the same person who had investigated the case, the investigation, therefore, is bad and reflects about the credibility of the investigation. The conviction of the appellants, therefore, cannot be up-held as the investigation in the present case was not made by the proper person. In the result, the appeal, filed by the accused-appellants, is allowed. The judgment dated 1. 3. 93, passed by the learned Additional Sessions Judge, Churu, convicting and sentencing the appellants is, therefore, set-aside and the accused-appellants Gulam Mohammed and Mangtu are acquitted of the charges levelled against them. The appellants are in jail. They may be released forth-with if they are not required in any other case. .;