IMPORTANT POINT
When complainant and Investigating Officer in a case under NDPS Act, case was the same person, conviction could not be said to be fair and had to be invalidated.

JUDGMENT

S. Marimuthu, J. - This appeal is directed challenging the conviction and sentence delivered by the IInd Addl. Sessions Judge. Ernakulam in C.C. No. 43 of 1995. The learned Sessions Judge found the appellant-accused guilty under Section 22 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as "the Act") and thereby sentenced him to undergo Rigorous Imprisonment for 10 years and also to pay a fine of Rs.1 lakh, in default in the payment of fine to undergo Simple Imprisonment for a period of one year on the following facts and evidence let in by the prosecution.

2. PW. 11, the Sub Inspector of Police attached to the Mattancherry Police Station, would testify that he received a phone call at about 12.15 p. m. on 29-6-1995 from an unidentified person that psychotropic substances had been kept and sold in the house of the appellant located at a lane near the Community Hall at Karippalam. PW. 11 recorded the above said information and informed the same to the Assistant Commissioner and the copy of the report recorded is marked as Ext. P-16. Then PW. 11 proceeded with his policemen to the said house of the appellant and searched there at about 12.30 p.m. On disclosing his identity of P.W. 3, mother of the appellant and other inmates present there, he searched the house since they did not desire to search the house in the presence of the Magistrate or any Gazetted Officer. However, before search, he sent one of his men to bring a Magistrate or a Gazetted Officer. But he could not procure either a Magistrate or a Gazetted Officer. During the course of the search PW. 11 found 15 ampules of Tidigestic injunction 4 ampules of Promethezine Hydrochloride injection, 2 disposable syringes with needles and 3 disposable needles on the western end of the beam located on the said room occupied by the appellant. The search list is marked as Ext. P-1. The sample signature and white covering paper are marked as Exts: P-2 and P-3. The appellant was, after arrest taken to the police station, where Ext. P-18 first information statement was recorded. Material objects recovered by P.W. 11 were received in the Court as per Ext. P. 11 property list. As per Ext. P-11 property list, items 1 to 4 were in the sealed covers and seals were tallying with the sample seal as per the evidence of PW.8, the Head Clerk of the Sessions Court, Ernakulam. According to the further evidence of PW.8, on the requisition of the Investigating Officer, the materials were sent for Chemical examination and report. After the examination, Ext. P-9 report at the chemical Examiner was received. PW.6 is the Joint Chemical Examiner attached to the Regional Chemical Examination Laboratory, Kakkanad, Ernakulam and she/ examined the articles and after the examination, she issued Ext. P-9 certificate. PW. 11, the Investigating Officer, on collecting the above statements, materials and evidence, filed the final report before the Sessions Judges. Since the appellant denied the charge framed against him under Section 22 of the Act, the prosecution let in both oral and documentary evidence and also marked material objects. Learned Sessions Judge, as pointed out above, found the appellant guilty and convicted thereon.

3. Mr. P. Vijaya Bhanu, learned Counsel appearing for the appellant would raise the following points, namely, (1) that in the instant case, the complainant and the Investigating Officer are one and the same and when that "vas so, it is not in accordance with the settled proposition of law. Such an act of the Investigating Officer would certainly invalidate the proceeding and ultimately the conviction is liable to be set aside; (2) the conviction under Section 22 of the Act could not be upheld even if it is admitted for the sake of argument that the contraband was found in the possession of the appellant, having regard to the quantity of the narcotic, substance recovered. In such situation, the conviction must be one under Section 27 of the