Honble MEENA, J. — This appeal is directed against the judgment of trial court dated 9.11.94 whereby the trial court has convicted the accused appellant for the offence u/s. 8/18 of the N.D.P.S. Act and sentenced to undergo 10 years rigorous imprisonment and also pay fine Rs. one lac, in default of payment of fine, further undergo 2 years rigorous imprisonment.

(2). On 31.3.93, one Ranglal was apprehended by the officials of Narcotic Department and from his possession 2 kg. opium has been recovered. At that point of time, Ranglal furnished the information that he was going to hand over this Opium to one Maniram and appellant. On this information, the S.P. Central Bureau of Narcotics, Kota has issued search authorisation warrant to Mr. Mahesh Kumar, Inspector. On 2.4.93 at 11.00 p.m. Mahesh Kumar along with staff and police officials went to Jhunjhunu and on 3.4.93, the house of the appellant was searched. During search, appellant was found in the house. The house was in joint possession of accused appellant and Maniram (brother of accused). Mahesh Kumar asked the appellant whether he wants to search his house by any Magistrate or gazetted officer, but the appellant agreed that he has no objection if the house is searched by Inspector. On that the search was conducted and in a kachha chappar house, a polythene bag containing 6.850 kg. opium was found. That was seized, sample was taken, the same was sealed and sent for F.S.L. report. The site plan was prepared, statements of witnesses were also recorded and thereafter the challan has been filed. During trial, the prosecution has examined as many as 9 witnesses and statement of accused has been recorded u/s. 313 Cr.P.C. Considering the material on record, the accused appellant has been convicted and sentenced as aforesaid. Being dissatisfied with the judgment of trial court, the accused appellant has preferred this appeal.

(3). Mr. Biri Singh, learned counsel for the appellant has mainly emphasised on the fact that Investigating Officer and complainant is one and the same person, therefore, the investigation is not fair and even some witnesses have not supported the site plan. Recovery witnesses have been declared hostile. Learned Public Prosecutor has placed reliance on the judgment of trial court.

(4). The perusal of record reveals that first information report Ex.P.9 has been given by Mahesh Kumar, Inspector. He has prepared the site plan Ex.P.5. He has seized sample and sent to F.S.L Not only that, he has recorded the statement of witnesses viz., Bajrang Lal, Ghanshyam, A.K. Saxena, Om Prakash, Prabhu Dayal and Shajid Ali.

(5). In Ram Kumar Singh vs. The State of Raj. (1), the similar issue has been considered and observations of the Apex Court has been reproduced in para 15, which reads as under : —

"It is indeed such an unusual feature that it is quite surprising that it should have escaped the notice of the trial court and the High Court. Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant and he has the informant or complainant who lodged the first information report for taking action against the appellant. It is difficult to understand how in these circumstances head Constable Ram Singh could undertake investigation of the fact, Head Constable Ram Singh being an officer below the rank of Deputy Superintendent of Police, was not authorised to investigate the case but we do not attach any importance to that fact as that may not affect the validity of the conviction. The infirmity which we are pointing out is not an infirmity arising from investigation by an officer not authorised to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the first information report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case."

In Roland Markas Goonthar v

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