1. This is an application under section 397 read with section 40 I of the Code of Criminal Procedure filed by the accused-applicant being aggrieved of the judgment passed by learned Second Additional Sessions Judge, Ratlam in Criminal Appeal No. 184/2001 on 18.10.200 I whereby it confirmed the conviction passed by Judicial Magistrate, First Class, Ratlam in Criminal Case No. 180/1999 vide judgment dated 26.7.2001 sentencing him under section 25 (1b) (b) of the Arms Act for a period of 1 year Sl and fine of Rs. 100/- with a direction that in the event of nonpayment of fine, he would suffer 15 days further SI.

2. On 2.3.1999 at about 4 O'clock in the evening Head Constable Devendra Singh (PW 3) during his round relating to Holy duty discovered that the applicant was wielding a sword in a public place without having any lawful authority for its possession. Accordingly the said sword was seized by Devendra Singh vide Ex. P-1 in the presence of PW 1 Gopal and PW 2 Ambaram. The applicant was arrested by him vide Ex. P-2. The sword Article "A" measured 35 inches in length. Accordingly when Devendra Singh reached the concerned Police Station along with the accused-applicant, reduced FIR Ex. P-5 to writing, conducted investigation and on completion thereof sent the police report to the trial Court. The applicant pleaded not guilty. The trial was accordingly held and at the conclusion of the trial, the learned Trial Magistrate held the accused guilty and sentenced him as stated earlier. The applicant went in appeal but lost.

Hence this revision.

3. It is found that PW 3, the chief architect of the prosecution case, Devendra Singh deposed in favour of the prosecution, however, he has not been supported by PW I Gopal who has been declared hostile and with the permission of the Court he has been cross-examined and during the cross-examination it has come on record that he is not a trustworthy witness. So far as PW 2 Ambaram is concerned, he has stated that it was the police itself which had the sword with it and seizure memo of the same was effected showing it to be a recovery from the applicant. PW 2 Ambaram has not been declared hostile by the prosecution and, therefore his above statement is fatal to the prosecution specially in the background of the fact that PW 3 Devendra Singh, the Head Constable, is the seizing officer, complainant and investigation officer of the case. When a police officer is a complainant as well as an investigation officer and also an arresting and searching officer under such circumstances as are prevailing in this case, the fairness of the investigation gets adversely affected. In this respect take support from AIR 1995 SC 2339 [Megha Singh v. Slate of Haryana].

4. In view of the above matter the learned Courts below have overlooked the above fact and, therefore, the accused-applicant has been held guilty and convicted not in accordance with law. The findings recorded by the Courts below are liable to be interfered with. This revision is accordingly allowed. The impugned conviction and sentence are set-aside. The accused-applicant is acquitted of the charge of section 25 (1 b) (b) of the Arms Act. He is on bail. His bail is discharged.