JUDGMENT 1. 1. This appeal has been directed against the judgment of Sessions Judge, Ajmer, dated February 17, 1987, whereby the convicted the accused-appellant for offence under Section 8 read with Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (here in after referred to as "the Act") and sentenced him to 10 years' rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine the accused-appellant was ordered to suffer 1 year's further simple imprisonment. 2. The brief facts giving rise to this appeal are that a report was lodged at 2.55 a.m. on November 21, 1985 by Amanulla Khan a literate Head Constable G.R.P., police station, Ajmer wherein it was alleged by him that on the night intervening between 20th & 21st November, 1985 he had gone for general checking of smugglers and miscreants and went towards train 16 down at 2.45 a.m. on platform No. 2. No sooner the train steamed in and stopped he started keeping an eye on the movements of the passengers getting down from Ajmer-Khandva coach. He noticed one man who had wrapped bottle green cloths getting down with a rexine bag in his hand. After seeing on the either side he started moving on the back side of the train. Suspecting his movements Amanulla Khan asked his name and address on which he became nervous. He told his name as Nand Lal son of Ratiram by caste Dhakar, resident of Raoti, police station Begun, District Chittor. Some railway employees who were around were called by Amanulla and asked the accused about the contents of the bag on which he said that besides some domestic goods there is opium. On demand he could not produce the permit, therefore, along with both the railway employees who were taken as motbirs, namely, Jagdish Prasad and Ram Swaroop, he was taken to the police station and the aforesaid report was taken own in police station. After taking down this in Rojnamcha and recording the FIR police proceedings were taken and the bag was got opened wherein a dirty white male Dhoti was found, below it was ground-nut then there was a black rexine bag which contained some wet material wrapped in polythene. When removed and tested and smelt it appeared like opium. Since he had no licence his case fell under Section 4/9 of the Opium Act. When removed and tested and smelt it appeared like opium. Since he had no licence his case fell under Section 4/9 of the Opium Act. It was got weighed and its quantity was found to be 800 grams out of which two samples of 30 grams each were taken for chemical examination which were sealed. The accused was arrested at 3.15 a.m. and from his possession, according to arrest memo, was found a bag which contained opium as mentioned above and IInd class Railway Ticket No. 10773 from Bhilwara to Kishangarh. Statements of the witnesses were recorded under Section 161 Cr. P.C. and the goods were sent to the Forensic Science Laboratory, the result of which confirmed it to be opium as it was written that "on chemical examination the sample contained in the packet marked A-1 was found to be opium having 2.35% morphine. After completing the investigation charge sheet was submitted against the accused-appellant in the court of Judicial Magistrate (Railway), Ajmer for offence under Section 18 of the Act. The learned Magistrate committed the accused for offence under Section 8/18 of the Act. The learned Sessions Judge on 29th September, 1986 read over the charge for offence under Section 8 read with Section 18 of the Act to the accused who pleaded not guilty and claimed to be tried. 3. At trial the prosecution in support of its case examined 6 witnesses. The accused-appellant denied the occurrence and stated that that on the night of incident he was travelling from Bhilwara to Kishangarh and when the train reached Ajmer he was sitting in his coach. At that time the police people entered and started checking everybody's bag. These people checked his bag also. An abundant bag was lying at a distance of 5 to 7 feet from him. Police men asked whose bag was that on which everybody in the compartment disowned it. After some time when he got down for taking a cup of tea this police man caught him from the back and brought him in the compartment and forced him to take up the bag which was lying there. He started beating the accused and took him to the police station. Number of documents were got signed from him in the morning. He protested but nobody listened to him. He started beating the accused and took him to the police station. Number of documents were got signed from him in the morning. He protested but nobody listened to him. The learned Sessions Judge accepted the prosecution case and convicted and sentenced the accused-appellant as indicated above. It is against his conviction and sentence that this appeal is preferred. 4. Shri P.K. Sharma appearing on behalf of the appellant challenged the conviction on several grounds. He has also raised a legal issue to the effect that the investigation was unauthorised & no charge-sheet could be submitted against him in as much as Shri Amanulla Khan was not expressly or impliedly authorised to exercise the powers Under Section 42 of the Act. It is contended by him that in pursuance of Section 42 of the Act no police officer was authorised and had power of entry, search seizure and arrest any person under the Act. The powers were conferred on 16-10-1986 by a notification and that too only on all Inspectors of police and Sub-Inspectors of police who were working as Station House Officers and thus earlier no police officer much less the head constable Amanulla Khan had any authority under the law to apprehend the accused-appellant, It is submitted that even assuming that since the documents were prepared by Shri Ram Chandra Station House Officer, G.R.P. Police State, Ajmer even then he too on 21-11-1985 was not authorised, since till then he had no jurisdiction. He should have handed over the matter for investigation to the authorities specified in the Act. It has further been submitted that even on 15-7-1986, the date on which the charge sheet submitted, Shri Ram Chandra was not authorised to submit the same. He, therefore, submitted that the illegality in the investigation has caused miscarriage of justice and, therefore, trial has been vitiated. He has further submitted that fair and proper investigation has not been carried out. It is further submitted that no independent motbirs had been taken in the case and their statements did not even fully corroborate the testimony of Amanulla Khan. It is further submitted that their is no positive and convincing evidence to substantiate that the sealed packet remained in proper custody from the time of seizure to the time it reached the Forensic Laboratory. It is further submitted that their is no positive and convincing evidence to substantiate that the sealed packet remained in proper custody from the time of seizure to the time it reached the Forensic Laboratory. It is submitted that the accused-appellant was a bonafide passenger with a ticket travelling from Bhilwara to Kishangarh. He had wrongly been taken down from the train and even his money was taken away. Whatever money has been recovered from his pocket has not even been shown in the arrest memo and the police has come with a case as if he was travelling peniless with the goods for which the minimum punishment is 10 years' imprisonment and a fine of Rs. 1,00,000/-. 5. Learned Publice Prosecutor supported the judgment of the trial court and submitted that no prejudice has been shown to have been caused because of improper investigation. It is is submitted that illegality in investigation cannot be argued at such a belated stage and that conviction can even be passed on solely testimony of Amanulla Khan. 6. I have given my thoughtful consideration to the rival contentions and have perused the record. 7. Before I deal with the arguments advanced by the learned Counsel for the appellant and the Public Prosecutor I will prefer to deal with the evidence brought on the support of the case. PW 1 Amanulla Khan who was literate head constable posted at the G.R.P. Police Station, Ajmer who has submitted that on the date of occurrence his duty was to check train No. 71-Up and, therefore, he had gone to Vijainagar. He returned from Vijainagar to Ajmer by 16 Down train which arrived at Ajmer at 12.20. This 16 down Chetak Express stopped on platform No. 2 and he was checking it. He saw Nand Lal getting down from Khandva coach and going behind the train with a bag in his right hand he therefore, got suspicion and stopped him, just then arrived Jagdish and Ram Swaroop in whose presence he asked the person as to what was in the bag. Accused appellant got disturbed and was asked to show the bag. On search of this bag opium was found in polythene. Since the person was not having licence and had given out his name Nandlal he was taken to the police station and the report was lodged. Accused appellant got disturbed and was asked to show the bag. On search of this bag opium was found in polythene. Since the person was not having licence and had given out his name Nandlal he was taken to the police station and the report was lodged. The report was taken down by the Station House Officer which is Ex. P. 1 and bears his signatures at A to B. He thereafter mentioned about preparation of the documents and proved the exhibits. In cross examination he stated that he saw the accused for the first time when he was getting down from Ajmer-Khandva coach. He however, did not remember the coach. He stated that the train arrived at 2.20 or 2.25 a.m. on that day, but after referring to the documents he stated that it was 2.45 a.m. He stated that he had searched the bag on the platform itself in presence of Jagdish Prasad and Ram Swaroop. The witness was confronted with the colour of the Dhoti mentioned in various documents and he answered that he is a middle fail. He stated that he took 10 minutes after search to go to the police station where he found Ram Chandra Calla, S.H.O. but does not remember the name of the Head Mohrir. He stated that he weighed the opium at the instance of the Sub-Inspector. He was asked that when he caught the accused, Jagdish and Ram Swaroop were not present and the witness answered that they were working on the platform and came at the time when he checked the accused. He denied the suggestion that the witnesses were called in the police station. He admitted that there were other police personnel also on platform No. 2 deployed on that day but he did not know their names. He admitted that he neither called any other police man nor called the SHO on the spot. He denied the suggestion that no opium might have been recovered from the possession of the accused. 8. PW 2 is Jagdish Prasad Motbir who was a Khalasi in Railway. He submitted that on the night of November 21, 1985 he was on duty when Nand Lal accused present in the court was arrested by the Station House Officer, G.R.P and the arrest memo was prepared which is Ex. P.3. The accused had a bag in his hand. PW 2 is Jagdish Prasad Motbir who was a Khalasi in Railway. He submitted that on the night of November 21, 1985 he was on duty when Nand Lal accused present in the court was arrested by the Station House Officer, G.R.P and the arrest memo was prepared which is Ex. P.3. The accused had a bag in his hand. The Station House Officer had called him from duty and had asked him to sign the packets which are said to have contained the samples. Samples however, were not taken in his presence. He admitted his signatures on the documents and stated that he was called at about 4.00 a.m. when his signatures were obtained on all the documents. He does not remember that if statements were taken down and also does not know as to whether anything was recovered from the bag. The witness was then turned hostile and the learned A.P.P. cross examined him. He reiterated in cross examination that his signatures were obtained by calling in the police station and he had not given false statement for siding the accused. He stated that how things have gone down in his statement purported to be Ex. P 5. such statement he had not given to the S.H.O. 9. PW 3 Ram Swaroop it yet another motbir who stated that he was called at the G.R.P. police station where the accused was present and his signatures were obtained on various documents. This witness too has been declared hostile. He denied to have given any statement to the police as mentioned in Ex. P 6. He however admitted that he had gone to the police station along with Nand Lal and Jagdish Prasad and Amanulla Khan. He denied that he had given false statement. He stated that it was after half an hour of arrival of 16-Down Train that they had gone to the police station. He stated that he saw the accused for the first time in G.R.P., police station. He further stated that he signed the documents because the police people asked him to sign and he had also signed the blank papers. 10. PW 4 Bhawani Singh is Head Constable at Police Station, G.R.P., Ajmer. He stated that he was posted as head mohrir at Malkhana where he had deposited the samples marked A-l and A-2 on 21-11-1985. He further stated that he signed the documents because the police people asked him to sign and he had also signed the blank papers. 10. PW 4 Bhawani Singh is Head Constable at Police Station, G.R.P., Ajmer. He stated that he was posted as head mohrir at Malkhana where he had deposited the samples marked A-l and A-2 on 21-11-1985. They were handed over on 23-11-1985 to one Chhitar Singh and from and upto that time the samples remained the same sealed condition in which they were given to him. 11. Chhitar Singh is PW 5 who stated that on 23-11-1985 a sealed packet was given to him by Bhawani Singh which he handed over in the same condition at Forensic Science Laboratory. He admitted in his cross-examination that the sealed packet was given to him on 23rd November morning at 10.00 a.m., then he brought it to Jaipur. He did not remember that by which train he came to Jaipur, but it was about 8.00 p.m. He stated that on 23rd night he stayed at the G.R.P. Jaipur. 24th November, 1985 was a holiday and he deposited it in the laboratory on 25th November, 1985. He stated that when he reached Jaipur he had given this packet to the G.R.P. Malkhana, but to which man he did not remember. He had taken it back on 25th November 1985 at 9 or 10.00 a.m. 12. Last witness is PW 6 Ram Chandra, Station House Officer, police station G.R.P., Ajmer who stated that at 2.50 a.m. Amanulla Khan came to the police station alongwith accused and motbirs and told him the whole story therefore, the report was taken down and the proceedings drawn. He got the opium seized and sealed and got it placed in the Malkhana. He submitted that entries were made in Rojnamacha also and he proved all the documents. On cross-examination he submitted that the First Information Report was taken down first at the instance of Amanulla Khan and there after the police proceedings were taken down. He did not remember that as to who was the scribe of the First Information Report. Then he stated that Shambhoosingh did it under his supervision. He stated that he did not know who was scribe of Ex. P.2. He did not remember that as to who was the scribe of the First Information Report. Then he stated that Shambhoosingh did it under his supervision. He stated that he did not know who was scribe of Ex. P.2. He however, stated that no sooner the accused entered the police station his search was taken and recovered opium was weighed and it was thereafter that the case was registered and the accused was arrested. He denied the suggestion that no opium was recovered from the accused and that a false case has been made out. He stated that the proceedings went on up to 4.00 a.m. 13. Coming to the question about investigation by unauthorised person the learned Counsel for the appellant has relied on Heera Lal Bhartiya and other v. State of U.P., 1977 (1) FAC 120 ; Emperor v. Kaitan Duming Furnand, (ILR 1982 Bombay 438) ; Delhi Administration v. Ram Singh, AIR 1962 SC 63 ; Neil Ratan Sircar v. Laxmi Narain Ram Niwas, AIR 1965 SC 1 ; State of Punjab v. Kripal Singh, 1973 FAC 113 and Raj Kumar v. State of Punjab, 1987(2) Crimes 277 on submission that if there is illegality in carrying out the investigation and where there is miscarriage of justice trial is vitiated. The learned Counsel relied on 1987 Cr. L.J. Part August, Page 1242); H.N. Rishbudh and Inder Singh v. Delhi, 1987 (2) Crimes 29 . 14. Before discussing the case law I will like to quote relevant provisions of the Act, Section 42 of the Act reads as under:Section 42-Power of entry, search, seizure and arrest without warrant of authorisation- (i) Any such officer (being on officer superior in rank-to a peon, sepoy or constable) of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable of the Revenue, Drugs, Control, Excise, Police or any other department) of a State Government as is empowered in this behalf by general or special order of the State Government. If he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic in substance in respect of which an offence punishable u/Ch. IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle of such entity; (c) seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Ch. IV relating to such drug or substance, and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (ii) Where an officer takes down any information in writing under Sub-section (1) or records grounds for has belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. 15. The above provision authorises the officers of the department of Central Excise Narcotics, Customs, Revenue Intelligence or any other department of the Central or Border Security Force as is empowered in this behalf by special order by the Central Government and these officers should be officers superior in rank to a Peon, Sepoy or constable. Similarly in the State Govt. Officers of the Revenue Dept, Drugs Controls, Excise, Police or any other department of the State Government as is empowered in this behalf, are the class of officers who are authorised to deal with the cases falling under Section 42 of the Act. Similarly in the State Govt. Officers of the Revenue Dept, Drugs Controls, Excise, Police or any other department of the State Government as is empowered in this behalf, are the class of officers who are authorised to deal with the cases falling under Section 42 of the Act. Thus, the other persons have to be authorised from time to time under the provision of Section 42 of the Act and such powers under Section 42 of the Act were given to the police on 16-10-1986 where the following notification was issued: Section 42; S. Order 115-In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985) the State Government hereby authorised all Inspectors of Police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate: Provided that when power is exercised by police officer other than police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspectors or S.H.O. of the Police Station concerned. 16. Earlier to it notification dated November 14, 1985 was in force which is S.O. 822-E which reads as under: S.O. 822-E-In exercise of powers conferred by Sub-section (1) of Section 42 and Section 67 of the Act, the Central Government hereby empowers the officers of and above the rank of Sub-Inspector in the department of Narcotics and above the rank of Inspector in departments of Central Excise, Customs, Revenue, Intelligence and Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorises said officers to exercise the powers conferred upon them under Section 67. 17. A perusal of the aforesaid notification shows that according to the provisions of the Act powers of investigation particularly detention, search, arrest and seizure were given according to Sections 42 & 43 of the Act of the officers of the rank of Sub-Inspectors and above the rank of Sub-Inspectors and the department specified were Central Excise, Customs, Revenue Intelligence & Central Economic Bureau. In the notification, dated November 14, 1985 which was in vague at the time of commission of offence in this case the powers have been conferred only to the aforesaid mentioned officers. In the notification, dated November 14, 1985 which was in vague at the time of commission of offence in this case the powers have been conferred only to the aforesaid mentioned officers. It was by notification quoted above, dated, 16-10-1986 that the State Government authorised all the Inspectors of police and Sub-Inspectors of police posted as S.H.O. to exercise the powers mentioned in Section 42 of the Act. Thus, there can be no manner of doubt that prior to 16-10-1986 even the Sub-Inspectors of police or any other Inspector of Police could not have exercised the powers mentioned in Section 42 of the Act. It will be purposeful for the court to note one more notification, dated 15th January, 1986 which reads as under: S.O. 173-In exercise of powers conferred by Section 43 of the Act, the State Government hereby authorises all Excise Officers (not below the rank of Inspector) to exercise the power mentioned in Section 42 of the said Act with immediate effect, Provided that when power is exercised by an Excise Officer other than Excise Inspector of the Circle concerned, such officer shall immediately hand over the person arrested any article seized to the Excise Inspector of the Circle concerned, Notification No. F. 1(3) FD / Ex/85 / dated 24-1-1986-Extra-ordinary Part 4C(ii), 25-1-1986 page 355. 18. In this notification the State Government authorised all Excise Officers not below the rank of Inspectors to exercise the powers under Section 42 of the Act. Thus it is clear that police officers upto the rank of Inspector had no jurisdiction on the date of the occurrence, i.e., on 23rd November, 1985 to investigate under Section 42 of the Act and the powers came for the first time on 16-10-1986. Amanulla Khan who was author of the FIR and who as PW 1 stated that he searched the opium and took the accused in custody, thereafter he was taken to the police station, was not even an officer of the rank of Inspector or Sub-Inspector. He was only a literate Head Constable who does not fall within the personals of the authorised category rather he has been excluded, obviously for the reason that the Legislature has made the law so strict that any body found guilty of offence under Section 8/18 of the Act has to undergo minimum sentence of 10 years and a fine of Rs. 1 lakh. 1 lakh. When the gravity of the offence is so severe and the legislature in its own wisdom excluded any investigation or search by a constable it cannot be appreciated that Amanulla did it rightly. 19. The learned Public Prosecutor submitted that Amanulla Khan had only caught the accused and he had not even searched and seized the opium but he took the accused to the police station and, therefore, when all the documents have been prepared by the Sub-Inspector of police it should be taken that it was Sub-Inspector of police who had seized and searched the opium and arrested the accused. Amanulla Khan, PW 1, in his cross examination has admitted that he had carried on the search of the bag Article 1 on the platform itself in presence of Jagdish Prasad and Ram Swaroop and it was thereafter that having found opium therein he took the accused to the G.R.P. Police Station. If quoted in his own words he states." eSus eqyfte ds gkFk es FkSyk vkfVZdy 1 dh ryk'kh IysVQkeZ ij gh yhA txnh'k izlkn o jkeLo#i [kyklh yh Fkh rks ml FkSys es vQhe ik;hA fQj eS mDr xokgku Fkkuk th-vkj-ih- vtesj ysdj x;kA 20. The witness has further admitted that he reached the police station after 10 minutes of his search. He however, admitted that documents were prepared by the Sub Inspector. As I have mentioned above while quoting the statement of the witness that both Jagdish Prasad and Ram Swaroop have been declared hostile by the prosecution, in this eventuality there remains only the statement of Amanulla Khan and Ram Chandra. Ram Chandra has given an impression that the accused was only brought after interrogation by the Head Constable and it was he who on search found the opium; therefore, two important questions arise one is whether conviction can be based on the solitary statement of Amanulla Khan, head constable who is alleged to have found the accused going behind the train and searched his bag which contained opium on the platform (fact not corroborated by the SHO and the motbirs), or on the statement of Ram Chandra PW 6 Invest gating Officer who was Station House Officer, G.R.P., Ajmer who too according to law and submitted by the appellant, was not authorised to carry out search and arrest. In Heera Lal Bhartiya and Ors. In Heera Lal Bhartiya and Ors. v. U.P. (supra) a tin of oil was seized from the railway goods shed by the Sub-Inspector of Police and a question was raised whether any goods under the Prevention of Food Adulteration Act procedure prescribed by Code of Criminal Procedure would apply and the Allahabad High Court held that 'under the Act only the Food Inspectors are authorised to investigate into the offences. There being a specific law which confers jurisdiction only upon the Food Inspector to investigate, the police officers can have no jurisdiction to investigation under the Act". In Delhi Administration v. Ram Singh (supra) their Lordships of the Supreme Court while dealing with a case under the Suppression of Immoral Traffic Act where a point was raised as to whether a police officer is neither a Special Police Officer under the Suppression of Immoral Traffic Act, in Women and Girls Act, 1956 nor a police officer subordinate to a Special Police Officer can validly investigate the offence under the Act. Their Lordships after discussing the whole law held by a majority judgment that the special police officer is competent to investigate and that he and his Asstt. police officers were only the persons competent to investigate the offences under the Act and that police officers not specially appointed as police officers cannot investigate the offences under the Act, even though they are cognizable offences. In Neil Ratan Sircar v. Laxmi Narain Ram Niwas (supra) the question was about applicability of provisions of the Code of Criminal Procedure relating to searches & warrants viz. a viz. the procedure applicable under the Foreign Exchange Regulation Act was under consideration and their Lordships after considering the entire law held that the Act is a Special Act and it provides under Section 19A for the necessary investigation into the alleged suspected commission of an offence under the Act, by the Director of Enforcement and, therefore, provisions of the Code of Criminal Procedure will not apply to such investigation by him. Punjab and Haryana High Court in State of Punjab v. Kripal Singh (supra) held that under Section 20 of the Prevention of Food Adulteration Act it is only the specified authority which can institute a complaint else the prosecution is a nullity. Punjab and Haryana High Court in State of Punjab v. Kripal Singh (supra) held that under Section 20 of the Prevention of Food Adulteration Act it is only the specified authority which can institute a complaint else the prosecution is a nullity. A similar view has been taken in Raj Kumar v. State of Punjab (supra) where placing reliance on a judgment in criminal Appeal No. 400/1986 (in S.L.P. No. 701/1986), A.K. Roy and Ors. v. State of Punjab and Ors. it was held that the Director, Health and Family, Punjab, was not competent to further delegate its powers to Food Inspector and the complaint was quashed for want of proper sanction as it was filed by a person who was held not to be competent that he had no authority to do so. 21. I have carefully gone through the cases cited above and have no hesitation in reaching the conclusion that for launching the prosecution or for initiating the proceeding the authority doing so must have a clear and unambiguous power. In criminal cases while enacting such provision the legislature puts a complete ban on the authorities beyond one mentioned in the section to carry out the functions under the Act. In Section 42 of the Act the legislature has clearly empowered the persons mentioned therein or who are authorised to do so by notification. The legislature intended that a Peon, sepoy or constable should in no case be empowered to enter search or seize or arrest a person without, warrant. It also did not empower in the Act even the police officers unless there was a notification in that behalf and as quoted by me above the officers of the police department had been empowered only by notification, dated October 16,1986 and thereto the Government authorised the Inspectors of police and Sub Inspectors of police who too were posted as SHO, a person accused of a crime particularly like the one where the legislature provides a minimum sentence of ten years and a fine of Rs. 1,00,000/- it is essential that the intention of the legislature must be carried out in letter and spirit. 1,00,000/- it is essential that the intention of the legislature must be carried out in letter and spirit. The accused has a right to expect a fair investigation and a fair trial keeping in view the basic concept that notice should not only be done but it should appear to have been done has facing a trial by itself as an ordeal. A Head Constable is certainly not a Sub-Inspector or Inspector police and in the instant case PW 1 Amanulla Khan was admittedly not Station House Officer of G.R.P. Police Station, Ajmer. I have also quoted his statement in extenso where he has admitted that he had gone to the police station after ten minutes of the search of which he had no jurisdiction express or implied. Even the SHO. PW 6 Ram Chandra had no jurisdiction vested in him on November 21, 1985 and as such very foundation of the case is without proper authority of law. I need not go into other points raised as this alone is sufficient to dispose of this case. 22. For the discussion made above I accept this appeal, set aside the judgment, dated February 17, 1987, passed by Sessions Judge, Ajmer. He is acquitted of all the charges. He is in jail and shall be released forthwith.Appeal accepted. *******