JUDGMENT 1. - This is an appeal under section 374(2) of the Code of Criminal Procedure, 1973 (the Cr.PC.) from the judgment and order dated 21.1.1989 whereby the learned Sessions Judge, Jhalawar, in Sessions Case No. 122 of 1987 State v. Gir Raj & Ors. , convicted and sentenced the appellants to ten years rigorous imprisonment and fine of Rs. 1 lakh each for having committed the offence under section 8 punishable under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the NDPS Act'). 2. The prosecution case, as is disclosed by the evidence on the record of the lower court, is as under: 3. On April 13, 1987 PW 11 Raghu Nath Singh, Asstt. Sub- Inspector and Incharge Police Station Gangdhar in Distt. Jhalawar, received a secret information at 8.30 A.M. that three Meenas were wandering in Chomehla Mandi to take away some opium. He recorded this information in the Roznamcha at S.No. 370 (Ex.P. 12), took PW 1 Faridallah Khan, Head Constable, PW 10 Charan Singh L.HC, Haley Singh L.C. from the Police Station and Ram Kumar, Bhim Singh, Satnam Singh and Ram Narayan constables from Police out post at Chomehla with him and reached the Railway Station. On seeing the appellants on the Kalbi Road near the Railway Station, he stopped them & interrogated them. On interrogation all the three appellants are stated to have told Raghunath Singh ASI that they had purchased 2 Kg. 750 Gms. of opium from one Gulab Nai of village Devariya (the fourth Co-accused acquitted by the learned trial Judge) and kept the same in the small plastic bags in a big black bag in the "Nai" of a well at some distance. The appellants, allegedly led the police party to the well of PW 2 Onkar Lal, situate at a distance of two furlong away from that place and recovered a big black bag from inside of the "Nai" (Iron-pipe meant to take water from the well). Two plastic bags, one containing 9.50 gms. of opium, semi-liquid, and the other 1.750 kg. of similar substance were recovered from the big black bag. Two samples of 30 gms. each were prepared and sealed from each of the substance in the two small plastic bags. The remaining substance of each of the bags was separately sealed. All the three appellants were arrested. of opium, semi-liquid, and the other 1.750 kg. of similar substance were recovered from the big black bag. Two samples of 30 gms. each were prepared and sealed from each of the substance in the two small plastic bags. The remaining substance of each of the bags was separately sealed. All the three appellants were arrested. The police party, alongwith the appellants and the seized & sealed opium packets returned to the police station and the arrival was noted down in Roznamcha at S.No. 375 at 2.00 PM. (Ex.P. 13). Crime No. 25/87 under section 8/18 of the Act was registered against all the three appellants and Gulab Nai, aforementioned (vide Ex.R 14). All the six sealed packets were delivered to PW 9 Murlidhar, Malkhana l/C PS. Gangdhar who made necessary entries in the Malkhana Register (Ex.R 11). The samples of opium, sent to the State Forensic Science Laboratory for Rajasthan at Jaipur (F.S.L.) through PW 3 Chotu Lal constable, were found containing the impermissible percentages of "Morphine". Raghunath Singh ASI kept the investigation with him, and arrested the fourth accused Gulab Nai, aforementioned, on 16.4.87 (Ex.R 15). 4. Mr. Jai Kishan Yogi, the learned counsel for the appellants took me through all the relevant material on the record of the lower court in his effort to stress that not only that the relevant and mandatory provisions of the Act were, knowingly or unknowingly give a go-bye by PW 11 Raghu Nath Singh ASI but also that the present case was a glaring instance of abusing his powers as a police officer by the said Assistant Police Sub-Inspector in as much as three villagers who had gone to purchase bullocks from the cattle-fair, held at the relevant time at Gangdhar-Chomehla, were robbed of their precious money and deprived of their liberty without any valid reasons whatsoever. Mr. Yogi further submitted that the theory at put forth by the prosecution in this case was devoid of any truth and on a cursory took at the evidence adduced in support of such theory, it was liable to be rejected outright. Mr. Yogi further submitted that the theory at put forth by the prosecution in this case was devoid of any truth and on a cursory took at the evidence adduced in support of such theory, it was liable to be rejected outright. After hearing the learned Police Prosecution, who found it difficult to support Raghu Nath Singh ASI in his ignorance or deliberate non-compliance of the mandatory provisions of the NDPS Act, I am convicted that it is not possible for me, in view of the facts and circumstances of the case and the evidence available on the record of the lower court, to reject Mr. Yogis arguments as being baseless and without any merits. 5. At the trial of the appellants the prosecution had examined clever witnesses to support their case against them. PW 11 Raghunath Singh ASI is the informant cum complainant and investigating officer in the case. PW 1 Faridullah Khan and PW 10 Charan Singh are those two officers of Raghubir Singh ASI who had allegedly accompanied him to the place of occurrence and assistant him to apprehend the appellants and seize and seal the narcotic drug recovered at the information and instance of the appellants. PW 7 Sultan Singh and PW 8 Duley Singh are the two independent witnesses who are stated to have been associated by Raghunath Singh ASI in the search, seizure and arrest proceedings in this case. Both these independent witnesses have turned hostile and denied to have ever witnessed such proceedings. According to them they were called out the police station and were called at the police station and were made to sign 4 or 5 papers. With these two witnesses not supporting the prosecution case at all we are left with the testimony of the three police witnesses, as named above, to fix the criminal liability of the offence under section 8/18 of the Act upon the appellants. 6. There is no rule of law that the testimony of a police witness cannot or should not be believed. There is also no rule of law that the informant-complainant, who happens to be a police officer, cannot act as the investigating officer in that case. A police witnesses, discharging official duties of his office, is as good a witness as may be any other witness. On a fact in issue which the police witness is called to prove. There is also no rule of law that the informant-complainant, who happens to be a police officer, cannot act as the investigating officer in that case. A police witnesses, discharging official duties of his office, is as good a witness as may be any other witness. On a fact in issue which the police witness is called to prove. In the appreciation of the testimony of a police witness the only rule applicable is that since he may be interested in the result, or to say mere specifically, in the success of the case, put forth by him before the court, his testimony should be received with some care and caution. The rule of care and caution requires that the testimony of such a witness should be critically examined with reference to his normal conduct as a police officer which a police officer is and may reasonably be expected of to exhibit in the discharge of his official duties at the relevant time in the context of the fact in issue. If on such scrutiny of his testimony his evidence inspires confidence in court and is found trustworthy and reliable, a conviction can safely be based. Since in our system of administration of justice relating to adjudication no specific number of witnesses is required to prove a fact, as the quality, effect and worth and value of not the quantity or quantum of evidence dictates decisions and this doctrine has been given statutory recognition in Section 134 of the Evidence Act, 1872, conviction of an accused for an offence can safely be based even on the testimony of a single police witness provided it fulfils the above test. 7. Judged at the alter of the test laid down above the testimony of Raghunath Singh ASI (PW 11) and, for that matter, both of his subordinate PW 1 Fariduddin Head Constable and PW 10 Charan Singh constable, who were labouring under his instructions and influence at the relevant time, is found totally unsatisfactory, untrustworthy and unreliable. 8. 7. Judged at the alter of the test laid down above the testimony of Raghunath Singh ASI (PW 11) and, for that matter, both of his subordinate PW 1 Fariduddin Head Constable and PW 10 Charan Singh constable, who were labouring under his instructions and influence at the relevant time, is found totally unsatisfactory, untrustworthy and unreliable. 8. PW 11 Raghunath Singh ASI has stated to have acted in the manner he did on the basis of a secret information which may usefully be reproduced as under: " bl le; tfj;s eq[kfcj eq> Fkkuk vf/kdkjh j?kqukFk flag dks bRryk feyh fd xaxkiqj lkbZM ds rhu eghus vQhe ys tkus ds pDdj esa 3] 4 fnu ls pkSegyk eaMh esa ?kwe jgs gSaA " Leaving aside the question whether the above information could or could not have made, in good faith, the basis of "reason to believe" as defined in Section 26 IPC and explained in Pratap Singh (Dr.) v. Directorate of Enforcement, Foreign Exchange Regulation Act (1985) 3 SCC 7 , for Raghunath Singh ASI to act as a conscious member of Police Force the above information did certainly inform him that the offence, which was likely to be committed by the three members in the Mandi, was punishable under the provisions of the NDPS Act. His recording that information in Ex.P 12, which though is in the form of a report of departure from the police station followed by a report of arrival there at 2.00 PM. (Ex.R 13), speaks that he was having the knowledge of the fact that on the basis of the information he was required to act as per provisions of the NDPS Act, as an offence under Chapter IV of that Act was committed or was likely to be committed. Once the prior information relating to the commission or likelihood of the commission of an offence under Chapter IV of NDPS Act had led him to make his "reasonable belief" then he had to act and proceed in accordance with the mandate contained in various relevant provisions of Sections 41, 42, 43, 50, 51, 52, 57 etc. of Chapter V of the NDPS Act. But, without any dispute Raghunath Singh ASI. did not proceed and act in accordance with any part of those provisions, whether directory or mandatory. of Chapter V of the NDPS Act. But, without any dispute Raghunath Singh ASI. did not proceed and act in accordance with any part of those provisions, whether directory or mandatory. Proceeding on the supposed assumption that Raghunath Singh ASI was a police officer empowered by the State Govt, by a general or special order, to enter, search, seize and arrest without warrant or authorisation in a case involving Commission of an offence punishable under Chapter IV of NDPS Act he was required under section 42, not only to record the ground of his belief but also to send the same to his immediate official superior. By mentioning the reasons in Ex.P 12 he may be said to have complied with provisions contained in Section 42 of the Act read with Section 165 Cr.PC. but he did not comply with the later part of Section 42 requiring him to sent the grounds of his belief to his immediate officer superior. Proceeding further, he states that he had taken with him certain police officials from Police out-post Chaumehla. But neither any police official from that police out-post has been examined at the trial nor any report from the Roznamcha if kept there, so as to give corroboration to his version, has been produced & proved. Then he stated that the two independent witnesses. PW 7 Sultan Singh & PW 8 Duly Singh, who both, as stated earlier, have been declared hostile, were associated in the search, seizure and proceedings. No such facts were mentioned in the arrival report Ex.P 13 and the FIR Ex.P 4, written on that basis. In the presence of the statements on oath of the two witnesses. Sultan Singh & Duly Singh, that they were called at the police station and made to sign certain papers there & that no search, seizure and arrest proceedings had been taken in their presence and the absence of their names from the arrival report Ex.P 13 and the FIR Ex.P 14 much reliance cannot be placed on the signatures of these two witnesses found on the seizure and the arrest memos. 9. 9. PW 11 Raghunath Singh ASI as further stated that he saw all the three appellants coming from the side of Kalvi Road and on being asking by him they allegedly told that they had purchased opium from Gulab Nai and kept the same in a Nai' of the well of PW 2 Onkar. He took them there and they recovered the black bag, containing opium in two small bags, from inside the Nai'. He did neither record the alleged information of the appellants nor did search their persons or the place under sections 50 of the NDPS Act after informing them of their right of being searched in the presence of a Magistrate or a Gazetted Officer. The mandatory provisions of Section 50 of the N.D.PS. Act were thus not at all complied with. Then Raghunath Singh ASI stated that he brought the three appellants to the police station and lodged the FIR Ex.R 13/14. He did not state that he ever informed his immediate official superior of the search, seizure or arrest in this case. He thus did not comply with the directory requirement of Sections 52 & 57 of the N.D.PS. Act. 10. Proceedings a step further, it is noted that PW 9 Murlidhar Head Constable In-charge of the Police Station has stated that he had received six sealed packets from PW 11 Raghunath Singh ASI on 13.4.87 and delivered four of them to Madan Lal constable on 28.4.87 to be taken to F.S.L. at Jaipur but the said Madan Lal constable returned them to him on 30.4.87 on the ground that due to his illness he could not deliver them at the F.S.L. The witnesses further stated that he then delivered the said packets to PW 3 Chotu Lal constable on 1.5.87 for the said purpose. PW 3 Chotu Lal constable stated that he had received two sealed packets from the Malkhana In-charge and delivered the same, alongwith S.P's letter Ex.R 6, to the F.S.L. on 4.5.87 and submitted the receipt Ex.P 7 to the Malkhana In-charge. The relevant Fards, however, show that S.P Jahalwar's letter Ex.R 15 was written on 30 4.87 and the receipt Ex.P 7 was issued by the F.S.L. on 4.5.87 but it mentions the receipt of four sealed packets instead of two, as stapled by PW 3 Chotu Lal constable. The relevant Fards, however, show that S.P Jahalwar's letter Ex.R 15 was written on 30 4.87 and the receipt Ex.P 7 was issued by the F.S.L. on 4.5.87 but it mentions the receipt of four sealed packets instead of two, as stapled by PW 3 Chotu Lal constable. This state of the linking evidence speaks of its merits itself and needs no comments to reject it. 11. Now it is not difficult to conclude that the testimony of PW 11 Raghunath Singh ASI and his two constable clearly shows that the police officers had acted in total disregard and violation of the relevant provisions of the N.D.PS. Act. In fact PW 11 Raghunath Singh A.S.I. either deliberately and knowingly or in ignorance of such provisions had acted so, if at all, in this case. The probative value of his testimony may further be judged with reference to other evidence on record. 12. PW 4 Chetan Kumar is a "Dhaba" owner & runs his 'Dhaba' just in front of the Railway Station. He has stated that he had seen the appellants making efforts to purchase bullocks in the Mela. He is not a hostile witness. PW 5 Budh Ram stated that though the Mela is held at Magra, a kilometre away but it spreads upto Railway Crossing, and that kawat appellants had come to purchase bullocks in the Mela. PW 6 Baboo Lal is a Lodge-owner and was examine to state that the appellants had stated at his Lodge, he did not support such a case & was declared hostile. In the nature of things PW 4 Chetan Kumar, at whose Dhaba the appellants were stated to have taken their meal and PW 6 Baboo Lal, in whose lodge the appellants were alleged to have stayed, did not know the appellants from before. No test identification was required by PW 11 Raghunath Singh ASI to be held during the investigation to establish their identity. The evidence led by these three witnesses, of whatever worth it is, not only probabilises but in fact affirmatively tends support to the defence version that the three appellants, being residents of villages nearby, had gone to purchase bullocks in the Mela but were held up falsely by PW 11 Raghunath Singh ASI and totally false of fabricated charges were levelled against them and they were robbed of their precious money. The manner in which PW 11 Raghunath Singh ASI is seen to have acted in this case, the place of the search and seizure of the contraband drug & the arrest of the appellants being so near to the inhabitated locally that no sensible man could have thought of hiding a narcotic drug at that place and in that manner loudly speak that PW 11 Raghunath Singh ASI had not behaved like a responsible and respectable member of the Police Force in this state, instead he had made up a totally false case, with the help of false reports made in the Roznamcha, against innocent persons who had gone to the Mela to transact business there. His testimony & that of his two subordinate, in the facts and circumstances of this case, spoils' the good name of the police force in Rajasthan. In sum. no reliance can be placed on the testimony of PW 11 Raghunath Singh ASI. PW 1 Faridullah Khan. HC, PW 10 Charan Singh LHC for convicting any of the appellant for the offence under section 8/18 of the N.D.PS. Act. 13. Before parting with this case I would like to refer to the views of Lewis Mayers in his book "Shall we Amend the 5th Amendment" page 228, quashed with approach by their Lordships of the Supreme Court in the case of State of Punjab v. Balbir Singh (1994) 3 SCC 299 . "To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law enforcement machinery on the other is a perennial problem of State Craft. The pendulum over the year has swung to the right. Even as long as the opening of the twentieth Century Justice Holmes declared that at the present time in this country there is more danger that criminals will escape justice than that they will be subject to legranny. As the century has unfolded the danger has increased. 14. Conspiracies to defeat the law have in recent decades because more widely and powerfully organised and have been able to use modern advances in communication and movement to make detection more difficult. Law breaking tends to increase. As the century has unfolded the danger has increased. 14. Conspiracies to defeat the law have in recent decades because more widely and powerfully organised and have been able to use modern advances in communication and movement to make detection more difficult. Law breaking tends to increase. During the same period an increasing awareness of the potentialities of the abuse of power by law enforcement officials, have resulted, in both the judicial and the legislative sphere, in a tendency to tighter restrictions on such officials, and to safeguard even more jealously the rights of the accused, the subject and the witnesses. It is not too much to say that at mid century we confront a real dilemma in law enforcement." 15. In the result the impugned judgment and order are hereby set aside and all the three appellants acquitted of the offence under section 8/18 N.D.PS Act. They shall be set to their liberty forthwith, if not required in any other case. The amount of five, if realised from them, shall be returned to them. The appeal stands allowed accordingly. 16. A copy of this judgment shall be sent to the Director General (Police) for Rajasthan at Jaipur for unfavourable and necessary action, if any 17. The Deputy Registrar (Judicial) shall, within three days, get this judgment typed or computerised and place such copies on the record of this case and also on that of the lower court.> . *******