JUDGMENT Arvind Singh Sangwan. J. - Prayer in this appeal is for setting aside the judgment of conviction dated 12.12.2016 and order of sentence of the even date, vide which, the appellant was held guilty for commission of offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-, in default of payment of fine, he was directed to further undergo rigorous imprisonment for a period of one year. 2. The present appeal is taken up in the list of the cases which as per the direction of Hon'ble Supreme Court are fixed on Saturdays, wherein the convicts are in custody and their appeal is represented by a legal aid counsel. As per the custody certificate filed today in Court, the appellant is in custody for the last 04 years and 09 days an if the is not involved in any other case. 3. Brief facts of the case, as per prosecution, are that on 16.04.2014, ASI/IO Jagjit Singh along with the police party comprising o HC Kulwant Singh, HC Ranbir Kumar and Constable Avneet Singh, 01 their private vehicles, were present at the Bridge Ghalore Gate, Patiala 11 connection with patrol duty. At about 3:00 PM, they saw a young Sikh mai was coming on foot and on seeing the police party, he became perplexed and tried to turn back and run away. On suspicion, ASI/IO Jagjit Singh, with the help of the other police officials, apprehended him and on asking, he disclosed his name as Baljit Singh and thereafter, ASI/IO Jagjit Singh disclosed his identity to the accused i.e. appellant herein and informed him that he suspects that accused is carrying some contraband in his possession and then he apprised him of his legal right to be searched either before a Gazetted Officer or before a Magistrate who can be called at the spot. After sometime, the accused reposed confidence in the "same ASI/IO Jagjit Singh, on which, consent memo Ex. PA was prepared by him, which was signed by the accused and was witnessed by HC Kulwant Singh and HC Ranbir Kumar. After sometime, the accused reposed confidence in the "same ASI/IO Jagjit Singh, on which, consent memo Ex. PA was prepared by him, which was signed by the accused and was witnessed by HC Kulwant Singh and HC Ranbir Kumar. Thereafter, ASI/IO Jagjit Singh conducted the search of the accused and recovered intoxicant tablets, which were wrapped in a glazed paper, from the right pocket of his shirt. Out of the recovered tablets, he prepared two sample parcels of 10 tablets each and a bulk parcel of the remaining tablets of 1380. 4. Thereafter, he sealed both the parcels with his seal bearing impression 'JS' and a specimen seal Ex. PI was prepared and after its use, it was handed over to HC Kulwant Singh. ASI/IO Jagjit Singh, thereafter, took all the incriminating substances in possession vide memo Ex. PB, which was again witnessed by HC Kulwant Singh and HC Ranbir Kumar and then a ruqa was sent to the police station through Constable Avneet Singh and an FIR Ex. PD was registered. Accused was arrested and his personal search was conducted, On completing the investigation at the spot, accused along with witnesses were produced before SI Vasdev Singh, SHO, Police Station Kotwali, Patiala, who verified the facts and sealed the case property with his seal bearing impression 'VS' and deposited the case property with the MHC Suba Singh. On the next day, ASI/IO Jagjit Singh took the case property from MHC and produced the case along with the case property before learned Chief Judicial Magistrate, Patiala by moving an application for remand Ex. PJ along with an application for inventory Ex. PK and an application for depositing the case property Ex. PL. 5. The Chief Judicial Magistrate, Patiala, upon verifying the facts and the case property passed an order Ex. PL/1 and directed the Investigating Officer to deposit one sample parcel with the FSL and the remaining sample parcels, case property and three sample seal impressions, after signing, were returned to the Investigating Officer with the direction to deposit the same in the Judicial Malkhana. Thereafter, the sample parcel was sent to laboratory on 22.04.2014 through HC Charan Singh and on receiving the report of FSL Ex. PM, the report under Section 173 Cr.P.C., 1973 was presented against the accused. Thereafter, the sample parcel was sent to laboratory on 22.04.2014 through HC Charan Singh and on receiving the report of FSL Ex. PM, the report under Section 173 Cr.P.C., 1973 was presented against the accused. The trial Court framed charge under Section 22 of the NUPS Act, to which accused did not plead guilty and claimed trial. 6. In the prosecution evidence, PW-1 HC-Charan Singh appeared and proved his affidavit Ex. PW-l/A. In this affidavit, it is stated that on 22.04.2014, he obtained the sample parcel from MHC Suba Singh and after obtaining the permission from the Senior Superintendent of Police, Patiala, he deposited the same with the FSL, Mohali on the same day. This witness further stated that sample parcel was bearing the seal of 'JSV'VS' and he deposited the same with the seal intact as it was received from MHC. 7. PW-2 SI Vasdev Singh, SHO stated that on 16.04.2014, ASI/IO Jagjit Singh produced the accused along with bulk parcel, two sample parcels sealed with the seal bearing impression 'JS\ specimen seals, articles recovered during personal search of the accused and on verification, he put his seal 'VS' on the case property and a specimen seal Ex. PI was prepared and then he deposited the case property with MHC Suba Singh by directing the investigating officer to produce the accused and case property before the Illaqua Magistrate. 8. In cross-examination, this witness stated that he has not seen the case property in the Court and he did not check the sample parcels and bulk parcel after obtaining it, however, stated that the tablets were in loose condition and were not in strips. 9. PW-3 HC Suba Singh, who was the MHC, proved his affidavit PW-3/A. In this affidavit, in para 4, he has stated that the case property including the sample parcels were handed over to him by ASI/IO Jagjit Singh and on 22.04.2014, he handed over the same to HC Charan Singh for depositing the same in FSL, Mohali. It is further stated by him that during the intervening period, the samples remained intact. 10. ASI/IO Jagjit Singh appeared as PW-4. For a ready reference, his statement, recorded in his examination-in-chief, is reproduced herein below: "That on 16.04.2014, I was posted at PS Kotwali Patiala. It is further stated by him that during the intervening period, the samples remained intact. 10. ASI/IO Jagjit Singh appeared as PW-4. For a ready reference, his statement, recorded in his examination-in-chief, is reproduced herein below: "That on 16.04.2014, I was posted at PS Kotwali Patiala. On that day I along with HC Kulwant Singh, HC Ranbir Kumar and other fellow police officials were members of the police party headed by me and were going on patrolling on private vehicles-and were present at bridge of Ghalouri gate, Patiala. It was time of about 3.00 pm. In the meantime, accused present in Court today was seen coming from the side of cremation ground. He was on foot. On seeing the police party accused tried to turn back but he was apprehended on suspicion. The identity of the accused was verified and he disclosed his name as Baljit Singh alias Billu s/o Ram Singh r/o Seona Chowk Patiala. I disclosed my identity to the accused and told him that 1 am posted as AS1 at PS Kotwali Patiala and further told the accused that it is suspected that your are carrying some narcotic substance in your possession and your search is to be conducted. I further apprised the accused regarding his legal right to get the search conducted in the presence of gazetted officer or Magistrate and they can be called at the spot. Accused reposed confidence upon me. The consent statement of accused Ex. PA was recorded which was signed by accused. HC Kulwant Singh and HC Ranbir Kumar put their signatures as witnesses thereupon and the same was attested by me. from the search of accused intoxicant tablets wrapped in glazed paper was recovered from the right pocket of the kurta worn by him. Two samples of 10 tablets each were separated from the recovered tablets and remaining tablets on counting came out to be 1380 tablets. Separate parcels of sample and bulk were prepared and all the three parcels were sealed by me with my seal bearing impression JS. Specimen seal Ex. PI was prepared and seal after use was handed over to HC Kulwant Singh. Incriminating articles were taken into possession vide memo Ex. PB. HC Kulwant Singh and HC Ranbir Kumar put their signatures as witnesses thereupon and the same was attested by me. I recorded ruqa Ex. Specimen seal Ex. PI was prepared and seal after use was handed over to HC Kulwant Singh. Incriminating articles were taken into possession vide memo Ex. PB. HC Kulwant Singh and HC Ranbir Kumar put their signatures as witnesses thereupon and the same was attested by me. I recorded ruqa Ex. PC and sent the same to the police ' station through C. Avneet Singh and FIR Ex. PD was registered under the signatures of ASI Gurmeet Singh, whose signatures I identity. Accused was arrested and personal search of accused was conducted and Rs. 100/- was recovered and memo Ex. PE was prepared. Grounds of arrest were served upon accused and intimation regarding his arrest was given to his brother vide memo Ex. PF. Both the memos were signed by accused and attested as aforesaid. Rough site plan Ex. PG was prepared at the spot with correct position at the spot. I prepared report under Section 57 of the NDPS Act Ex. PH and sent the same to circle officer Patiala. I recorded statements of witnesses. On return to PS Kotwali Patiala, 1 produced the accused along with case property and witnesses before SI Vasdev Singh, who was officiating SHO of PS Kotwali Patiala. He verified the facts of the case and sealed the case property with his seal V. specimen seal Ex. PI was prepared and thereafter SHO deposited the case property with MHC Suba Singh.I recorded statement of SI Vasdev Singh. On the following day i.e. 17.04.2014, i took the case property from MHC Suba Singh and produced the accused along with case property before Ld. CJM Patiala along with application for remand Ex. PJ and application for inventory Ex. PK and application for depositing the case property in judicial malkhana Ex. PL. Ld. CJM put her initials on all the parcels as well as specimen seal and passed order Ex. PL/1. Thereafter, I deposited the bulk parcel and one sample parcel in judicial malkhana at Patiala and the remaining sample parcel was deposited with MHC Suba Singh. Receipt issued by the concerned clerk of Judicial Malkhana was handed over to MHC Suba Singh. The case property was not tampered with and remained in intact condition during the period it remained in my custody. On receipt of report of chemical examiner Ex. Receipt issued by the concerned clerk of Judicial Malkhana was handed over to MHC Suba Singh. The case property was not tampered with and remained in intact condition during the period it remained in my custody. On receipt of report of chemical examiner Ex. PM and on conclusion of investigation, challah against the accused was prepared under the signatures of Inspector Jaswinder Singh whose signatures 1 identity. I have seen the case property in court today and bulk parcel is Ex. P2 and second sample parcel is Ex. P3. Accused is present in Court today and I identity him." 11. In cross-examination, this witness stated that he asked 2/3 persons to join as independent witness but they refused though the place of recovery was a public place. This witness further stated that no Drug Detection Kit was with him at the time when the accused told him that the recovered tablets are intoxicated tablets and nothing was written on the tablets which were wrapped in a glazed paper. This witness further stated that report under Section 57 of the NDPS Act was prepared at the spot before sending the ruqa to the police station (i.e. written complaint for registration of FIR). Constable Avneet Singh was sent to police station along with the ruqa and he returned after one hour. 12. PW-5 HC Kulwant Singh, who was the part of the police party, also deposed on the same line and stated that after an offer was given to the accused to be searched either before a Gazetted Officer or before a Magistrate, the accused reposed confidence in the Investigating Officer and a consent memo Ex. PA was prepared and he signed the same as a witness along with HC Ranbir Kumar. After sealing the bulk and sample parcels, the specimen seal Ex. PI was prepared and the seal was handed over to him and the incriminating articles was taken into possession vide recovery memo Ex. PB which was-singed by him and HC Ranbir Kumar. There after, lus statement was recorded by the ASI/IO and accused along with case property was produced before SI Vasdev Singh. 13. In cross-examination, this witness stated that the police party remained at the spot from 2.50 PM to 6.30 PM and except the accused, the police party did not check any other person. There after, lus statement was recorded by the ASI/IO and accused along with case property was produced before SI Vasdev Singh. 13. In cross-examination, this witness stated that the police party remained at the spot from 2.50 PM to 6.30 PM and except the accused, the police party did not check any other person. Thereafter, the Public Prosecutor gave up PWs Constable Avneet Kumar, HC Ranbir Kumar, ASI Gurmeet Singh, Inspector Jaswinder Singh and SI Kesar Singh being unnecessary and closed the prosecution evidence. 15. In the statement, recorded under Section 313 Cr.P.C., 1973 all the incriminating evidence was put to the accused and in third question, it was asked that if he was given option to be searched either before a Gazetted Officer or before a Magistrate but he reposed confidence in the Investigating Officer, vide consent memo Ex. PA, in reply to which, the accused stated that "it is incorrect". The accused further stated that he is innocent and nothing was recovered from him and a false case was implanted against him due to enmity with the police party. Thereafter, the trial Court, vide judgment dated 12.12.2016, convicted the appellant/accused and sentenced him as notice above. 17. Learned counsel for the appellant has argued that it is a case where no notice under Section 50 of the NDPS Act was given in writing as it has not come on record that any notice in writing was given and only the consent memo Ex. PA was recorded. A perusal of the consent memo Ex. PA itself shows that no written notice was given and in the consent memo itself, an offer was given to the accused to be searched either before a Gazetted Officer or before a Magistrate, upon which, the appellant/accused gave his consent to the Investigating Officer. It is, thus, argued that no proper procedure was followed by the Investigating Officer and there is violation of Section 50 of the NDPS Act. 18. It is next argued on behalf of the appellant that the entire investigation was conducted by ASI/IO Jagjit Singh who himself is the complainant and after recording the consent memo Ex. PA, he conducted the further investigation. 18. It is next argued on behalf of the appellant that the entire investigation was conducted by ASI/IO Jagjit Singh who himself is the complainant and after recording the consent memo Ex. PA, he conducted the further investigation. Learned counsel for the appellant has relied upon Megna Singh vs. State of Haryana, (1996) 11 SCC 709 , wherein it has been held by Hon'ble Supreme Court that if the complainant himself is the investigating officer, the conviction is not sustainable. 19. It is next argued by learned counsel for the appellant that as per cross-examination of PW-4 ASI/IO Jagjit Singh, he sent the ruqa to the police station after he had prepared the report under Section 57 of the NDPS Act i.e. Ex. PH. It is argued that the ruqa Ex. PC was received in the police station at about 4.30 PM and it gives the complete details of the investigation conducted by this investigating officer regarding consent memo Ex, PA, recovery memo Ex. PB, personal search memo Ex. PF, memo giving intimation to the family members of the appellant Ex. PF, site plan Ex. P5 and the report under Section 57 of the Act Ex. PH and all these documents find mention complete details of FIR No. 777 dated 16.04.2014, registered under Section 22/61/85 of the Act, at Police Station Kotwali, District Patiala. 20. In this regard, learned counsel for the appellant has relied upon the judgment of this Court rendered in Ajay Malik vs. State of U.T., Chandigarh, (2009) 3 RCR (Criminal) 649 to argue that when before registration of the FIR, the documents, which were prepared at the spot, bear the FIR number and there is no explanation by the Investigating Officer, it raises a strong suspicion about the veracity of these documents. 21. Learned counsel has further argued that the ruqa Ex. PC, which was received in the police station at about 4.30 PM and thereafter, FIR Ex. PD was registered at 4.50 PM would reveal that all these documents were prepared at the spot and still the same find mention the complete details of the FIR and, therefore, in the absence of any explanation from the Investigating Officer as to how these documents bear the FIR number, the very veracity of these documents are under doubt. 22. PD was registered at 4.50 PM would reveal that all these documents were prepared at the spot and still the same find mention the complete details of the FIR and, therefore, in the absence of any explanation from the Investigating Officer as to how these documents bear the FIR number, the very veracity of these documents are under doubt. 22. It is next argued by learned counsel for the appellant that when the accused and the case property was produced before learned Chief Judicial Magistrate, he passed order Ex. PL/1, which reads as under: "Present: APP for the State, Accused in custody represented by counsel. Prosecution has moved the application for depositing the case property, along with inventory under Section 52-A NDPS Act as well as for certifying the inventory. Inventory has been seen and the same is certified to be correct as per the particulars produced in the Court, which tally with the inventory. The prosecution has produced before the undersigned - two sample parcels daily sealed allegedly containing 10 intoxicating tablets each along with one another parcel containing 1380 intoxicating tablets, which is also duly sealed. Three samples seals are also produced bearing seal impressions JS/VS. I have checked the seals on the sample parcels and case property and compared with the seals and found it proper and intact. I have seen and signed the sample parcels, case property parcel and sample seals. One sample has been handed over to the investigating officer 1 or depositing the same with FSL Laboratory and the remaining sample parcels, case property parcel and Three sample seal impressions, after signing, returned to the Investigating Officer with the direction to deposit the same in the Judicial Malkhana. Ahlmad is directed to send these papers along with order and sample seals to the concerned Court. The accused is remanded to judicial custody till keeping the sample parcel for a period of five days after the order of learned Chief Judicial Magistrate was passed on 17.04.2014 and as per statement of PW-1 and PW-3, it has come that the sample parcel was handed over by PW-3 to PW-1 only on 22.04.2014 when it was deposited with FSL, therefore, there is no explanation that in the intervening period, why it was kept with MHC when there was a specific order of learned Chief Judicial Magistrate that it should be kept with the investigating officer. Needless to say, the same was required to be deposited immediately with FSL as per well settled principles of law." 23. In view of the above discussion, the present appeal is hereby allowed and appellant Baljit Singh @ Billu is acquitted of the charge framed against him under Section 22 of the NDPS Act. His bail/surety bonds, if any, be discharged.