Dalveer Bhandari, J.
(1) This appeal is directed against the Judgment of Mr. V.S. Aggarwal. Additional Sessions Judge dated 3rd August, 1992 by which the appellant was convicted u/s 20 of the N.D.P.S. Act and was sentenced to undergo R.I. for 10 years and a fine of Rs.1 lakh. In default of payment of fine, the appellant was directed to undergo further R.I. for 2 years. The present case pertains to an incident of 25th August, 1987. S.I. Dharam Pal was posted at New Delhi Railway Police Station. At that time. Assistant Sub Inspector Prem Narain was also with him. He received secret information that one person had arrived via Vaishali Express and is at platform no.4 and 5 near Tea stall no.8. He was reported to be in possession of Charas. This information was recorded in Daily Diary no.8.
(2) Immediately thereafter, a raiding party was organized in which Asi Prem Narain and Constable Vajinder Singh joined and they rushed to the above-mentioned platform via platform no.4. One Lalit, a public witness also joined in raiding party. S.I. Dharam Pal at the pointing out of the informer near the Tea stall apprehended the accused. The accused was holding a brief case in his right hand. He was told about the secret information.
(3) The accused appellant was told that if he likes his person can be searched before a Gazetted Officer or a Magistrate in compliance of Section 50 of the N.D.P.S. Act. But he declined. A memo to that effect was prepared. The appellant gave the key of the brief-case and the same was seized. The officer-in-charge of the Police Station, Inspector Jai Narain was requested to come to the spot. The brief-case was opened and it was found to contain 10 packets of charas lying under the card-board. The contents were weighed and each packet was weighed and found to be of half a kilogram. They were all numbered 1 to 10 and in each packet 15 grams was taken as the samples and the rest of the charas were converted into different parcels with the seal of "JN" and seized vide a recovery memo. The accused was arrested by another memo.
(4) The Cfsl form was filled and Si Dharam Pal sent the rukka to the police station on the basis of which formal Fir was recorded by Asi Jaimal Singh. The case property was deposited in the Malkhana. Head Constable Bhim Singh effected the entry at Serial no.1311. Later, the samples were sent to Cfsl through Constable Vajinder Singh. On receipt of the report that the contents were charas, a challan against the accused was filed. On 5th December, 1987, a charge was framed against the accused for an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused pleaded not guilty and claimed trial. Prosecution examined 7 witnesses in all in support of its case.
(5) Learned Additional Sessions Judge on the basis of prosecution evidence and documents on record, found the accused guilty of Section 20 of N.D.P.S. Act and convicted him for the said offence. It is submitted that the accused was arrested on 25th August, 1987 and since then he is in jail. Learned counsel for the appellant has attacked the prosecution case primarily on the ground that the accused/appellant cannot be convicted on the basis of Cfsl Report given by Mr. C.L. Bansal, Senior Scientific Assistant (Chemistry, Central Forensic Science Laboratory), Central Bureau of Investigation, Lodhi Road, New Delhi. It is submitted by the learned counsel for the appellant that Mr. Bansal is not an officer covered by Section 293 of the Code of Criminal Procedure. Thus, the report submitted by him is riot admissible in evidence in absence of the aforesaid officer being examined in court.
(6) The submission of the learned counsel is that u/s 293(4)(e) of the Code, the officials named are: the Director, Deputy Director, and Assistant Director of the Central Forensic Science Laboratory). If the report is given by any of these officers, then it is per se admissible in evidence. In case the report is not given by any of the three named officials, in that event, that official has to be examined in the court and in the absence of his examination in court, the report becomes inadmissible, and the report in question cannot be read in evidence and consequently in the absence of the report, there is nothing on record to prove that the alleged substance recovered by police from the accused/appellant was charas. In case the prosecution is not able to establish that the substance recovered from the accused was charas, in that event the accused cannot be convicted of an offence committed u/s 20 of the N.D.P.S. Act. Section 293 of the Code of Criminal Procedure reads as under:
"293.Reports of certain Government scientific experts :- (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely :- a) any Chemical Examiner or Assistant Chemical Examiner to Government; b) the Chief Inspector of Explosives; c) the director of the Finger Print Bureau; d) the Director Haffkeine Institute, Bombay; e) the Director (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory; f) the Serologist to the Government"
(7) According to the aforesaid Section, the report given by the Scientific Experts mentioned in Section 293(4)(e) of the Code would be admissible in evidence. Those officers are the Directors, Deputy Director or Assistant Director. Mr. Bansal cannot fall in any of the three categories and in absence of his being examinee") in court, the report submitted by him cannot be read ''in evidence. Learned counsel for the appellant relied on two judgments of this Court
(8) This court in Attar Singh Vs. State (Delhi Admn). 1994 (3) Ad 625, had allowed the appeal of the appellant who was convicted u/s 20 of the N.D.P.S. Act. In this case also, the report was given by Mr. C.L. Bansal, Senior Scientific Assistant (Chemistry, Central Forensic Science Laboratory), Central Bureau of Investigation, Delhi but Mr. Bansal was not produced in court. The Court held that Mr. Bansal is not covered u/s 293 of the Code and thus his report could not be tendered in evidence, without Mr. Bansal being examined by the court.
(9) In the instant case also, learned counsel appearing for the State submitted that the matter be remanded to the trial court for recording the statement of Mr. Bansal. Similar prayer was specifically declined in Attar Singh''s case (supra), where the accused was in jail for 5 years. In the instant case, the accused was arrested on 25th August, 1987 and almost for the last 7 years, he is in jail. Looking to the peculiar facts and circumstances of this case, this prayer of the learned counsel for the State cannot be accepted. The prosecution has produced other witnesses who claim that the substance recovered was charas but there is no material on which it could be safely said that the substance recovered was charas. The only clinching evidence can be a report from CFSL. When the report itself cannot be read in evidence on record in that event, it cannot be conclusively ascertained that the recovered substance from the accused/appellant was charas. In these circumstances, the accused appellant has i.e be given benefit of doubt.
(10) In view of the aforesaid conclusion, the result is irresistible that the judgment and order passed by learned Additional Session Judge dated 3rd August, 1992 is set aside. The accused/ appellant gets the benefit of doubt and accordingly acquitted. Consequently, appeal is allowed and the appellant shall be released forthwith if not required to be detained in any other case.
