Rajesh Kumar vs The State (Delhi Administration)
1994 Latest Caselaw 693 Del

JUDGMENT

Dalveer Bhandari, J.

(1) This appeal is directed against the judgment of Mr. Lokeshwar Prasad, learned Additional Sessions Judge dated 26th July, 1989. The appellant was convicted under Section 18 of the Ndps Act 1985 and was sentenced to 10 years rigorous imprisonment and fine of Rs.1 lakh was imposed and in default of payment of fine the appellant was further directed to undergo rigorous imprisonment for two years under Section 18 of the Act.

(2) Necessary facts for disposal of this appeal are set out as under:

(3) On 24th August, 1986 Asi of P.S. Kashmere Gate Along with Head Constable Dharam Chand, constable Sahib Singh, Constable Raj Singh received secret information to the effect that a person would be coming on a Bobby Rajdoot Motor cycle bearing registration number Dhy 1835 from the side of Kalkatia Gate and would be passing in front of Jat Fauji Dharamsala and that the said person would be caring a bag on his right shoulder containing opium.

(4) On receiving this information, the Investigating Officer Veer Singh requested public persons to join the police party and one of them namely, Parmod Kumar agreed to his request and joined the police party. It is alleged that accordingly the nakabandi was laid near Jat Fauji Dharamsala around at 8.45 P.M. The accused was noticed coming on a Bobby Rajdoot Motorcycle with a bag hanging on his right shoulder and on pointing out by the informer the accused/appellant was stopped. The accused/appellant was told that a secret information had been received by Veer Singh.

(5) The accused/appellant was made aware of his right to have his personal search effected in the presence of a Gazetted Officer or a Magistrate but accused/appellant declined the said option. Thereafter the bag on the right shoulder of the appellant was searched and 1 and 1/2 Kgs. of Opium was recovered. A representative sample as well as the remaining opium was put into two parcels. In the meanwhile the Station House Officer of the area also arrived and he was informed about the recovery and in his presence both the parcels were sealed with the seal of I.O., Veer Singh bearing inscription 'V.S'. The Sho also put his seal 'HLM' on those parcels The seal of I.O. after use was given to Constable Raj Singh. Cfsl Form was also filled in at the spot. The property (recovered opium) was taken into possession by the police vide seizure memo Ex.P.W.2/A. The motor cycle Ex. Public Witness .2 was also taken into possession vide seizure memo Ex.P.W.3/A. The Ruqqa Ex. Public Witness .9/A was forwarded through Constable Raj Singh to the police station on the basis of which formal Fir was recorded.

(6) The case property was duly deposited in the Malkhana and later on the parcel containing the representative sample was forwarded to the Cfsl for analysis. The authorities of Cfsl forwarded the report dated 17.9.1986 opining that the sample gave positive test for opium and that the percentage of Morphine was 4.24 approx. The accused/appellant was challaned and the case was committed to the court of sessions for the trial.

(7) The accused pleaded not guilty and on the basis of evidence of nine witnesses the accused/appellant was convicted under Section 18 of the Ndps Act and was sentenced to 10 years rigorous imprisonment and a fine of Rs. one lakh was imposed and in default of payment of fine, the appellant was further directed to undergo rigorous imprisonment for two years.

(8) The accused/appellant aggrieved by the judgment of the learned Additional Sessions Judge approached this court in appeal.

(9) Mr. Sandeep Sethi, learned counsel appearing for the appellant submitted that the appellant cannot be convicted on the basis of Cfsl Report given by Mr. C.L. Bansal, Sr. Scientific Assistant (Chemistry) Central Forensic Science Laboratory, Cbi, Lodhi Road, New Delhi.

(10) According to Mr. Sethi Mr. Bansal is not an officer under Section 293 of the Code of Criminal Procedure. Therefore, the report submitted by him is not admissible in evidence. When the prosecution chose to submit, the report given by Mr. Bansal in that event Mr. Bansal had to be examined in court and admittedly Mr. Bansal was not examined. Therefore, the report in question cannot be read in evidence and consequently in the absence of the report there is nothing on record to show that alleged substance recovered from the accused/appellant was opium. In case prosecution had not been able to establish the substance recovered as opium from the accused in that event accused cannot be convicted for an offence convicted under Section 18 of the Ndps Act.

(11) Mr. Singh, appearing for the State submitted that designation of Mr. Bansal is equivalent to Assistant Chemical Examiner to the Govt. but Mr. Singh could not produce any document to substantiate this argument. On the conrary Mr. Sethi produced a letter dated 7th October, 1993 written by Mr. V.N. Sehgal, Director, Cfsl, Cbi, New Delhi to the Sho, P.S. Tughlak Road, New Delhi,

(12) The relevant contents of the letter area reproduced as under:- "WITH reference to your telephonic discussion regarding authorisation to Shri C.L. Bansal, Ssa with respect to reporting of cases, I hereby enclose copies of various orders No. 1-29/81- CFSL/1848 dated 20th February, 1986, No. Nil dated 3rd March, 1986 and No. 10- 15/PSO/86/CFSL/5346 dated 30th June, 1986. It is relevant to point out that Shri C.L. Bansal, Ssa is not the only officer who had been authorised to report cases. In fact, he had been authorised Along with several others found competent to report cases on the basis of their qualification and experience. It is further added that Shri C.L. Bansal is a Senior Scientific Assistant and as such, is not covered under Section 293, hence the Clause detailed below is normally cancelled/crossed in his case while submitting the Chemical report.

(13) Even according to the letter of Director, Cfsl, Cbi Mr. Bansal is not covered under Section 293. Therefore, the report submitted by him cannot be read in evidence. In these circumstances, the accused/appellant has to be given benefit of doubt.

 (14) This court has taken similar view in the following cases:    (1)Attar Singh Vs. State, Delhi Administration 1994 (III) Ad Delhi 625, (2) Nizamuddin Vs. State reported in 1994(IV)AD Delhi (Apex decisions) 50, (3) Hira Lal Vs. State, 1994 Jcc 50, (4) Islam Vs. State, 1994 (III) Apex decisions 1495.  

 (15) In view of the aforesaid conclusion, the impugned judgment and order passed by the Additional Sessions Judge dated 26th July, 1989 is set aside. The accused/appellant gets the benefit of doubt consequently, the appeal, is allowed and the appellant is released forthwith, if not required in any other case.