Jharkhand High Court
Vijay Narayan Singh vs State Of Bihar (Now Jharkhand) on 30 January, 2004
Equivalent citations: [2005(2)JCR369A(JHR)], 2005 CRI LJ (NOC) 163, 2005 AIR - JHAR. H. C. R. 1353, (2004) 2 JLJR 15, (2005) 2 JCR 369 (JHA), (2004) 1 JCJR 214 (JHA)
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the appellant stands directed against the impugned judgment and order, dated 16.9.1998 passed in G.R. Case No. 1124 of 1993 by Shri P.N. Yadav, Sessions Judge-cum-Special Judge, Dhanbad whereby and whereunder the appellant was found guilty for the offence punishable under Section 20(b)(i) and (ii) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as to said Act) and he was convicted and sentenced to under rigorous imprisonment for ten years for the offence under Section 20(b)(ii) and rigorous imprisonment for four years under Section 20(b)(i) of the said Act. However, both the sentences were ordered to run concurrently.
2. The prosecution case has arisen on the basis of the self-statement (Ext. 5) of PW 1 SI Suraj Bhushan Sharma. O/C Katras Police Station. District-Dhanbad recorded on 24.3.1993 at 15.45 hours at Katrasgarh Rajbari road lodged before Katras Police Station on that very day at 17.30 hours and a formal first information report was drawn instituting a case against the appellant under the provisions of the said Act. The self-statement and the formal first information report was received on 26.3.1993 in the Court empowered to take cognizance.
3. The prosecution case, in brief, is that PW 1, the informant, received a confidential information on 24.3.1993 at 14.00 hours that an illegal trade of brown sugar is being carried at Katrasgarh and one Kewal Sharma son of Sardari Lal Sharma, resident of Bose Colony, Police Station-Katras indulges in the said drug trafficking and he is providing narcotic drugs to the people in the locality who are becoming addict of it and he has been seen going towards Katrasgarh in that connection from Guhi Bandh and a raiding party was constituted headed by PW 2 SI Amar Nath Roy consisting of PW 1, the informant, SI B. Thakur (since dead and not examined in this case). PW 3 Pradip Rani, Police Driver and police force and they proceeded from the police station and when they reached near Rajhans factory they saw Kewal Sharma aforesaid going there and he was apprehended and his person was searched in presence of Shyam Lal Yadav and Dhan Singh, both independent witnesses (not examined), presently residents of Katras and two small packets containing brown sugar in small quantity were recovered from his right pocket of his full-pant and a seizure-list (Ext. 2) in respect thereof was prepared witnessed by the aforesaid independent witnesses and a copy of seizure-list was handed over to him on which he has put his signature (Ext. 3) and on interrogation he revealed that he acquired the said brown sugar from the appellant, resident of Rajbari Road, Police Station-Katras and he further revealed that the appellant also illegally sells bhang and ganja. It is alleged that on the said information, the said raiding party along with PW 4 Naresh Prasad Singh, Deputy Superintendent of Police, Bhagmara and two independent witnesses, namely, Balram Dey and Sharad Chandra Dey raided the house of the appellant and his house was searched between 15.00 to 15.30 hours and in course of search nine packets consisting of brown sugar were recovered under the television kept on the table in the south eastern corner of his room and 300 grams of ganja wrapped in an old cloth kept in a polythene bag under palang towards western side in the said room was recovered and 300 grams of bhang kept in a polythene bag in a tin box near the western wall of the said room was also recovered and the seizure-list (Ext. 2/1) was prepared in respect thereof in presence of the independent witnesses (not examined and a copy of seizure-list was handed over to the appellant who has put his signature (Ext. 3/1) thereon in token of its acceptance. The appellant as well as co-accused Kewal Sharma have been found in possession of contraband heroin/brown sugar, ganja and bhang and they were arrested.
4. In course of investigation, the said recovered incriminating articles from the possession of the appellant and co-accused Kewal Sharma was sent to Forensic Science Laboratory, Patna for its chemical examination and the report in respect thereof is Ext. 1 and the recovered articles was found to be heroin and garya as per the report aforesaid. Co-accused Kewal Sharma, who was enlarged on bail vide order dated 22.9.1993, had absconded as a result of which his trial was split up and the trial of the appellant only proceeded before the Court below.
5. The appellant has pleaded not guilty to the charge alleged against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case and no recovery has been made from his conscious possession as alleged.
6. The prosecution has, in all, examined four witnesses to substantiate its case PW 1, Suraj Bhushan Sharma, O/C Katras Police Station, is the informant of this case. PW 2 Amar Nath Das is the Inspector of Police, who had headed the raiding party which is said to have apprehended co-accused Kewal Sharma. PW 4 Naresh Prasad Singh was the then Deputy Superintendent of Police, Bhagmara who has headed the said raiding party in conducting the search and seizure at the house of the appellant. PW 3 Pradip Kumar Roy is the driver of the said Jeep. Seizure witnesses, namely, Shyam Lal Yadav and Dhan Singh in respect of the recovery of the incriminating articles from the possession of absconding co-accused Kewal Kumar Sharma as well as Balram Dey, Sharad Chandra Dey and Upendra Prasad Lal said to be the witnesses of search and seizure from the house of this appellant have not been examined for the prosecution in this case. The Investigating Officer has also not taken oath for the prosecution in this case as he has died during the pendency of this case. No oral and documentary evidence has been brought on behalf of the appellant.
7. Relying upon the evidence of PW 1, PW 2 and PW 3 read with the evidence of PW 4 and the seizure-list evidencing the fact of the recovery of the incriminating articles from the possession of the appellant, the learned Court below came to the finding of his guilt and accordingly convicted and sentenced him as stated above.
8. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the alleged incriminating article has ' not been recovered from his conscious possession and several persons reside in the said house from which the alleged incriminating articles are said to have been recovered and in this connection a reference has been made to the evidence appearing in para-8 and para-8 of PW 1 and PW 3, respectively and the witnesses of search and seizure have also not taken oath in support of the alleged recovery and seizure of the said incriminating articles from a room in the house of the appellant and the afore- said seizure witnesses have been deliberately withheld in this case by the prosecution and as such an adverse inference has to be drawn against the authenticity of the case of the prosecution in respect thereof and the order dated 4.8.1997 shows that all the three witnesses of seizure in question as per Ext. 2/1 had appeared for their evidence but the learned Additional Public Prosecutor conducting this case filed a petition that he does not want to examine them in the Court without assigning any reasons for that and thus a serious prejudice has been caused to the appellant due to their non- examination in this case. It has also been contended that the alleged recovered articles were neither weighed nor sealed at the time of seizure at the alleged place of recovery and there is also no legal evidence on the record as to when it has been sealed and furthermore before making the search and recovery of the said articles, the members of the raiding party have given their search to the witnesses of the search aforesaid which equally casts a reasonable doubt regarding the authenticity of the search and seizure and the false implication of the appellant at the instance of one SI Surendra Singh of C.I.D., who is a tenant in the said house and on litigating terms with the appellant cannot be totally ruled out. It has further been contended that the report (Ext. 1) of the Forensic Science Laboratory, Bihar, Patna has been illegally admitted into evidence under Section 293 of the Code of Criminal Procedure as the said report is by the Senior Scientific Officer and not by Director, Deputy Director or Assistant Director of the Forensic Science Laboratory, Bihar, Patna as man-dated under Section 293(4) of the Code of Criminal Procedure and there is also no evidence on the record to show that the alleged recovered incriminating article was sent to the Forensic Science Laboratory, Bihar, Patna for its chemical examination and in this view of the matter, it cannot be said that the alleged recovered articles are brown sugar and ganja. It has also been submitted that there has been flagrant violation of Section 42 of the said Act in respect of search of the house of the appellant and alleged recovery and seizure of the said incriminating articles from the house of the appellant in view of the fact that confidential information received by PW 1 the informant has not been taken down in writing that any narcotic drug or psychotropic substances in respect of which an offence punishable under Chapter IV of the said Act has been committed prior to making search of alleged house of the appellant. In support of his contention reliance has been placed upon the ratio of the case of State of Punjab v. Balbir Singh, 1995 (1) East Cr C 374 (SC) and para 27 (2-C) of the said case law has been referred and the contravention of the mandate as contained under Section 42(1) of the said Act has vitiated the trial of this appellant. It has also been contended that B. Thakur was the member of the raiding police party and he figures as the Investigating Officer in this case and investigation by him cannot be said to be fair and impartial as he is virtually interested in favourable outcome in this case and furthermore, he has also not taken oath in this case for the prosecution which has caused serious prejudice to him in the facts and circumstances of this case. Lastly, it has been contended that the learned Court below did not meticulously consider the evidence on the record in proper perspective and has erroneously come to the finding of the guilt of the appellant and as such the impugned judgment is unsustainable.
9. Refuting the contention it has been submitted by the learned Additional Public Prosecutor that there is evidence on the record as per the testimony of PW 4 Naresh Prasad Singh, the then Deputy Superintendent of Police, that the recovered contraband articles from the house of the appellant was sealed in his presence at the police station before it was kept in malkhana and subsequently, some of the packets were sent to the Forensic Science Laboratory, Bihar, Patna for its chemical examination and the report (Ext. 1) evidences the fact that the recovered articles from the conscious possession of the appellant is narcotic drugs and psychotropic substances and the report (Ext. 1), though by the Senior Scientific Officer of the Forensic Science Laboratory, Bihar, Patna has been countersigned by the Director of the Forensic Science Laboratory, Bihar, Patna and on this score it has rightly been admitted into evidence under Section 293 of the Code of Criminal Procedure and the said report was rightly relied upon by the learned trial Court for coming to the finding of the guilt of the appellant. It has also been contended that in view of the evidence of PW 1, PW 3, PW 4 and PW 2, the non-examination of the seizure witnesses does not cast any aspersion on the authenticity of the prosecution case regarding the recovery and seizure of the incriminating articles from the conscious possession of the appellant as at the time of search he was found present in the room from which the aforesaid incriminating articles were recovered in his presence and a copy of the seizure list (Ext. 2/1) was handed over to him and in token of its acceptance the appellant has put his signature (Ext. 3/1) thereon. Lastly, it has been contended that PW 1 on getting confidential information has informed the Inspector of Police and Deputy Superintendent of Police, Bhagmara in respect thereof and on their direction, a raiding party was constituted and the raid was made and as such there is no contravention of the mandate as contained under Section 42 of the said Act. The learned Court below has considered all aspects of the matter involved in this case meticulously and has rightly come to the finding of the guilt of the appellant.
10. Let us now advert to the evidence on the record PW 1, the informant, has deposed that he received a confidential information at 14.00 hours on 24.3.1993 that an illegal trade in brown sugar is going on at Katras in which young person are becoming addict of and one Kewal Sharma, i.e., absconding co-accused is involved in this trade and he was seen proceeding towards Katrasgarh from Guhi bandh and if he is apprehended brown sugar may be recovered from his possession. He has further deposed that he informed Inspector of Police and Deputy Superintendent of Police, Bhagmara on telephone in respect thereof and on the direction of the Deputy Superintendent of Police he proceeded with the police force along with PW 2 Amar Nath Roy, Inspector of Police, B. Thakur, Sub-Inspector of Police and PW 3 Pradip Kumar Roy on the police jeep. Similar is the evidence of PW 2 Amar Nath Roy and PW 3 Pradip Kumar Roy as deposed by PW 1, PW 4 Naresh Prasad Singh, the then Deputy Superintendent of Police has deposed that PW 1 informed him regarding the confidential information aforesaid and he directed him to constitute a raiding party and he also told him that he is also coming. He has further deposed that the raiding police party had proceeded from the Katras Police Station when he reached there and he followed the raiding party and met them on the road near Rajhans Factory, Katras. It is pertinent to mention here that PW 1 is Sub-Inspector of Police and PW 2 is Inspector of Police and they stand empowered by the order of the State Government to enter into and search any building, conveyance or place and make seizure of narcotic drugs and psychotropic substances without warrant or authorisation. PW 1, the informant has neither averred in his self-statement nor deposed in his evidence on oath that he had taken down in writing the confidential information received by him that any narcotic drugs and psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act 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 before making entry, search and seizure as well as arrest of the appellant between Sunrise and Sunset and he has also not deposed to have sent forthwith a copy thereof to his immediate official superior to him. However, it appears from his evidence on the record corroborated by PW 2 and PW 4 that he has telephonically informed his immediate superior officers in respect thereof, but the information sent to his superior officers on telephone cannot be said in accordance with the mandate as contained under Section 42 of the said Act. The said Act has been enacted with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide forfeiture of property derived from or used in illicit drug trafficking in narcotic drugs and psychotropic substances and for matters connected therewith. Section 42 of the said Act empowers certain officers to enter, search, seizure and arrest without warrant or authorisation. Such officer should be superior in rank to a peon, sepoy or constable of the departments of Central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank 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 Central/ State Government and such officer, if he has reasons to believe from personal knowledge or information taken down in writing that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between Sunrise and Sunset. He can detain and search any person if he thinks proper and if he has reasons to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between Sunset and Sunrise and it also provided that he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. In the case of State of Punjab, (supra) the Apex Court in para-27(2-C) has thus observed :
"Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building, etc., he may carry out the arrest or search without a warrant between Sunrise and Sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between Sunset and Sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial."
In view of the ratio of the Apex Court referred to above there has been contravention of the mandate contained in Section 42 of the said Act in this case which would affect the prosecution case and equally vitiates the trial of this- appellant. The reasons assigned by the learned Court below in para-25 of the impugned judgment has no substance and the learned Court below has failed to consider the spirit and mandate of the law as contained under Section 42 of the said Act and has erroneously come to the finding that the requirement of Section 42 of the said Act has been fulfilled and complied with in the facts and circumstances of this case. The non- compliance of the mandatory provision of Section 42 of the said Act the prosecution case against this appellant and his trial stand vitiated.
11. PW 1 has deposed that when he reached near Rajhans Factory he found absconding co-accused Kewal Sharma towards Katrasgarh and he was apprehended and his person was searched in presence of two independent witnesses and a large number of persons had also assembled there and in course of search two small packets containing brown sugar were recovered from his possession and a seizure-list (Ext. 2) in respect thereof was prepared and in course of search PW 4 Deputy Superintendent of Police also came there who also interrogated him. PW 2 and PW 3 have corroborated the testimony of PW 1 in respect thereof. PW 4 has deposed that on telephonic information he reached to Katras Police Station and he learnt that the raiding party has already proceeded and he followed the raiding party and when he reached on the road near Rajhans Factory, Katrasgarh he found the raiding party having apprehended absconding co-accused Kewal Sharma and two small packets containing brown sugar were recovered from his pocket and on query he told that he has brought the said packets of brown sugar from the appellant. It appears from the evidence referred to above that the search of the person of absconding co-accused Kewal Sharma was conducted prior to the arrival of PW 4, the Deputy Superintendent of Police. Section 50 of the said Act is relevant in this connection which runs thus :
"50. Conditions under which search of persons shall be conducted.-(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable grounds for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by any one excepting a female."
This provision obviously is introduced to avoid any harm to the innocent person and to avoid the raising allegations of planting of fabrication by the prosecution authorities. The provision as contained in Section 50 of the said Act lays down that any officer duly authorised under Section 42 is about to search any person, shall if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made, by the persons to be searched the concerned authorised officer can detain him until he can produce him before such Gazetted Officer or the Magistrate and after such production the Gazetted Officer or the Magistrate if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that search be made. It further appears that it is imperative on the part of the authorised officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. This is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused and the provisions contained under Section 50 of the said Act implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. The Apex Court in the case of State of Punjab (supra) has thus observed in para-27(5) :
"Prior information, the empowered officer or authorised officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact."
There is no iota of evidence on the record regarding the compliance of Section 50 of the said Act so far as the absconding co-accused Kewal Sharma is concerned regarding the alleged recovery of two packets of brown sugar from his pocket. The finding of the learned Court below in para-26 of the impugned judgment is erroneous in respect of compliance of Section 50 of the said Act in view of the evidence on the record.
12. PW 1 has deposed that he along with the raiding police party and PW 4 proceeded to the house of the appellant on the basis of information furnished by absconding co-accused Kewal Sharma and they reached to the house of the appellant and searched a room of the said house in which the appellant was found present in presence of independent witnesses. He has further deposed that nine small packets containing brown sugar under the television kept on a table from the said room besides 300 grams of ganja under the bed on the palang and 300 grams of bhang from a tin box were recovered from there and a seizure-list (Ext. 2/1) was prepared witnessed by the witnesses of the seizure PWs. 2, 4 and 3 in their evidence on oath have corroborated the testimony of PW 1 in respect thereof. PW 1 in para-8 of his cross- examination has deposed that the members of the family of the appellant were present in the said house and the door of the house as found open when he along with raiding party had reached there. He has further deposed in para-9 of his evidence that he did not make enquiry as to how many persons are tenant in the said house. He has also deposed that he had no knowledge of fact that on the day of the raid SI Surendra Singh of C.I.D. was a tenant in the said house. PW 2 in para-4 of his evidence has deposed that the family members of the appellant were present in the said house but the appellant was found alone in the said room when the raid was made. He has also deposed that he does not know that at the time of raid SI Surendra Singh was a tenant in the said house and he is on litigating terms with the appellant in respect of the tenancy in question. PW 4 has deposed that he does not remember as to whether SI Surendra Singh of C.I.D. is a tenant in the said house at the relevant time. He has also deposed that he has only entered into the room in which appellant was found and he does not know as to how many rooms are in the said house and also as to how many floors are there in the said house. PW 3 has deposed in para-8 of his evidence that there were several female members of the family of the appellant were present in the said house when he along with the raiding party had gone there and at the time of the raid he had found the door of the said house open. His evidence is further to the effect that SI Surendra Singh was a tenant in the other part of the said house at the time of the raid. It appears from the evidence aforesaid that there are tenants in the said house and the family members of the appellant also reside in the said house and SI Surendra Singh is also a tenant in the said house and said Surendra Singh is on litigating terms with the appellant. In view of the facts aforesaid it cannot be said that the appellant was in conscious possession of the said incriminating articles alleged to have been recovered from the room of the said house in which he was found present at the time of the raid in question. Furthermore, there is no evidence on the record that the aforesaid recovered incriminating articles were weighed and sealed by the informant in presence of the witnesses of search and the signature of the appellant has been obtained on the aforesaid packets. PW 1 in para-11 of his evidence has specifically deposed in the most clear and unequivocal terms that he has not sealed the aforesaid incriminating articles on recovery from the said room, he has further deposed that he has not weighed the aforesaid incriminating articles as the quantity of brown sugar was very negligible and he has accepted the weigh of the ganja and bhang as told by the appellant. PW 2, PW 3 and PW 4 have also not deposed to have sealed the said incriminating articles on recovery from the room of the appellant. However, PW 4 has deposed that the aforesaid incriminating articles were sealed by the Investigating Officer at the police station in presence of the independent witnesses as well as in his presence, but he has not put his signature on the sealed packets and he has also not obtained the signature of the appellant on the said sealed packets. The Investigating Officer has also not come to depose in this case to support the fact that the said incriminating articles were sealed by him at the police station in presence of independent witnesses. None of the witnesses of the search have taken oath to corroborate the factum of search, recovery and seizure of the aforesaid incriminating articles in their presence from the room of the house of the appellant. No explanation is also forthcoming for the non-examination of the independent witnesses in support of the prosecution case specially when all the three witnesses of seizure had appeared before the Court for their evidences on 4.8.1997. Therefore, the non-examination of the independent witnesses of the search and seizure in this case casts a cloud of suspicion to the very warp and woof of the prosecution case in respect thereof coupled with the fact of the non-sealing of the aforesaid incriminating articles. The non-examination of the Investigating Officer in the facts and circumstances of this case has also caused prejudice to the appellant.
Therefore, there is no legal evidence on the record to show that the aforesaid incriminating articles were recovered from the conscious possession of the appellant in presence of the independent witnesses by the raiding police party and the false implication of the appellant at the instance of SI Surendra Singh in the facts and circumstances of this case due to enmity regarding the tenancy of the said house cannot be totally ruled out. And last but not the least, some of the packets of the alleged brown sugar and small quantity of ganja were sent to the Forensic Science Laboratory, Bihar, Patna for its chemical examination. Ext. 1 is the report of Senior Scientific Officer of Forensic Science Laboratory, Bihar, Patna countersigned by its Director. The report (Ext. 1) does not give inkling of the fact that the sealed packets of samples of the aforesaid incriminating articles were received at the Forensic Science Laboratory, Bihar, Patna for its chemical examination. Therefore, it cannot safely be said that the packets which were recovered from the room of the house of the appellant were, in fact, sent to the Forensic Science Laboratory, Bihar, Patna for chemical examination. However, the report shows that heroin, which is a diacetyl derivative of "Morphine" was detected in the brown powdery substances contained in three paper packets marked 'A' and heroin is a contraband narcotic and is a highly addictive intoxicant. The report further shows that the paper packet marked, 'B' containing dry pressed vegetable flowery substance was found to be "ganja" containing tetrahydro cannabinol (T.H.C.) as its chief intoxicating ingredient. Ganja is the flowering and fruiting tops of the female plant Cannabis Sativa containing T.H.C. as its chief intoxicating ingredient. The report (Ext. 1) in respect of incriminating articles suffers from legal infirmity, firstly on the ground that there is no legal evidence on the record to establish the fact that the recovered incriminating articles were sent for their chemical examination and it is a duty of the prosecution to prove beyond all reasonable doubts on the basis of the legal evidence on the record that the samples taken out from the recovered incriminating articles were, in fact, sent for chemical examination to the Forensic Science Laboratory, Bihar, Patna and in absence of such legal evidence, the prosecution case is fit to be thrown on this score alone and secondly, the report admitted into evidence under Section 293 of the Code of Criminal Procedure by the learned Court below equally suffers with illegality and a manifest error has been committed by the learned Court below in accepting the report as evidence in this case contravening the mandates contained therein. Section 293 of the Code of Criminal Procedure aforesaid mandates that any document purporting to be a report under the hand of a Government Scientific Expert to whom this section applies, upon any mater 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. Sub-section (4) of Section 293 of the Code of Criminal Procedure aforesaid enumerates as to who are the Government Scientific Experts and according to Sub-clause (e) of Sub-section (4) aforesaid, the Director, Deputy Director or Assistant Director of Central Forensic Science Laboratory or a State Forensic Science Laboratory are only the Government Scientific Experts, Here in this case, the report is by Senior Scientific Officer of Forensic Science Laboratory, Bihar, Patna. The report is not by the Director, Deputy Director or Assistant Director of Forensic Science Laboratory and in this view of the matter, the report cannot be taken into evidence under Section 293 of the Code of Criminal Procedure inspite of the fact that it stands countersigned by the Director of Forensic Science Laboratory, Bihar, Patna. The learned Court below did not meticulously consider this aspect of the matter and has committed a manifest gross illegality in admitting the report (Ext. 1) in evidence in this case under Section 293 of the Code of Criminal Procedure. The reasons assigned in para-23 of the impugned judgment by the learned Court below for admitting Ext. 1 into evidence in this case lacks substance and is unacceptable for the reasons stated above. It, therefore, appears that there is no legal evidence on the record establishing the guilt of the appellant and the prosecution has miserably failed to bring home the guilt of the appellant in view of the evidence on the record. The learned Court below has failed to consider the evidence on the record meticulously in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant and viewed thus, the impugned judgment cannot be sustained.
13. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is set aside. The appellant is found not guilty and he is, accordingly, acquitted and discharged from the liabilities of his bail bond.