JUDGMENT 1. - Petitioner, Tara Chand, was tried for the offence under Section 9 of the Opium Act by the Chief Judicial Magistrate, Barmer and vide judgment dated 30th of May, 1978 was held guilty for that offence and sentenced to six months' rigorous imprisonment and a fine of Rs. 500/- in default to undergo one month's rigorous Imprisonment. Petitioner preferred appeal in the Court of Sessions Judge Balotra. Vide judgment dated 29th of January, 1981, learned Sessions Judge dismissed the appeal. Feeling dissatisfied by it, the petitioner has invoked the re-visional jurisdiction of this Court. 2. I heard Mr. Suresh Kumbhat, learned counsel for the petitioner and Mr.' U.C.S. Singhvi, Public Prosecutor, for the State. 3. The case relates to the alleged recovery of 420 Grams of opium from the search of the house of the petitioner on 1-2-1976 by Mod Singh, PW 6 SHO Police Station, Barmer. 4. The learned counsel for the petitioner strenuously contended that as the two motors to the alleged recovery have been declared hostile by he prosecution, the case rests on the statements of investigating officer and one constable Prem Singh who had accompanied him. According to Mr. Kumbhat there are two major infirmities in the case which are fatal for the prosecution The first being the absence of evidence regarding the article remaining in sealed condition from 1-2-1976 up to 6-2-1976 when the packet is said to have been given to PW 4 Karim Khan for being taken to the office of the Chemical Examiner, and the report of the chemical examiner not being proved by the prosecution. The second infirmity pointed out is that no question has been put to the accused in his statement under Section 313 Cr PC regarding any report of the chemical examiner or the article said to have been recovered being contraband opium according to the report of the chemical examiner. 5. The learned Public Prosecutor could not point out any evidence to show that the recovered article remained in sealed condition till the time reached the office of the chemical examiner nor could he controvert the contention of the learned counsel for the petitioner that the report of the chemical examiner had not been proved and exhibited by any witness. 5. The learned Public Prosecutor could not point out any evidence to show that the recovered article remained in sealed condition till the time reached the office of the chemical examiner nor could he controvert the contention of the learned counsel for the petitioner that the report of the chemical examiner had not been proved and exhibited by any witness. The learned Public Prosecutor, however, justified the conviction on the ground that the report was there on the record and the learned Magistrate has rightly taken help of it in convicting the accused. Regarding omission of a question in that regard to the accused the submission of the learned Public Prosecutor is that is would not have made any difference because accused could not have told anything regarding the opinion of the chemical examiner Regarding the evidence of the raiding party and motbirs Mr. Singhvi submitted that there is no reason to disbelieve the version of SHO Mod Singh when a constable accompanied him had supported him. 6. The two motbirs have not supported the prosecution case about the recovery and the learned Magistrate has based reliance on the statement of Mod Singh, SHO and Prem Singh, Constable. It is correct that accused can not claim acquittal simply on the ground that the motbirs have not supported the investigating officer, if there are circumstances which show hat the evidence of the Investigating officer is of sterling worth and suffers from no infirmity, there is no illegality in basing conviction on such testimony because cases are not rare where the motbirs, for some reason or other oblige the accused. The other grounds raised by learned counsel for the petitioner are of course of importance in the matter and cut at the root of the matter. The importance of the report of the chemical examiner is that the Court may feel satisfied that the article recovered is contraband opium and nothing else. The report is to be proved by some witness and exhibited. Unexhibited document should not be taken help of by the Court because the accused gets no opportunity to cross examine the witness proving the document. This is not a case in which the document might have remained unexhibited only. It has, rather not even been referred to by the SHO in his statement. Unexhibited document should not be taken help of by the Court because the accused gets no opportunity to cross examine the witness proving the document. This is not a case in which the document might have remained unexhibited only. It has, rather not even been referred to by the SHO in his statement. This is also evident that no question had been put to the accused in his statement under Section 313 Cr. PC regarding any report of the chemical examiner. The necessity of bringing all the material facts impliciting the accused with the commission of the crime to the notice of the accused by putting him question in that regard in the statement under Section 313 Cr. PC is for the reason that no material can be taken help of by the court without the accused being given an opportunity to explain it. The very purpose of Section 313 is to put the circumstances against the accused so that he may meet out the prosecution case and explain the circumstances brought by the prosecution to implicate him in the commission of the crime. It is now well settled by a catina of decisions of the Apex Court that any circumstances not put to the accused in his statement at the trial thereby depriving him of the opportunity to explain that circumstances should be completely excluded from consideration. This principle is enunciated in the case of Bhagat Singh Het Singh v. State of Madhya Pradesh, AIR 1953 SC 468 was subsequently followed and emphasised in a number of cases by the Supreme Court. In the cate of Sharad Bhirdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 after relying upon a number of cases on the point, it has been observed that the circumstances which were not put to the accused in his examination under Section 313 Cr. PC have to be completely excluded from consideration. The opinion of the chemical examiner is an important circumstances in cases of this type and such circumstance not being proved and not being put to the accused, the Court taking help of the unexhibited report without putting a question to the accused in that regard and affording him opportunity to explain, is a vital infirmity. The opinion of the chemical examiner is an important circumstances in cases of this type and such circumstance not being proved and not being put to the accused, the Court taking help of the unexhibited report without putting a question to the accused in that regard and affording him opportunity to explain, is a vital infirmity. It is pertinent to note that he finds place on the record, if not proved or exhibited, is just like any other waste paper and the Court should not have taken that into consideration, especially so when no question in that regard was put to the accused. 7. There is also force in the other contention of the learned counsel for the petitioner regarding the absence of material to suggest that the article remained in sealed condition till it was sent to the chemical examiner. There is nothing on record to point out as to where the article was kept from 1st of February, 1978, the date of recovery till 6th of February, 1978, the date on which it was handed over to Karim Khan for being taken to the office of the chemical examiner. The report of the chemical examiner not being removed, it cannot be said in which condition it reached him. When their are such grave infirmities in the prosecution case and the trial, the judgment of conviction cannot be sustained. 8. Consequently, the revision petition is allowed, the sentence passed by the trial Court and affirmed by the appellate Court are set aside and the petitioner is acquitted of the charges levelled against him. He is on bail. His bail bonds stand discharged. Fine, if paid, shall be refunded.Revision Allowed. *******