M. S. A. SIDDIQUI ( 1 ) THIS appeal is directed against the judgment and the order of conviction dated11. 12. 1998 passed by the Additional Sessions Judge in Sessions Case No. 74/96convicting the appellant undersections 21/23 of the Narcotic Drugs and Psychotropicsubstances Act (for short the Act ) and sentencing her to undergo rigorousimprisonment for ten years and to pay a fine of Rs. 1,00,000. 00 or in default to sufferfurther rigorous imprisonment for a period of six months. BRIEFLY stated the prosecution case is that on 3. 4. 1996, two postal parcelsbearing Nos. R-250012 and R-250013 arrived at Frankfurt Airport, Germany, withflight No. AV018 from Bogota, Columbia destined for further transport to India. Atfrankfurt Airport, both the parcels were intercepted by the Custom Officer Mr. Rabolt,who had handed over them to the Chief Inspector Customs Mr. Prior. Both theparcels, when opened in the presence of the Custom Officer Mr. Hilder Brand, testedpositive for cocaine. Consequently, a criminal case was registered vide Referenceno. 89js 141520/96 and both the parcels containing contraband were seized andconfiscated by the Custom Authorities, Government of Germany. After obtainingsanction from the Chief Public Prosecutor, Government of Germany, Dr. Leistner, thenarcotics Control Bureau, Govt. of India (for short "the NCB") was requested for acontrolled delivery. By the order dated 4. 4. 1996 (Ex. PW-16/a), the Government ofindia empowered the NCB to undertake controlled delivery of the said consignment. On 9. 4. 1996, the aforesaid parcels were handed over to the Captain of the Lufthansaairlines Mr. Manfred Montjoge for their delivery to Mr. Berned Engel, German Drugliaison Officer posted in India. On 10. 4. 1996, the said consignment arrived at I. G. I. ,airport, New Delhi by the morning flight. Mr. Montjoge delivered the parcels to Mr. Berned Engel, who in turn handed over them to Mr. Shailendra Sharma (PW-12)atthe airport. The parcel No. 251002 destined for Goa had been handed over to theofficers of the NCB, Bombay Zonal Unit and the parcels No. 251003 destined fordelhi remained in the custody of Shri Shailendra Sharma. The further case of theprosecution is that Deputy Chief Post Master, Mr. R. P. Sharma was contacted by thezonal Director NCB, Mr. Mukesh Khullar and a plan was chalked out to nab theclaimant of the parcel bearing No. 251003. According to the plan, the intimation slip (Ex. The further case of theprosecution is that Deputy Chief Post Master, Mr. R. P. Sharma was contacted by thezonal Director NCB, Mr. Mukesh Khullar and a plan was chalked out to nab theclaimant of the parcel bearing No. 251003. According to the plan, the intimation slip (Ex. PW-1/d) was prepared and kept in the post restante counter under surveillanceof the Officers of the NCB. ( 2 ) ON 19. 4. 1996, at about 10 A. M. , the appellant came to the post restante counter. She picked up the intimation slip (EX. PW-1/d) and requested postal Assistantmr. Vasudev (PW-7) to deliver the said parcel to her. The intimation slip (Ex. PW-1/d)was in the name of elizabeth Evans and the appellant s passport was issued in thename of Emma Charlotte Eve. The appellant, therefore, addressed an application (Ex. PW-1/f) to the Chief Post Master, GPO explaining the discrepancy in her nameand that of on the parcel. Being satisfied with the explanation offered by the appellant,deputy Chief Post Master Mr. R. P. Sharma (PW-14) allowed the appellant to takedelivery of the parcel in question. Thereafter, the parcel, which was in the custody ofmr. Sahilender Sharma (PW-12) was delivered to the appellant by Mr. Vasudev (PW7), in the presence of Smt. Suman Kumari Yadav (PW-11 ). who had disguisedherself as the postal Assistant. ( 3 ) THE appellant, after taking delivery of the parcel, proceeded to the Shiva Guesthouse on a three wheeler driven by Rakesh Sharma (PW-10 ). The Officers of thencb followed the appellant from the post office to her guest house and accosted herto her room. On being asked by the officers of the NCB, the appellant handed overthe said parcel to them, which was found to contain 122 grams of cocaine. The saidparcel was seized vide seizure memo (Ex. PW-1/h ). Two representative samples of5 gms. each were drawn and kept in two separate poly thene bags. The samples aswell as the remaining cocaine were converted into separate parcels and they wereduly sealed on the spot. The sampled powder along with the test memo (Ex. PW-9/b)was sent to the Chemical Examiner, which on examination, was found to containcocaine vide report dated 28. 5. 1996. The appellant was charged with the offencespunishable under Sections 21/23 of the Act and tried. ( 4 ) THE appellant abjured her guilt and alleged that a falser case has been foisted onher. PW-9/b)was sent to the Chemical Examiner, which on examination, was found to containcocaine vide report dated 28. 5. 1996. The appellant was charged with the offencespunishable under Sections 21/23 of the Act and tried. ( 4 ) THE appellant abjured her guilt and alleged that a falser case has been foisted onher. According to the appellant, on 19. 4. 1996, she had gone to the post office toenquire about the parcel which she was expecting from her father from U. K. and waswrongly handed over a parcel, which was addressed to one Elizabeth Evans andshe, therefore, refused to take delivery and immediately returned it back to the postalofficer. Thereafter, she came to Paharganj and when she was about to enter therestaurant, three men grabbed her and forcibly took her to the guest house where shewas staying and there she was subjected to a humiliating search, during the course ofwhich, officials of the Narcotic Control Bureau wrong fully forced a parcel upon her. She has not examined any witness in support of her defence. THE learned Additional Sessions Judge, on an assessment of evidence adducedby the prosecution, accepted the prosecution case and convicted and sentenced theappellant as indicated above. ( 5 ) AT the outset, I must make it clear that the present case pertains to the controlleddelivery. As per prosecution case, two postal parcels bearing Nos. R-250012 and250013 arrived at the Frankfurt Airport, Germany with flight No. AV018 from Bogota,columbia, destined for further transport to India. On suspicion, both the parcelscontaining cocaine were intercepted at the airport by the customs officer Mr. Rabolt,who handed over them to the Chief Inspector Customs Mr. Prior. Consequently, acriminal case in respect of the said parcels was registered at Frankfurt (Germany)and the said parcels were seized and confiscated by the Customs Authorities. Afterobtaining the requisite sanction from the Chief Public Prosecutor, Government ofgermany Dr. Leistner, the NCB was requested to undertake a controlled delivery. Bythe order dated 4. 4. 1996 (Ex. PW-16/a), the Government of India empowered thencb to undertake the controlled delivery and pursuant thereto, the said parcelswere despatched from Germany and received on 10. 4. 1996 at the I. G. I. Airport bymr. Shailendra Sharma (PW-12 ). ( 6 ) IT may be mentioned here that drug trafficking, trading and its use which is aglobal phenomena and has acquired the dimensions of an epidemic, is detrimentalto the future of a country. 4. 1996 at the I. G. I. Airport bymr. Shailendra Sharma (PW-12 ). ( 6 ) IT may be mentioned here that drug trafficking, trading and its use which is aglobal phenomena and has acquired the dimensions of an epidemic, is detrimentalto the future of a country. Therefore, the Act was enacted with a view to combat theevil of drug trafficking and to suppress the abuse of dangerous drugs and psychotropicsubstances in the manner envisaged by the International Convention of Psychotropicsubstances, 1971. The United Nations Conventions Against Illicit Traffacking innarcotic Drugs and Psychotropic Substances was held in 1988 in Vienna, Austria totackle the menace of drug trafficking throughout the comity of Nations. The Governmentof India has ratified this convention. Therefore, the Act was amended in 1989, interalia, to provide for tracing, seizing and forfeiture of illegally acquired property. Theexperience gained over the years revealed that the provisions of the Act have certaininadequacies due to which the implementation of the provisions has been tardy. Certain other inadequacies in the various provisions of the Act have been noticed bythe Government. The need to remove those inadequacies and rationalisation of thesentence structure was, therefore, felt. Certain obligations, specially in respect of theconcept of "controlled delivery" arising from the United Nations Convention Againstillicit Traffic in Narcotic Drugs And Psychotropic Substances, 1988, to which thegovernment of India acceded, also required to be addressed by incorporatingsuitable amendments in the Act. With a view to achieve the said object, the Bill No. XIV of 1998 further to amend the Act was introduced in the Parliament. Learnedcounsel for the appellant submitted that since the Parliament was dissolved in 1999,the said Bill could not be passed by the Parliament. ( 7 ) SECTIONS 2 (viib), 8-A, 50-A, 54 and Section 76 (ca) of the said Bill are relevantfor purposes of the present case. Section 2 (viib) defines "controlled delivery" as under:- " (VIIB) "controlled delivery" means the technique of allowing illicit or suspectconsignments of narcotic drugs, psychotropic substances, controlledabstances or substances substituted for them to pass out of, or through orinto the territory of India with the knowledge and under the supervision with aview to identifying the persons involved in the commission of an offenceunder this Act;" ( 8 ) SECTION 8-A has been proposed to prohibit certain activities relating to propertyderived from offence. This Section reads as under:- " 8a. This Section reads as under:- " 8a. No person shall- (a) convert or transfer any property knowing that such property is derivedfrom an offence committed under this Act or under any other correspondinglaw of any other country or from an act of participation in such offence, for thepurpose of concealing or disguising the illicit origin of the property or to assistany person in the commission of an offence or to evade the legalconsequences; or (b) Conceal or disguise the true nature, source, location, disposition of anyproperty knowing that such property is derived from an offence committedunder this Act or under any other corresponding law of any other country; or (c) Knowingly acquire, possess or use any property which was derived froman offence committed under this Act or under any other corresponding law ofany other country. ": ( 9 ) AFTER Section 50 of the Act, a new Section 50-A has been proposed to conferpower on the Director General of Narcotics Control, Bureau or any other personauthorised by him in this behalf to undertake controlled delivery of any consignment toany destination in India or a foreign country, in consultation with the competentauthority of such foreign country to which such consignment is destined, in suchmanner as may be prescribed. For Section 54 of the Act, substitution of the followingsection has been proposed. "54. Intrials under this Act, it may be presumed, unless and until the contraryis proved, that the accused has committed an offence under this Act inrespect of.- (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land whichhas cultivated; (c) any apparatus specially designed or any group of utensils speciallyadopted for the manufacture of any narcotic drug or psychotropic substanceor controlled substance: or (d) any materials which have undergone any process towards the manufactureof a narcotic drug or psychotropic substance or controlled substance, or anyresidue left of the materials from which any narcotic drug or psychotropicsubstance or controlled substance has been manufactured,for the possession of which he fails to account satisfactorily". " ( 10 ) IN Section 76 (2) of the Act, substitution of the following clause has beenproposed:- " (CA) the manner in which "controller delivery" under Section 50a is to beundertaken. However, there is no provision in the Act relating to the concept of the "controlleddelivery". " ( 10 ) IN Section 76 (2) of the Act, substitution of the following clause has beenproposed:- " (CA) the manner in which "controller delivery" under Section 50a is to beundertaken. However, there is no provision in the Act relating to the concept of the "controlleddelivery". The learned Additional Sessions Judge rejected the applicant s contentionthat controlled delivery operation is not permitted in India and in the absence of therebeing any specific provision in the Act for dealing with an operation relating tocontrolled delivery, the provisions of the United Nations Convention of 1988 relatingto the concept of controlled delivery cannot be made applicable. Learned Additionalsessions Judge was of the opinion that since the Government of India has ratified theu. N. Convention Against Illicit Traffic in Narcotic Drugs And Psychotropic Substances,1988, the provisions of the Convention are binding on India and controlled delivery ispermissible in this country. I am unable to subscribe to the view taken by learnedadditional Session Judge. Section 3 (37) of the General Clauses Act defines an"offence" to mean an act or omission made punishable by any law for the time beingin force. Punishment is the mode by which the state enforces its laws forbidding thedoing of something, or omission to do something. Punishment is always co-related toa law of the State forbidding the doing or omission to do something. Unless such alaw exists, there is no question of any act or omission being made punishable (Jwalaram Vs. State of Pepsu. AIR 1962 SC 1246 ). ( 11 ) THUS, the question which arises for consideration is whether the obligation of thegovernment of India under the accord and obligations attached to the U. N. Conventionsagainst Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 has theforce or authority of law ? Article 245 (1 ) read with entry 14 in List-1 of Schedule-7 ofthe Constitution and Article 253 empower the Parliament to make laws for implementingtreaties and agreements entered into by the Government of India with foreign countries. The provisions in Part IV of the Constitution contain the directive principles of Statepolicy. The provision in Article 51, occurring in that part, provides, inter alia, that thestate shall endeavour to foster respecter international law and treaty obligations inthe dealings of organised peoples with one another. The provisions in Part IV of the Constitution contain the directive principles of Statepolicy. The provision in Article 51, occurring in that part, provides, inter alia, that thestate shall endeavour to foster respecter international law and treaty obligations inthe dealings of organised peoples with one another. The provision in Article 37occurring in the same part, though it declares that the directive principles in Part-IVare fundamental in the governance of the country and it shall be the duty of the State toapply those principles in making laws, states that the provisions in that part shall notbe enforceable by any Court. From this it follows that in the absence of any law, courtcannot also enforce obedience of the government of India to its treaty, agreement orconvention with foreign countries or the United Nations. ( 12 ) IN Encyclopaedia Britannica (Vol. 12) at pages 424 and 425, under the heading relationship with the Internal law of states , it is stated thus: "relationship with the Internal law of States:-To understand international law it is necessary to appreciate its closerelationship to the internal law of states, or as lawyers say, the municipal lawsof states; for it is increasingly penetrating that sphere. Even the traditionalinternational law, at a time when it was supposed to be a law only betweenstates, had many rules which required the co-operation of municipal courtsfor their realization; for example, the very ancient rules whereby foreignsovereigns and their diplomatic representatives enjoy certain immunitiesfrom the municipal jurisdiction. But a very large part of modern international *law is directly concerned with the activities of individuals which come beforemunicipal courts. So that it is in municipal courts that a large and increasingpart of international law is enforced. One school of thought accepts that international law may be per se a part ofthe law of the land and that the municipal court therefore, in the appropriatecase, applies international law directly. Another insists that a municipal courtcan only apply and enforce its own municipal law, and that the internationallaw rule is binding only on the state itself, which must by legislation transformthe precept into one of municipal law. The two approaches can on occasionslead to different results; e. g. , in a case involving a treaty which thegovernment has omitted to transform into a municipal statute. The two approaches can on occasionslead to different results; e. g. , in a case involving a treaty which thegovernment has omitted to transform into a municipal statute. But thesecond, or dualist, theory can hardly be applied in any case in those manycountries (e. g. , the Republic of Ireland, France and the German Federalrepublic) where it is by the constitution provided that international law is partof the law of the land. There are broadly, two different methods by which precepts of internationallaw are applied in the domestic courts of a State. By the first method it isaccepted that international law is per se a part of the law of the land and thatthe domestic court therefore, in an appropriate case, applied internationallaw directly. According to the second method a domestic court can only applyand enforce its own internal law, and the international law rule is binding onlyon the State itself, which must by legislation transform the precept into one ofdomestic law. The first method is employed in those countries (e. g. , therepublic of Ireland, France and the German Federal Republic) where it is bythe Constitution provided that international law is part of the law of the land. The position before English Courts is something of a compromise betweenthe two methods. There can be no doubt that they regard customaryinternational law as part of the law of the land, for they take "judicial notice" ofit; that is to say they assume that the court knows the law and does notrequire it to be proved by calling expert evidence, as in cases involvingforeign and external systems of law. The courts regard any relevant rule ofcustomary international law as being incorporated into the domestic law. " ( 13 ) IN the case of Xavier Vs. Canara Bank Ltd. (1969 Ker LT 927), it was held thatthe remedy for breaches of International law in general is not to be found in the lawcourts of the state because International law per se or proprio vigore has not the forceor authority of civil law, till under its inspirational impact actual legislation is undertaken. ( 14 ) IN Jolly George Varghese Vs. ( 14 ) IN Jolly George Varghese Vs. Bank of Cochin (MR 1980 SC 470), whiledealing with the effect of international law and the enforeceability of such law at theinstance of individuals within this country, the Supreme Court having quoted with approval the above observations of the Kerala High Court in Xavier Vs. Canarabank Ltd. , (1969 ker LT 927), has enunciated the taw on the point thus: "the positive commitment of the States parties ignites legislative action athome but does not automatically make the covenant an enforceable part ofthe corpus juris of India. "as noticed earlier, the bill No. XV of 1998 further to amend the Act has not beenpassed by the parliament. In the absence of there being any specific provisions in theact for dealing with an operation relating to controlled delivery, the provisions of 1998u. N. Conventions relating to the concept of controlled delivery cannot have the forceof law. ( 15 ) IN the instant case, there is not an iota of legal evidence on record to show thaton 28/03/1996, the parcel in question was posted by the appellant. Admittedly,the addressee of the parcel in question was one Elizabeth Evans and on 3. 4. 1996,the parcel in question was intercepted at the Frankfurt Airport, Germany. It is alsoundisputed that a criminal case was registered at Frankfurt, Germany in respect ofthe parcel in question and the same was seized and confiscated by the Customsauthorities, Government of Germany. As per prosecution case, on 9. 4. 1996, theparcel in question was despatched to India by the German Authorities. That being so,the parcel in question is the property of the criminal case registered at the Frankfurt (Germany) and it was sent to India with a view to identifying the person involved in thecommission of the offence. It follows that the contraband in question was sent to Indiaat the instance of the Government of Germany and not at the instance of the appellant. Reference may, in this context be made to the decision of the Punjab Chief Court inboston Vs. Emperor, 1911 Cri. L. J. (vol. 12) 116. In that case, the accused tendereda parcel of opium at the Post Office for despatch to Burma but the parcel was openedby the Postmaster at the place of despatch on account of information received andsent on to Burma by the Postal authorities marked "doubtful" with a view to theidentification of the consignee. Emperor, 1911 Cri. L. J. (vol. 12) 116. In that case, the accused tendereda parcel of opium at the Post Office for despatch to Burma but the parcel was openedby the Postmaster at the place of despatch on account of information received andsent on to Burma by the Postal authorities marked "doubtful" with a view to theidentification of the consignee. It was held:- "that the accused did not commit the offence of exporting. opium undersection 9 (e) of the Opium Act, as the parcel was seized by the authoritiesbefore despatch and it ceased to be in the Post Office on accused s accountbefore it left India for Burma. " ( 16 ) THUS, in the instant case, it cannot be held that the appellant had imported orattempted to import the contraband into India. Consequently, the charge undersection 23 of the Act levelled against the appellant must fall to the ground. ( 17 ) NEXT question which arises for determination is whether on 19. 4. 1996, theappellant was found in possession of the parcel in question containing the contraband. The foundation and the pivotal pillar on which rests the edifice of the prosecution maybe indicated as follows:- (A) that on 28. 3. 1996, the appellant left Columbia on which date the parcelno. 250013 was posted from Santa Marta, Columbia; (b) that on 19. 4. 1996, the appellant visited the post office Bhai Veer Singhmarg, New Delhi to collect the parcel in question; (c) that on that day, she made an application to the Chief Postmaster (Ex. PW-1/f) seeking permission to collect the parcel bearing No. 250013 onthe ground that the same belonged to her; (d) that the appellant deliberately made a false statement in the said application (Ex. PW-1/f) about her local address, which is indicative of her guiltyconscience; (e) that the Handwriting Expert (PW-15) has opined that the appellant s handwriting on her application (Ex. PW-1f) is similar to the handwriting on theenvelope (Ex. PW-1/g) of the parcel in question. Ha. further opined that thespecimen handwriting of the appellant (Ex. PW-1/z) has been consciouslywritten with an attempt to disguise her handwriting, which is indicative of herguilty conscience; (f)Thaton 19. 4. 1996, the parcel No. 250013 containing cocaine was recoveredfrom the appellant s possession vide seizure memo (Ex. PW-1/h ). ( 18 ) THE central evidence against the appellant consists of the evidence of Mr. PW-1/z) has been consciouslywritten with an attempt to disguise her handwriting, which is indicative of herguilty conscience; (f)Thaton 19. 4. 1996, the parcel No. 250013 containing cocaine was recoveredfrom the appellant s possession vide seizure memo (Ex. PW-1/h ). ( 18 ) THE central evidence against the appellant consists of the evidence of Mr. D. N. Tyagi (PW-1), Post Assistant Mr. Nanak Ram (PW-2), Mr. Neeraj Jain (PW-3), Mr. Radhey Shyam (PW-4), Postal Assistant Shri Vasudev (PW-7), Mr. S. P. Tripati (PW8), Mr. Rakesh Kumar Sharma (PW-10), Ms. Suman Kumari (PW-11), Assistantdirector N. C. B. Mr. Shailendra Sharma (PW-12), Mr. R. P. Sharma (PW-14) andzonal Director, NCB MR. Mukesh Khullar (PW-16 ). Mr. D. N. Tyagi (PW-1),mr. S. P. Tripathi (PW-8) and Ms. Suman Kumari (PW-11) are Intelligence Officers ofthe NCB, According to the Zonal Director NCB, Mr. Mukesh Khullar (PW-16), a faxmessage from Mr. Berned Engel, Drugs Liaison Officer, Government of Germanywas received by the Deputy Director General of NCB Mr. Devender Dutta containinga request for according sanction to undertake the controlled delivery of the parcel inquestion in India on the basis of which the Government of India accorded therequisite sanction (Ex. PW-16/a ). Thereafter, he directed the Assistant Directorncb Mr. Shailendra Sharma (PW-12) to lias with Mr. Bemed Engel and receive theparcels at the I. G. I. Airport. He also contacted the then Deputy Chief Postmaster Mr. R. P. Sharma (PW-14) and drew out the plan (Ex. PW-1/c) to nab the claimant of theparcel in question. ( 19 ) ASSISTANT Director NCB Mr. Sahilender Sharma (PW-12) deposed that pursuantto the directions of Mr. Mukesh Khullar (PW-16), he accompanied Mr. Berned Engelto the I. G. I. Airport, New Delhi on the night-intervening 9th and 10th April, 1996. At theairport, Mr. Berned Engel received two parcels from the Captain of Flight No. LH-760and delivered them to him. One of the parcels was addressed to Ms. Elizabeth Evans,delhi and the other parcel was destined for Goa. He retained the parcel in question inhis custody and handed over the other parcel to Mr. Bapat, Intelligence Officer, NCB,bombay. ( 20 ) IT has come in the evidence of Intelligence Officers Mr. D. N. Tyagi (P. W. I ) andms. Suman Kumari (P. W. 11) that they were directed by Mr. He retained the parcel in question inhis custody and handed over the other parcel to Mr. Bapat, Intelligence Officer, NCB,bombay. ( 20 ) IT has come in the evidence of Intelligence Officers Mr. D. N. Tyagi (P. W. I ) andms. Suman Kumari (P. W. 11) that they were directed by Mr. Mukesh Khullar (P. W. 16)to keep surveillance at the restante counter of the Post Office, Bhai Veer Singh Marg,new Delhi to nab the claimant of the parcel in question. Mr. D. N. Tyagi, (P. W. I)testified that as per plan the Postal Authorities prepared the intimation slip (Ex. P. W. 1/d) on 12. 4. 1996 and placed it at the said restante counter. He further testified that heleft instructions to Mr. Nanak Ram (P. W. 2) Postal Assistant to inform him telephonicallyif someone comes to receive the said parcel. Ms. Suman Kumari (P. W. 11 ) deposedthat she had visited the said post office on 12, 13, 14 and 15 and she had alsodisclosed her identity to the Postal Assistant Mr. Vasudev (P. W. 7) on all those dates. The said statement of Suman Kumari (P. W. 11) is falsified by the evidence of Mr. Vasudev (P. W. 7) who pleaded ignorance about her visits on the dates mentionedabove. It has also come in the evidence of Mr. D. N. Tyagi (P. W. 1) and Ms. Sumankumari (P. W. 11) that on 19. 4. 1996 at about 10 to 10. 15 A. M. Mr. D. N. Tyagi (P. W. I)received a telephonic message from the post office saying that a foreign lady hadcome to collect ,the parcel and on receiving the said information they along withassistant Director Shailender Sharma (PW. 12) and some other officers of the NCBleft for the said post office. Ms. Suman Kumari (P. W. 11) testified that on reaching thepost offices she saw the appellant sitting with Mr. Vasudev (P. W. 7 ). She presentedherself as a Postal Assistant before the appellant and asked her for her passportand found that the name in the passport did not tally with that of the addressee of theparcel. After pointing out the said discrepancy, she asked the appellant to give inwriting an application addressed to the Chief Postmaster G. P. O. New Delhi seekingpermission to collect the said parcel. Thereafter, the appellant wrote the application (Ex. P. W. 1/f), before him and Mr. Vasudev (PW. After pointing out the said discrepancy, she asked the appellant to give inwriting an application addressed to the Chief Postmaster G. P. O. New Delhi seekingpermission to collect the said parcel. Thereafter, the appellant wrote the application (Ex. P. W. 1/f), before him and Mr. Vasudev (PW. 7), which she submitted before thedeputy Chief Postmaster Mr. R. P. Sharma, (PW. 14), who permitted the appellant totake delivery of the parcel in question. According to Ms. Suman Kumari (P. W. 11),after obtaining written permission from Mr. R. P. Sharma (PW. 14), she took the parcelfrom Mr. Shailendra Sharma (PW. 12) and handed it over to Mr. Vasudev (PW. 7), whoin turn delivered it to the appellant. Strangely enough the said testimony of Ms. Suman Kumari (P. W. 11) does not find support from the evidence of the Postalassistant Mr. Vasudev (P. W. 7 ). According to Mr. Vasudev (P. W. 7) on 19. 4. 1996, theappellant came to him for collecting the parcel but her name in the passport did nottally with that on the parcel and he therefore, took the appellant to his superior officerswho asked him to deliver the parcel after obtaining an undertaking from the appellant. Thereafter the appellant wrote the application (Ex. P-1/f) which he submitted beforemr. R. P. Sharma (PW. 14), who allowed the appellant to take delivery of the saidparcel and pursuant thereto he delivered the said parcel to the appellant. ( 21 ) MR. Vasudev (PW. 7) has nowhere stated in his evidence that at the relevanttime, Ms. Suman Kumari (PW. 11) was also present and that it was she who, afterpointing out the discrepancy in the name mentioned in her passport and that of theaddressee of the parcel, advised her to make an application to the Chief Postmasterseeking his permission to take delivery of the parcel; that appellant had written theapplication (Ex. PW. 1f) in the presence of Ms. Suman Kumari (PW. 11); that Ms. Suman Kumari (PW-11) had submitted the said application before Mr. R. P. Sharma (PW. 14) and that after obtaining his permission, she took the parcel frommr. Shailender Sharma (PW. 12) and handed it over to him for its delivery to theappellant. On the contrary, Mr. Vasudev (PW. 7) testified that on 19. 4. 1996 at about11 A. M. , Mr. R. P. Sharma (PW-14) called him in his office and directed him to deliverthe parcel to the appellant. Shailender Sharma (PW. 12) and handed it over to him for its delivery to theappellant. On the contrary, Mr. Vasudev (PW. 7) testified that on 19. 4. 1996 at about11 A. M. , Mr. R. P. Sharma (PW-14) called him in his office and directed him to deliverthe parcel to the appellant. He further deposed that he had submitted the appellant sapplication (Ex. PW. 1/f) before MR. R. P. Sharma (PW. 14), who had accorded hispermission at about 11. 25 A. M. and thereafter he delivered the parcel to the appellant. It is also significant to mention that Mr. R. P. Sharma (PW. 14) has denied having metwith Mr. Vasudev (PW. 7) or Ms. Suman Kumari (PW. 11) on 19. 4. 1996. Viewing thediscrepancies in the evidence of Mr. Vasudev (PW. 7), Ms. Suman Kumari (PW. 11)and Mr. R. P. Sharma (PW. 14), it is difficult to believe the aforesaid statement of Ms. Suman Kumari (PW. 11 ) regarding delivery of parcel to the appellant. ( 22 ) IT is the case of prosecution that the parcel in question was delivered to theappellant after obtaining the written permission of the Deputy Chief Postmastermr. R. P. Sharma (PW. 14 ). According to the evidence of Mr. Vasudev (PW. 7) andms. Suman Kumari (PW. 11), the parcel was delivered to the appellant around 10. 30to 11 A. M. As per prosecution case, the parcel was recovered from the appellant spossessions around 12 tol P. M. It is significant to mention that there is a materialdiscrepancy in the evidence of Mr. Vasudev (PW. 7), Ms. Suman Kumari (PW. 11),mr. Shailendra Sharma (PW-12) and Mr. R. P. Sharma (PW. 14) about the time of grantof permission by Mr. R. P. Sharma (PW. 14) to the appellant to collect the parcel. Asnoticed earlier, MR. Vasudev (PW-7) deposed that the permission was granted bymr. R. P. Sharma (PW. 14) at 11. 25 A. M. , whereas, Ms. Suman Kumari (PW. 11 ) wantsus to believe that the parcel was delivered to the appellant around 10. 30 to 11 A. M,mr. R. P. Sharma (PW. 14) has a different story to tell about the time of grant of the saidpermission. He has contradicted the statements of Mr. Vasudev (PW. 7) andms. Suman Kumari (PW. 11 ) by denying his meeting with them on 19. 4. 1996. ( 23 ) ACCORDING to Mr. 30 to 11 A. M,mr. R. P. Sharma (PW. 14) has a different story to tell about the time of grant of the saidpermission. He has contradicted the statements of Mr. Vasudev (PW. 7) andms. Suman Kumari (PW. 11 ) by denying his meeting with them on 19. 4. 1996. ( 23 ) ACCORDING to Mr. R. P. Sharma (P. W. 14) on 19. 4. 1996 at about 1 P. M. . while hewas proceeding to attend a meeting at the General Post Office, Mr. Shailendersharma (P. W. I 2) informed him enroute about arrival of a person at the Post Office toclaim the parcel and he, therefore, asked him to go ahead with the plan andproceeded for the meeting. It is relevant to mention that at that time, Mr. D. N. Tyagi (PW. 1), Ms. Suman Kumari (PW. 11) and Mr. Shailendra Sharma (PW. 12) weresupposed to be at the Shiva Guest House Conducting search of the room occupiedby the appellant. However, the evidence of Mr. R. P. Sharma (PW. 14) makes it clearthat till 1 P. M. no permission had been granted by him regarding delivery of theparcel. He further testified that when the meeting was in progress, one messengerhad brought the application (Ex. PW. 1/f) for his permission and that he returned fromthe meeting at 3. 30 P. M. Thus, his evidence clearly shows that the permission todeliver the parcel to the appellant must have been granted by him in between 1 P. M. to 3. 30 P. M. That being so, the parcel in question could not have been delivered tothe appellant around 10. 30. A. M. to 11. 30 A. M. as asserted by Mr. Vasudev (PW. 7),ms. Suman Kumari (PW. 11) and Mr. Shailendra Sharma (PW. 12 ). On the contrary,according to the evidence of Mr. R. P. Sharma (PW. 14), the parcel ought to have beendelivered to the appellant after 1 P. M. If that is so, the parcel could not have beenrecovered form the appellant s possession around 12 A. M. to 1 P. M. as asserted byms. Suman Kumari (PW. 11) and Mr. Shailendra Sharma (PW. 12 ). R. P. Sharma (PW. 14), the parcel ought to have beendelivered to the appellant after 1 P. M. If that is so, the parcel could not have beenrecovered form the appellant s possession around 12 A. M. to 1 P. M. as asserted byms. Suman Kumari (PW. 11) and Mr. Shailendra Sharma (PW. 12 ). It is pertinent tomention that in a criminal case the accused has no other way to show that a falsecase has been foisted on him except to show that the witnesses examined by theprosecution are not telling the truth when they are making discrepant statements onmaterial aspects of the case. It has to be borne in mind that admittedly the addresseeof the parcel in question was elizabeth Evans and name of the appellant is Emmacharlotte Eve. There is no similarity between these two names. Since the parcel inquestion was aregistered parcel, it could have been delivered only to elizabethevans , which if unclaimed would only bring into play the procedure laid down inchapter VII of the Indian Post Office Act. The procedure supposedly adopted by thedeputy Chief Postmaster (PW. 14) requiring the appellant to make the application (Ex. PW. I/f) to deliver the parcel to her despite her passport indicating that she wasnot the addressee, was not warranted by the Indian Post Office Act. Keeping in viewof the aforesaid material discrepancies, in the evidence of the prosecution witnesses,the whole episode regarding delivery of the parcel in question to the appellant seemsto be doubtful. ( 24 ) THERE is yet another staggering circumstance which has shaken the foundationof the prosecution case to an irreparable extent. According to the evidence ofmr. D. N. Tyagi (PW. 1), Ms. Suman Kumari (PW. 11) and Mr. Shailender Sharma (PW. 12), on 19. 4. 1996, Ms. Suman Kumari (PW. 11) had disguised herself as postalassistant and the parcel containing the contraband was delivered to the appellant inher presence at the post office. If that was so, there was no reason for Ms. Sumankumari (PW. 11), Mr. N. D. Tyagi (PW. 1) and Mr. Shailender Sharma (PW. 12) not toseize the said parcel from the appellant s possession at the post office itself. Theprosecution version could have assumed plausibility only if it was shown that theappellant was apprehended and the parcel was seized while she was about to leavethe post office. Sumankumari (PW. 11), Mr. N. D. Tyagi (PW. 1) and Mr. Shailender Sharma (PW. 12) not toseize the said parcel from the appellant s possession at the post office itself. Theprosecution version could have assumed plausibility only if it was shown that theappellant was apprehended and the parcel was seized while she was about to leavethe post office. However, no explanation, whatsoever, has been offered by theprosecution as to why the appellant was not apprehended after receiving the parcelat the post office it self-and why she was allowed to proceed to the guest house. In herexamination under Section 313 Cr. P. C. , she has stated that on the day in questionthe parcel in question was planted on her by officers of the NCB. In the context of thesaid defence plea, non-seizure of the parcel in question from the appellant spossession at the post office assumes significance and renders the prosecutioncase doubtful about recovery of the contraband from the appellant s possession. . ( 25 ) IT is worth mentioning that Panch witnesses Mr. Neeraj Jain- (PW-3) and Radheyshyam (PW. 4) have not supported the prosecution case regarding recovery of thecontraband from the appellant s possession. They have been declared hostile by theprosecution. Even assuming that on 19. 4. 1996, the the parcel containing thecontraband was recovered from the appellant s possession, the further questionwhich arises for consideration is whether provision of Section 54 of the Act can beinvoked to raise a presumption against the appellant. Section 54 of the Act raises apresumption of guilt from possession of any narcotic drug of psychotropic substanceor any illicit article mentioned therein. It is well settled that unlawful possession of thecontraband is the si-r qua non for conviction under the Act and that fact has to beestablished by the prosecution beyondreasonable doubt (Syed Mohd. Syed Umersyed and other s. State of Gujarat JT 1995 (3) SC 489; Aii Mustaffa Vs. Stateof Kerala AIR 1995 SC 244 ). Possession has not been defined in the Act but hasbeen judicially construed to be conscious and intelligent possession and not merelythe physical presence of the accused in proximity or even in close proximity to theobject. (Rubyana Vs. State of Maharashtra 1996 Crl. L. J. 148; Pritam Singh Dalipsingh Vs. Stateof Kerala AIR 1995 SC 244 ). Possession has not been defined in the Act but hasbeen judicially construed to be conscious and intelligent possession and not merelythe physical presence of the accused in proximity or even in close proximity to theobject. (Rubyana Vs. State of Maharashtra 1996 Crl. L. J. 148; Pritam Singh Dalipsingh Vs. State AIR 1967 Punjab 50.) There are two essential elements of possession;firstly, the corpus - the element of physical control and secondly, the animus or intentwith which such control is exercised. It is conscious and intelligent possession of anycontraband which attracts penal provision of the Act and it is for the prosecution toestablish that the accused was found in conscious and intelligent possession of thecontraband. In Mahara Prithvi Singh J/vs. State of Bombay MR 1960 SC 483,accused was prosecuted for the offences punishable under Sections 65 (a) and 65 (b)of the Bombay Prohibition Act on the allegations that he and his servant travelledfrom Delhi to Abu Road by the train. At the Abu Road Station, the accused detrainedand his servant took out his luggage and followed his master to the 1st Class waitingroom. After some time, the accused s luggage was loaded into the trailer attached toa jeep car. Some time later, the accused got into the jeep and when the jeep wasabout to start, a police head constable stopped it in order to made a search inconnection with a suspected offence. On search, 75 bottles of foreign liquor werefound in the trunks belonging to the accused as well as two half consumed bottles,one of which was in an attache case. The accused admitted the ownership of theluggage but he took the plea that he did not know about the existence of thesenumerous bottles of foreign liquor in his trunks or attache case. The Apex Courtacquitted the accused on the ground of failure of the prosecution to prove that theaccused had knowledge of the contents of his luggage and had accordinglypossessed and imported an intoxicant in contravention of the provisions of thebombay Prohibition Act. ( 26 ) IN order to connect the appellant with the contraband, it is alleged that on 28thmarch, 1996, the parcel in question was posted from Santa Marta (Columbia) by theappellant. Reliance was placed on the appellant s air ticket (Ex. P. I ) to show that on28. 3. 1996, at about 7. ( 26 ) IN order to connect the appellant with the contraband, it is alleged that on 28thmarch, 1996, the parcel in question was posted from Santa Marta (Columbia) by theappellant. Reliance was placed on the appellant s air ticket (Ex. P. I ) to show that on28. 3. 1996, at about 7. 20 A. M. the appellant left Bogota (Columbia) by an internationalflight. On the basis of the said air ticket an interference was sought to be drawn thatthe parcel in question was posted by the appellant. It is relevant to mention that thereis not an iota of legal evidence on record to prove that on 28. 3. 1996, the parcel inquestion was posted by the appellant. As noticed earlier, the addressee of the saidparcel was Elizabeth Evans and not the appellant. If the appellant wanted to importcocaine into India through post she would hardly have chosen to import it throughregistered post and that too in a name which does not telly with the name in herpassport. That apart, no circumstance regarding appellant s departure from Columbiaon 28. 3. 1996, or regarding the despatch of a parcel from Santa Marta on that datewas put to her in her examination under Section 313 Cr. P. C. It is well settled thatcircumstanfes, appearing on record against an accused, which were not put to him inhis examination under Section 313 Cr. P. , are to be completely excluded fromconsideration (Sharad Birthichand Vs. State of Maharastra AIR 1984 SC 1622 ). Thus, the circumstance that on 28. 3. 1996, the appellant had left Columbia by aircannot be pressed into service to raise any adverse inference against her. the prosecution has examined handwriting expert Mr. N. K. Agarwal (PW-15), whodeposed that address on the parcel in question and the application (Ex. PW-1/f)have been written by the same person. As per prosecution case, the application (Ex. PW-1/f) had been written by the appellant. In State of H. P. Vs. Jai Lal andothers, J. T. 1999 (6) SC 548, it was held that "an expert is not a witness of fact. Hisevidence is really of an advisory character. The duty of an expert witness is to furnishthe Judge with the necessary scientific criteria for testing the accuracy of the conclusionsso as to enable the Judge to form his independent judgment by the application of thiscriteria to the facts proved by the evidence of the case. Hisevidence is really of an advisory character. The duty of an expert witness is to furnishthe Judge with the necessary scientific criteria for testing the accuracy of the conclusionsso as to enable the Judge to form his independent judgment by the application of thiscriteria to the facts proved by the evidence of the case. " It has to be borne in mind thatadmittedly the application (Ex. PW-1 /f) is not the specimen handwriting of the appellant. the appellant s specimen handwriting is Ex. PW-1/z. It is significant to mention thatmr. N. K. Agarwal (PW-15) has not opined that the specimen handwriting of theappellant (Ex. PW-1/z) is similar to that of the application (Ex. PW-1/f) or the parcel inquestion (Ex. PW-1/g ). That being the position, the evidence of Mr. N. K. Agarwala (PW-15) does not help the prosecution to connect the appellant with the parcel inquestion (Ex. PW-1/g ). Thus, there is nothing on record to establish that the appellanthad knowledge of the contents of the parcel in question and she had accordinglypossessed and imported the contraband in contravention of the provisions of the Act. For the foregoing reasons I find and hold that the prosecution has failed to provebeyond any shadow of doubt that on 19th April, 1996, the parcel in question containingthe contraband was recovered from the conscious and intelligent possession of theappellant. Consequently, the provision of Section 54 of the Act cannot be invoked toraise a presumption of full guilt against the appellant. ( 27 ) EVEN assuming that the parcel in question containing the contraband wasrecovered from the appellant s possession, the further question which arises forconsideration is whether the prosecution has proved all the links starting from theseizure of the contraband till the same reached the office of the Chemical Examinerin order to show that seals of the sampled contraband remained untempered withthroughout. As noticed earlier, on 3. 4. 1996, the parcel in question was seized andconfiscated in Germany. Thereafter, the parcel changed several hands. In State ofrajasthan Vs. Daulat Ram, AIR 1980 SC 1314 , it was found that the samples ofopium changed several hands before reaching the Public Analyst and yet none ofthose in whose custody the samples remained were examined by the prosecution toprove that while in their custody the seals on the samples were not tampered with. In State ofrajasthan Vs. Daulat Ram, AIR 1980 SC 1314 , it was found that the samples ofopium changed several hands before reaching the Public Analyst and yet none ofthose in whose custody the samples remained were examined by the prosecution toprove that while in their custody the seals on the samples were not tampered with. Itwas held that the inevitable effect of the said omission was that the prosecution failedto rule out the possibility of the samples being changed or tampered with during theperiod in question - a fact which had to be proved affirmatively by theprosecution. ( 28 ) ON 10. 4. 1996, the said parcel was received at the Airport by Mr. Shailendersharma (P. W. 12 ). According to Mr. Shailender Sharma (P. W. 12) the parcel remainedin his custody from 10th April, 1996 to 19th April, 1996. Mr. D. N. Tyagi (P. W. 1), Ms. Suman Kumari (P. W. 11) and Mr. Shailender Sharma (P. W. I 2) deposed that theparcel was seized from the appellant s possession on 19. 6. 1996. Intelligence Officershri D. N. Tyagi (P. W. 1) deposed that the entire case property and the sampledpackets were deposited by him in the Malkhana on the same day and at that timeassistant Director, Mr. Shailender Sharma, (P. W. 12) was the Incharge of the Malkhana. In his cross-examination he has stated that the said property remained in the Malkhanafrom 19. 4. 1996 to 22. 4. 1996. On the contrary Mr. Shailender Sharma (P. W. 12)pleaded ignorance about the officer who was Incharge of the Malkhana from 19. 4. 1996to 22. 4. 1996. He further stated that the Investigating Officer concerned retrieved theparcel from the Malkhana on 22. 4. 1996, and delivered it to him. In view of thecontradictory statements of the said witnesses it becomes doubtful that after seizureof the contraband the sealed parcel and the samples were deposited in the Malkhana. It is also significant to mention that in the instant case neither the Malkhana inchargenor the Malkhana register was produced to prove that the parcel and the sampleswere in fact deposited in the Malkhana by Mr. D. N. Tyagi (P. W. 10) and remainedthere in safe custody. No explanation, whatsoever, has been given for non examinationof the Malkhana incharge or non production of the Malkhana Register. This gives riseto an adverse inference against the prosecution case [kiziti EL EBE Vs. D. N. Tyagi (P. W. 10) and remainedthere in safe custody. No explanation, whatsoever, has been given for non examinationof the Malkhana incharge or non production of the Malkhana Register. This gives riseto an adverse inference against the prosecution case [kiziti EL EBE Vs. CBI ] 39 (1989) DLT 439 ). In this view of the matter, it is difficult to hold that on 19. 4. 1996, theseized there was no tampering with the parcel/samples of the contraband. ( 29 ) IT is worth mentioning that Mr. Shailender Sharma (P. W. 12) deposed that theseal No. 10 which was used in the proceedings was received by him from the Zonaldirector Shri Mukesh Khullar (P. W. 16) and after completing the formalities Mr. D. N. Tyagi (PW-1) returned the said seal and he handed over the same to Mr. Mukeshkhullar. He further testified that on 22. 4. 1996, he again took the seal from Mr. Khullar (P. W. 16) for using it on the test memos prepared on that day and after using thesame he returned it to Mr. Khullar on the same day. It has also come in his evidencethat on 22nd April, 1996, he took out the sampled contraband and delivered thesame along with test memos in duplicate to Mr. Hawaldar Jaspal Singh for onwardtransmission to the CRCL. Thus, the testimony of Mr. Shailender Sharma P. W. 12shows that test memos were not prepared on the date of the alleged seizure of thecontraband but the same were prepared on 22. 4. 1996. No explanation has beenoffered by the prosecution for non preparation of the test memos on the date of thealleged seizure of the contraband. It is well settled that tilt the case property has notbeen despatched to the CFSL or CRCL, the seal should not be available to theprosecuting agency but it should be given to an independent witness and in theabsence of such safeguard, the possibility of the seal being tampered with and thesubstance being changed and the containers being re-sealed cannot be ruled out. ( 30 ) IN Shafiullah Vs. State 49 (1993) DLT 193, it was found that the seals remainedwith the police officers after use and the CFSL form was neither prepared on the spotnor deposited in the Malkhana and this circumstance was held to be fatal to theprosecution case. ( 31 ) IN Afsar Hussain Vs. ( 30 ) IN Shafiullah Vs. State 49 (1993) DLT 193, it was found that the seals remainedwith the police officers after use and the CFSL form was neither prepared on the spotnor deposited in the Malkhana and this circumstance was held to be fatal to theprosecution case. ( 31 ) IN Afsar Hussain Vs. NCT of Delhi 72 (1998) DLT 261 it was found that aftersealing the contraband, the seals were returned to the Station House Officer and thecase property was deposited by the SHO in the Malkhana after about 5 days ofacquiring the seals from a prosecution witness examined in the case. It was held thatin view of the fact that the seals were available with the SHO and the pulandasremained with him for a period of five days, the likelihood of tampering with thesample and the case property cannot be ruled out. ( 32 ) REFERENCE may, in this connection, be made to the decision of this Court inchameli Devi Vs. State 1994 (2) FAC 476; Abdul Ghaffar Vs. State 1996 JCC497; Mehandi Hasan Vs. State 63 (1996) DLT 963, Mohd. Salim Vs. State 66 (1997) DLT 826, Rajinder Kumar s. State 63 (1996) DLT 721 In this connection, Imay usefully excerpt following observations of this court in Moot Chand Vs. Thestate (II) (1993) CCR 964; ". . . . . . . . . THE very name given to this form as C. F. S. L. Form suggests the objectof its preparation at the time of seizure of a contraband article and separationof its representative sample. The specimen seal impressions used at thattime are affixed on it, so that it can be deposited with case property in themalkhana and forwarded to C. F. S. L. along with the sample parcel so thatseal impressions affixed on the sample parcel are duly compared with theseal impressions on the C. F. S. L. form. The idea behind taking suchprecautions is to complete a material link in the prosecution evidence byeliminating the possibility of the sample being tampered with. The sentenceprovided under this Act is very severe. It cannot be less than 10 years R. I. and a fine of Rupees one lac. If the sentence is so severe, the Courts willnaturally insists for the standard of proof also beyond the shadow of allreasonable doubt against an accused. Suspicion, however strong, cannottake the place of positive proof. . . . It cannot be less than 10 years R. I. and a fine of Rupees one lac. If the sentence is so severe, the Courts willnaturally insists for the standard of proof also beyond the shadow of allreasonable doubt against an accused. Suspicion, however strong, cannottake the place of positive proof. . . . . . . . . . . . . . . "similarly in Lalman Vs. State 75 (1998) DLT 224 it was held by this court that ;- "cfsl form is a very valuable safeguard to ensure that the sealed sample isnot tampered with till its analysis by the CFSL Analyst. The CFSL form shouldnot only be prepared and sealed by the officer making the seizure at theplace where the case property is seized from the the accused, it should alsobe sealed by the SHO to whom the sample and case property is handed overand the same should accompany the sample sent to the CFSL. The purposeof specimen seal is to compare the same with the seals on the sample parcelsmeant for analysis and report by CFSL to ensure that the samples are nottampered with. In the absence of CFSL form, it cannot be said that the puretyof the sample remained intact. Benefit of its absence should go to theaccused. "( 33 ) AS demonstrated earlier, in the instant case the prosecution has failed toestablish that adequate precautions were taken by the prosecuting agency to completematerial link in the prosecution case by eliminating the possibility of the sample beingtampered with. The benefit arising out of such a doubtful situation must necessarilygo the appellant. ( 34 ) THE crucial question which arises for determination is whether the substancesproduced before the trial court was cocaine. The learned Additional Sessions Judge,on the basis of the report of the Chemical Examiner, came to the conclusion that theparcel in question was found to contain cocaine. It is significant to mention that thereport of the Chemical Examiner was not tendered in evidence. It is well settled thatthe formal proof of a document can be waived by the party against whom it is soughtto be used. In the instant case, the report of the Chemical Examiner is a disputeddocument and there is nothing on record to show or suggest that the appellant hadwaived her right to have the said report proved. It is well settled thatthe formal proof of a document can be waived by the party against whom it is soughtto be used. In the instant case, the report of the Chemical Examiner is a disputeddocument and there is nothing on record to show or suggest that the appellant hadwaived her right to have the said report proved. Section 293 of the Code of Criminalprocedure povides that any Government Scientific Expert may be received in evidencewithout examining the expert to whom the said Section applies. Section 293 engraftsa special rule of evidence and makes any document, purporting to be a report underthe hand of a Government Scientific Expert to whom this Section applies upon anymatter or thing duly submitted to him for examination and report, admissible inevidence without calling such expert as a witness. This, however, does not imply thatwithout tendering the report in evidence, it can be made use of. Thus, the provisionscontained in Section 293 Cr. P. C. do not rule out the requirement of the Indianevidence Act and do not in any event override the provisions contained in Section 61to Section 64 thereof. The document envisaged by Section 293 Cr. P. C. can be usedas evidence in an enquiry or a trial. It is a piece of evidence that does not require anyformal proof but at the same time it must be tendered as evidence and used as such,so that the accused may have a chance of questioning the identity of the sampledpackets. In the instant case, none of the prosecution witnesses has stated that thereport of the Chemical Examiner dated 28. 5. 1996 pertains to the substance allegedto have been recovered from the appellant s possession. The document as noticedearlier was not even exhibited in evidence. In that view of the matter, the learnedadditional Sessions Judge has committed a grave legal error in convicting theappellant on the basis of the said report. In failure of the said report, having beenformally tendered in evidence, there is really no satisfactory evidence to show that thepowder contained in the capsules recovered from the parcel in question was cocaine. The case must, therefore, fall to the ground. UNFORTUNATELY, the learned Additional Sessions Judge did not take notice of theaforesaid infirmities in the prosecution case and unjustifiably accepted the prosecutionevidence. Consequently, the impugned order of conviction and sentence cannot besustained in law. The case must, therefore, fall to the ground. UNFORTUNATELY, the learned Additional Sessions Judge did not take notice of theaforesaid infirmities in the prosecution case and unjustifiably accepted the prosecutionevidence. Consequently, the impugned order of conviction and sentence cannot besustained in law. IN the result, the appeal is allowed and the appellant s conviction and sentence isset aside. The appellant is acquitted of the offences punishable undersections 21/23 of the Act. The appellant, who is in custody, shall be set at liberty forthwith, if notwanted in any other case. Fine if paid,-shall be refunded to the appellant. Appellant spassport and the air ticket shall also be returned to the appellant.