JUDGMENT 1. - Both the accused appellants namely; Kishan Lal and Sugan Lal were tried by the learned Special Judge, NDPS Court, Bundi for having committed offence under section 8/18. The learned Special Judge having found the prosecution story as alleged, proved, held the accused appellants guilty of the offence under section 8/18 of the Act and accordingly convicted them of the said offence and sentenced each of them to undergo ten years' rigorous imprisonment with a fine of Rs. one lac, in default thereof, each was to further undergo two years' rigorous imprisonment. 2. As per the prosecution case, on 26.4.1997 Bajrang Lal, Sub Inspector, Central Narcotics Bureau, Kota submitted a report that he, while in the process of checking to prevent smuggling of narcotic drugs, under the leadership of Superintendent (Prevention) got Bus No. RJ 01-P 1014 stopped. During the course of search, he found a person in suspicious condition sitting on seat No.37, who, on enquiry, disclosed his name as Sugna S/o Srilal. He was alighted from the bus and was informed of his legal right under section 50 of the Act to get his search conducted either in the presence of a nearest Magistrate or in the presence of a Gazetted Officer. For this purpose PW3 Bajrang Lal gave him a written notice, Ex.P/1. Appellant Sugna desired that his search could be conducted in the presence of Shri Nandlal Rai, Superintendent who was present at the scene. An endorsement to this effect was made on the notice itself and the appellant put his thumb impression. On search, some substance was found duly tied on the stomach of appellant Sugna, which was stated to be opium. On getting the same weighed, it was found to be weighing 2.00 Kgs. He then prepared seizure memo Ex.P/2. The Sub Inspector when took two samples of 24 grams each out of the seized opium and sealed the same in two different packets. The remaining opium was also sealed in a separate packet. After completing necessary formalities. PW3 submitted a First Information Report, Ex.P/10 to the Superintendent (Prevention, upon which a case was registered and investigation was entrusted to PW5 Jamnalal Meena. Inspector. 3. On the basis of Statement of appellant Sugna. Ex.P/13 that he had purchased 2 Kgs. opium from appellant Kishanlal @ Rs.5000/- per Kg. After completing necessary formalities. PW3 submitted a First Information Report, Ex.P/10 to the Superintendent (Prevention, upon which a case was registered and investigation was entrusted to PW5 Jamnalal Meena. Inspector. 3. On the basis of Statement of appellant Sugna. Ex.P/13 that he had purchased 2 Kgs. opium from appellant Kishanlal @ Rs.5000/- per Kg. Jamnalal Meena, Inspector along with other officials proceeded to the house of Kishan Lal and recovered opium weighing 12.600 Kgs. 4. The investigating agency completed investigation and submitted charge sheet against both the appellants in the court of Sessions Judge. The case came to the tried by the learned Special Judge, NDPS Act Cases. 5. The learned Special Judge after hearing arguments and on the basis of material available on record, framed charges against the appellants. The appellants denied the charges and claimed trial. During trial, the prosecution in support of its case, examined 5 witnesses and exhibited some documents. Thereafter the appellants were examined under section 313 Cr. P.C. The appellant did not examine any witness in their defence. 6. At the conclusion of trial, the learned Special Judge having found the appellants guilty of offence under section 8/18 of the Act and accordingly convicted and sentenced them as aforesaid. Hence the present appeals. 7. I have heard learned counsel for the parties and perused the judgment under appeal and the evidence and material available on record. 8. In assailing the conviction, learned counsel for the appellants vehemently contended that the opium was alleged to be recovered from appellant Sugna on 26.4.97 at 9.30 AM while he was travelling in RSRTC but No. RJ 01 P-1014. But according to him, there is no evidence to prove that the substance recovered from his possession was opium, was to get the report of Forensic Science Laboratory exhibited in evidence. However, the prosecution has failed to get the same exhibited. In this back-ground, learned counsel submitted that since the prosecution has not been able to establish that the substance recovered from the possession of appellant Sugar was opium, the appellant cannot be said to have committed any offence under the Act and he is entitled to acquittal only on this score. 9. I have considered the above argument and gone through the record of the case. From the record it appears that the FSL report has not been exhibited. 9. I have considered the above argument and gone through the record of the case. From the record it appears that the FSL report has not been exhibited. In the cases under the NDPS Act, the report of Chemical Examiner plays vital role. The importance of the report of Chemical Examiner is that the Court may feel satisfied that the article or substance recovered was only contraband, whether opium, smack, charas or heroin, as the case may be and nothing else. It is well settled that unexhibited document should not and could not be taken note of by the court. 10. It need be mentioned that at serial No.23 of the list of documents annexed with the complaint/charge sheet, there is an entry of chemical report of the Government opium & Alkaloid Works, Neemuch and the same form part of the record of the trial court. However, it appears that the prosecuting agency did not make any effort to get the report exhibited and hence no question with regard to above report of chemical examiner could be put to accused appellants in their statements under section 313 Cr. P.C. Curiously enough, the trial court on the basis of statements of the officials of Narcotics Department concluded that the officials/employees of the Narcotics Department are capable to identify by smell and observation that the article/substance recovered from the appellant was opium. The witnesses of the department, namely, PVV3 Bajrang Lal, Sub Inspector, PW4 Nand Lal Rai, Superintendent. PW5 Jamna Lal Inspector have stated in their statements that they identified the seized article as opium by its smell. 11. From the discussions made above, the question which now emerges is, whether the above referred officials of the Narcotics Department can be said be experts in the matter of identification of opium merely by smell and observation? 12. Ah expert is one who has acquired special knowledge, skill or experience in science, art, trade or profession. Such knowledge can be acquired by practice, observation, research or careful study on the subject. If one is produced in evidence as an expert, the prosecution is obliged to first establish the expertise of that witness to judge his competency as an expert witness. Such knowledge can be acquired by practice, observation, research or careful study on the subject. If one is produced in evidence as an expert, the prosecution is obliged to first establish the expertise of that witness to judge his competency as an expert witness. In the case at hand, the witnesses have claimed themselves to be experts in testing opium by smell or observation, but there is no evidence on record as to the nature of training and qualification acquired. Therefore, in my considered view, such evidence cannot be said to be legal or sufficient and no reliance can be placed on the opinion of the officials of Narcotics Department as an expert, inasmuch as it lacks objectivity expected professional skill and accuracy. 13. From what has been discussed-above, the only inevitable conclusion it that there is no iota of evidence to hold that the substance alleged to be seized from the possession of appellant was opium and nothing else. 14. Yet. there is another infirmity in the prosecution case. The prosecution is duty bound to prove that the seals of sample remained intact right from its seizure till the same reached the public Analyst for its chemical examination. PW4 Nand Lal Rai has deposed that one sample was handed over to Constable Muneer Khan on 22.4.97, for depositing it for chemical analysis at Neemuch, who in turn obtained receipt, Ex.P/19 on 28.4.97 and submitted the same. The fact that the sample remained intact during the period in question had to be proved affirmatively by the prosecution. 15. However, the prosecution has not examined Muneer Khan to prove that the sample remained intact during the intervening period i.e. 6 days, in which he was in possession of the sample and that there was no tempering with the sample. Therefore, the inevitable effect of this omission in the prosecution case is that the prosecution has failed to rule out the possibility of the same being changed or tampered with. Reference in this regard may be made to be a decision of the Apex Court in State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 , wherein the sample remained in the custody of different persons and none as examined in evidence. Their Lordships held as under:- "yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. Their Lordships held as under:- "yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this period-a fact which had to be proved affirmatively by the prosecution." 16. Now. I shall deal with the conviction of appellant Kishan Lal. The learned trial court has convicted appellant Kishan Lal solely on his statement. Ex.P/15 recorded by PW5 Jaman Lal. Superintendent. Narcotics Department under section 67 of the Act. Jamna Lal had arrested the appellant vide arrest memo Ex.P/11 on 26.4.97 at 10.30 PM. Prior to it, his house was searched and opium weighing 12.600 Kgs was recovered which the appellant had cultivated under a licence issued by the competent authority. Thereupon, the appellant was served with a summon issued to him under section 67 of the Act and he was required to attend the office of Deputy Commissioner. Narcotics, Kota on 26.4.97 for interrogation purposes. Pursuant to the summon, appellant appeared before the Deputy Commissioner and he was interrogated-. His statement, Ex.P/15 was recorded and thereafter his arrest was made. From a glance at Ex.P/15. it appears that no time of recording the statement of appellant has been mentioned. PW5 Jamnalal who recorded his statement expressed his inability to state the time of recording the statement. Likewise, PW4 Nand Lal Rai in whose presence the appellant's statement was recorded, also could not state the time of recording the statement. 17. Thus, in the light of the evidence discussed above it cannot be concluded that the statement of appellant Kishan Lal was recorded prior to his arrest. It is settled proposition of law that the statement of a person accused of an offence recorded after his arrest in not admissible and it is hit by Article 20(3) of the Constitution of India. 18. In the case of Kingsley and another v. State of Rajasthan, 1996 (3) Crimes 370 , this court dealing with the provisions of section 67 of the Act held that the statement recorded after the accused was arrested cannot be read against him because of the bar created by Article 20(3) of the Constitution of India. 19. 18. In the case of Kingsley and another v. State of Rajasthan, 1996 (3) Crimes 370 , this court dealing with the provisions of section 67 of the Act held that the statement recorded after the accused was arrested cannot be read against him because of the bar created by Article 20(3) of the Constitution of India. 19. In Veera Ibrahim v. State of Maharashtra, AIR I976 SC 1161, their Lordships of the Supreme Court while discussing substantial question of law relating to the admissibility of confessional statement of the accused as per sections 108 and 135 of the Customs Act, held that when the statement of the appellant was recorded by the Custom Officer under section 108, the appellant was a person accused of any offence under the Customs Act, 1962. An accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him by the Assistant Collector of Customs complaining of the commission of offence under section 135(a) and section 135(b) of the Customs Act. 20. In Narcotic Control Bureau v. Gani Khan, 1994 Cri. L.R. 355, , this court while dealing with the same controversy as that involved in the present case held that the statement tinder section 67 of the NDPS Act cannot be read against him, if the accused is already mentioned as an accused,, in view of the bar created by Article 20(3) of the Constitution India. 21. Recently, this court again in Satya Narayan v. Union of India, SB Cr. Appeal No.712/98 decided on 16.5.2001. , after considering the above referred decisions of the Apex Court and this court, concluded the statement recorded under section 67 of the NDPS Act cannot be read against him because of the bar created by Article 20(3) of the Constitution of India. 22. One more aspect, which also needs to be considered is that the investigating agency did not made any attempt to collect evidence as regards sale of opium by Kishan Lal to Sugan. Secondly, Jamna Lal has admitted that opium recovered from the house of Kishan Lal was his cultivated opium under a licence, the weight of which was recorded in the records of Lambardar. Secondly, Jamna Lal has admitted that opium recovered from the house of Kishan Lal was his cultivated opium under a licence, the weight of which was recorded in the records of Lambardar. That apart, the District Opium Officer has not been examined to prove the fact that in fact much more opium than what he had in his possession and entered in the records of Lambardar was cultivated by appellant Kishan Lal. Thirdly, the case of the prosecution is that accused Kishan Lal had cultivated opium under a licence issued by the competent authority, but he instead of depositing the entire opium embezzled or otherwise illegally disposed off 2 Kgs of opium to appellant Sugan. Section 19 of the Act covers such type of criminal acts of opium cultivators under a licence. However, there is no evidence on record to conclude that Kishan Lal sold 2 kgs opium to appellant Sugan. 23. For the reasons aforesaid, it must be held that the prosecution has not been able to prove beyond doubt the guilt against both the appellants and therefore, conviction of the appellants cannot be sustained and they deserve to be acquitted. 24. In the result, both the appeals arc allowed. The judgment under appeals convicting and sentencing the appellants is set aside and the appellants are acquitted of the offence charged with. They are in jail and be set at liberty if not required in any other case.Appeals allowed. *******