Judgment 1. This appeal has been preferred against the judgment of conviction and sentence dated 24.2.2004 passed by 7th Additional District and Sessions Judge, Bettiah in Trial No. 11 of 1995. The sole appellant has been convicted under Sec. 23 of the N.D.P.S. Act and has been sentenced to undergo R.I. for ten years with fine of Rs. 1,00,000.00 in default to undergo further imprisonment for two years R.I. 2. On 29.9.1995 at 11.00 P.M., informant/complainant Shri Shakti Bhushan, Inspector of Custom, Bettiah checked a bus bearing No. BR-06/P/1251 named Amar Jyoti, coming from Raxaul and recovered Charas kept in a plastic bag weighing about 3 kgms. from dikky of bus. Two brief case were also found in dikky. The appellant claimed brief case but denied ownership of plastic bag containing Charas. However, the khaiasi of the bus identified this appellant as owner of the plastic bag. 3. The Inspector in presence of two . independent witnesses seized the plastic bag containing Charas and also recorded statement of khalasi. The appellant was also arrested at the spot and the sample of the Charas was sent to the analyst for chemical analysis. After observing legal formalities and receipt of analyst report the informant/complainant lodged prosecution on 14.7.1995. 4. In course of trial, six witnesses including complainant P.W.5, Shakti Bhushan and khalasi, P.W.6, Ram Prakash Singh have been examined on behalf of the prosecution. 5. Defence is denial of the allegations levelled against him. However, no witness has been examined in support of his defence. 6. In course of argument, the learned Counsel for the appellant challenged the judgment in question both in law as well as on facts. It is submitted that there is no material on the record to show that the Charas was recovered from possession of the appellant. The only witness on this point, P.W.6, has denied that the plastic bag in question belonged to the appellant. Therefore, no presumption of guilt can be drawn against the appellant u/s. 54 of the N.D.P.S. Act. The other submission of the learned Counsel is that the sample of Charas was also not chemically examined by chemical examiner as defined under Rule 2(c) of N.D.P.S. Rules 1985. Director, Forensic Science Laboratory, Bihar was not the legally authorised examiner to chemically examine N.S.P.S. Substance. Therefore, the appellant cannot be convicted on the basis of such chemical examination result. 7. Director, Forensic Science Laboratory, Bihar was not the legally authorised examiner to chemically examine N.S.P.S. Substance. Therefore, the appellant cannot be convicted on the basis of such chemical examination result. 7. The short question in this appeal 1s as to whether the prosecution has been able to prove that the plastic bag in question containing Charas was actually belonged to the appellant. Only thereafter question of presumption of guilt as contemplated u/s. 54 of the N.D.P.S. can arise. However, before examining the above question, this Court would like to answer the second point raised by the learned Counsel for the appellant. 8. Ext.7 is the chemical examination repot. It goes to show that the sample of Charas was examined by personnel of the office of the Director, Forensic Science Laboratory, Bihar, Patna. In N.D.P.S. Rules 1985 issued by Ministry of Finance, Central Government chemical examiner has been defined which means chemical examiner, Government Opium and Alkaloid Works Neemuch or, as the case may be, Gazipur. However, rules framed by the Central Government is not applicable in Bihar. The Government of Bihar u/s. 71 of the N.D.P.S. Act, 1985 has framed separate rules which is Bihar N.D.P.S. Rules 1985. According to Rule-3(1)(c) chemical examiner means the chemical examiner to the State Government and includes such other officers whom the State Government or the Central Government may at any time appoint as such. Therefore, office of the Director, Forensic Science Laboratory, Patna being the chemical examiner of the Government of Bihar was the competent chemical examiner which examined the sample of the Charas. Therefore, I do not find any merit on the above submission of the learned Counsel for the appellant. 9. However, so far other point is concerned, it appear to have got merit. The admitted fact is that the plastic bag in question was not recovered from physical possession of the appellant. It was recovered from dikky of the bus. This appellant was arrested and implicated on the basis of statement of khalasi of bus who is P.W.6. Statement of khalasi Ram Pravesh Singh was also recorded by the informant which is Ext.5. P.W.6 in his evidence before the court has supported the fact of recovery of plastic bag from dikky of a bus but has stated that he could not say who was owner of the bag. Statement of khalasi Ram Pravesh Singh was also recorded by the informant which is Ext.5. P.W.6 in his evidence before the court has supported the fact of recovery of plastic bag from dikky of a bus but has stated that he could not say who was owner of the bag. Surprisingly, he has not been declared hostile nor his attention has been drawn towards his earlier statement said to be given before the informant. On the other hand, he has stated in his evidence that his L.T.I. was obtained on plain paper. No any statement was recorded by the custom officials. 10. Apart from the statement of P.W.6, which is Ext.5, there is no legal evidence on the record to prove possession of the bag in question. Thus, it is quite clear that the prosecution has failed to prove that any N.D.P.S. Substance was actually recovered from possession of the appellant. Apparently, the court below has wrongly convicted and sentenced the appellant which is not sustainable either in law or on facts. 11. In the result, this appeal is allowed and the judgment of conviction as well as sentence is hereby set aside. The appellant is directed to be released at once if not wanted in any other case.